White v. Com.

• Decision Date: 22 December 1983
• Citation: 671 S.W.2d 241
• Parties: Karu Gene WHITE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 241

671 S.W.2d 241

Karu Gene WHITE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Supreme Court of Kentucky.

Dec. 22, 1983.

As Modified on Denial of Rehearing

July 5, 1984.

Kevin Michael McNally, Asst. Public Advocate, J. Vincent Aprile II, Asst. Public Advocates, Dept. of Public Advocacy, Frankfort, for appellant.

Steven L. Beshear, Atty. Gen., K. Gail Leeco, Virgil W. Webb III, Asst. Attys. Gen., Frankfort, for appellee.

STEPHENSON, Justice.

Karu Gene White, his half-brother Thomas Bowling, and Charles Fisher were indicted for three counts of capital murder, three counts of first-degree robbery and one count of burglary. Fisher was fifteen years of age at the time of the commission of the crimes. Bowling was also a juvenile. White was an adult. Fisher was granted immunity and testified for the prosecution. Separate trials were ordered and White was tried first. A jury convicted White on all counts, and after the sentencing phase (KRS 532.025) the trial court in accordance with the recommendation of the jury imposed the death sentence for each of the three murders. Bowling was tried later and was sentenced to imprisonment for twenty years.

The victims, Charles and Lula Gross, ages seventy-five and seventy-four, and Sam Chaney, seventy-nine, lived together and operated a small store in rural Breathitt County. (The case was tried in Powell County.) There was an abundance of circumstantial evidence linking White to the murders. Fisher's testimony described in graphic detail the planning of the robbery by White and the gruesome account of the victims being beaten to death. The deputy coroner described the scene and conditions of the bodies. He testified that due to the extent of the injuries the victims were buried in disaster pouches.

During the course of the voir dire, White changed his defense to not guilty by reason of insanity or intoxication. He testified in his own behalf. During the course of his testimony, he stated that he took drugs, LSD being his favorite. On the day of the killings, he took LSD, he and Bowling met Fisher and he procured a tire tool from a parked truck to knock out the victims. (Fisher had testified that he had a wrench and that on the way to the store a tree limb was procured for Bowling.) White testified that he went into the store and saw the victims lying on the floor. He further testified that he did not hit anyone and did not mean to hurt anyone. He said when he forced open the side door of the store, he lost his memory. He denied hitting the victims, but said he must have.

Members of the family testified as to his mental problems, violent nature and bizarre habits.

The principal assertions of error made by White are conflict of interest on the part of his counsel and assertions relating to jury selection encompassing some ten separate points of error.

It appears that defense counsel Charters was employed by Fisher and defense counsel Early by White and Bowling.

The incident which precipitated the conflict of interest argument occurred on the fourth day of voir dire of the prospective jurors when Fisher agreed to testify for the prosecution in exchange for immunity. As soon as he learned of the prospective agreement, Charters notified the trial court and withdrew as counsel for Fisher. Other counsel was then appointed to represent Fisher. The voir dire and trial then proceeded with Charters and Early representing White. During the course of the trial, Fisher was cross-examined by Charters.

White first urges that we adopt a rule that joint representation constitutes a per se violation of the constitutional guarantee of effective assistance of counsel. We are cited to Fleming v. State, 246 Ga. 90, 270 S.E.2d 185 (1980), as authority for this proposition.

We reject this argument. Our reasons are twofold. First the United States Supreme Court in Holloway v. Arkansas, 435 U.S. 475, 482-483, 98 S.Ct. 1173, 1178, 55 L.Ed.2d 426, 433 (1978), stated:

"One principle applicable here emerges from Glasser without ambiguity. Requiring or permitting a single attorney to represent codefendants, often referred to as joint representation, is not per se violative of constitutional guarantees of effective assistance of counsel. This principle recognizes that in some cases multiple defendants can appropriately be represented by one attorney; indeed, in some cases, certain advantages might accrue from joint representation. In Mr. Justice Frankfurter's view: 'Joint representation is a means of insuring against reciprocal recrimination. A common defense often gives strength against a common attack.' Glasser v. United States, supra, [315 U.S. 60], at 92, 62 S.Ct. 457, [at 475], 86 L.Ed. 680 (dissenting). ⁵

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Secondly we have adopted RCr 8.30, which requires separate counsel except when waived by the defendant. In compliance with RCr 8.30 the trial court explained the possibility of conflict of interest to Fisher, White and Bowling. The colloquy engaged in by the trial court in determining that each of the defendants was making an informed and intelligent waiver consumed twenty-five pages of transcript. At the conclusion, all three signed a waiver in conformity with RCr 8.30.

