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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA06-1098

NORTH CAROLINA COURT OF APPEALS

Filed: 4 December 2007

STATE OF NORTH CAROLINA

v .                             Guilford County
                                Nos.    03 CRS 96775-88
CHRISTOPHER ALLEN REESE                     03 CRS 98645-6    
and
CASSANDRA ALFORD

    Appeal by defendants from judgments entered 3 October 2005 by Judge Ronald E. Spivey in Guilford County Superior Court. Heard in the Court of Appeals 11 April 2007.

    Attorney General Roy Cooper, by Assistant Attorney General Jane Rankin Thompson, for the State.

    Richard G. Roose, for defendant-appellant Cassandra Alford.

    Franklin E. Wells, Jr., for defendant-appellant Christopher Allen Reese.


    CALABRIA, Judge.

    Christopher Allen Reese (“Reese”) and Cassandra Alford (“Alford”) (collectively, “defendants”) appeal their judgments relating to the sexual abuse of minors. For the reasons stated below, we reverse both defendants' judgments and remand for a new trial.
    At trial, the State presented evidence that B.F. (“B.F.”) was the biological child of Alford, who had engaged in a long-standing relationship with Reese. B.F. testified that Reese began molesting her when she was approximately eleven years old. She reported the abuse both to her grandmother and to Alford. As a result oflearning about the abuse, Alford made Reese move out of her apartment. However, Alford reunited with Reese approximately two weeks later and told B.F. to say she had lied about the sexual abuse. B.F. stated that the abuse then escalated, with Reese forcing her to submit to oral sex, intercourse, and anal sex. B.F. testified that she was afraid of Reese and knew that Alford would not leave him. Eventually, Reese no longer wanted to use a condom during sex, and arranged for B.F. to take birth control pills.
    While in middle school, B.F. developed a friendship with L.W. (“L.W.”). When L.W. was at B.F.'s home one afternoon, Reese accused them of being lesbians. He forced them to perform oral sex on him, to touch each other, and had intercourse with them. The next morning Reese sent B.F. to bring L.W. back from the school bus stop, then further sexually abused the girls. L.W. also testified for the State, corroborating B.F.'s version of events. She stated that she did not tell anyone of the abuse because Reese threatened her.
    The abuse continued, and in January of 2003, Reese accused B.F. of sleeping with her mother and said he wanted a threesome with them. One evening B.F. heard Reese beating her mother in their bedroom. When Reese brought B.F. into the bedroom, B.F. saw a two-by-four piece of wood and Alford bent over the bed with a reddened backside. Reese told them to have oral sex with each other, and he had intercourse with both of them. Reese forced B.F. to submit to sex with Alford and him on several other occasions.     Kathy Saunders (“Saunders”), a South Carolina nurse practitioner, testified that she met with B.F. on 3 July 2003 and examined her. Saunders' examination revealed erosion of B.F.'s hymen and vaginitis, which she stated was consistent with chronic vaginal penetration. Saunders further testified that B.F. tested positive for trichomonas, a sexually transmitted disease.
    All of the charges against both defendants were joined for trial at the request of the State, without objection from either defendant. Both defendants were represented by Wayne T. Baucino (“Baucino”) of the Guilford County Public Defender's Office at trial. However, Baucino was originally appointed to represent Alford, while Delton Green (“Green”), also of the Guilford County Public Defender's Office, was appointed to represent Reese. The State correctly notes that concerns about a possible conflict of interest were raised early in the proceedings. Prior to trial, the State addressed the issue as such:
        Your honor I usually don't get involved in this issue, but I'm concerned, because if I were to make an offer to one of them to testify against the other, I don't know how that could accurately be presented when both attorneys are within the same firm, and I don't know how either of them could be given a fair opportunity to accept that offer if they had information they wanted to share when it would not be in the best interest of the other person who the same firm is representing, and so I'm a little confused as to how there isn't a conflict here, even though at this time they're saying they don't have any of that such information. If there came a time when there was, I don't see how that both of their interests could be represented when it would be against the interest of someone else who's represented by the same firm and that is my concern.
    In a pre-trial hearing, the trial court conducted a colloquy with each defendant (in the presence of the other defendant) to ascertain whether any actual or potential conflict existed. Both defendants insisted no such conflict existed since both denied all charges against them. The trial court then entered the following into the record:
        [L]et the record reflect that Ms. Alford and Mr. Reese have been informed of the potential for any conflict, and further that [defense counsel] has indicated that to his knowledge, as an experienced attorney, there apparently is not going to be any conflict in that neither made a statement, that they both have uniform defenses, and that there are no other issues that would implicate a conflict, that he has reviewed this with both, and they have both indicated that they wish to go forward with him representing each for purposes of this trial.

