Shongutsie v. State ( 1992 )

CARDINE, Justice,

dissenting.

This is a troubling case. Rebecca Shon-gutsie and Lindberg Shongutsie were husband and wife. They were charged separately in the killing of Richard Ferris. They employed an attorney to represent them in their defense at their joint trial. The possibility of conflict of interest resulting from a single attorney representing two defendants in the joint trial was discussed. The Shongutsies made no objection, but chose to proceed.

The majority opinion recites the question- and-answer cross-examination of Rebecca Shongutsie as an illustration of the prejudice resulting from the joint representation. I cannot discern prejudice resulting from her answers. She responded in the negative to every leading question where a yes answer would have been harmful to herself and her co-defendant. Her answers would exonerate both defendants.

I see merit in the rule adopted by the majority of the court. It is simple, clear-cut, and easy of application. Multiple parties may still be represented by one counsel, but they must clearly and voluntarily waive the right to separate counsel. Prejudice is presumed in such cases. The parties must be advised of the right to separate counsel and, on the record, make their election. I would, however, first, apply the rule prospectively and, second, would affirm this case because, even if prejudice were presumed, no prejudice was shown.