Fleming v. State , 246 Ga. 90 ( 1980 )

Undercofler, Chief Justice.

We today decide under this court’s supervisory role over the Bar of this State and under our mandate to review death sentences that the same attorney shall not represent co-defendants in cases in which the death penalty is sought. Because of the difficulty in assessing possible conflicts of interests, we believe that this rule will assure that each defendant receives the effective assistance of counsel guaranteed him by the Sixth Amendment.

Son H. Fleming, his nephew, Larry Donnell Fleming, and Henry Willis, III, are accused of committing armed robbery in Cook County, of kidnapping Chief of Police James Edward Giddens in Berrien County, and of murdering him in Lanier County on February 11, 1976. Son Fleming and Henry Willis have both been separately tried, convicted and sentenced to death. Fleming v. State, 240 Ga. 142 (240 SE2d 37) (1977); 243 Ga. 120 (252 SE2d 609) (1979); Willis v. State, 243 Ga. 185 (253 SE2d 70) (1979).

Son Fleming was represented by both retained and appointed counsel. Willis was, and still is, represented by his retained attorney, Millard C. Farmer, Jr. Larry Fleming has also retained Farmer to represent him. The State made a motion in the trial court to disqualify Farmer from representing Fleming because of a conflict of interest between Willis and Fleming. Willis has several times, including in his testimony at his own trial, claimed, albeit inconsistently, that Larry Fleming also shot Chief Giddens. At other times he has admitted doing the shooting himself. Fleming has consistently denied shooting the policeman. The record, therefore, reveals an obvious¹ conflict of interest between these two co-defendants.

The position of the Supreme Court of the United States on such conflicts of interest is clear: "[Wjhenever a trial court improperly requires joint representation over timely [defense] objection reversal is automatic ... 'The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.’ ” (Emphasis supplied.) Holloway v. Arkansas, 435 U. S. 475, 488 (98 SC 1173, 55 LE2d 426) (1978). However, in Cuyler v. Sullivan, 48 USLW 4517, 4521 (1980), that same Court held that "[i]n order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.” (Emphasis supplied.) Compare Glasser v. United States, 315 U. S. 60 (62 SC 457, 86 LE 680) (1942), and Dukes v. Warden, 406 U. S. 250 (92 SC 1551, 32 LE2d 45) (1972). But, "a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief.”² Cuyler v. Sullivan, 48 USLW at p. 4521. Here, however, where there is an obvious conflict, the State made a motion to disqualify Fleming’s attorney prior to the trial in order to prevent built-in reversible error.³ The trial court disqualified Farmer.

Fleming argued that this disqualification deprived him of the counsel of his choice and attempted to waive the disqualification in the trial court. The trial court refused to accept Fleming’s waiver. Fleming appeals. We affirm.

1. We reach first Fleming’s contention that he desires to waive any possible conflict of interest so that Farmer may continue to represent him. In order to waive a right as fundamental as effective counsel, the trial court must, on the record, determine that the waiver is knowing, intelligent and voluntary. Glasser v. United States, supra; Johnson v. Zerbst, 304 U. S. 458 (58 SC 1019, 82 LE 1461) (1938). To meet this test, the trial court must be satisfied that the defendant is aware of the possibility of conflicts and the dangerous consequences which may result. E.g.: United States v. Garcia, 517 F2d 272 (5th Cir. 1975). The numerous United States Circuit Courts of Appeals which have addressed the issue point out the importance of personal questioning, on the record, by the trial court. E.g.: United States v. Carrigan, 543 F2d 1053 (2nd Cir. 1976); United States v. Gaines, 529 F2d 1038 (7th Cir. 1976); United States v. Garcia, supra; United States v. Foster, 469 F2d 1 (1st Cir. 1972); Campbell v. United States, 352 F2d 359 (DC Cir. 1965).

Yet this procedure is not itself without problems. The court is unaware of potential areas of conflict and can only allude to the possibilities in the most general terms. Beyond that, the court cannot be sure the defendant is sophisticated enough to understand. Indeed, in Glasser v. United States, supra, the United States Supreme Court pointed out that. Glasser, who was himself an Assistant United States Attorney, had not waived his right to independent counsel.

Other problems are also apparent. Here, for example, the very attorney whose disqualification was at issue instructed his client not to answer any of the trial court’s questions, even of the most innocuous sort. We thus find this procedure ineffective⁴ and fraught with its own constitutional infirmities and refuse to adopt a similar procedure where the death penalty is involved.⁵ See generally, Geer, Representation of Multiple Criminal Defendants: Conflicts of Interest and the Professional Responsibilities of the Defense Attorney, 62 Minn. L. Rev. 119 (1978).

We note further that there is no record of any waiver by Willis. Though already convicted, Willis is still represented by Farmer. It is obvious that the necessary constitutional waiver must be obtained from all the parties whose interests are at stake. This failing alone is reason enough to find that Fleming has not satisfactorily overcome the constitutionally mandated disqualification of his attorney. We, however, rest today’s decision on another ground.

This court has the inherent power to govern the pratice of law in this State. Huber v. State, 234 Ga. 357 (216 SE2d 73) (1975); Fortson v. Weeks, 232 Ga. 472 (208 SE2d 68) (1974); Sams v. Olah, 225 Ga. 497 (169 SE2d 790) (1969); Wallace v. Wallace, 225 Ga. 102 (166 SE2d 718) (1969). This court also has been mandated to review the administration of the death penalty. Code Ann. § 27-2537. The Code of Professional Responsibility of the Rules and Regulations of the State Bar of Georgia, created and established by order of this court in 1963, provides, under Canon 5, that a "lawyer should exercise independent professional judgment on behalf of a client.” Code of Professional Responsibility, Rule 3-105. Under Directory Rule 5-105, an attorney must refuse to accept or continue employment if his independent judgment may be adversely affected by his representation of another client.⁶ See also Code Ann. § 9-701; Code of Professional Responsibility, Rules 3-104, 3-107; ABA Code of Professional Responsibility, § DR 5-105; ABA Defense Standards § 3.5(b).

