White v. State

• Decision Date: 22 August 2022
• Docket Number: A22A0738
• Citation: 365 Ga.App. 101,877 S.E.2d 649
• Parties: WHITE v. The STATE.
• Court: Georgia Court of Appeals

365 Ga.App. 101

877 S.E.2d 649

WHITE

v.The STATE.

A22A0738

Court of Appeals of Georgia.

August 22, 2022

Brouse Law, Karen H. Brouse, for Appellant.

Leigh Ellen Patterson, District Attorney, Rome, Margaret Dasher Louttit, Natalee Lyn Staats, Assistant District Attorneys, for Appellee.

Dillard, Presiding Judge.

Following a trial by jury, Curtis Jerome White was convicted of child molestation and statutory rape. White now appeals those convictions, arguing the trial court erred by (1) refusing to allow his trial counsel to withdraw from representation due to an identified conflict of interest, and (2) denying his motion for new trial when he received ineffective assistance of counsel due to a conflict of interest. For the reasons set forth infra , we affirm.

The record shows that James Wyatt was appointed to represent White on or about June 3 to June 9, 2019. But less than one month later, on July 1, 2019, Wyatt filed a motion to withdraw as defense counsel based upon an alleged conflict of interest in that his administrative assistant was related by marriage to the victim in the case. Following a hearing the next day, the trial court denied the motion.

At the July 2, 2019 hearing, Wyatt's assistant testified that her husband was a first cousin of the victim's father; the victim stayed at her home overnight as a young child; she was Facebook friends with the victim; she had not actually spoken to the victim in years; and she had not learned anything about the case from the victim. Later in the hearing, White indicated that he did not "have a particular problem" with his defense counsel's assistant being related to the victim but he did have "another problem[,]" which was that he wanted Wyatt to introduce evidence that Wyatt did not feel should be introduced, and he disagreed with Wyatt's approach to his defense "in general." But upon direct questioning by the court, as to whether White had "any problem" with Wyatt proceeding on the case due to his assistant's familial relationship with the victim, White responded, "Yes, sir. I was not aware of any of that information."

Nevertheless, when permitted to further explain his position on the alleged conflict of interest, White instead said that in the three weeks or so that Wyatt had been his attorney, they "[hadn't] discussed anything about the case." White also indicated that he had tried to discuss problems with the discovery in the case but Wyatt did not want to do so. Wyatt then informed the court that he knew of "no legal way to get into evidence what [White wanted] to get into evidence." Ultimately, the trial court indicated that Wyatt would remain White's attorney because it did not see any conflict of interest, which was the basis for the motion to withdraw, and the case would proceed to trial the following Monday.

Despite this ruling, on July 8, 2019, another attorney—who had been made aware of the potential conflict of interest—appeared before the trial court in an attempt to take over White's representation, but the court permitted him to leave in light of its previous denial of the motion to withdraw. Then, rather than begin a trial, a plea colloquy ensued, and White again indicated that he was not satisfied with the services of Wyatt. But the court informed White that while he had the right to counsel, he did not have the right to a specific attorney. Eventually, the court accepted an Alford plea¹ from White and continued with a sentencing colloquy and imposition of a sentence despite White indicating that he wished to go to trial. On motion by counsel, White's plea was later withdrawn on the basis that he had clearly indicated his desire to go to trial.

Thereafter, Wyatt filed yet another motion to withdraw, this time on the basis that the relationship with White had deteriorated further, and he asked the trial court on August 27, 2019, whether he remained the attorney of record. The court responded that he remained White's attorney. Then, several days before trial, the court held another hearing on the potential withdrawal by Wyatt as defense counsel, in which White again complained about a lack of communication with his attorney and also mentioned the alleged conflict of interest due to the familial relation between Wyatt's assistant and the victim. But because there was no change in circumstances since the trial court's previous consideration of that issue, it again declined to find a conflict of interest.

The trial then took place from September 9 to 10, 2019, and the jury returned a guilty verdict on two of the five counts.² The trial court thereafter denied White's motion for new trial, and this appeal follows.

