William M. Stevenson v. Lanson Newsome, Warden ( 1985 )

HENDERSON, Circuit Judge:

William M. Stevenson was convicted of burglary in the Superior Court of DeKalb County, Georgia. After exhausting his state post-conviction remedies, he filed this petition for a writ of habeas corpus in the United States District Court for the Northern District of Georgia alleging ineffective assistance of counsel. The district court found no merit to his claims and denied the writ. He appeals that denial to this court. We affirm.

Stevenson and Michael W. Winters, Stevenson’s brother-in-law, were jointly indicted on two counts of burglary. At the time of his arrest, Winters gave the police a statement that implicated Stevenson in the crimes. Winters’ family retained William Dean, Jr. as Winters’ attorney. Dean also represented Stevenson.¹

On the day of the trial, the prosecutor informed the trial judge of a potential conflict of interest inherent in Dean’s representation of both defendants because he had information indicating that Winters wanted to testify on behalf of the state. The state accordingly moved to sever the two defendants’ cases over Dean’s objections. The state trial court granted the motion. The court “suspended” Dean from representing Winters during the course of Stevenson’s trial and appointed the public defender to advise Winters of the possible consequences of his testimony.

Stevenson’s case was called for trial first. Winters took the stand and freely implicated himself in the burglaries but refused to incriminate Stevenson. The court subsequently allowed the prosecutor to impeach Winters’ testimony with respect to Stevenson’s involvement and permitted the introduction of Winters’ prior statement implicating Stevenson through the testimony of a detective who had taken the statement. After the statement was read in court, Dean objected to its admission. Stevenson was subsequently convicted of both counts. Following Stevenson’s trial, Dean represented Winters when he pled guilty to the burglaries.

After the denial of relief following a hearing in the state court, Stevenson filed this petition in the district court which was referred to the magistrate for a report and recommendation. 28 U.S.C. § 636(b)(1)(B) (1982). Stevenson claimed that he was denied his right to the effective assistance of counsel and to present a unified defense when the trial court granted the state’s severance motion, that he was denied the effective assistance of counsel because of an actual conflict of interest, and that Dean was ineffective for failing to object to the impeachment of Winters’ testimony. The magistrate recommended the denial of relief and the district court adopted his recommendation.

Stevenson’s contention that he was denied effective assistance of counsel because the trial court interfered with the exercise of his rights to share counsel and to present a unified defense is essentially a challenge to the correctness of the trial court’s decision to sever the trials. Under Georgia law, as well as federal law, the decision to grant or deny a motion for severance lies within the sound discretion of the trial court and will not be disturbed absent an abuse of that discretion. Cain v. State, 235 Ga. 128, 128-129, 218 S.E.2d 856, 857 (1975); Stevens v. State, 165 Ga.App. 814, 816, 302 S.E.2d 724, 726 (1983). To justify habeas corpus relief, Stevenson has the burden of demonstrating that he suffered prejudice amounting to a denial of due process. Demps v. Wainwright, 666 F.2d 224, 227 (5th Cir. Unit B), cert. denied, 459 U.S. 844, 103 S.Ct. 98, 74 L.Ed.2d 89 (1982).²

There has been no such showing in this case. We recognize that “[a] common defense often gives strength against a common attack.” Glasser v. United States, 315 U.S. 60, 92, 62 S.Ct. 457, 475, 86 L.Ed. 680, 710-11 (1942) (Frankfurter, J., dissenting). There is no constitutional right, however, to a joint trial. Even had the defendants been tried together, Stevenson had no assurance that Winters would not testify against him. Furthermore, the state trial court was not bound by the strict requirements of Fed.R.Crim.P. 44(c) which provides that whenever two or more criminal defendants who have been jointly charged are represented by the same counsel, the court “shall promptly inquire with respect to such joint representation and shall personally advise each defendant of his right to the effective assistance of counsel, including separate representation.” The state trial court, when advised of the potential conflict, acted to protect each defendant’s interests by granting the state’s severance motion. Stevenson has not demonstrated that the court abused its discretion.

