Washington v. State

419 So. 2d 1100
District Court of Appeal of Florida·Decided July 13, 1982·No. 81-201·Published·Cited by 17 cases

Opinion

419 So.2d 1100 (1982)

Joe WASHINGTON and Ulysses Thompson, Appellants,
v.
The STATE of Florida, Appellees.

No. 81-201.

District Court of Appeal of Florida, Third District.

July 13, 1982.
Rehearing Denied October 18, 1982.

Bennett H. Brummer, Public Defender and Geoffrey C. Fleck and Harold Mendelow, Sp. Asst. Public Defenders, for appellants.

Jim Smith, Atty. Gen. and Theda R. James, Asst. Atty. Gen., for appellees.

Before SCHWARTZ and DANIEL S. PEARSON, JJ., and WILLIAM C. OWEN, Jr. (Ret.), Associate Judge.

DANIEL S. PEARSON, Judge.

Joe Washington and Ulysses Thompson, charged and convicted of robbery, contend that they were denied the effective assistance of counsel because a single lawyer was appointed to jointly represent them. Neither Washington nor Thompson objected to the joint representation or requested the appointment of separate counsel.[1] Since representation of joint defendants by one lawyer is not per se unconstitutional, see Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978); Belton v. State, 217 So.2d 97 (Fla. 1968), and dual representation does not in itself trigger the need for inquiry as to possible conflict by the trial court, Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), the only arguable ground for reversal is that the record reveals that counsel for these defendants had an actual conflict of interest, so that either or both of them was prejudiced by the failure of the court, sua sponte, to appoint a separate lawyer for each.[2],[3]Cuyler v. Sullivan, supra; State v. *1101 Youngblood, 217 So.2d 98 (Fla. 1968); Belton v. State, supra.

Does the record reveal an actual conflict of interest? Mr. Pilon, the alleged victim of the crime, testified that both defendants robbed him of a watch and some money. Within minutes of the robbery, the defendants were found in front of the Gibson Hotel, across the street from the scene of the crime. Pilon identified both men as the perpetrators. The defendants were arrested and searched. Pilon's watch was found in Thompson's sock; Pilon's personal papers and bus ticket were found crammed in a crevice between a traffic box and wall next to where Washington was standing when arrested.

Both defendants testified. Washington stated that he did not know Thompson, but had seen him several times. He denied having anything to do with the robbery of Pilon. He stated that he was simply standing on the corner near the Gibson Hotel when arrested. Thompson testified that he too was simply on the same corner when he was arrested. He denied any participation in the robbery of Pilon. He said that while on his way to the Gibson, he bought the watch from strangers for $5.00, and when he became involved in some horseplay, he put the watch in his sock lest it be broken. He denied knowing Washington.

Thompson, unable to point to any specific prejudice to him, argues that prejudice is inherent in any joint representation.[4] Washington points to specific prejudice. He says the evidence proving his guilt was weaker than the evidence proving Thompson's guilt: none of the victim's property was found on Washington's person, and, although Pilon was unwavering in the certainty of his identification of both defendants, Pilon did concede that he did not get a good look at Washington when the crime occurred. Washington asserts that because he had the same counsel as Thompson, the relative weakness of the case against Washington was never emphasized either at trial or at sentencing.[5]

*1102 Thompson's argument is, of course, no more than an argument for a per se rule against joint representation, which, as we have said, is not compelled by the United States Constitution, see Cuyler v. Sullivan, supra; Holloway v. Arkansas, supra; Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942),[6] and is not the rule in Florida, see State v. Youngblood, supra; Belton v. State, supra.[7] Washington's argument falls short because a disparity in the quantum of evidence establishing guilt does not itself create a conflict of interest, see, e.g., United States v. Benavidez, 664 F.2d 1255 (5th Cir.1982); United States ex rel. McClindon v. Warden, Illinois State Penitentiary, 575 F.2d 108 (7th Cir.), cert. denied, 439 U.S. 856, 99 S.Ct. 170, 58 L.Ed.2d 163 (1978); United States ex rel. Ross v. LaVallee, 448 F.2d 552 (2d Cir.1971); United States v. Gallagher, 437 F.2d 1191 (7th Cir.), cert. denied, 402 U.S. 1009, 91 S.Ct. 2190, 29 L.Ed.2d 430 (1971). As the Fifth Circuit so recently stated in United States v. Benavidez:

"Thus, we doubt that there can be a constitutional violation when the only claim of conflict is that a defendant should have abandoned the common defense and invited reciprocal recrimination, not because the government introduced evidence indicating the defendant's innocence, but solely because the government made a stronger case against his codefendant. We have routinely rejected claims that defense counsel needed to be free to abandon a `united front' strategy. See, e.g., United States v. Medel, 592 F.2d 1305, 1312 (5th Cir.1979); Canal Zone v. Hodges, 589 F.2d 207, 210 (5th Cir.), cert. denied, 441 U.S. 948, 99 S.Ct. 2173, 60 L.Ed.2d 1052 (1979). The claims of conflict here are based entirely on appellate counsel's theories — developed with the benefit of the entire record — on what each defendant's most effective response to the government's evidence would have been. If actual conflict can be established on this basis, it will be a rare case in which an untested strategy will not look better than an unsuccessful one. *1103 "Even if a constitutional violation could be proved in this manner, neither defendant has demonstrated an actual conflict because neither has shown that he stood `to gain significantly' by abandoning the common defense. Foxworth [v. Wainwright], 516 F.2d 1072 at 1076 [5th Cir.1972]; see United States v. Risi, 603 F.2d 1193, 1195 (5th Cir.1979) ("There must be a significant divergence in the interests of the jointly represented persons.') (emphasis added)."[8] 664 F.2d at 1260-61 (footnote omitted).

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