1. To begin with, White argues the trial court abused its discretion and committed plain error by denying Wyatt's motion to withdraw as counsel due to a conflict of interest—namely the familial relationship between his assistant and the victim. We disagree.

Under Uniform Superior Court Rule 4.3, "[a]n attorney appearing of record in any matter pending in any superior court, who wishes to withdraw as counsel for any party, shall submit a written request to an appropriate judge of the court for an order permitting such withdrawal."³ And thereafter, the request will be granted "unless in the judge's discretion to do so would delay the trial or otherwise interrupt the orderly operation of the court or be manifestly unfair to the client."⁴

In this regard, a trial court has discretion whether to grant or deny a motion to withdraw as counsel.⁵ And further, an indigent defendant is "not entitled to have his appointed counsel discharged ... ‘unless he can demonstrate justifiable dissatisfaction with counsel, such as conflict of interest, an irreconcilable conflict, or a complete breakdown in communication between counsel and client.’ "⁶

Here, following a hearing that took place less than one week before trial was to begin, the trial court denied defense counsel's motion to withdraw on the basis of an alleged conflict of interest owing to a familial relationship between his assistant and the victim. But before doing so, the court questioned defense counsel's assistant at length and engaged in a colloquy with White as to his concerns with his current representation. And thereafter, the court correctly concluded that there was no conflict of interest when defense counsel did not represent the victim and there was no indication that either he or his assistant possessed information about the case from the victim.⁷ Additionally, White's complaints about his attorney were primarily related to mere disagreements about strategy. Under these particular circumstances, the trial court did not abuse its discretion in denying counsel's motion to withdraw.⁸

2. Finally, White contends his trial counsel rendered ineffective assistance due to his conflict of interest because counsel "had no interest in zealously representing [White] at trial as evinced by his attempts to withdraw from the representation ...." Again, we disagree.

In general, to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that "counsel's performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel's errors, the outcome of the trial would have been different."⁹ And the criminal defendant "must overcome the strong presumption that trial counsel's conduct falls within the broad range of reasonable professional conduct."¹⁰ We will, then, affirm the trial court's determination with respect to whether a defendant received ineffective assistance of counsel unless the trial court's findings are clearly erroneous.¹¹

Importantly, included within the constitutional right to counsel is "the right to representation that is free from conflicts of interest."¹² But for a defendant to prevail on his claim that his attorney was operating under a conflict of interest that violated his right to counsel, he must "show an actual conflict of interest that adversely affected his attorney's performance."¹³ Indeed, in such cases, the critical question is whether the conflict "significantly affected the representation , not whether it affected the outcome of the underlying proceedings. "¹⁴ Additionally, the Supreme Court of Georgia has explained that the Sixth Amendment¹⁵ conflict-of-interest jurisprudence "generally is confined to situations [in which] the purported conflict stems from the attorney's simultaneous representation of multiple clients involved in the same legal issue."¹⁶ And by way of example, our Supreme Court has explained that such a conflict may be established

[when] counsel is shown to have refrained from raising a potentially meritorious issue due to the conflict; [when] counsel negotiates a plea bargain for more than one defendant in a case conditioned on acceptance of the plea by all such defendants; or [when] one of the State's witnesses was a current client of defense counsel in an unrelated criminal matter, thereby constraining counsel's ability to cross-examine the witness.¹⁷

Here, White contends his counsel (Wyatt) had a conflict of interest based upon his assistant's familial relationship with the victim by marriage. But a conflict of interest is involved if "there is a substantial risk that the lawyer's representation of the client would be materially and adversely affected by the lawyer's duties to another current client, a former client, or a third person."¹⁸ Suffice it to say, trial counsel's tenuous connection to the victim by way of his assistant's relation by marriage did not rise to the level of creating an actual conflict of interest.¹⁹ Thus, because White "has not shown that trial counsel was under an actual conflict of interest that adversely affected counsel's performance, his contention of ineffective assistance of counsel due to a conflict of interest must fail."²⁰

Moreover, to the extent White argues defense counsel did not "vigorously" argue the motions...