Stevenson next attacks Dean’s purported conflict of interest. The magistrate’s report and recommendation to the court concluded that there was no actual conflict because Winters’ testimony did not implicate Stevenson, Dean labored under no impediment in cross-examining Winters, and Dean had no reason to impeach Winters since his testimony did not damage Stevenson’s case. Stevenson argues that this finding was erroneous because the trial court only temporarily suspended Dean from representing Winters, instead of disqualifying him from further participation. Thus, he says Dean owed a continuing duty of loyalty to Winters.

The threshold question is whether there was an actual conflict of interest. The possibility of conflict does not rise to the level of a sixth amendment violation. Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 1719, 64 L.Ed.2d 333, 347 (1980). “An actual conflict exists if counsel’s introduction of probative evidence or plausible arguments that would significantly benefit one defendant would damage the defense of another defendant whom the same counsel is representing.” Baty v. Balkcom, 661 F.2d 391, 395 (5th Cir. Unit B 1981), cert. denied, 456 U.S. 1011, 102 S.Ct. 2307, 73 L.Ed.2d 1308 (1982). It must be demonstrated that “the attorney ‘made a choice between possible alternative courses of action, such as eliciting (or failing to elicit) evidence helpful to one client but harmful to the other. If he did not make such a choice, the conflict remained hypothetical.’ ” United States v. Mers, 701 F.2d 1321, 1328 (11th Cir.) (quoting Comment, Conflict of Interests in Multiple Representation of Criminal Co-Defendants, 68 J.Crim.L. & Criminology 226, 232 (1977)), cert. denied, — U.S. —, 104 S.Ct. 481, 482, 78 L.Ed.2d 679 (1983).

There is no evidence in this case that Dean was subject to divided loyalties sufficient to establish an actual conflict of interest. Upon being informed of the potential conflict, the state trial court severed the trials and suspended Dean from representing Winters during the course of Stevenson’s trial. The court also refused to allow Winters to discuss with Dean his testimony against Stevenson. Furthermore, Stevenson has not proved that Dean was forced to make choices that would benefit one defendant at the other’s expense.

Even assuming that there was an actual conflict of interest, there is still no infringement of Stevenson’s sixth amendment rights. The Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) has cast considerable doubt upon the correctness of the holding in Baty v. Balkcom that a petitioner need not demonstrate that the conflict had an adverse effect on counsel’s performance to establish a sixth amendment violation. See Ruffin v. Kemp, 767 F.2d 748, 751 & n. 6 (11th Cir.1985). Compare Burger v. Kemp, 753 F.2d 930, 942 (11th Cir.1985) (Johnson, J., dissenting) (defendant must show that counsel actively represented conflicting interests and that actual conflict adversely affected counsel’s performance) with Baty v. Balkcom, 661 F.2d at 397 (Johnson, J.) (adverse effect on counsel’s representation need not be shown). In Strickland, the Court said

One type of actual ineffectiveness claim warrants a similar, though more limited presumption of prejudice. In Cuyler v. Sullivan, ... the Court held that prejudice is presumed when counsel is burdened by an actual conflict of interest. In those circumstances, counsel breaches the duty of loyalty, perhaps the most basic of counsel’s duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests. Given the obligation of counsel to avoid conflicts of interest and the ability of trial courts to make early inquiry in certain situations likely to give rise to conflicts, see, e.g., Fed.Rule Crim.Proc. 44(c), it is reasonable for the criminal justice system to maintain a fairly rigid rule of presumed prejudice for conflicts of interest. Even so, the rule is not quite the per se rule of prejudice that exists for the Sixth Amendment claims mentioned above. Prejudice is presumed only if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and ‘that an actual conflict of interest adversely affected his lawyer’s performance.’