    However, as the evidence developed during the trial regarding Reese's abuse of Alford, including beating her with a board on the date of the acts for which Alford was indicted, the actual conflict between Reese's and Alford's interests should have become increasingly obvious to the court. As the trial proceeded and the evidence of the conflict accumulated, the trial court should have taken “control of the situation.” State v. James, 111 N.C. App. 785, 791, 433 S.E.2d 755, 758 (1993) (internal quotation omitted). Specifically, the trial court should have held a hearing “to determine whether there exists such a conflict of interest that the defendant will be prevented from receiving advice and assistance sufficient to afford him the quality of representation guaranteed by the sixth amendment.” Id. (internal quotation omitted).    By the end of the trial and the beginning of the sentencing hearings, the court and counsel for both sides acknowledged the existence of a conflict and the necessity of holding separate sentencing hearings. In fact, the assistant district attorney (“ADA”) stated to the court that “in the State's opinion, and I think in the opinion of everyone that heard this case, this is a battered woman. There's no question about that.” The ADA was referring to defendant Alford. Defense counsel then acknowledged, for the first time, the conflicting positions of his two clients and stated that he appreciated the court's decision to hold separate sentencing hearings. At this point, the court mentioned a conversation he had with the jurors after they had delivered the verdict. He said the jurors asked, “Judge, don't you think that man made her do these things?” Later, in Alford's sentencing hearing, the ADA engaged in a colloquy with defendant Alford, in which Alford acknowledged that Reese was beating her and that she could not say anything or seek assistance from the police. Defense counsel sought and secured a mitigated sentence for Alford on grounds that she had acted under the duress of Reese.
    The jury returned verdicts finding Reese guilty of fourteen counts of statutory rape and fourteen counts of indecent liberties with a child. The jury found Alford guilty of aiding and abetting statutory rape and indecent liberties with a child. Judge Ronald E. Spivey entered judgment upon those verdicts, sentencing Reese to seven consecutive terms of 288 months to 355 months in the North Carolina Department of Correction. Judge Spivey sentenced Alfordto a minimum term of 144 months and a maximum term of 182 months. From those judgments, defendants appeal.

I. Ineffective assistance of counsel

    Both Reese and Alford contend that they were denied effective assistance of counsel since the attorney representing them had a conflict of interest that adversely affected his performance.
        A defendant in a criminal case has a constitutional right to effective assistance of counsel. The right to effective assistance of counsel includes the right to representation that is free from conflicts of interest. In order to establish a violation of this right, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance.

State v. Bruton, 344 N.C. 381, 391, 474 S.E.2d 336, 343 (1996) (internal citations and quotation marks omitted). Thus, when determining whether a defendant is entitled to a new trial on the basis of ineffective assistance of counsel, we must consider (1) whether defense counsel represented the defendant while subject to an actual conflict of interest, and if so, (2) whether the conflict adversely affected counsel's performance. Id. The mere possibility that a conflict of interest may exist is insufficient to support a defendant's claim of ineffective assistance of counsel. Id. Thus, “[p]ermitting a single attorney to represent two or more codefendants in the same trial is not a per se violation of the right to effective assistance of counsel.” Id. (citing Holloway v. Arkansas, 435 U.S. 475, 482, 55 L. Ed. 2d 426, 433 (1978)). However, a defendant who shows that a conflict of interest actually affected the adequacy of his representation neednot demonstrate prejudice in order to obtain relief. See Holloway, 435 U.S. at 487-91, 55 L. Ed. 2d at 438. “But until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.” Cuyler v. Sullivan, 446 U.S. 335, 350, 64 L. Ed. 2d 333, 347 (1980). If the adverse effect of the conflict upon representation is clear from the record, this Court may reverse and order a new trial without the need to remand to the trial court for an evidentiary hearing. James, 111 N.C. App. at 791, 433 S.E.2d at 759.
    A defendant may waive his or her Sixth Amendment right to effective assistance and consent to joint representation. However, that waiver must be “knowing and intelligent.” Cuyler, 446 U.S. at 351, 64 L. Ed. 2d at 348 (Brennan, J., concurring in judgment). Although the court conducted the colloquy with defendants and both defendants consented to the joint representation, it is clear that neither did so knowingly and intelligently since neither had the opportunity to consult with counsel unburdened by dual loyalty prior to giving their consent. Both defendants, in agreeing to the joint representation, did so after consulting with attorneys from the Guilford County Public Defender's Office, which was burdened by dual loyalties and thus unable to give independent advice to either of their clients.
    Alford, for instance, could have objected to the joinder and sought a deal with prosecutors whereby she would testify against Reese. She also could have asserted a defense based on duresscaused by Reese, or could have objected to evidence that was admissible against Reese but inadmissible against her. However, she decided against such tactical decisions after consulting with Baucino, who also represented Reese, in the presence of Reese. Clearly, Baucino faced an actual conflict when one of his clients could benefit from inculpating another of his clients. “[I]n a case of joint representation of conflicting interests the evil . . . is in what the advocate finds himself compelled to refrain from doing, not only at trial but also as to possible pretrial plea negotiations and in the sentencing process.” Holloway, 435 U.S. at 490, 55 L. Ed. 2d at 438 (emphasis in original). We are convinced that this conflict adversely impacted Baucino's performance in consulting with Alford in pre-trial plea negotiations.
    Similarly, Reese, after being advised by Baucino and Green, consented to allow Baucino to represent him, despite the fact that Baucino had a duty to vigorously defend Alford, a duty that could require Baucino to implicate Reese. Because of the dual and irreconcilable loyalties owed to Alford and Reese, we believe neither Baucino nor Green was capable of properly advising Reese such that Reese could knowingly and intelligently waive his rights and consent to joint representation.
    The nature of the conflict is illustrated in the following statement by Baucino relating to his conversations with both defendants regarding the joint representation.
        I explained to Ms. Alford in front of Mr. Reese that it's likely that if she was agreeing to _ agreeing to testify against Mr. Reese in some regard, that [the prosecutor]would drop the charges against her, or certainly reduce them to something significant. I explained to her that _ I explained all that to her. I explained to her that that certainly is something that she could consider, but obviously she doesn't want to tell a lie. And after those conversations with both Ms. Alford and Mr. Reese, it is beyond question in my mind that they are both adamant in denying these charges ever occurred, and that their defense is therefore completely and totally unified.

