Cameron Jerome White v. State ( 2022 )

FOURTH DIVISION
DILLARD, P. J.,
MERCIER and MARKLE, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
August 22, 2022
In the Court of Appeals of Georgia
A22A0738. WHITE v. THE STATE.
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
he 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
2
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
1
See North Carolina v. Alford, 400 U.S. 25, 38 (91 SCT 160, 27 LE2d 162)
(1970) (holding that a trial court can accept a guilty plea when there is a strong
factual basis for the plea and the defendant clearly expresses a desire to enter it
despite the defendant’s claims of innocence).
3
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.
2
White was convicted of child molestation and statutory rape, but was
acquitted on counts of rape, enticing a child for indecent purposes, and false
imprisonment.
4
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
3
UNIF. SUPER. CT. R. 4.3 (1).
4
Id.5
See Rouse v. State, 275 Ga. 605, 608-09 (9) (571 SE2d 353) (2002) (“[W]e
conclude that the trial court did not abuse its discretion in denying the motion to
withdraw filed by [the defendant’s] counsel.”); Johnson v. State, 283 Ga. App. 524,
528 (5) (642 SE2d 170) (2007) (noting that under Rouse, “[t]he decision whether to
grant a motion to withdraw representation falls within the sound discretion of the trial
court”), overruled on other grounds by State v. Lane, 308 Ga. 10 (838 SE2d 808)
(2020); see also Odum v. State, 283 Ga. App. 291, 293-94 (1) (641 SE2d 279) (2007)
5
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
(“[When] a conflict does not arise or is not discovered until after the representation
has begun, . . . we find nothing in [OCGA § 17-12-22, which controls public
defenders’ responses to conflicts of interest,] that would impact the trial court’s
authority to decide whether that conflict should permit defense counsel’s withdrawal
from the case. . . . Given that OCGA § 17-12-22 governs the conduct of public
defenders’ offices, we decline to construe it as affecting the trial courts’ authority to
apply their procedural rules. . . . The fair and efficient operation of our court system,
therefore, demands that trial courts remain free to explore, when necessary, the
adequacy of the basis of defense counsel’s representations regarding a conflict of
interest.” (citation & punctuation omitted)).
6
Early v. State, 310 Ga. App. 110, 114 (2) (c) (712 SE2d 565) (2011)
(punctuation omitted); accord Holsey v. State, 291 Ga. App. 216, 218-19 (2) (661
SE2d 621) (2008); see Bryant v. State, 268 Ga. 616, 617 (2) n.4 (491 SE2d 320)
(1997) (“[The defendant] failed to support the discharge of counsel by setting forth
any justifiable dissatisfaction with counsel, such as conflict of interest, an
irreconcilable conflict, or a complete breakdown in communication between counsel
and client.”); see also Bourassa v. State, 345 Ga. App. 463, 471 (2) (811 SE2d 113)
(2018) (“In [defendant’s] motion for new trial, [he] argued that the trial court’s denial
of the motion to withdraw prohibited his trial counsel from effectively representing
him. The trial court denied [the] motion on this ground, noting that there was no
conflict that mandated trial counsel’s withdrawal or that inhibited her from vigorously
defending [defendant] and that trial counsel’s request to withdraw was not timely. We
review a trial judge’s decision on a counsel’s motion to withdraw for abuse of
discretion. Here, we find no abuse of discretion on the part of the trial court in its
determination as to the timeliness of trial counsel’s motion and as to whether a
conflict of interest was present.” (citations & footnotes omitted)), vacated on other
grounds by Bourassa v. State, 306 Ga. 329 (830 SE2d 189) (2019).
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
7
See Porter v. State, 278 Ga. 694, 697 (6) (606 SE2d 240) (2004) (“[T]rial
counsel did not represent the witness and nothing on the record suggests trial counsel
was in possession of any information about the witness or the witness’s previous
prosecution. . . . Thus, no actual conflict of interest impacting trial counsel’s
representation of [defendant] having been shown, the trial court did not err in denying
trial counsel’s motion to withdraw.” (citation omitted)); see also infra notes 13 to 20
& accompanying text.
8
See Billings v. State, 308 Ga. App. 248, 253 (3) (707 SE2d 177) (2011)
(holding that trial court did not abuse its discretion in denying attorney’s motion to
withdraw as counsel and rejecting defendant’s stated dissatisfaction with the
attorney’s representation after the court made a “commendable and thorough
investigation of the allegations”); see supra note 7. Given our conclusion that the trial
7
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
court did not abuse its discretion in denying his counsel’s motion to withdraw, we
need not address White’s assertion that the court committed “plain error” in doing so.