466 U.S. at —, 104 S.Ct. at 2067, 80 L.Ed.2d at 696-97 (emphasis added) (quoting Cuyler v. Sullivan, 446 U.S. 348, at 350, 100 S.Ct. 1718, at 1719, 64 L.Ed.2d 346, at 347). In order to warrant habeas corpus relief, the petitioner has to show not only an actual conflict of interest but also that the conflict adversely affected his lawyer’s representation. Winters’ trial testimony did not implicate Stevenson in the burglaries. In such circumstances, as the magistrate correctly pointed out, there was no reason for Dean to impeach Winters. On cross-examination, Dean attempted to show that Winters’ prior inculpatory statement was a product of promises made to him by the detective and not Winters’ own free will. Stevenson points to no different defense strategy which could have been employed by another lawyer. We hold that Stevenson has not shown an adverse effect in this case.

Finally, Stevenson claims that Dean was ineffective because he failed to object to the state’s introduction of Winters’ prior statement to the police. Without concluding whether Dean was ineffective for failing to object, the magistrate found that there was no prejudice because even if Dean had objected to the state’s impeachment of Winters, its own witness, this objection would have been properly overruled under Georgia law.

To prevail on this ground, Stevenson must prove that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. at —, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. It must be shown that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. The acts or omissions forming the basis for the ineffectiveness claim must be outside the “wide range of professionally competent assistance.” Id. at —, 104 S.Ct. at 2066, 80 L.Ed.2d at 695.

Dean testified that he decided not to object to the state’s cross-examination of Winters concerning his prior statement because he thought his client’s best interests would be served by showing that the police used undue pressure in obtaining the statement. Deposition of William Dean, Jr. at 10-11. Dean also thought the testimony was harmless to Stevenson and more damaging to the state’s case. Id. at 11-12. The prosecutor was of the same view. Deposition of Robert E. Wilson at 17-19. Stevenson urges that even if Dean made a proper tactical decision not to object to Winters’ testimony, he had no basis for failing to object to introduction of the statement through the testimony . of the detective. The record reveals that Dean did object to the admission of the statement on voluntariness grounds. Transcript of State Habeas Corpus Hearing at 88. In light of all the circumstances, we cannot say that counsel’s conduct was constitutionally deficient in this instance.

Even assuming that Dean was ineffective by failing to object, the magistrate correctly found that Stevenson failed to establish the requisite prejudice. Georgia law provides that:

A party may not impeach a witness voluntarily called by him, except where he can show to the court that he has been entrapped by said witness by a previous contradictory statement.

O.C.G.A. § 24-9-81 (1982). To establish entrapment, it is not necessary that the witness’ testimony be a total surprise or that it be affirmatively damaging. Ellenburg v. State, 239 Ga. 309, 310, 236 S.E.2d 650, 651 (1977); Wilson v. State, 235 Ga. 470, 475, 219 S.E.2d 756, 760 (1975). Indeed, it is not error for the trial court to allow the state to impeach its own witness by introducing prior inconsistent statements where the witness’ testimony merely fails to bolster the state’s case as anticipated by the prosecution. Wilson, 235 Ga. at 473-75, 219 S.E.2d at 759-60. If the state reasonably believes that the witness will testify consistently with his prior statement, it is entitled to impeach the witness with the prior statement if he fails to adhere to it at the trial. Ellenburg, 239 Ga. at 310-11, 236 S.E.2d at 651-52.

The prosecutor testified that he assumed when Winters volunteered to testify that he would do so consistently with his prior statement. Deposition of Robert E. Wilson at 10-11, 15. When Winters later refused to incriminate Stevenson as he had previously told the detective, the prosecutor was entitled to impeach Winters with his prior statement. Therefore, any objection to admission of the statement would have been without merit.

For the foregoing reasons, the judgment of the district court denying Stevenson’s petition for habeas corpus is AFFIRMED.

1 . There is some dispute as to how Dean came to represent Stevenson. At the state habeas corpus hearing, Stevenson testified that the trial court appointed Dean to represent him on the day of trial. Transcript of State Habeas Corpus Hearing at 13-14. Dean stated, however, that he was retained to represent both men. Deposition of William Dean, Jr. at 5. In any event, Dean acted as Stevenson's attorney during his trial.

2 . In Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir.1982), the Eleventh Circuit Court of Appeals adopted as precedent all decisions of Unit B of the former Fifth Circuit.