State of Florida v. Reuben Alexis , 40 Fla. L. Weekly Supp. 423 ( 2015 )

Supreme Court of Florida
____________
No. SC14-1341
____________
STATE OF FLORIDA,
Petitioner,
vs.
REUBEN ALEXIS,
Respondent.
[July 9, 2015]
CANADY, J.
In this case we consider whether a trial court is required to obtain a conflict-
of-interest waiver when criminal codefendants are represented by the same lawyer
but there is no actual conflict of interest between the codefendants. The State of
Florida seeks review of the decision of the First District Court of Appeal in Alexis
v. State, 140 So. 3d 616 (Fla. 1st DCA 2014), on the ground that it expressly and
directly conflicts with a decision of this Court, Gorby v. State, 630 So. 2d 544 (Fla.
1993), as well as a decision of another district court of appeal, Dixon v. State, 758
So. 2d 1278 (Fla. 3d DCA 2000), on a question of law. Alexis held that a waiver is
required in the absence of an actual conflict, while Gorby and Dixon held that a
waiver is necessary only if there is an actual conflict. We have jurisdiction. See
art. V, § 3(b)(3), Fla. Const.
FACTS
An off-duty police officer was providing security in the parking lot of a
nightclub when a patron (hereinafter “the victim”) reported that he had been
accosted by two men at gunpoint and pointed out the car in which the two men
were riding. With assistance from other police, the officer stopped the car and
ordered the occupants to get out. Officers searched the car and found two loaded
guns. At trial, the victim identified two of the car’s occupants, Terry Guerrier and
Respondent Reuben Alexis, as the men who had confronted him with guns. In her
arrest report, the officer stated that after being advised of his rights against self-
incrimination, Guerrier said that he had asked the victim to get out of a car
occupied by some women who did not want him there, that the victim refused, and
that Alexis had pulled the victim out of the car. Defense counsel expected that this
testimony—as to an out-of-court statement by Guerrier incriminating Alexis—
would be introduced at trial.
At a pretrial hearing on defense counsel’s motion for severance of
defendants and for separate trials under Florida Rule of Criminal Procedure
3.152(b)(2), defense counsel argued that because the State intended to introduce
Guerrier’s post-arrest statement against Alexis, there was a possible issue under
-2-
rule 3.152(b)(2) and Bruton v. United States, 391 U.S. 123 (1968), that needed to
be addressed. After the court and the attorneys discussed the severance issue,
Respondent’s attorney brought up the issue of dual representation, which led to the
following exchange:
[DEFENSE COUNSEL]: And by the way Judge, since both
young men are here, I discussed with them a possible conflict of
interest here because of the facts. Terry Guerrier, though wants me to
continue to be his attorney; because he emphatically denies ever
making the statement to law enforcement. So I think that would take
it out of the conflict. But I told him it was his call. And he’s in the
courtroom, but he’s told me he wants me to continue to represent both
of them. And Mr. Alexis says the same thing.
[PROSECUTOR]: And, Your Honor, for [rule 3.850]
purposes, could we inquire of the defendants to make sure that there is
no conflict, and that they waive any possible conflict by being
represented by the same counsel?
....
THE COURT: Okay. And the State Attorney does want to
make sure that you don’t come back later; and file a claim and say
[defense counsel] was ineffective, because he was representing you
with a conflict. But you heard what [defense counsel] just said?
DEFENDANT GUERRIER: Yes, sir.
THE COURT: And knowing that there’s that potential conflict,
both of you still want him to be your attorney?
DEFENDANT GUERRIER: Yes, sir.
DEFENDANT ALEXIS: Yes, your Honor.
THE COURT: Okay. Is that okay?
[PROSECUTOR]: That should be sufficient, your Honor.
THE COURT: Okay.
[DEFENSE COUNSEL]: Thank you, Judge.
The defendants proceeded to trial jointly, represented by one privately retained
attorney.
-3-
At trial, the victim testified that Respondent pulled him out of the car, that
after he was pulled from the car, Guerrier pointed a gun at him, and that during the
confrontation Respondent had a gun in his hand. Another witness, the victim’s
cousin and companion the night of the incident, testified that one of the defendants
pulled the victim from the car and that Guerrier “pulled a gun” on the victim. The
arresting officer testified that after being warned of his rights, Guerrier said that he
had asked the victim to get out of a car occupied by some women who were friends
of Guerrier and Alexis and that then Alexis had pulled the victim out of the car.
