James Franklin O'kelley, III v. State of North Carolina

THOMSEN, Senior District Judge.

Appellant (O’Kelley) was one of five defendants, all of whom were convicted of armed robbery of an automobile and acquitted of kidnapping, in a joint trial in a North Carolina state court. After exhaustion of his state remedies, O’Kelley filed a habeas corpus proceeding in the Western District of North Carolina, contending: (A) that he was denied the effective assistance of counsel at his trial (i) because his court-appointed attorney was also appointed to represent a co-defendant (Williams) with whom O’Kelley alleged that he had a conflict of interest, and (ii) because of alleged incompetence of his trial attorney, and (B) that he was denied a fair trial for various other reasons, including (i) the admission of prejudicial testimony, (ii) prejudicial pretrial publicity, and (iii) various incidents at the trial.¹

After considering the trial record and the arguments of petitioner’s present counsel, the district judge granted the State’s motion to dismiss all allegations in the petition except the allegation that O’Kelley “was denied the effective assistance of counsel by being forced to share counsel with a co-defendant with whom he had conflicting interests.” The district judge granted an evidentiary hearing on that issue, and thereafter filed an opinion in which he correctly stated the test to be applied, namely:

The mere fact of joint representation does not amount to a deprivation of effective assistance of counsel. Petitioner must show (1) that there existed a significant divergence of interests between him and Williams which might reasonably have resulted in some prejudice to him and (2) that he did not knowingly and voluntarily waive his right to conflict-free representation. United States v. Atkinson, 565 F.2d 1283 (4th Cir. 1977), cert. denied, 436 U.S. 944, 98 S.Ct. 2845, 56 L.Ed.2d 785 (1978); United States v. Truglio, 493 F.2d 574 (4th Cir. 1974).

The district judge then stated:

Petitioner [O’Kelley] has pointed out two respects in which a significant divergence of interests existed between him and Williams. Both are in areas that might have affected the sentence imposed but not the conviction itself.

The two areas referred to by the district judge were: (1) the failure of his attorney to emphasize at the sentencing hearing the fact that O’Kelley’s prior record was much less serious than that of Williams;² and (2) the failure of his attorney to put Williams on the stand during the trial in an effort to show that a shotgun which belonged to Williams was not in O’Kelley’s possession at the time of the robbery for which all five defendants were convicted. In all other respects it is clear from the record that the representation of O’Kelley was adequate and effective, notably in the success of counsel in obtaining his acquittal on the kidnapping charges.

d)

The district judge was correct in his statement that O’Kelley’s past record was clearly less serious than that of Williams, and that:

Whatever may be the case generally, [counsel’s] joint representation of petitioner and Williams necessarily prevented counsel from considering single-mindedly whether, on the particular facts of petitioner’s case, a strategy designed to separate and distinguish him from the other defendants, including Williams, might be a productive one. The probability is real that such a strategy might have resulted in greater differentiation between O’Kelley’s sentence and that received by Williams.

The district judge ordered that there should be a new hearing on sentencing in the state court, at which O’Kelley “shall be entitled to representation by counsel of his choice, or, if he cannot afford counsel, by a court-appointed attorney. He shall be entitled to present whatever evidence and make such argument as he wishes on the issue of punishment.” ³

(2)

The attorney was appointed by the court to represent O’Kelley on November 1, 1971, and visited him the same day. Two days later the same attorney was appointed to represent Williams, whom the attorney had represented in two previous criminal cases, but not in connection with this case. The attorney testified in the district court that at all times before and during the trial both O’Kelley and Williams indicated that all the defendants were going to stand together on the charges, that no one was going to take the stand to testify in his own behalf, that this was already decided among them and that none of the defendants, especially O’Kelley and Williams, wanted anything done during the course of the trial or during their representation which would be detrimental to any of the other defendants.

The decision of the Supreme Court in Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), discusses the problems which must be considered and the principles which must be applied in deciding questions of joint representation. That case, however, differed in crucial respects from the instant case. In Holloway each defendant wished to take the stand; here, all five defendants, including the two represented by one attorney, made it clear that they wished to stand together and that none of them wished to take the stand. In Holloway the attorney appointed to represent all the defendants moved on several occasions, both before and during the trial, for separate counsel to be appointed for each of the defendants, stating persuasive grounds therefor. In the instant case no such motion was made; the attorney for O’Kelley and Williams did not believe and neither of the clients desired that separate counsel should be appointed.

O’Kelley’s present lawyer argues that the trial attorney’s representation of O’Kelley was inadequate because, after some evidence had been introduced that O’Kelley had a shotgun in his possession at the time of his arrest, tending to prove that he had it in his possession at the time of the robbery, the attorney did not put Williams on the stand to give testimony which, if believed, would have contradicted that evidence. Williams had testified in the previous case; therefore, presentation of such testimony (dealing with possession of the shotgun) in the instant case would have been compellable. However, offering such evidence would not only have been contrary to the desire of all the defendants, including O’Kelley, it would have placed both O’Kelley and Williams at the scene of another robbery committed by the other three co-defendants a few hours earlier on the same night. It is hard to believe that a lawyer representing O’Kelley alone would have attempted to offer such proof, which would almost certainly have backfired on O’Kelley, whether or not Williams answered any questions put to him on this point. Possession of a weapon was not a necessary element of the charge of robbery for which O’Kelley was convicted. For an attorney representing O’Kelley alone to have introduced that evidence would probably have resulted in placing O’Kelley at the scene of another crime with the same people earlier in the same night, and probably would have caused counsel for the other defendants to emphasize O’Kelley’s part in that night’s activities. It would not have exculpated O’Kelley from participation in the crime for which he was standing trial. Nevertheless, the point should have been raised at the sentencing hearing, and the decision of the district court gives a separate attorney for O’Kelley the opportunity to do so at the new sentencing hearing. We agree with the conclusion of the district judge that there was no inadequacy in the trial attorney’s representation of O’Kelley which would justify our requiring a new trial.

The district judge properly concluded that the evidence that O’Kelley had such a weapon may have affected the length of his sentence. We agree that a separate attorney for O’Kelley should be allowed to present evidence as well as argument on this point at the new hearing on sentencing in the state court.

We also agree with the district judge that O’Kelley was not denied a fair trial for any of the other reasons raised by his counsel on appeal. The decision of the district court is

Affirmed.

1 . O’Kelley raised several other points in the district court which have not been pressed on appeal.

2 . The sentence imposed on Williams was imprisonment for not less than 28 nor more than 30 years; O’Kelley’s sentence was not less than 26 nor more than 30 years.

3 . Although the state appealed from the decision of the district judge, it did not file a brief, and we granted O’Kelley’s motion to dismiss the state’s appeal.