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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