At a later point in the trial, after the State rested, the following exchange
took place:
THE COURT: Are the defendants going to testify?
[DEFENSE COUNSEL]: Yes, sir.
THE COURT: So I have got . . . instructions on—let me go
ahead and ask you then, if that’s your decision, because even though I
always say it’s a good idea to listen to your lawyer, and the final
analysis in the decision of whether you testify or not is yours alone
and you have a constitutional right not to testify and you also have a
constitutional right to testify, but it has to be your decision. I tell the
jury one thing based on what you decide to do. So, have you both
decided that you do [wish] to be a witness?
THE DEFENDANTS: Yes.
THE COURT: Okay. All right, then I will –
[PROSECUTOR]: Can we also just question again about, I
know we questioned them before about any possible conflicts in their
defenses and them waiving being represented by the same attorney.
THE COURT: Let me ask you that too, [defense counsel] says
you all decided [you were] not going to have separate juries, we’re
going to do it together and you all are going to waive any possible
conflict there might be with him representing both of you, is that
right?
-4-
THE DEFENDANTS: Yes.
THE COURT: Okay. I just want to make sure there’s no
problem down the road. Okay.
Both of the defendants testified that they pulled the victim out of the car
together. They both denied possessing or displaying a gun during the encounter
and they each denied that the other displayed or possessed a gun. As stated above,
Respondent was convicted of aggravated assault with a firearm.
On appeal, initially Respondent’s conviction was affirmed without opinion.
See Alexis v. State, 65 So. 3d 1056 (Fla. 1st DCA 2011). However, on
Respondent’s petition claiming ineffective assistance of appellate counsel, the
district court granted him a new appeal limited to the issue of whether “his waiver
of the right to conflict-free trial counsel was invalid.” Alexis v. State, 112 So. 3d
144, 144 (Fla. 1st DCA 2013). Upon consideration of the new appeal, the district
court held that the trial court failed to conduct a sufficient inquiry when
Respondent consented to his attorney representing both him and his codefendant
and that the error could not be found harmless. See Alexis, 140 So. 3d at 618-19.
The district court grounded its decision on its earlier decision in Lee v. State,
690 So. 2d 664 (Fla. 1st DCA 1997), and this Court’s decision in Larzelere v.
State, 676 So. 2d 394 (Fla. 1996). In Lee, the court stated that when counsel
discloses before trial a possible conflict of interest with the defendant, “the trial
court must either conduct an inquiry to determine whether the asserted conflict of
-5-
interest will impair the defendant’s right to effective assistance of counsel or
appoint separate counsel.” Lee, 690 So. 2d at 667. In Lee, the district court found
that the defendant and defense counsel had an actual conflict of interest due to the
circumstances surrounding defense counsel’s recent representation of the State’s
main witness. The court turned to Larzelere for the “requirements of a valid
waiver of the right to conflict-free counsel.” Lee, 690 So. 2d at 667. In Larzelere,
we said: “For a waiver [of conflict-free counsel] to be valid, the record must show
that the defendant was aware of the conflict of interest, that the defendant realized
the conflict could affect the defense, and that the defendant knew of the right to
obtain other counsel.” Larzelere, 676 So. 2d at 403 (citing United States v.
Rodriguez, 982 F.2d 474, 477 (11th Cir. 1993)). The Lee court found that the trial
court had “met the first two requirements of the test but not the third,” Lee, 690 So.
2d at 667, and held that the court’s error could not be deemed harmless. The court
based the conclusion that such error could not be treated as harmless on cases
where the United States Supreme Court reasoned that requiring a defendant to face
trial with an attorney operating under a conflict of interest amounts to a denial of
the right to counsel itself, see Holloway v. Arkansas, 435 U.S. 475 (1978); Glasser
v. United States, 315 U.S. 60 (1942), superseded in part on other grounds by Fed.
R. Evid. 104(a), the denial of which is never treated as harmless because prejudice
is presumed. See Chapman v. California, 386 U.S. 18, 23 & n.8 (1967).
