McLAUGHLIN v. PAYNE

In the Supreme Court of Georgia
Decided: July 11, 2014
S14A0220. McLAUGHLIN, Warden v. PAYNE.
HINES, Presiding Justice.
Warden Gregory McLaughlin appeals the grant of a writ of habeas corpus
to William C. Payne. For the reasons that follow, we affirm.
In 2006, Payne was convicted on two counts of aggravated child
molestation, three counts of child molestation, and one count of cruelty to
children. At Payne’s trial, then District Attorney for the Douglas Judicial
Circuit, David McDade, appeared as a witness for the State. He identified
himself to the jury as the district attorney, identified the examining prosecuting
attorney as his assistant, and outlined his duties as district attorney. He also
testified that: his daughter was a classmate of the victim named in the
indictment; his daughter told him what she had heard of the crimes; he
participated in an interview of Payne early in the investigation; during the first
few days of the investigation, law enforcement efforts were focused on finding
Payne; and, that after his interview with Payne, he realized he would likely be
a witness at trial, and removed himself from Payne’s prosecution. On appeal,
Payne contended that he was not present at all critical stages of the trial, venue
was not proven, evidence of a prior similar transaction was wrongly admitted,
and trial counsel was ineffective in failing to object to certain evidence. His
convictions were affirmed. See Payne v. State, 290 Ga. App. 589 (660 SE2d
405) (2008). See also Payne v. State, 285 Ga. 137 (674 SE2d 298) (2009),
overruled by Reed v. State, 291 Ga. 10 (727 SE2d 112) (2012).
In 2009, Payne filed a petition for a writ of habeas corpus, raising, inter
alia, a claim of ineffective assistance of appellate counsel. After multiple
hearings, the habeas court found that McDade had a conflict of interest, had
testified falsely at trial, and that appellate counsel should have pursued these two
issues on appeal. The habeas court also found that had the issues been raised on
appeal, the result of Payne’s direct appeal would have been different;
consequently, that court granted the writ of habeas corpus.
The warden contends that the habeas court erred in finding that the
representation by Payne’s appellate counsel was ineffective.
The standard for establishing the ineffective assistance of either trial
2
counsel or appellate counsel is set forth by The United States
Supreme Court in Strickland v. Washington, 466 U.S. 668 (104 SC
2052, 80 LE2d 674) (1984); the standard consists of a two-prong
analysis in which it must first be shown that counsel's performance
was deficient, and second that the deficiency prejudiced the defense.
Battles v. Chapman, 269 Ga. 702 (1) (506 SE2d 838) (1998). In
order to satisfy the first prong of the test, [Payne] has to overcome
the strong presumption that his attorneys’ performances fell within
a wide range of reasonable professional conduct, and that the
attorneys’ decisions were made in the exercise of reasonable
professional judgment; the reasonableness of the conduct is
assessed from the perspective of counsel at the time of trial or
appeal and under the specific circumstances of the case. Hendricks
v. State, 290 Ga. 238 (719 SE2d 466) (2011). As to the second
prong of the test, it must be shown that there is a reasonable
probability that, absent the cited professional deficiencies by
counsel, the result would have been different. Id. The failure to
satisfy either prong of the Strickland test will defeat an ineffective
assistance of counsel claim. Simpson v. State, 289 Ga. 685, 688 (5)
(715 SE2d 142) (2011). Furthermore, this Court is to affirm a
habeas court’s determination of a claim of ineffective assistance of
counsel unless it is concluded that the habeas court's factual
findings are clearly erroneous or legally insufficient to support such
determination. Walker v. Hagins, 290 Ga. 512 (722 SE2d 725)
(2012).
Barker v. Barrow, 290 Ga. 711, 712 (723 SE2d 905) (2012).
Prior to trial, Payne filed a “Motion to Disqualify Douglas County District
Attorney’s Office” from acting in the case, citing the designation of McDade as
a witness against him at trial, and urging that this required the disqualification
of the entire Douglas Judicial Circuit District Attorney’s Office, citing inter alia,
3
Rule 3.7 (a) of the Rules of Professional Conduct of the State Bar of Georgia.
That Rule states:
A lawyer shall not act as advocate at a trial in which the lawyer is
likely to be a necessary witness except where:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal
services rendered in the case; or
(3) disqualification of the lawyer would work
substantial hardship on the client.
And, the principle that a lawyer is to avoid testifying in a case in which he is
acting as an advocate at trial is a longstanding one, which was codified in former
Directory Rule 5-102 of the Rules and Regulations of the State Bar of Georgia,1
which read:
When a lawyer is a witness for his client, except as to merely formal
matters, such as the attestation or custody of an instrument and the
like, he should leave the trial of the case to other counsel. Except
when essential to the ends of justice, a lawyer should avoid
testifying in court on behalf of his client.
