Townsend v. State

• Decision Date: 26 September 2002
• Docket Number: No. CR 01-822.,CR 01-822.
• Citation: 85 S.W.3d 526,350 Ark. 129
• Parties: Laveris Darnell TOWNSEND v. STATE of Arkansas.
• Court: Arkansas Supreme Court

Page 526

85 S.W.3d 526

350 Ark. 129

Laveris Darnell TOWNSEND v. STATE of Arkansas.

No. CR 01-822.

Supreme Court of Arkansas.

September 26, 2002.

Clark & Spence, by: George R. Spence, Bentonville, for appellant.

Mark Pryor, Att'y Gen., by: Vada Berger, Ass't Att'y Gen., for appellee.

TOM GLAZE, Justice.

Laveris Townsend was convicted of aggravated robbery, rape, and being a felon in possession of a firearm, and was sentenced to a total of ninety-five years. We accept jurisdiction of this appeal because it involves significant issues needing clarification of the law.

Townsend was originally charged with two counts of aggravated robbery, multiple counts of rape, being a felon in possession of a firearm, and being a habitual offender. The charges stemmed from two robberies in Fayetteville: one at the Red Roof Inn on October 1, 2000, and the second at the Hampton Inn on October 10, 2000. The two cases were severed for trial, and the Hampton Inn robbery was tried first.

Immediately prior to Townsend's first trial, on January 23, 2001, Townsend's attorney, Joel Huggins, filed a motion to withdraw. At a hearing on the motion, Huggins informed the court that he had discovered just the night before that Townsend had filed a civil lawsuit against him in federal court. In that lawsuit, Townsend alleged that Huggins had given him bad advice and had conspired with the Fayetteville Police Department to deprive Townsend of his civil rights. Huggins asked the trial court to permit him to withdraw from further representation of Townsend because of an irreconcilable conflict of interest. The trial court denied the motion, opining that Huggins was a competent attorney and that Townsend would "suffer no prejudice whatsoever" if Huggins continued to represent him.

Townsend was subsequently tried and convicted for the Hampton Inn robbery, but the court of appeals reversed his conviction in Townsend v. State, 76 Ark.App. 371, 66 S.W.3d 666 (2002) (Tawnscod I), on the grounds that the trial court had erred in denying Huggins's motion to withdraw. In that opinion, delivered January 30, 2002, the court of appeals held that the trial court's cursory examination of the situation warranted reversal, stating as follows:

Pursuant to Holloway [v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.E d.2d 426 (1978)], the trial court has a duty, when an objection at trial brings a potential conflict of interests to light, to either appoint different counsel or to take adequate steps to ascertain whether the risk of a conflict of interests was too remote to warrant different counsel. We agree with [Townsend's] argument that the trial court failed to do so in the case at bar. Here, the record shows that the trial judge made only a cursory investigation of the circumstances of the asserted conflict, and summarily ruled on the motion to be relieved in the absence of any information concerning the lawsuit filed against defense counsel. Consequently, we reverse and remand on this point.

Townsend, 76 Ark.App. at 373, 66 S.W.3d 666.

Townsend's trial on the Red Roof Inn robbery and rape charges began on April 12, 2001, and Huggins renewed his motion to withdraw just before the trial commenced, reminding the court that he had alleged a conflict existed due to Townsend's federal lawsuit. The trial court, however, noted that the federal court proceedings had been terminated, and denied Huggins's motion. Townsend was convicted, and argues again in this appeal to our court that the trial court erred in denying Huggins's motion to withdraw. He also asserts that the trial court erred in denying his motion to suppress various identifications made of him.

The main issue for this court to decide is whether the so-called "automatic reversal rule" established in Holloway v. Arkansas, supra, is applicable to Townsend's case. The rule in Holloway applies when conflicts of interest arise from defense counsel's being forced to represent codefendants over a timely objection. Here, on the other hand, the defendant (Townsend) caused a conflict with his attorney to exist when he sued Huggins while Huggins was representing him in a pending criminal case.

In Holloway, upon which Townsend relied in Townsend I and continues to rely in the present appeal, the Supreme Court considered whether or not removal of an attorney was mandated when the attorney simultaneously represented multiple codefendants in a single criminal case. Defense counsel in Holloway had objected that he could not adequately represent the divergent interests of three codefendants, but the trial court, without inquiry, denied counsel's motions for the appointment of separate counsel. The Supreme Court reversed, holding that "joint representation of conflicting interests is inherently suspect," because counsel's conflicting obligations to multiple defendants "effectively sea[l] his lips on crucial matters" and make it difficult to measure the precise harm arising from counsel's errors. Holloway, 435 U.S. at 489-90, 98 S.Ct. 1173 (emphasis added). The critical error in Holloway was the trial court's failure "either to appoint separate counsel or to take adequate steps to ascertain whether the risk was too remote to warrant separate counsel." Id. at 484, 98 S.Ct. 1173 (emphasis added). It was on this basis that the Arkansas Court of Appeals reversed Townsend's convictions in Townsend I.

However, after the Townsend I opinion, the Supreme Court decided the case of Mickens v. Taylor, U.S., 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002), wherein the Court, among other things, further explained and analyzed Holloway. In Mickens, the Court rejected the argument that automatic reversal is required whenever a trial court neglects a duty to inquire into a potential conflict.¹ Instead, the Court held that "an actual conflict of interest" means "a conflict that affected counsel's performance, as opposed to a mere theoretical division of loyalties." Mickens, ___ U.S. at____, 122 S.Ct. at 1243 (emphasis in original). The Mickens Court, quoting Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), stated that "a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief." Id. (citing Cuyler, 446 U.S. at 349-50, 100 S.Ct. 1708) (emphasis in original). Until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance. Thus, in the absence of an "actual conflict," a defendant alleging counsel's performance was deficient due to a conflict must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 1240, 122 S.Ct. 1237. In other words, an analysis of a conflict of interest under Mickens requires the same kind of analysis — and the same kind of demonstration of prejudice — that is required under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), as opposed to the presumption of prejudice (and the consequent automatic reversal) that was explained in Holloway.

In Holloway, one attorney was forced to represent three codefendants on the same charges; the problem was that the attorney felt hampered in his ability to cross-examine one defendant with confidential information he had learned from the other defendants. As discussed above, the Holloway Court concluded that the presumption of prejudice was justified because joint representation of conflicting interests is inherently suspect. Thus, according to the Mickens Court, Holloway creates an automatic reversal rule only where defense counsel is forced to represent codefendants over a timely objection, unless the trial court has determined that there is no conflict. Here, however, the nature of the conflict present in Townsend's case is distinguishable from the kind of conflict described in Holloway. Townsend's "conflict" is of his own making; it does not involve multiple representations of codefendants by a single attorney, but instead occurred when Townsend filed a lawsuit against his lawyer. Thus, we must determine whether or not Townsend has demonstrated prejudice from the trial court's refusal to permit Huggins to withdraw.

Before reaching this analysis, we additionally note that this Strickland-type determination of the existence of prejudice, required by Mickens, is in keeping with our own holdings. In Wilburn v. State, 346 Ark. 137, 56 S.W.3d 365 (2001), an attorney-disqualification case, we held that this court reviews a trial court's decision to disqualify an attorney under an abuse-ofdiscretion standard. There, this court first noted Supreme Court cases holding that where a constitutional right to counsel exists, there is a correlative right to representation that is free from conflicts of interest. In...