-6-
In the present case, the district court found that the inquiry conducted by the
trial court only covered the first element, awareness of the conflict. The other two
elements required by Larzelere—the defendant’s knowing that the conflict could
affect the defense and knowing of the right to other counsel—were not covered by
the trial court’s inquiry, nor, the district court found, did they appear to be satisfied
by looking elsewhere in the record. See Alexis, 140 So. 3d at 619. The district
court reversed Respondent’s conviction and remanded for a new trial.
ARGUMENTS
The State argues that a waiver of the right to conflict-free counsel is only
required when there is an actual conflict of interest and that an attorney’s
representation of two or more codefendants does not necessarily create an actual
conflict of interest. Defense counsel’s calling the court’s attention to a potential
conflict of interest from dual representation, the State argues, did not trigger an
obligation to conduct the three-part inquiry discussed in Larzelere, because a
Larzelere inquiry and waiver are only required when there is an actual conflict of
interest. In the State’s view, since the codefendants’ respective defenses were
compatible rather than conflicting—they both admitted pulling the victim from the
car, they both denied being armed, and neither claimed the other was armed—the
dual representation did not create a conflict of interest between Respondent and his
attorney. If there was no actual conflict of interest, the State maintains, then there
-7-
was no need for a waiver of the right to conflict-free counsel. The State argues that
the district court misapplied Lee: in Lee there was an actual conflict of interest, and
the court failed to conduct an adequate inquiry to ensure that the defendant’s
waiver of the conflict was a knowing one. The present case, the State argues, is
not controlled by Lee because here there was no actual conflict.
Respondent argues that the district court’s reversal of his conviction should
be upheld because (1) there was a conflict of interest between Respondent and his
defense attorney caused by the attorney’s divided loyalty in representing two
codefendants whose interests were in conflict; and (2) Respondent’s purported
waiver was not valid because the trial court failed to conduct the proper inquiry to
ensure that the waiver was knowing, intelligent, and voluntary. Respondent
questions the State’s distinction between potential and actual conflicts of interest
and argues that once a court is made aware of any possibility of a conflict—such as
might arise in a case of dual representation—the court must conduct the full three-
part inquiry discussed in Larzelere. Although he consented on the record to dual
representation, Respondent argues that this purported waiver was not valid because
the trial court failed to conduct the proper inquiry and advise the defendant to
ensure that the waiver was knowing and voluntary. Thus Respondent concludes
that he was defended by an attorney with a conflict of interest and there was no
valid waiver. As in Lee, Respondent argues, there can be no harmless error inquiry
-8-
because prejudice from an attorney’s conflict of interest is presumed. Respondent
relies on Thomas v. State, 785 So. 2d 626 (Fla. 2d DCA 2001), where the Second
District Court of Appeal, citing Lee, held that the trial court, having been advised
that defense counsel had formerly represented a prosecution witness, erred in
failing to obtain “a knowing, intelligent, and voluntary waiver of [the] right to
conflict-free counsel.” Thomas, 785 So. 2d at 629.
ANALYSIS
We are presented with the legal issue of whether a waiver—along with the
appropriate inquiry to ensure the knowing and voluntary nature of the waiver—was
required under the facts of this case. The standard of review for a legal issue is de
novo. See, e.g., State v. Blair, 39 So. 3d 1190, 1191-92 (Fla. 2010); Insko v. State,
969 So. 2d 992, 997 (Fla. 2007). The issue of whether there was an actual conflict
of interest is a mixed question of law and fact. See Hunter v. State, 817 So. 2d
786, 792 (Fla. 2002). Mixed questions of law and fact require an appellate court to
defer to the trial court on factual matters but provide independent review of legal
determinations. See State v. Glatzmayer, 789 So. 2d 297, 301 (Fla. 2001);
Stephens v. State, 748 So. 2d 1028, 1032 (Fla. 1999).