It has been recognized that, if an attorney will appear at trial as a “necessary
witness” under Rule 3.7 (a), disqualification of that attorney as trial counsel is
appropriate. See Clough v. Richelo, 274 Ga. App. 129, 132-133 (1) (616 SE2d
1
The Rules of Professional Conduct replaced the Directory Rules in 2001. See In Re
Formal Advisory Opinion 05-11, 284 Ga. 283 (fn. 1) (667 SE2d 93) (2008); American Comp.
Tech., Inc. v. Hardwick, 274 Ga. App. 62, 68 (fn. 1) (616 SE2d 838) (2005).
4
888) (2005). This Court has observed that there is “conflict inherent in
counsel’s dual role as advocate and witness,” Wright v. State, 267 Ga. 496, 497
(2) (b) (480 SE2d 13) (1997), and for an attorney to act as both witness and
advocate is a circumstance to be avoided. Id. Rather, “[t]he practice of trial
attorneys testifying is not approved by the courts except where made necessary
by the circumstances of the case. [Cit.]” Timberlake v. State, 246 Ga. 488, 500
(7) (271 SE2d 792) (1980).2
While these considerations would preclude McDade’s acting as an
advocate for the State before the jury, they do not address the issue of whether
his disqualification as trial counsel as a consequence of his role as a witness
should have been imputed to his entire staff. When an attorney is precluded
from “act[ing] as advocate at a trial” under Rule 3.7 (a) because he is a
necessary witness, his status is not automatically imputed to other attorneys in
his office, although the circumstances may leave the other attorneys with their
own disqualifications. “A lawyer may act as an advocate in a trial in which
another lawyer in the lawyer’s firm is likely to be called as a witness unless
2
For instance, in Timberlake, this Court did not find any error in allowing the prosecutor
to testify “in rebuttal only for impeachment purposes as to what a defense witness had said to the
prosecutor.” Id. at 501. See also Lance v. State, 275 Ga. 11, 26 (36) (560 SE2d 663) (2002).
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precluded from doing so by Rule 1.7 or Rule 1.9.” Ga. R. Prof. Conduct 3.7 (b).
And, precedent of this Court did not require that McDade’s role as a witness
disqualify all those on his staff. In its order denying Payne’s motion to
disqualify the entire Douglas Judicial Circuit District Attorney’s office based
upon McDade’s disqualification as trial counsel, the trial court relied on Brown
v. State, 261 Ga. 66, 72 (9) (401 SE2d 492) (1991). As to the issue of the
district attorney serving as a witness , Brown stated:
The trial court did not err by denying Brown’s motion to recuse the
entire office of the district attorney simply because the district
attorney himself, who was a witness in the case, was disqualified.
Holiday v. State, 258 Ga. 393 (9) (369 SE2d 241) (1988); Frazier
v. State, 257 Ga. 690 (9) (362 SE2d 351) (1987).
Brown, supra (Emphasis supplied.)3 When considering a claim of ineffective
assistance of counsel, the reasonableness of counsel’s performance is judged
from counsel’s perspective at the time. Harris v. Upton, 292 Ga. 491, 493 (2)
(739 SE2d 300) (2013). Failure to argue an issue contrary to prevailing law
would be ineffective assistance of counsel “only in a rare case.” Rickman v.
3
We note that a number of appellate decisions have recognized that when one assistant
district attorney in an office is disqualified from acting, certain procedures may be employed to
screen that assistant from the prosecution and it is not necessary that the entire district attorney’s
office be disqualified from prosecuting the case. See, e.g., Ferguson v. State, 294 Ga. 484, 485
(2) (754 SE2d 76) (2014); Sealey v. State, 277 Ga. 617, 619 (4) (593 SE2d 335) (2004); Billings
v. State, 212 Ga. App. 125, 128-129 (4) (441 SE2d 262) (1994).
6
State, 277 Ga. 277, 280 (2) (587 SE2d 596) (2003) (Punctuation omitted.) See
also Redwine v. State, 280 Ga. 58, 62-63 (3) (c) (623 SE2d 485) (2005).
Appellate counsel’s failure to raise on appeal any issue regarding McDade’s
preclusion from serving as a trial advocate under Rule 3.7 (a) of the Rules of
Professional Conduct being imputed to the remainder of his office could not
serve as a basis for a finding of ineffective assistance of appellate counsel.
Nonetheless, the habeas court found that McDade had a personal interest
in the case that disqualified him from participating in the prosecution of the case
at all, not just from serving as trial counsel. And, this finding does raise an issue
implicating not only McDade’s role in the prosecution, but that of his entire
office. The elected district attorney is not merely any prosecuting attorney. He
is a constitutional officer, and there is only one such officer in each judicial
circuit. Ga. Const. of 1983, Art. VI, Sec. VIII, Para. I (a). Under our State
Constitution, “[i]t shall be the duty of the district attorney to represent the state
in all criminal cases in the superior court of such district attorney’s circuit . . .
