Wilson v. State

Decision Date14 July 1988
Docket NumberNo. 73A01-8708-CR-00205,73A01-8708-CR-00205
Citation525 N.E.2d 619
PartiesMary Louise WILSON and Gary Lewis Wilson, Co-Defendants-Appellants, v. STATE of Indiana, Plaintiff-Appellee.
CourtIndiana Appellate Court

Warren R. Good, Good & Good, Shelbyville, for co-defendant-appellant Mary Louise Wilson.

Robert D. Jones, Morristown, for co-defendant-appellant Gary Lewis Wilson.

Linley E. Pearson, Atty. Gen., Jay Rodia, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

RATLIFF, Chief Judge.

STATEMENT OF THE CASE

Gary Wilson and Mary Wilson appeal their convictions for neglect of a dependent, a class D felony. We affirm.

FACTS

In June of 1986, Mary and her baby, J.W., began living with Mary's boyfriend, Gary, in his home. Mary began working the evening shift and therefore left J.W. with a babysitter until Gary could pick him up after work. Gary took care of J.W. in the evenings until Mary returned from work.

In July, when Mary took J.W. for a doctor's examination, the doctor noticed numerous bruises on the child's body and asked Mary about the cause of injuries. One of J.W.'s babysitters testified that J.W. always had bruises on his body. She and J.W.'s other two babysitters indicated that they never had struck or harmed J.W.

During the summer and fall of 1986, Gary often disciplined J.W. by spanking him. Mary and Gary had, occasionally, argued about the extent of force he utilized when spanking J.W., but Gary informed her that he would continue to spank the child until someone told him that spanking was an improper form of discipline. Gary also informed Mary that if she disapproved of his methods of discipline, she and J.W. could move out of his home. Mary did not move out, however. Gary admitted at trial that he once spanked J.W. so forcefully that he left a bruise in the shape of his hand on J.W.'s buttocks.

On October 1, Mary took J.W., then eight months old, to the Shelbyville Hospital after she and a friend had observed that J.W. had numerous bruises and was holding his head in an unusual manner. The examining physicians noticed bruises on J.W.'s ears, buttocks, arm, nose and chin. They also observed abrasions on the baby's fingers and toes as well as a circular, second degree burn on his buttocks. The doctors indicated that some of the bruises were several days old and therefore had begun to heal. One of the physicians notified the Gary and Mary were arrested and charged with neglect of a dependent. They were represented at their joint trial by partners in the same law firm. Both Gary and Mary were convicted by a jury and this appeal immediately followed.

authorities that she suspected a case of child abuse.

ISSUES

Appellants raise the following issues for our review:

1. Were the appellants denied their fundamental rights to effective assistance of counsel when they were represented at trial by members of the same law firm?

2. Did the trial court err in refusing Mary's tendered instruction No. 3 defining a "situation endangering the life or health" of a dependent?

3. Did the trial court erroneously instruct the jury regarding the elements of the crime?

4. Is the evidence sufficient to sustain the convictions of each defendant?

DISCUSSION AND DECISION
Issue One

Gary and Mary first contend that their fundamental rights to effective assistance of counsel were denied when they were represented at their joint trial by members of the same law firm. The Sixth Amendment to the United States Constitution guarantees every criminal defendant the right to effective assistance of counsel. The Supreme Court has long recognized that this right may be impaired when one attorney represents multiple co-defendants. Cuyler v. Sullivan (1980), 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333; Holloway v. Arkansas (1978), 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426; Glasser v. United States (1942), 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680. Multiple representation by members of the same law firm has been held analogous to multiple representation by one attorney. Ross v. Heyne (7th Cir.1980), 638 F.2d 979, 982-83. See also Burger v. Kemp (1987), --- U.S. ----, 107 S.Ct. 3114, 97 L.Ed.2d 638.

"Assuming without deciding that two law partners are considered as one attorney, it is settled that '[r]equiring 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.' Holloway v. Arkansas, 435 U.S. 475, 482, 98 S.Ct. 1173, 1178, 55 L.Ed.2d 426 (1978). We have never held that the possibility of prejudice that 'inheres in almost every instance of multiple representation' justifies the adoption of an inflexible rule that would presume prejudice in all such cases. See Cuyler v. Sullivan 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980). Instead, we presume prejudice 'only if the defendant demonstrates that counsel "actively represented conflicting interests" and that "an actual conflict of interest adversely affected his lawyer's performance." ' Strickland, 466 U.S., at 692, 104 S.Ct., at 2067 (citation omitted). See also Cuyler, 446 U.S., at 348, 350, 100 S.Ct., at 1719."