As stated above, the cases relied on for this Court’s discretionary jurisdiction
under express and direct conflict of decisions are Dixon, 758 So. 2d 1278, and
Gorby, 630 So. 2d 544. In Dixon, the appellant and her codefendant were tried
-9-
together and had the same defense attorney. The trial court itself raised the issue
and advised the defendant of the possible conflict of interest. The court did not
conduct a Larzelere three-part inquiry or obtain an express on-the-record waiver
from the defendant. On appeal the defendant claimed her lawyer had a conflict of
interest and the court had erred in failing to conduct the three-part inquiry. The
Third District held that because the defendant did not object to the joint
representation, to prevail on appeal she had to show that an actual conflict
adversely affected the lawyer’s performance. Dixon, 758 So. 2d at 1280. In the
joint representation context, the court said, a conflict of interest exists when one
codefendant stands to gain significantly from actions of counsel that harm the
interests of the other codefendant. Id. at 1280-81. A disparity in the amount of
evidence of guilt between two codefendants does not necessarily create a conflict
of interest. Id. at 1281. The court held: “Before reaching the issue of waiver . . . it
is essential to determine whether an actual conflict existed.” Id. at 1280. Finding
no actual conflict of interest that adversely affected appellant’s defense, the court
affirmed the conviction. Id. The district court decision in the instant case conflicts
with Dixon because in Dixon, the court held that it was essential to determine
whether there was an actual conflict of interest before reaching the issue of waiver,
while in the instant case the court held that a waiver was required without first
finding that there was an actual conflict of interest.
- 10 -
In Gorby, the appellant claimed his defense attorney had a conflict of
interest because his former law partner had represented a state witness. Defense
counsel put the trial court on notice of the possible conflict, but did not move to
withdraw. On appeal, we held that to prevail on a claim of violation of the right to
conflict-free counsel, a defendant must show that an actual conflict of interest
affected counsel’s performance, citing Cuyler v. Sullivan, 446 U.S. 335, 350
(1980). Based on counsel’s actions as shown in the record, the Court found that
Gorby had failed to show an actual conflict affecting counsel’s performance. The
potential conflict brought to the court’s attention by defense counsel did not
become an actual conflict. Gorby, 630 So. 2d at 546. As in the instant case,
defense counsel brought the issue of a possible conflict to the trial court’s
attention, but did not object to the representation on the ground of conflict of
interest. Finding no actual conflict of interest, we did not hold that an inquiry into
the knowing and voluntary nature of any waiver by the defendant was required.
The decision under review therefore also conflicts with our decision in Gorby.
Respondent argues that the district court was correct to reverse his
conviction because the trial court’s failure to conduct the three-part inquiry after
the issue of conflict of interest was raised violated his Sixth Amendment right to
counsel and such a violation requires automatic reversal without regard to
prejudice. As did the district court, Respondent relies heavily on Lee, 690 So. 2d
- 11 -
664, which in turn cited as authority the United States Supreme Court’s decisions
in Holloway and Glasser.
In Lee, defense counsel, an assistant public defender, disclosed to the trial
court that his office had recently defended the State’s key witness on a criminal
charge; the witness had been the defendant’s cellmate and was to testify that the
defendant had confessed. The court obtained a waiver from the defendant after
explaining to him what a conflict of interest is and what effect it might have on his
attorney’s ability to cross-examine the witness or use privileged information
against him. The defendant waived the conflict of interest, but later attempted to
withdraw his waiver, stating he wanted a lawyer who could challenge the witness.
Finding that the earlier waiver was knowing, intelligent, and voluntary, the court
refused to revisit the issue of conflict and told the defendant he could either
continue with the same appointed counsel, hire his own lawyer, or represent
himself. Lee, 690 So. 2d at 665-67. On appeal, the First District Court of Appeal
found that under the circumstances, the Public Defender’s Office having recently
represented the State’s witness created an actual conflict of interest. The
defendant’s waiver, however, was obtained without an adequate inquiry into the
knowing, intelligent, and voluntary nature of the waiver. The trial court explained
what a conflict of interest was and how it might affect the defense, but did not
advise the defendant of his right to have other counsel appointed. Thus, the first
- 12 -
and second elements of the Larzelere three-part inquiry were included, but not the
third element. Since there was an actual conflict of interest and no valid waiver,
the district court reversed the conviction. Lee, 690 So. 2d at 667-69.
