# Joseph Michael Serra v. Michigan Department of Corrections, Raymond G. Toombs > Court of Appeals for the Sixth Circuit · October 29, 1993 · 4 F.3d 1348 URL: https://www.frixlaw.com/law-library/cases/9485871 ## Case - **Full name:** Joseph Michael SERRA, Petitioner-Appellee, v. MICHIGAN DEPARTMENT OF CORRECTIONS, Respondent, Raymond G. Toombs, Respondent-Appellant - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** October 29, 1993 - **Citations:** 4 F.3d 1348 - **Precedential status:** Published - **Opinion:** Dissent by Merritt - **Judges:** Merritt, Guy, Batchelder - **Cited by:** 187 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9485871 ## How later opinions describe it (automated extraction) - holding that the prosecutor’s improper reference to the petitioner’s prior conviction was not so prejudicial as to cause his trial to be fundamentally unfair - holding a federal court may not grant habeas relief on state law issue unless the “error rises to the level of depriving the defendant of fundamental fairness in the trial process[.]” - explaining that “habeas relief cannot be granted simply on the basis of a perceived error of state law” ## Opinion text MERRITT, Chief Judge, dissenting in part. I agree with Section IV of the Court’s opinion which holds that the prosecutor’s statement concerning the prior marijuana conviction did not deprive the petitioner of a federal constitutional right. I agree with the District Court and strongly disagree with our Court on the right-to-counsel issue discussed in Section III. On this issue the Court simply allows the prosecution through its objections to control who the lawyer for the accused will be at his trial. Normally where multiple defendants represented by one lawyer fully understand and consent to a potential conflict of interest, they may waive the conflict and retain one lawyer. Rules 1.7 and 1.9 of the Michigan Rules of Professional Conduct make it clear that a lawyer may represent more than one client with potential conflicting interests if “each client consents after consultation.” See also, Holloway v. Arkansas, 435 U.S. 475 , 483 n. 5, 98 S.Ct. 1173 , 1178 n. 5, 55 L.Ed.2d 426 (1978) (“a defendant may waive his right to the assistance of an attorney unhindered by a conflict of interests.”); United States v. Reese, 699 F.2d 803, 805 (6th Cir.1983) (“even if an actual conflict of interests or a strong likelihood of conflict is demonstrated the defendant must be given an opportunity to waive his constitutional right to conflict-free representation. A voluntary waiver of this constitutional right, knowingly and intelligently made, must be honored by the court in the absence of compelling circumstances”). Wheat v. United States, 486 U.S. 153 , 108 S.Ct. 1692 , 100 L.Ed.2d 140 (1988), the main case relied on by the Court, indicates that a defendant’s *1357 right to waive a conflict of interest may be limited in situations where the defendants are not fully aware that there is a “serious potential for conflict,” Id. at 164 , 108 S.Ct. at 1700 , but Wheat does not affect this Court’s “presumption,” set forth in Reese , in favor of upholding a defendant’s knowing waiver in conflict cases. Wheat itself acknowledges the “Sixth Amendment presumption in favor of counsel of choice.” Id. at 160 , 108 S.Ct. at 1697-98 . United States v. Guerrero, No. 88-5986, 1990 WL 166414 , 1990 U.S.App. LEXIS 22013, (6th Cir. Nov. 1, 1990) [ 917 F.2d 564 (table) ] (unpublished per curiam ), interprets the Reese “compelling circumstances” standard in light of Wheat : “Thus we have placed more weight in the balance in favor of defendant’s right to choose his counsel, if such can be reconciled with the court’s independent interest in the fairness of the proceeding.” Id. 1990 WL 166414 at *5 , 1990 U.S.App. LEXIS 22013 at *16, [ 917 F.2d 564 (table) ]. The “presumption” is flatly inconsistent with some broad unreviewable or half-reviewable “discretion” vested in the trial judge to do whatever he wants. This Court has clearly misapplied this standard. On one side of the balance, petitioner’s right to the lawyer he chose and paid for is significant. Denial of this right by the trial court forced him to accept representation by court appointed counsel because he could not afford to hire a second lawyer. On the other side of the balance, danger of a “serious potential” for conflict sufficient to outweigh petitioner’s right to choice of counsel is simply lacking. When the trial occurred, petitioner and his girlfriend were married. The wife had plead guilty to possession of the cocaine found in her purse. She admitted that she was culpable, and petitioner denied culpability. There is simply no conflict in this situation. There is no suggestion in this record anywhere that the wife would attempt to blame her husband or advance any argument or fact in conflict with his defense of denial of possession. In addition, under the Michigan spousal privilege statute, the wife could not testify for the state against petitioner without his consent. M.C.L. § 600.2162. Since she could not testify against her husband, the only other conceivable situation from which a conflict could arise is if the wife testified on her husband’s behalf. Despite the Court’s strained effort to interpret clear facts otherwise, at the time of the trial there was no real possibility that petitioner intended to call his wife as a witness. The wife was not on any witness lists and was not mentioned by either side in opening statements. The only mention of the wife as a