State v. Smith

621 P.2d 697, 1980 Utah LEXIS 1069

• Court: Utah Supreme Court
• Decided: November 25, 1980
• Docket: 16406
• Status: Published

Opinions

WILKINS, Justice:

Defendant was tried and convicted by a jury in the District Court, Utah County, of arson, a second degree felony,¹ and burglary, a third degree felony.² He appeals asserting that he was denied effective assistance of counsel in violation of Utah Constitution Article I, Section 12 and the Sixth Amendment to the United States Constitution.

All statutory references are to Utah Code Ann., 1953, as amended, unless otherwise indicated.

Defendant was originally charged with these crimes jointly with two other individuals. One joint defendant, Hebertson, retained private counsel. The charges against Hebertson were ultimately dismissed on motion of the State, and he testified against defendant here. Defendant and the other joint defendant, Hall, were found to be indigent, and Robert Schu-macher, an attorney in the Utah County Public Defender’s Office, was appointed to represent both.

Sheldon Carter, also an attorney in the Utah County Public Defender’s Office, substituted for Schumacher at the arraignment of defendant and Hall. Schumacher represented both defendant and Hall at the preliminary hearing, and on January 22, 1979 filed a notice of alibi on behalf of both. On January 26, 1979, Schumacher filed an amended notice of alibi, again on behalf of both defendant and Hall. On January 30, 1979, Schumacher represented Hall at a hearing before the District Court at which defendant was not present. At this hearing, Hall plead guilty to attempted burglary, a class A misdemeanor, and the charge of arson against him was dismissed. In exchange for the reduced charge, Hall agreed to testify against defendant. Two days later, on February 1, 1979, defendant was tried on the two felony charges, with Carter representing him.

The record does not disclose any withdrawal by Schumacher as counsel for defendant, nor any appointment of Carter to represent him. Further, there is no indication that defendant was advised of the conflict of interest which his appointed counsel had, nor is there any waiver by defendant of his constitutional right to assistance of counsel, noted ante.

That a conflict of interest arose is clearly shown by this record. As the California Appellate Court stated in People v. Superior Court of San Luis Obispo, 94 Cal.App.3d 626, 156 Cal.Rptr. 487 (1979):

It appears from petitioner’s statements to the court that one or both real parties [defendants] have been offered an opportunity to plead guilty to a lesser charge in return for testifying against the other real party.

We hold that a conflict of interest arose from this offer which prevents the public defender from effectively representing the client to whom the offer was made (hereafter “offeree”) regarding the offer, [citing cases] The public defender cannot ethically advise the offeree to accept the offer or otherwise advise him in any manner which might encourage a decision to accept the offer—to do so would be directly adverse to the interests of his other client. Conversely, counsel necessarily acts against the interests of the offeree if he advises rejection of an offer which should be accepted, [at 156 Cal.Rptr. 488-489]³

Schumacher chose to advise Hall, the of-feree, thereby adversely affecting the interests of defendant, his other client. He was not effectively assisting this defendant; he was not identifying with his interests.⁴ This conflict was not remedied by having the Public Defendant’s associate try the case. Members of the same association may not represent defendants with conflicting interests, as there is a strong likelihood that both have been privy to the confidences of both defendants.⁵

The State contends that defendant cannot raise the issue of ineffectiveness of counsel due to conflict of interest for the first time on appeal, citing State v. Tippetts, Utah, 584 P.2d 892 (1978) as requiring an objection on the part of defendant at the trial in order to preserve this point. But the holding in Tippetts was based on the ground that there was no conflict of interest, not only because the attorney stated to the District Court that he knew of no conflict, but also, the examination of the record by this Court revealed no conflict of interest between the two defendants there.⁶

We do not find the State’s argument persuasive when the conflict of interest is as clear as it is in this case. The attorneys responsible for raising an objection did not do so. And we cannot assume that under these circumstances the attorneys advised defendant of this conflict, nor that they advised him that he must object on his own behalf to avoid waiving his constitutional rights. “The law will not assume that counsel has advised his client of his inadequacies or those of his associates.” Commonwealth v. Via, supra, note 5.

The State further argues that defendant was not prejudiced by the conflict of interest of his attorneys. But the assistance of counsel is among those “constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.” Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, at 827, 31 L.Ed.2d 483 (1967). See also Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). We believe there is error here, and need not inquire into whether the error was harmless, because of the fundamental nature of the constitutional rights involved. Holloway, supra.

Defendant urges this Court to adopt a rule requiring separate and independent counsel in cases in which two or more defendants are charged with crimes arising out of the same incident. We need not reach the full scope of this matter, as it is unnecessary to our disposition of this case.⁷

Defendant seeks a reversal of his conviction and a new trial. We agree that a new trial is necessary, and this case is remanded for that purpose.

MAUGHAN and STEWART, JJ., concur.

1 . Section 76-6-103.

2 . Section 76-6-202.

3 . In the San Luis Obispo case, the State petitioned the Court for the appointment of separate counsel for each defendant because of inconsistent plea bargaining offers which placed the public defender in a conflict of interest with respect to its clients, and before either defendant was advised of the offer. When that petition was denied, the State appealed, and the appellate court reversed. The Court found that as the defendants had not been counseled with respect to the details of the plea offer, they had no information on which to make a knowing and intelligent waiver of their constitutional rights to counsel.

4 . “A defendant is entitled to the assistance of a competent member of the Bar, who shows a willingness to identify himself with the interests of the accused and present such defenses as are available under the law and consistent with the ethics of the profession.” Alires v. Turner, 22 Utah 2d 118, 449 P.2d 241 (1969). See also, State v. McNicol, Utah, 554 P.2d 203 (1976).

5 . Commonwealth v. Via, 455 Pa. 373, 316 A.2d 895 (1974); Commonwealth v. Westbrook, Pa., 400 A.2d 160 (1979).

6 . The author of the opinion in this case dissented in Tippetts on the ground that the defendant there was “. . . entitled to an evidentiary hearing on the question of any possible prejudice resulting from ... dual representation.” 584 P.2d at 893.

7 .But see Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Holloway v. Arkansas, supra; United States v. Lawriw, 568 F.2d 98 (8th Cir. 1977); and the A.B.A. Standards for Criminal Justice, The Defense Function, § 3.5(b) (1971) for analyses and comments concerning dual representation.