In Glasser, the trial court required Glasser’s attorney to represent another
defendant over Glasser’s objection that he wanted his attorney to represent only
him. On appeal, Glasser argued that defense counsel’s duty to the second
defendant prevented him from properly defending Glasser. The record showed
that defense counsel was inhibited in his defense of Glasser because of his duty to
the other defendant. This was a conflict of interest. The Court reversed Glasser’s
conviction and remanded for a new trial, holding: “The right to have the assistance
of counsel is too fundamental and absolute to allow courts to indulge in nice
calculations as to the amount of prejudice arising from its denial.” Glasser, 315
U.S. at 76.
In Holloway, appointed counsel for three codefendants moved for
appointment of separate counsel on the ground that confidential communications
he had received from the defendants made a conflict of interest likely. One
defendant had made a statement to the police incriminating the others and
admitting less serious culpability for himself. At trial, all three defendants denied
their guilt, and defense counsel, continuing to object, believed he could not cross-
examine or even question them because their interests were in conflict. The Court
- 13 -
observed that permitting a single attorney to represent codefendants does not deny
the right to effective counsel per se and it can even be beneficial. Holloway, 435
U.S. at 482. However, when defense counsel objected and argued to the trial court
that he believed there was a probability that the interests of the defendants were in
conflict, the trial court was obligated to either appoint separate counsel or “take
adequate steps to ascertain whether the risk was too remote to warrant separate
counsel.” Id. at 484. The trial court’s failure to take either action deprived the
defendants of the right to the assistance of counsel. The Court placed great weight
on the role of defense counsel, observing that counsel is in the best position to
judge the potential for a conflict of interest and suggesting that when counsel,
based on representations made as an officer of the court, seeks appointment of
separate counsel on the ground of conflict, it should generally be granted. Id. at
485-86. The Court went on to hold, based on Glasser, that “whenever a trial court
improperly requires joint representation over timely objection reversal is
automatic.” Holloway, 435 U.S. at 488. Prejudice is presumed because the right
to the assistance of counsel is essential to the fairness of a trial. Id. at 489-91.
In arguing that the Holloway rule, requiring a court to appoint separate
counsel or conduct an inquiry, applies to his case, Respondent equates his
attorney’s bringing up the issue of joint representation in court to the defendants’
clear objections in Glasser and Holloway. However, defense counsel in the instant
- 14 -
case did not object, nor did he claim he could not effectively represent both
defendants. He represented to the court that there was no impediment to joint
representation. In Cuyler, the Court stated that unless a court knows or should
know of a conflict, the Sixth Amendment does not require a state court to initiate
inquiry into the issue of a conflict of interest from multiple representation.
Multiple representation alone does not violate the Sixth Amendment, and in the
absence of an objection, a court can presume there is no conflict of interest. When
the defendant does not object, only an actual conflict of interest violates a
defendant’s Sixth Amendment rights; courts should not presume that a possible
conflict will violate the Sixth Amendment. “[T]he possibility of conflict is
insufficient to impugn a criminal conviction. In order to demonstrate a violation of
his Sixth Amendment rights, a defendant must establish that an actual conflict of
interest adversely affected his lawyer’s performance.” Cuyler, 446 U.S. at 350.
Respondent disputes the validity of the distinction the State draws between a
possible or potential conflict of interest and an actual conflict of interest. In either
event, Respondent argues, if the issue is brought to the court’s attention, an inquiry
must be conducted, failing which, under the federal Sixth Amendment caselaw,
reversal is automatic without any need for a showing of adverse effect on the
representation. However, Mickens v. Taylor, 535 U.S. 162 (2002), explains that
the presumption of prejudice means that the defendant whose right to the
- 15 -
assistance of counsel has been violated need not show an effect on the outcome.
Id. at 166-67. When the claim is that the trial court failed to conduct an inquiry
about a potential conflict which it knew or should have known about, the claimant
must show that a conflict of interest affected counsel’s performance. Id. at 170-72.
Showing an effect on counsel’s performance is essential to showing an actual
conflict of interest; a theoretical conflict is almost always present in cases of
multiple representation. Id. at 169-70. The “prejudice” that need not be shown
when Sixth Amendment rights are denied is a probability of effect on the outcome
sufficient to undermine the reliability of the verdict. Id. at 166. An attorney’s
active representation of conflicting interests is an “actual” conflict of interest; joint
representation of codefendants by itself is at most a possible, potential, or
theoretical conflict. Under the United States Supreme Court’s caselaw, the
distinction drawn by the State is valid, and decisions holding that a conflict of
interest violates the right to counsel and is per se reversible apply to actual
conflicts, i.e., conflicts that adversely affect counsel’s performance.
