State v. Michael McNeil ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
NOVEMBER SESSION, 1997
FILED
MICHAEL MCNEIL, )
January 7, 1998
) No. 02C01-9705-CC-00168
Appellant )
Cecil Crowson, Jr.
) MADISON COUNTY Appellate C ourt Clerk
vs. )
) Hon. WHIT LAFON, Judge
STATE OF TENNESSEE, )
) (Post-Conviction)
Appellee )
For the Appellant: For the Appellee:
Frank Deslauriers John Knox Walkup
P.O. Box 1156 Attorney General and Reporter
Covington, TN 38019
Deborah A. Tullis
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
James G. (Jerry) Woodall
District Attorney General
Al Earls
Asst. District Attorney General
Lowell Thomas State Office Bldg.
Jackson, TN 38301
OPINION FILED:
REMANDED
David G. Hayes,
Judge
OPINION
The appellant, Michael McNeil, appeals the Madison County Circuit Court’s
denial of his petition for post-conviction relief arising from his 1989 convictions for
three counts of grand larceny and three counts of burglary. These convictions
served as triggering offenses for the jury’s finding that the appellant was an habitual
criminal. Accordingly, the sentences were enhanced to six life sentences. On
March 30, 1993, the appellant filed a pro se petition for post-conviction relief alleging
ineffective assistance of counsel based upon (1) a conflict of interest arising from
joint representation of the appellant and his co-defendant and (2) deficient
performance in failing to present an alibi defense.1
After a review of the record before us, we remand to the trial court for further
proceedings consistent with this opinion.
Background
The appellant’s jury convictions for burglary and theft stem from his and his
co-defendant’s unexplained possession of recently stolen property. 2 The vehicle in
which the appellant was a passenger and which was being driven by his co-
defendant was stopped by a law enforcement officer on Interstate 40 because of the
erratic manner in which it was being driven. Items stolen from three recent
burglaries were found in the vehicle. At trial and during various pre-trial proceedings,
the appellant and his co-defendant were jointly represented by Larry Fitzgerald, an
attorney retained by members of their respective families.
1
W e address only those issues which ha ve been properly briefed and which are
supported by legal authority. The remaining issues are waived. Tenn . R. App. P. 36(a).
2
State v. And erso n and McN eil, C.C.A. No. 3 (Tenn. Crim. App. at Jackson, Apr. 25,
1990), perm. to appeal denied, (Tenn . July 30, 199 0).
2
At the November 26, 1996, post-conviction hearing, the appellant presented
testimony which he argues clearly supports a conflict of interest based upon this
joint representation. Specifically, the appellant asserts that there was no proof to
connect him with the stolen goods. In support of this position, he offers the
statement of his co-defendant at the suppression hearing wherein the co-defendant,
Anderson, testified that “it was [my] car and basically everything in that car belonged
to [me].”3 Contemporaneously, the appellant, when questioned by attorney
Fitzgerald, denied any proprietary interest in the contents of the car. Moreover, in a
sworn statement attached to his petition, the appellant stated that he and his co-
defendant were offered a negotiated fifteen year plea agreement and that his co-
defendant wanted to accept the offer. The agreement, however, was contingent
upon both defendants accepting the offer, and, since the appellant maintained his
innocence, the offer was rejected.
As to the claim of deficient performance at trial, the appellant contends
that two witnesses, Margaret Reed and Cerita McNeil, would have established an
alibi. Cerita McNeil, the appellant’s sister, testified at the hearing that, prior to the
appellant’s trial, she discussed his case with Mr. Fitzgerald. She related that she
informed Mr. Fitzgerald that her brother left her house in Memphis around 11:30
a.m. on the day of the burglaries. The proof at trial placed the time of one of the
three burglaries in Madison County at 12:07 p.m.4 She stated that, although she
attended her brother’s trial, she was never called as a witness by Mr. Fitzgerald.
Ms. McNeil averred that she again attempted to inform him about her testimony
immediately prior to trial, but Fitzgerald ignored her. Although Margaret Reed did
not testify at the post-conviction hearing, the substance of her testimony at the
appellant’s preliminary hearing was introduced. At the preliminary hearing, Ms.
Reed testified that the appellant was at her home in Brownsville between 12:00 and
3
Motion to Suppress at 2.
4
An electric clock which had been unplugged and removed from the wall in one of the
burglaries had stop ped at 12 :07 p.m . All of the burg laries occ urred on the sam e day.
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12:30 p.m. on the day of the burglaries.
In reference to the proffered alibi proof of Ms. Reed, Mr. Fitzgerald testified
that he was unaware of her testimony at the appellant’s preliminary hearing. He
explained that he did not represent the appellant at that time and he had not
reviewed the preliminary hearing tapes nor had he discussed with the appellant’s
counsel the proof introduced at the preliminary hearing. Regarding the proffered
alibi testimony of Ms. McNeil, Mr. Fitzgerald testified that this witness was simply
lying and that she had never discussed with him any alibi proof.
On direct examination, Mr. Fitzgerald testified that he saw no conflict arising
from his joint representation of the appellant and the co-defendant, Anderson. The
following colloquy between appellant's trial counsel, Larry Fitzgerald, and post-
conviction counsel characterizes trial counsel's position as it relates to the issue of
joint representation and conflict of interest.
