McGahey v. State

210 S.W.3d 49, 362 Ark. 513
Supreme Court of Arkansas·Decided June 9, 2005·No. CR 04-1041·Published·Cited by 4 cases

Opinion

Donald L. Corbin, Justice.

Appellant Keela McGahey appeals the order of the Desha County Circuit Court allowing attorney Jimmy Doyle to represent her and a codefendant at trial. For reversal, she argues that there was an impermissible conflict in Doyle’s dual representation that resulted in prejudice to her. Our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(5). We find no error and affirm.

The record reflects that on March 8, 2002, Desha County police executed two search warrants for rooms nine and ten of the Pendleton Inn, which had been rented by James Hartwig. In those rooms, officers discovered items commonly associated with the manufacture of methamphetamine. They also found some personal items bearing Hartwig’s name. Two days later, while observing the rooms, officers noticed Hartwig and Appellant drive up and park directly in front of the rooms. The pair was subsequently arrested.

Appellant and Hartwig were each charged by felony information with one count of manufacture of methamphetamine and one count of use of paraphernalia to manufacture methamphetamine. Initially, attorney Doyle was retained to represent Hartwig, and Appellant retained Hubert Alexander to represent her. Then, at a subsequent omnibus hearing held on August 26, 2002, Doyle informed the court that he had spoken with Alexander, and while Alexander represented Appellant in a case in Little Rock, he was not representing her in the action in Desha County Circuit Court. Doyle then indicated that he was going to speak to Appellant to determine if there was a conflict of interest or whether he could also represent her.

At the next pretrial hearing held on November 4, 2002, Doyle appeared and stated on the record that he represented Appellant and Hartwig. The court then addressed a motion filed by the State to disqualify Doyle from representing Appellant. In response to the State’s motion, Doyle stated that both of his clients had signed a waiver regarding any potential conflict of interest caused by the dual representation. 1 He also stated that the evidence in their cases was identical. The State responded that they would be satisfied and would no longer pursue its motion if the clients had signed a waiver regarding any potential conflict. The court then addressed Appellant and Hartwig and explained the purpose of the State’s motion and asked each of them if it was their desire for Doyle to represent them in this case. Each answered in the affirmative.

At a pretrial hearing held on February 24, 2003, the trial court again inquired of Doyle if there were any possible issues that would make it difficult for him to represent both Appellant and Hartwig. Doyle stated that he did not believe the joint representation would be a problem and again reiterated that his clients had signed a waiver. The State then inquired as to whether the waivers had ever been filed of record. Doyle stated that he had Appellant’s signed waiver with him and that he would have to get Hartwig’s from his file. After reviewing the document, the State informed the trial court that the document waived the attorney-client privilege as to sharing information between the codefendants, but that it did not resolve any potential conflict issue that might arise. Thereafter, the State requested that the trial court inquire of Appellant and Hartwig in open court as to whether they consented to the joint representation and waived any potential conflict of interest, which the court did. Both Appellant and Hartwig indicated on the record that they understood that there was a potential conflict and that they wished to waive it and allow Doyle to represent them both.

A jury trial was held on March 6-7, 2003. Appellant was convicted on both counts and sentenced to a term of twenty-five years’ imprisonment in the Arkansas Department of Correction. This appeal followed.

For her only point on appeal, Appellant argues that the trial court abused its discretion in failing to grant the State’s motion to disqualify Appellant’s defense counsel because there was a conflict of interest in representing her and her codefendant. Appellant argues in the alternative that the trial court did not clearly determine that there was a conflict of interest prior to trial and, thus, violated her constitutional rights. The State counters that Appellant waived any potential conflict of interest and her argument on appeal is therefore without merit. The State is correct.

This court has recognized that requiring or permitting joint representation, where a single attorney represents codefendants, is not per se violative of constitutional guarantees of effective assistance of counsel. Myers v. State, 333 Ark. 706, 972 S.W.2d 227 (1998) (citing Holloway v. Arkansas, 435 U.S. 475 (1978)). Appointing or permitting a single attorney to represent codefendants, however, does create a possible conflict of interest that could prejudice either or both clients. Id. (citing Burger v. Kemp, 483 U.S. 776 (1987)). Simply because there is a possibility of prejudice, there is no justification for an inflexible rule that would presume prejudice in all cases. Id. Instead, prejudice is only presumed if the defendant demonstrates that counsel “actively represented conflicting interests,” and “an actual conflict of interest adversely affected his lawyer’s performance.” Id. at 716, 972 S.W.2d at 232 (quoting Sheridan v. State, 331 Ark. 1, 4, 959 S.W.2d 29, 31 (1998)).

Moreover, our case law is clear that a criminal defendant may waive his attorney’s conflict of interest. Price v. State, 347 Ark. 708, 66 S.W.3d 653 (2002); Lee v. State, 343 Ark. 702, 38 S.W.3d 334 (2001). However, this court has said that any waiver of the Sixth Amendment right to counsel must be made knowingly, intentionally, and voluntarily. Price, 347 Ark. 708, 66 S.W.3d 653; Murray v. State, 280 Ark. 531, 659 S.W.2d 944 (1983).

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McGahey v. State, 210 S.W.3d 49, 362 Ark. 513 (Ark. 2005).

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