possible witness was an offhand remark by petitioner’s court-appointed lawyer during voir-dire that she might call' “Mrs; Serra.” As the Court acknowledges in footnote 2 of its opinion, there is a substantial question whether petitioner’s lawyer really meant “Mr. Serra” rather than “Mrs. Serra” when she made this statement. This at least tentative and speculative, and at most purely accidental pretrial mention of the wife’s name, which is totally unsupported by any other indication that she would testify, is the Court’s flimsy rationale for depriving petitioner of an important constitutional right. Even this speculative idea is undermined by the fact that the wife’s legal posture admitting culpability was consistent with the husband’s defense. There being no possibility of harm to petitioner arising from any imagined conflict, the Court is forced to enter the realm of its “independent interest” in fairness and to rely on highly speculative harm that could have befallen the wife at her sentencing if petitioner were allowed his chosen counsel. The theory the Court uses to reach this harm is that if Holman represented petitioner at his trial and if the wife testified, Holman could somehow elicit information from her, such as a statement that it was she and not her husband that possessed the cocaine. But this is precisely what she already plead guilty to. In addition, as I have discussed, there was no realistic possibility that the wife would testify. The risk of harm to her sentencing prospects was the same whether Holman represented her husband or another lawyer represented him. Minor conflicts in testimony are always possible in a criminal trial. The husband and the wife were willing to run the risk of a minor conflict in testimony or any other possible tension between their individual inter *1358 ests. They hired the same lawyer to represent them both, expressed a desire to have that lawyer represent them both when questioned by the trial judge, filed a motion to vacate the order disqualifying that lawyer, and continually expressed their desire to have the hired lawyer represent petitioner at his trial. I do not know what kind of case would allow dual representation if the husband and wife cannot be represented by the counsel they want and have paid for in this ease. Even more disturbing is the fact that in its present posture, this is not even a dual representation case. The prosecution never moved to disqualify Holman from representing petitioner. On the prosecution’s motion to disqualify him from representing the wife, who was then petitioner’s girlfriend, the trial court erroneously disqualified Holman from representing either the wife or petitioner. This Court has continued the error by denying petitioner his chosen counsel because of the remote possibility of a conflict with a client the lawyer no longer represented. Holman only represented petitioner’s wife at the pretrial hearing. By the time of his trial she had already plead guilty and all that remained in her case was sentencing. The purpose of the Michigan spousal immunity law, like most other such laws, is to preserve marital harmony. See, e.g., People v. Love, 127 Mich.App. 596 , 339 N.W.2d 493, 495 (1983). The husband and the wife here should be able to avoid a fight between themselves by hiring one lawyer if after advice and consultation, they decide to do so. They should be allowed to avoid the tremendous expense of hiring two lawyers. Joint decisions made within a marriage should be respected by the courts. Choices such as the one made here by petitioner and his wife should not be put aside in a paternalistic effort to impose what a court thinks is in the individual spouses’ best interests. A due regard for the integrity of the family unit counsels in favor of allowing one lawyer to represent both if the husband and wife make an informed choice to that effect. C.f. Holloway, 435 U.S. 475, 482 , 98 S.Ct. 1173, 1178 , 55 L.Ed.2d 426 (1978) (noting that “indeed, in some cases, certain advantages might accrue from joint representation”). The rule laid down by the Court’s decision simply allows the prosecution and the trial judge to control who will represent the petitioner and his wife. The trial judge should not be allowed some broad discretion to choose the lawyer for the accused against his will. The Constitution gives that choice to the accused, as the “presumption” acknowledges. Neither should the prosecution be invited to use trial stratagems to defeat a defendant’s choice of counsel. The couple employed and paid the counsel of their choice, and the state trial court held thereafter that the lawyer could represent neither. In the situation presented here, the lawyer should have been allowed to represent both. There is no substantial basis for disqualification. It takes no deep analysis of case authority or complicated legal theory to recognize that petitioner and his wife were both wrongfully deprived of counsel in violation of the right-to-counsel clause of the Sixth Amendment. This is a simple case. Wheat suggests we grant some deference to the trial court in cases like this one, but we should not avoid our responsibility to correct constitutional injustices by hiding behind a broad abuse of discretion standard of review that forces a husband and wife to be represented by a lawyer not of their choice. The District Court perceived the case correctly. Our court has made a serious constitutional error. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9485871. Public record. Not legal advice.