(emphasis added). This passage demonstrates that although Baucino believed there was no conflict since both defendants insisted on their innocence, Baucino was simultaneously advising clients regarding a possible conflict of interest when the interests of those clients directly conflicted. It also demonstrates that Baucino did not consult independently with each defendant but spoke to both of them together. Given his knowledge of the evidence of the history of domestic violence and abuse by Reese against Alford and his knowledge of the evidence which tended to prove that Reese forced Alford to engage in the sex acts for which both were indicted, his failure to insist upon speaking with each client privately is, at the very least, inexplicable.
    Accordingly, Baucino had a duty of loyalty to each defendant that could not be upheld by serving both, as their interests were in direct conflict. Since neither defendant consulted with an attorney whose only loyalty was to that particular defendant, neither defendant could knowingly and intelligently waive his or her Sixth Amendment rights or consent to the joint representation. Therefore, Baucino had an actual conflict of interest and neitherdefendant could knowingly and intelligently waive their rights regarding this conflict.
A. Adverse effect as to Christopher Reese

    We address the issue of the adverse effect of the conflict of interest for each defendant separately. As noted above, we must determine: (1) whether defense counsel represented the defendant while subject to an actual conflict of interest, and if so, (2) whether the conflict adversely affected counsel's performance. As noted above, there was an actual conflict of interest between defendants Reese and Alford, and if this was not apparent at the start of the trial, it was abundantly clear by the end. However, defendant Reese must also demonstrate that the conflict adversely affected his counsel's performance. Reese contends that his counsel failed to object to hearsay testimony which may have been admissible against Alford but was not admissible against him. Defense counsel also failed to vigorously cross-examine Ms. Stone, whose testimony was helpful to Alford but damaging to Reese. Defense counsel did not object when Alford's mother testified that Reese beat Alford. Counsel also failed to call B.F.'s sister as a witness, although she may have impeached B.F.'s testimony, because Alford did not want “my baby in the position to be another -- to go through another series of questions that she really has no idea about . . . . It's just not worth it.” Reese did not have the opportunity to be present and Baucino did not cross-examine witnesses during Alford's sentencing phase of the trial, as Reese'ssentencing hearing was done separately due to the conflict of interest.
    Although the effect upon his representation is not nearly so dramatic as that of defendant Alford, defendant Reese has demonstrated that the conflict did adversely affect his counsel's performance by the instances cited above. It is not necessary for defendant Reese to demonstrate that he was prejudiced by these instances of evidence which was presented or not presented due to the conflict. Cuyler, 446 U.S. at 349-50, 64 L. Ed. 2d at 347.
        B. Adverse effect as to Cassandra Alford
    Defendant Alford also argues that her representation was adversely affected by the conflict of interest. As to Alford, the conflict led to many obvious adverse effects upon her representation, some of which were even noted during the trial. As noted in the ADA's comments, prior to trial Alford did not have the opportunity to consider a plea bargain which may have included her testimony against Reese. Defense counsel did not pursue or even mention to Reese the obvious defense of duress, even though the evidence of Reese's duress was such that the jurors asked the judge about it after the trial. In the sentencing hearing, the judge found duress as a mitigating factor because the sentencing stage was conducted separately for each defendant, to the benefit of Alford, and possibly to the detriment of Reese.
    Because we have determined that Baucino had an actual conflict of interest which adversely affected his performance as to both defendants, and that neither defendant could knowingly andintelligently waive his or her rights, we need not address the other issues and arguments raised on appeal. The judgments against both defendants are reversed and both defendants are entitled to a new trial.
    New trial.
    Judges McCULLOUGH and STROUD concur.
    Report per Rule 30(e).

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