In any event, as the Supreme Court of Georgia has recognized, “plain error” is
codified so as to apply to evidentiary rulings and jury charges. See Chrysler Grp.,
LLC v. Walden, 303 Ga. 358, 370 (II) (b) n.4 (812 SE2d 244) (2018) (“We have
adopted the same four-pronged standard for plain-error review that federal courts
apply in criminal cases, first for jury instructions under OCGA § 17-8-58 (b), and
then for evidentiary issues under OCGA § 24-1-103.” (citations omitted)); see also
OCGA § 24-1-103 (d) (providing that, for rulings on evidence, “[n]othing in this
Code section shall preclude a court from taking notice of plain errors affecting
substantial rights although such errors were not brought to the attention of the
court”); OCGA § 17-8-58 (b) (“Failure to object in accordance with subsection (a) of
this [Criminal Procedure] Code section shall preclude appellate review of such
portion of the jury charge, unless such portion of the jury charge constitutes plain
error which affects substantial rights of the parties. Such plain error may be
considered on appeal even if it was not brought to the court’s attention as provided
in subsection (a) of this Code section.”). Indeed, our Supreme Court has declined to
apply plain error review to other issues. See Gates v. State, 298 Ga. 324, 328 (4) (781
SE2d 772) (2016) (“[B]ecause [appellant] did not object to the prosecutor’s argument
at trial, he has waived review of these arguments on appeal, as the alleged errors here
based on improper remarks during closing argument are not subject to review on
appeal for plain error.”).
8
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
9
Turner v. State, 273 Ga. 340, 342 (2) (541 SE2d 641) (2001); accord
Simmons v. State, 291 Ga. 705, 713 (10) (733 SE2d 280) (2012).
10
Turner, 273 Ga. at 342 (2); see Stafford v. State, 312 Ga. 811, 819 (3) (a)
(865 SE2d 116) (2021) (“To satisfy the deficiency prong, a defendant must
demonstrate that his attorney performed at trial in an objectively unreasonable way
considering all the circumstances and in the light of prevailing professional norms.
This requires a defendant to overcome the strong presumption that trial counsel’s
performance was adequate.”).
11
Turner, 273 Ga. at 342 (2); accord Soler v. State, 354 Ga. App. 93, 96 (2)
(840 SE2d 169) (2020).
12
Turner, 273 Ga. at 342 (2) (a); see Wood v. Georgia, 450 U.S. 261, 271 (III)
(101 SCt 1097, 67 LE2d 220) (1981) (“[When] a constitutional right to counsel
exists, our Sixth Amendment cases hold that there is a correlative right to
representation that is free from conflicts of interest.”); Sallie v. State, 269 Ga. 446,
9
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
448 (2) (499 SE2d 897) (1998) (“Counsel’s function is to assist the defendant, and
hence counsel owes the client a duty of loyalty, a duty to avoid conflicts of interest.”
(punctuation omitted)).
13
Turner, 273 Ga. at 342 (2) (a) (emphasis supplied); accord Henry v. State,
269 Ga. 851, 854 (3) (507 SE2d 419) (1998); see Capers v. State, 220 Ga. App. 869,
873 (2) (470 SE2d 887) (1996) (“To establish ineffective assistance of counsel based
upon conflict of interest, defendants must prove that their counsel actively
represented conflicting interests and that an actual conflict of interest adversely
affected his lawyer’s performance.” (punctuation omitted)).
14
State v. Abernathy, 289 Ga. 603, 604-05 (1) (715 SE2d 48) (2011).
15
U.S. CONST. AMEND. VI (“In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed, which district shall have been
previously ascertained by law, and to be informed of the nature and cause of the
accusation; to be confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have the Assistance of Counsel
for his defence.”); see also GA. CONST. art. I, § 1, ¶ XIV (“Every person charged with
an offense against the laws of this state shall have the privilege and benefit of
counsel; shall be furnished with a copy of the accusation or indictment and, on
demand, with a list of the witnesses on whose testimony such charge is founded; shall
10
“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
have compulsory process to obtain the testimony of that person’s own witnesses; and
shall be confronted with the witnesses testifying against such person.”).
16
Williams v. Moody, 287 Ga. 665, 667 (2) n.4 (697 SE2d 199) (2010); see
Norton v. State, 293 Ga. 332, 338 (7) (a) (745 SE2d 630) (2013) (“The question of
whether an attorney labors under an actual conflict of interest for purposes of the
Sixth Amendment generally arises when the purported conflict stems from the
attorney’s representation of multiple defendants concurrently.” (punctuation
omitted)).