Burger, 107 S.Ct. at 3120. See also Mullins v. State (1988), Ind., 523 N.E.2d 419; Carpenter v. State (1986), Ind., 501 N.E.2d 1067.

The "actual conflict of interest" component of the Cuyler test concerns the competing interests of the co-defendants arising from multiple representation. Tate v. State (1987), Ind.App., 515 N.E.2d 1145, 1147. The focus is on the defendants' relationship to one another and whether effective advocacy of one defendant's interest impinges on the advocacy of the other co-defendant's interest. Id.

In contrast, the "adversely affected performance" element of the Cuyler test is defined by reference to the attorneys' conduct. Tate, 515 N.E.2d at 1147. In assessing whether performance was adversely affected we must search the record to determine (1) whether the joint attorney or affiliated attorneys, at various times, represented the different interests of the co-defendants who challenge that representation, in which case, a reversal would be warranted for all, or (2) whether the attorney or affiliated attorneys consistently represented the interests of one co-defendant client over the interests of the other, in which case the attorneys' performance is not impaired as to the favored client, and a reversal of the client's conviction would not be warranted. Id. at 1148.

The relative interests of the co-defendants in this case can be defined by reference to the information. Both were charged with neglect of a dependent. Specifically, they were charged with reputedly inflicting or permitting infliction of injuries upon Mary's child, J.W. While the information, on its face, raises typical questions regarding a potential for competing interests between co-defendants charged with joint participation in criminal activity, the Cuyler test requires that the conflict be "actual."

Both Mary and Gary asserted at trial that the injuries suffered by the baby were merely bumps and bruises attributable to the child's normal activities and did not amount to exposure to actual and appreciable danger. They also contended that the injuries were inflicted by a third party, possibly one of J.W.'s babysitters.

The evidence indicates that both Mary and Gary spanked J.W. as a means of discipline. Gary admitted he spanked J.W. so forcefully as to leave a bruise on his buttocks. Mary admitted she was aware that Gary spanked J.W. forcefully, that she conveyed to Gary her displeasure with his disciplinary methods, that he told her he would continue to spank J.W., and that she and J.W. could move out if she disapproved of his disciplinary methods. Mary also testified that she continued to live with Gary and that she occasionally spanked J.W. as a means of discipline. Based on the defenses raised, there is no showing that any of the evidence that helped one defendant hurt the other. See Bean v. State (1984), Ind., 460 N.E.2d 936, 946. We conclude that the defenses and the evidence at trial fail to indicate any actual conflict of interest between Mary and Gary.

Even if an actual conflict existed, Gary and Mary have failed to demonstrate that the conflict adversely affected the performance of their affiliated attorneys. The record indicates that the attorneys in this case were careful to inform Gary and Mary of the possible conflict of interest involved in their joint representation. Both Mary and Gary signed affidavits acknowledging their awareness of potential conflicts and waiving any objection to the attorneys' joint representation. The affidavits were filed with the trial court and the court conducted a lengthy inquiry of Mary and Gary prior to trial in order to insure that they understood fully the ramifications of the joint representation and waiver. See Fed. Rules of Procedure, Criminal Rule 44(c).

Gary asserts that his attorney's failure to pursue his "lack of legal duty" defense indicates the adverse effect of the joint representation on the attorney's performance. Indiana Code section 35-46-1-4 clearly applies, however, to a person who voluntarily assumes the care of a dependent. 1 The record reveals that Mary and her baby lived with Gary in his home and that Gary cared for the baby while Mary was working the evening shift. He picked up the child at the babysitter's home each evening as he returned from work and watched the child until late at night. He also dressed and fed the child each morning so that Mary could sleep late. Thus, Gary actively involved himself with the child's care and welfare and pursuit of a defense disclaiming any voluntary assumption of care for the child would have been fruitless.

Mary asserts that her attorney failed to develop evidence that it was Gary who inflicted the injuries on the baby. She raises as an example her attorney's...

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