Q. Are you aware of any disciplinary rules or regulations about conflicts of
interest in representing two defendants in a criminal matter?
A. Well you have to discuss it with them, and then you have to make a
decision on whether you think it’s a conflict. I thought I did that.
Q. Did you discuss that with them individually or in a group?
A. I’m not sure. I’ve talked to one without the other, and I’ve talked to
both of them together a lot.
Q. But you don’t know when you talked to either of them about the
conflict?
A. I don’t remember, but I’m sure I discussed it with them.
Later and somewhat contradictory to his earlier testimony, Fitzgerald testified, “I
discussed with both of them extensively about my representation of both of them.
They - I asked them did they think it was a conflict.” Fitzgerald conceded that had
he known that the stolen property was being claimed exclusively by the co-
defendant, then a conflict would have existed requiring his withdrawal from the case.
He also recalls that he recommended that neither defendant should testify as both
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had extensive criminal convictions. However, he qualified this statement by adding
that the appellant never expressed a desire to testify and that, if he had so
requested, he would have called him to the stand. Mr. Fitzgerald confirmed that the
State had offered a “package” plea offer of fifteen years, but added that both
defendants wanted to proceed to trial.
Analysis
At the conclusion of the hearing, neither side offered any argument and the
trial court took the matter under advisement with the following statement:
[f]or the record, the Court finds that Mr. Fitzgerald who represented
[the appellant] is a competent attorney in handling this case and did
what could be reasonably expected of him, and the Defendant
received a fair trial, and for that reason the Petition for Post-Conviction
Relief is denied.
Subsequently, the trial court, without any findings of fact, entered a written order
summarily dismissing the appellant’s petition, concluding that:
the petitioner has not carried his burden of proof . . .nor has the
petitioner shown any actual conflict that existed between him and his
co-defendant during the trial of this case.
The trial court’s failure to make any discernible findings of fact and conclusions of
law as required by Tenn. Code Ann. § 40-30-118(b) precludes any meaningful
review of the merits of the appellant’s Sixth Amendment claim.
As may be observed from the record in this cause, essentially all of the
predicate factual questions posed at the hearing which underlie the issues of
ineffective assistance remain in dispute. Of particular concern is the issue of
whether the appellant was denied ineffective assistance of counsel due to a conflict
of interest. Joint representation of co-defendants does not per se constitute
ineffective assistance of counsel due to a conflict of interest. Rather, there must
also be evidence that trial counsel “actively represented conflicting interests and that
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an actual conflict of interest adversely affected his lawyer’s performance.”
Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 2067 (1984)
(quotation omitted).
To determine whether an actual conflict of interest exists
. . . [A]ppellants must make a factual showing of inconsistent interests
and must demonstrate 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.’ . . . There
is no violation where the conflict is ‘irrelevant or merely hypothetical’;
there must be an ‘actual significant conflict.’ . . .
The Supreme Court has observed, however, that a conflict of interest
stemming from multiple representation may prevent an attorney ‘from
exploring possible plea negotiations and the possibility of an
agreement to testify for the prosecution.’ Holloway v. Arkansas, 435
U.S. 475, 490, 98 S.Ct. 1173, 1181(1978).
Thomas v. Foltz, 818 F.2d 476, 481 (6th Cir. 1987).
Finally, we note that, although a showing of adverse effect is required, this
showing does not equate to a showing of actual prejudice as required under the
second prong of Strickland. A petitioner need not show that the result of the trial
would have been different without the conflict of interest, rather, only that the conflict
had some adverse effect on counsel’s performance. McConico v. State, 919 F.2d
1543, 1548 (11th Cir. 1990). "[I]f the defendant is able to demonstrate that a conflict
of interest had an adverse impact . . . prejudice will be presumed." Foltz, 818 F.2d
at 482.
Accordingly, pursuant to the above principles, we remand the claim of
ineffectiveness based upon a conflict of interest for the following determinations:
1. Whether Anderson told his attorney or otherwise signed a
statement acknowledging that the goods in the car were his;
2. What plea offers were extended to both defendants and whether
Anderson at any time advised his attorney that he wanted to accept a
plea offer;
3. Whether an actual conflict of interest existed from trial counsel’s
joint representation;
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4. If an actual conflict of interest existed, whether the conflict had an
adverse impact on trial counsel’s representation of the appellant;
5. Whether trial counsel properly advised the appellant that a potential
conflict of interest existed; and
6. Whether the appellant waived his right to conflict-free
representation.
With reference to the claim that trial counsel was ineffective for failing to present an
alibi defense, we likewise remand for findings as to whether trial counsel’s
performance was deficient and, if so, whether the appellant suffered prejudice as a
result.
The importance of this case and the underlying issues is underscored by the
imposition of six life sentences. For the foregoing reasons, we remand for entry of
written findings of fact and conclusions of law on all issues presented as required by
Tenn. Code Ann. § 40-30-118(b). Upon remand, the trial court shall receive such
further testimony as the parties might wish to offer, including the testimony of
Anderson, the prosecutor who extended plea offers and any other relevant
witnesses who did not testify at the original hearing.
____________________________________
DAVID G. HAYES, Judge
CONCUR:
__________________________________
GARY R. WADE, Judge
__________________________________
JOE G. RILEY, Judge
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