Potential conflict if all three defendants were tried together was raised by the prosecution and resulted in the trial court's ordering separate trials. One such conflict appeared to be the argument that juveniles should be treated differently in death penalty cases.

We are of the opinion from our review of the record that White made an informed and intelligent waiver of separate representation. In considering this, we are of the further opinion that in this respect a death penalty case should not be treated any differently than any other criminal case. As observed in Holloway, in some cases certain advantages might accrue from joint representation.

We are of the further opinion that in the circumstances presented here there was no demonstrated conflict of interest. White argues that earlier Charters engaged in plea bargaining on behalf of Fisher. We do not see it that way. What is called plea bargaining was some months before trial an offer of immunity transmitted to Fisher through his lawyer. This offer was rejected and by no means could be characterized as plea bargaining. Fisher's lawyer had a duty to convey the offer as there could be no contact initiated by the prosecution save through Fisher's lawyer. White takes the position that throughout both Charters and Early jointly represented all three defendants.

According to White's lawyer, the voir dire of the jury had been based on a circumstantial case/alibi defense. Counsel informed the court after Fisher accepted the offer of immunity that any potential conflict was resolved with the absence of Fisher as a defendant. The trial court was also informed by counsel that until Fisher had accepted the offer of immunity, their clients had all insisted they did not commit the crimes.

Charters and Early thereafter informed the trial court that White's defense was now changed to "not guilty by reason of insanity, intoxication."

This change of plea led to several of the assertions of error on voir dire which will be discussed later.

Counsel urged the trial court to continue the case since the defense had completely changed. The trial court denied this motion, but did recess for six days to permit psychological and psychiatric review.

Out of an abundance of caution, we have examined the record to determine if in fact there was an actual conflict of interest adversely affecting the performance of White's counsel. We are of the opinion, and so hold, that White has not established from the record that an actual conflict of interest adversely affected his lawyer's performance.

Here we do not have the classic conflict of interest scenario where defendants are tried together. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), addressed issues left unresolved in Holloway, supra. The first issue is that the trial judge is not required to inquire into the propriety of multiple representation where there has been no objection, and the trial courts may assume no conflict or that the lawyer and his clients knowingly accept such risk of conflict. This issue is resolved by RCr 8.30 and the waiver signed by White. Next the Cuyler court held that in such event mere possibility of conflict was not enough that an actual conflict of interest adversely affecting his lawyer's performance must be established.

As to Fisher, White made much of Fisher's appointed counsel's invoking the client/attorney privilege. In the first place, whether or not Charters remained in the trial this privilege applied. Next, Fisher was granted immunity, he can no longer be in jeopardy, he had no possible interest to advocate or to protect. Finally, on the overriding concerns in the conflict of interest situations is the possibility that the lawyer representing multiple clients might use confidential information to the detriment of one of the other clients. As to this possibility applied to Fisher, the change of defense to not guilty by reason of insanity made it highly unlikely that Charters had any such information to use even had he desired to do so. There is nothing in the record to suggest that there was any such information. After all, Fisher together with White had told their lawyers they did not commit the crimes.

Charters informed the jury during opening statement that Fisher had agreed to testify for the prosecution in exchange for immunity. Fisher was the principal witness for the prosecution, he detailed the gruesome nature of the crime and was vigorously cross-examined by Charters as to White's habits with various drugs, bizarre behavior, etc. This cross-examination and the cross-examination of other witnesses attempted to establish that the crimes showed they had been committed by a "berserk" individual.

The arguments of conflict of interest with...