In Mickens, a state prisoner convicted of murder sought federal habeas
corpus relief, claiming his appointed counsel was ineffective because of a conflict
of interest. Unknown to the defendant, counsel had previously represented the
murder victim. Counsel accepted the appointment to represent the defendant
without objection, but the judge was presumptively aware of the prior
- 16 -
representation, having made the prior appointment less than three weeks before
appointing counsel to the defendant’s case. The petitioner argued that the language
of the Court’s remand order in Wood v. Georgia, 450 U.S. 261 (1981), directing
the trial court to grant a new probation revocation hearing if it found an “actual
conflict of interest” without also requiring a finding of adverse effect on counsel’s
performance, established a principle that a showing of adverse effect was not
required. Rejecting this argument, the Court said: “As used in the remand
instruction . . . we think ‘an actual conflict of interest’ meant precisely a conflict
that affected counsel’s performance—as opposed to a mere theoretical division of
loyalties. It was shorthand for the statement in [Cuyler v.] Sullivan 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.’ ”
Mickens, 535 U.S. at 171 (quoting Cuyler, 446 U.S. at 349-50). Holding that a
showing of adverse effect was required and had not been made, the Court upheld
the denial of habeas relief. The decision supports the State’s position that the
phrase “actual conflict of interest” includes the element of adverse effect on the
representation. Requiring a criminal defendant to proceed with an attorney with
whom the defendant has an actual conflict of interest is a violation of the
defendant’s right to counsel under the Sixth Amendment. Caselaw holding that
such a violation cannot be harmless should be understood to mean that there is no
- 17 -
requirement to show a probable effect on the outcome. Some adverse or
detrimental effect on the representation, however, is required in order to establish
an actual conflict of interest.
As discussed above, the Lee case held: “When defense counsel makes a
pretrial disclosure of a possible conflict of interest with the defendant, the trial
court must either conduct an inquiry to determine whether the asserted conflict of
interest will impair the defendant’s right to the effective assistance of counsel or
appoint separate counsel.” 690 So. 2d at 667. The phrase “asserted conflict of
interest” in the main clause of this sentence must be understood to relate back to
the phrase “possible conflict of interest” in the dependent clause. Before deciding
that the trial court had erred in failing to ensure a valid waiver, the district court in
Lee found there was “an actual conflict of interest.” Id. The requirement to
“conduct an inquiry” does not necessarily mean there must be a waiver with a full
three-part inquiry to determine the knowing and voluntary nature of the waiver.
Here, Respondent stated on the record that he agreed to his attorney representing
both him and his codefendant. The statement was made in a colloquy during
which defense counsel represented to the court that he had discussed the dual
representation with his clients. The colloquy between the trial judge and the
defendant at the time of this statement did not satisfy the requirements of the
Larzelere three-part inquiry. But there was no need for an inquiry into the
- 18 -
knowing, intelligent, and voluntary nature of the waiver because, since there had
been no finding of an actual conflict of interest, there was no need for a waiver.
The district court of appeal applied the standard for “waiver of conflict-free
counsel” to a case where counsel was not shown to have labored under an actual
conflict of interest. This was error.
The decision of the district court of appeal is quashed and the case is
remanded with directions that Respondent’s conviction be affirmed. To the extent
that Thomas v. State, 785 So. 2d 626 (Fla. 2d DCA 2001), and Forsett v. State, 790
So. 2d 474 (Fla. 2d DCA 2001), hold that a waiver is required in the absence of a
determination that an actual conflict of interest exists, they are inconsistent with
our holding and are disapproved to the extent of the inconsistency.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, and PERRY,
JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
Application for Review of the Decision of the District Court of Appeal - Direct
Conflict of Decisions
First District - Case No. 1D13-2489
(Leon County)
- 19 -
Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau Chief,
Criminal Appeals, Tallahassee, Florida,
for Petitioner
Dane Kristofor Chase of Chase Law Florida, P.A., Saint Petersburg, Florida,
for Respondent
- 20 -