.” Id. at Para. I (d). The elected district attorney appoints the assistant district
attorneys, OCGA § 15-18-14, the assistant district attorneys serve only at his
pleasure, and their authority is derived from him. OCGA § 15-18-19 (b). In a
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Georgia criminal prosecution,
the whole proceeding, from the time the case is laid before the
[district attorney] until the rendition of the verdict, is under the
direction, supervision, and control of that officer, subject to such
restriction as the law imposes. Counsel employed to assist in the
prosecution of criminal cases can perform no duties as such except
those agreeable to and under the direction of the [district attorney.]
Jackson v. State, 156 Ga. 842, 850 (3) (120 S.E. 535) (1923). This Court has
recognized that “a Georgia district attorney is of counsel in all criminal cases or
matters pending in his circuit. This includes the investigatory stages of matters
preparatory to the seeking of an indictment as well as the pendency of the case.
[Cit.]” King v. State, 246 Ga. 386, 389 (7) (271 SE2d 630) (1980).
And, for a prosecutor to have a conflict in such a case is contrary to public
policy, and can warrant a new trial. See Lane v. State, 238 Ga. 407, 408-410
(4) (233 SE2d 375) (1977). See also Clifton v. State, 187 Ga. 502, 504 (1) (2
SE2d 102) (1939).
When the elected district attorney is wholly disqualified from a case, the
assistant district attorneys — whose only power to prosecute a case is derived
from the constitutional authority of the district attorney who appointed them —
have no authority to proceed. While the statutory law permits the chief assistant
8
district attorney to temporarily accept the powers and duties of the elected
district attorney in the event that the elected district attorney is physically
disabled, mentally disabled, or temporarily absent from the circuit, see OCGA
§ 15-18-15 (b) (1) - (3), in the event that the elected district attorney is wholly
disqualified, the statutes contemplate something else. Under OCGA § 15-18-5
(a):
When a district attorney’s office is disqualified from interest or
relationship to engage in a prosecution, the district attorney shall
notify the Attorney General of the disqualification. Upon receipt of
such notification, the Attorney General shall:
(1) Request the services of and thereafter appoint a district
attorney, a solicitor-general, or a retired prosecuting attorney
. . .;
(2) Designate an attorney from the Department of Law; or
(3) Appoint a competent attorney to act as district
attorney pro tempore in place of the district attorney.
And, it is uncontroverted that no appointment or designation under OCGA § 15-
18-5 (a) was made in this case.
The habeas court’s finding that McDade had a personal interest in the
prosecution was supported in the record. As the habeas court noted, McDade
testified before the jury that his conversation with his daughter was “very
troubling,” and that his daughter’s conversation with the victim was emotional.
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McDade described his relationship with his daughter as very close, and her as
an emotional person; he testified that his daughter’s concern caused him to pay
particular attention to the situation, and that he was “concerned that she’s
concerned.” The habeas court also noted that, at trial, McDade had bolstered the
credibility of another witness. Further, the habeas court noted that McDade had
testified at the hearing on the motion to disqualify the district attorney’s office
that he had ceased to act in the prosecution shortly after the November 14, 2000
interview with Payne, but found that, nonetheless, the screening procedures
supposedly erected to isolate McDade from the prosecution were not
maintained, specifically citing testimony that, sometime in 2005 or 2006,
McDade was involved in a witness interview with the victim. Accordingly, the
habeas court did not clearly err in finding that McDade had a disqualifying
conflict of interest in Payne’s prosecution in that he had “acquired a personal
interest or stake in the defendant's conviction.” Williams v. State, 258 Ga. 305,
314 (2) (B) (369 SE2d 232) (1988).
As noted, the assistant district attorney who acted at trial did so under the
authority vested in McDade as the elected district attorney. McDade’s
disqualifying personal conflict of interest removed that authority, and he was not
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replaced as provided for by statute. As far as the opinion in Brown, supra,
shows, that case involved an elected district attorney unable to serve as an
advocate at trial because he was appearing as a witness; it did not involve an
elected district attorney who was absolutely disqualified from any involvement
in the prosecution because he had a personal conflict of interest. Thus, Brown
would not have foreclosed an appeal based on the conflict of interest found by
the habeas court. Accordingly, it was not error for the habeas court to conclude
that, had this issue been raised on appeal, the result of his appeal would have
been different. Barker, supra.4
Judgment affirmed. All the Justices concur, except Nahmias and
Blackwell, JJ., who concur in the judgment only, and Melton, J., who dissents.
4
As we affirm the habeas court on this ground, it is unnecessary to examine the habeas
court’s finding that a portion of McDade’s testimony at trial was objectively false, or its
conclusion that if the issue had been pursued on appeal, the result of Payne’s appeal would have
been different.
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