In addition, we have noted with interest the case of United States v. Dolan, 570 F2d 1177 (3d Cir. 1978), where the Court of Appeals for the Third Circuit, affirmed the disqualification of co-defendants’ attorney on the trial court’s own motion. Because the trial court was not able to inform the defendant of the possible consequences of multiple representation, it was not satisfied that it could accept a constitutionally sufficient waiver. In affirming, the Court of Appeals held that "when a trial court finds an actual conflict of interest which impairs the ability of a criminal defendant’s chosen counsel to conform with the ABA Code of Professional Responsibility, the court should not be required to tolerate an inadequate representation of a defendant. Such representation not only constitutes a breach of professional ethics and invites disrespect for the integrity of the court, but it is also detrimental to the independent interest of the trial judge to be free from further attacks over the adequacy of the waiver or the fairness of the proceedings in his own court and the subtle problems implicating the defendant’s comprehension of the waiver. Under such circumstances, the court can elect to exercise its supervisory authority over members of the bar to enforce the ethical standard requiring an attorney to decline multiple representation.” United States v. Dolan, supra, p. 1184. We today adopt this as a mandatory rule in death penalty cases under our supervisory powers. We therefore hold that, where the State seeks the death penalty against any one defendant in a criminal transaction, he and his co-defendants must be provided with separate and independent⁷ counsel. Such a rule is especially necessary where the death penalty is sought, because in these cases even a slight conflict, irrelevant to guilt or innocence, may be important in the sentencing phase. Green v. Georgia, 422 U. S. 95 (99 SC 2150, 60 LE2d 738) (1979); Lockett v. Ohio, 438 U. S. 586 (98 SC 2954, 57 LE2d 973) (1978). Any attorney representing multiple defendants in such a,case is subject to disciplinary proceedings if he refuses to withdraw such representation.

Faced with an actual conflict of interests in a death penalty situation, the trial court here refused to accept a waiver, and disqualified Fleming’s attorney. We affirm for the reasons stated above.

Argued April 15, 1980 Decided June 9, 1980 Rehearing denied July 1, 1980. Millard C. Farmer, for appellant.

2. Fleming also contends that the disqualification of his retained attorney violated his right to the attorney of his choice. That right, however, is not unqualified. A defendant has the right to represent himself. Faretta v. California, 422 U. S. 806 (95 SC 2525, 45 LE2d 562) (1975). However, he may not be represented by a non-attorney, e.g. United States v. Cooper, 493 F2d 473 (5th Cir. 1974), Canon 3, Code of Professional Rules and Regulations of the State Bar of Georgia, or an attorney who has not been admitted to the Bar of this State. Rules of the State Bar of Georgia, 1-203.

As was said in United States v. Dolan, supra, at p. 1183, "In United States v. Dardi, 330 F2d 316 (2d Cir.), cert. denied, 379 U. S. 845, 85 SC 50, 13 LE2d 50 (1965), the Second Circuit held that the right to be represented by a particular attorney is not absolute when it would unduly delay and require the adjournment of a trial because of counsel’s illness. Accord, Maynard v. Meachum, 545 F2d 273 (1st Cir. 1976). Under such circumstances, temporary assignment of a co-defendant’s counsel when there appears to be no conflict of interest is not, in itself, a denial of effective assistance of counsel. United States v. Dardi, supra, at 335. Moreover, an indigent defendant does not have an absolute right to the assignment of counsel of his or her own choice; rather, the appointment is left to the sound discretion of the court. E. g. United States v. Smith, 464 F2d 194, 197 (10th Cir. 1972). If the right to particular counsel is not absolute for an indigent or when it will unduly delay or subvert judicial proceedings, then certainly the sixth amendment should not be interpreted to allow a defendant to sanction a lawyer’s breach of ethical duties, when such duties serve the public interest as well as the client’s. See Geer, Conflict of Interests, at 158-60.” We, therefore, hold that whatever Sixth Amendment right to chosen counsel Fleming may have, if any, has not been impaired by the disqualification of Farmer.

3. Fleming’s motion to transfer this appeal to the Court of Appeals is denied since his claims raise constitutional issues appropriate for decision by this court.

Judgment affirmed.

All the Justices concur, except Hill, J., who concurs specially, and Jordan, P. J., who dissents. Vickers Neugent. District Attorney, Arthur K. Bolton, Attorney General, for appellee.

1 One need only contemplate the spectacle of Willis being cross examined by his own attorney on these inconsistent statements or Willis being called by his own attorney as a witness to be convinced that a conflict of interest exists.

2 Munford v. Seay, 241 Ga. 223 (244 SE2d 857) (1978), insofar as it appears to require a showing of prejudice, has thus been overruled by this decision.

3 That the State, be it through the judge or prosecutor, has a responsibility under the Fourteenth Amendment to see that the defendant receives a fair trial is beyond dispute. Fitzgerald v. Estelle, 505 F2d 1334 (5th Cir. 1975).

4 New Jersey Federal District Court Judge Lacey characterized this procedure as an "ineffective charade” and a "futile exercise.” United States v. Garafola, 428 FSupp. 620, 623 (D. N. J. 1977).

5 We leave for another day the question of multiple representation where the death penalty is not sought by the State.

6 We note here also that the rules of ethics require waivers from all affected parties. DR 5-105(c).

7 See DR 5-105 (d).