17
Williams v. State, 302 Ga. 404, 411 (3) (807 SE2d 418) (2017) (punctuation
omitted); accord Abernathy, 289 Ga. at 605 (1); see Edwards v. Lewis, 283 Ga. 345,
350 (2) (658 SE2d 116) (2008) (holding that an actual conflict of interest existed
when defense counsel did not pursue a jury array issue due to conflicting interests);
Burns v. State, 281 Ga. 338, 341 (638 SE2d 299) (2006) (explaining that an actual
conflict of interest may exist when co-defendants present antagonistic defenses at
trial); Mitchell v. State, 261 Ga. 347, 349 (2) (405 SE2d 38) (1991) (holding that
when a State witness was a current client of defense counsel in an unrelated criminal
matter, counsel’s ability to cross-examine the witness was constrained); Tarwater v.
11
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
State, 259 Ga. 516, 518 (383 SE2d 883) (1989) (holding there was significant effect
on representation when counsel negotiated a plea bargain for more than one defendant
in a case conditioned on acceptance of the plea by all such defendants).
18
State v. Mamedov, 288 Ga. 858, 860 (708 SE2d 279) (2011); accord
McNorrill v. State, 338 Ga. App. 466, 473 (2) (789 SE2d 823) (2016); see Tolbert v.
State, 298 Ga. 147, 152-53 (2) (b) (780 SE2d 298) (2015) (explaining that “the
question would remain whether the potential conflict of interest for the lawyer had
a significant and adverse effect on the way in which he represented [the defendant]”);
Blackshear v. State, 274 Ga. 842, 844 (2) (560 SE2d 688) (2002) (“This Court and
other courts have recognized that in some circumstances counsel’s fee arrangement
may create a conflict of interest with the client and the conflict can affect the
adequacy of counsel’s representation.”).
19
See Norton, 293 Ga. at 338 (7) (a) (holding that defense counsel’s prior
representation of the murder victim and having worked in close proximity to the
murder victim did not give rise to a conflict of interest when there was no
simultaneous representation and no connection between the prior representation of
the victim and counsel’s current representation of the defendant); Jackson v. State,
271 Ga. 705, 705-06 (1) (523 SE2d 871) (1999) (holding that a law partner’s relation
to victim’s mother by marriage and his representation of her in the probate of the
12
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 to withdraw and did not meet with him a sufficient number of times
prior to trial, his enumeration of error still fails. As we explained supra, for purposes
of the motions to withdraw, there was no conflict of interest under the Sixth
Amendment. And as to the second contention, White has not established how he was
victim’s estate did not deprive defendant of effective assistance of counsel due to a
conflict of interest when defendant did not show how this “caused divided loyalties,
compromised his attorney’s representation of him, or influenced his decision to plead
guilty”); Hill v. State, 269 Ga. 23, 25 (2) (494 SE2d 661) (1998) (holding that the
“remoteness of trial counsel’s earlier representation of [the sole witness to the
murder], lead us to reject [the defendant’s] claim that her trial counsel was
impermissibly conflicted”); Capers, 220 Ga. App. at 874 (2) (“[The defendant] . . .
failed to demonstrate that an actual conflict of interest adversely affected his lawyer’s
performance. . . . [The defendant] failed to demonstrate that his counsel’s prior
relationship with [the co-defendant] limited the cross-examination or his counsel’s
loyalty was divided. . . . This evidence is not sufficient to establish that the defense
was actually impaired by counsel’s prior representation of [the co-defendant].”).
20
Turner, 273 Ga. at 343 (2) (a); see Hill, 269 Ga. at 24-25 (3) (rejecting claim
of ineffective assistance of trial counsel based on counsel’s prior representation of
prosecution witness in an unrelated criminal matter when defendant failed to show
an adverse effect on the representation); see also Capers, 220 Ga. App. at 874 (2) (“A
mere possibility of conflict is insufficient to impugn a criminal conviction amply
supported by competent evidence.” (punctuation omitted)).
13
prejudiced by counsel’s alleged failures. Indeed, White has made no showing as to
what, if anything, would have differed at trial had defense counsel further consulted
with him, and thus this claim also fails.21
For all these reasons, we affirm White’s convictions.
Judgment affirmed. Mercier and Markle, JJ., concur.
21
See Hendrix v. State, 298 Ga. 60, 64 (2) (a) (779 SE2d 322) (2015) (“In the
context of a failure-to-consult claim . . . , the defendant must establish that his
counsel’s failure to consult was prejudicial to his defense, i.e., that there is a
reasonable probability that, but for counsel’s failure to consult, the result of his trial
would have been different.”); Watkins v. State, 361 Ga. App. 55, 62-63 (6) (d) (862
SE2d 720) (2021) (holding that defendant failed to show how additional consultation
would have affected his case, and thus counsel’s alleged failure to consult did not
constitute ineffective assistance of trial counsel).
14