Opposition Brief — Luzenski Allen Cottrell, Petitioner v. South Carolina

No. 17-9449

_______________________

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 2017

_______________________

LUZENSKI ALLEN COTTRELL,

v.

STATE OF SOUTH CAROLINA,

Petitioner,

Respondent.

________________________________

ON PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF SOUTH CAROLINA

_______________________________

BRIEF IN OPPOSITION

_______________________________

ALAN WILSON

Attorney General

DONALD J. ZELENKA

Deputy Attorney General

*MELODY J. BROWN*

Senior Assistant Deputy Attorney General

*Counsel of Record

Office of the Attorney General

State of South Carolina

Post Office Box 11549

Columbia, South Carolina 29211

(803) 734-6305

ATTORNEYS FOR RESPONDENT

*CAPITAL CASE*

PETITIONER’S QUESTION PRESENTED

Whether a court violates the Sixth Amendment right to counsel of choice

when, over a defendant’s objection, it dissolves an established attorney-client

relationship in the absence of specific findings demonstrating legal disqualification

or other extreme circumstances not curable through a less drastic remedy?

(Petition, i).

RESPONDENT’S RESTATEMENT OF QUESTION PRESENTED

Whether the Supreme Court of South Carolina erred in affirming the trial

judge’s decision to remove appointed counsel for an indigent capital defendant when

counsel confirmed each made, and stood by, allegations of serious ethical

misconduct against the other to the extent that the trial judge had a duty to report

to disciplinary counsel, and also admitted strained interaction negatively affecting

preparation of the defense?

ii

TABLE OF CONTENTS

PETITIONER’S QUESTION PRESENTED ..……………………………………….. ii

RESPONDENT’S RESTATEMENT OF QUESTION PRESENTED……..………. ii

TABLE OF CONTENTS …………………………………………………………………..iii

TABLE OF AUTHORITIES ……………………………………………………………..iv

OPINION BELOW ……................................................................................................1

JURISDICTION ...........................................................................................................2

CONSTITUTIONAL PROVISIONS INVOLVED .......................................................2

STATEMENT OF THE CASE …..................................................................................2

I.

General Procedural History ..............................................................................2

II.

General Facts of the Crime ..............................................................................3

III.

Relevant Procedural History for the Question Presented ……........................6

REASONS WHY CERTIORARI SHOULD BE DENIED............................................6

I.

The Supreme Court of South Carolina did not err in affirming the trial

court’s ruling, under the unique circumstances in this case, to appoint

new, qualified counsel to ensure a fair trial for both the indigent capital

defendant and the state…..…………………………………………………………9

a.

The fact pattern in this case shows allegations of unethical

behavior so extreme as to have obligated the trial judge to seek

disciplinary counsel review of former appointed counsel’s actions,

and supported removal to ensure integrity in the proceedings and

a fair trial……………………………………………………………………..12

b.

Petitioner’s argument critically omits consideration of the

necessity of a fair trial for all parties and the trial court’s duty

to protect the integrity of the proceedings………………………………15

CONCLUSION.............................................................................................................19

Certificate of Service

iii

TABLE OF AUTHORITIES

Federal Cases:

McCoy v. Court of Appeals of Wisconsin, Dist. 1,

486 U.S. 429, 108 S. Ct. 1895 (1988)……………..…................................... 17

Morris v. Slappy,

461 U.S. 1 (1983)……….........................................................................16, 17

Payne v. Tennessee,

501 U.S. 808 (1991)..................................................................................... 10

Snyder v. Mass.,

291 U.S. 97 (1934)……................................................................................ 10

Stein v. New York,

346 U.S. 156 (1953)……….......................................................................... 10

Strickland v. Washington,

466 U.S. 668 (1984)……….......................................................................... 16

United States v. Collins,

920 F.2d 619 (10th Cir. 1990)……….......................................................... 18

United States v. Cunningham,

672 F.2d 1064 (2nd Cir. 1982)………......................................................... 18

United States v. Gonzalez–Lopez,

548 U.S. 140 (2006)............................................................................9, 10, 17

United States v. Howard,

115 F.3d 1151 (4th Cir. 1997)..................................................................... 15

United States v. Orgad,

132 F. Supp. 2d 107 (E.D.N.Y. 2001)……….............................................. 17

United States v. Williams,

81 F.3d 1321 (4th Cir.1996)………............................................................. 16

Wheat v. United States,

486 U.S. 153 (1988)................................................................................16, 17

State Cases:

State v. Cottrell,

376 S.C. 260, 657 S.E.2d 451 (2008)………................................................ 2

State v. Cottrell,

421 S.C. 622, 809 S.E.2d 423 (2017)………........................................ Passim

State v. Lewis,

255 S.C. 466, 179 S.E.2d 616 (1971)........................................................... 18

State v. Sanders,

341 S.C. 386, 534 S.E.2d 696 (2000)………...........................................11, 18

iv

Constitutional Provisions:

U.S. Const. amend. VI.................................................................................... Passim

U.S. Const. amend. XIV......................................................................................

2

Federal Statutes:

28 U.S.C. § 1257(a).............................................................................................

2

State Rules:

Rule 221 (a), South Carolina Appellate Court Rules………..............................

v

9

No. 17-9449

_______________________

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 2017

_______________________

LUZENSKI ALLEN COTTRELL,

v.

Petitioner,

STATE OF SOUTH CAROLINA,

Respondent.

________________________________

ON PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF SOUTH CAROLINA

_______________________________

BRIEF IN OPPOSITION

_______________________________

OPINION BELOW

The opinion challenged is a published opinion by the Supreme Court of South

Carolina after direct appeal review of a capital case, State v. Cottrell, 421 S.C. 622,

809 S.E.2d 423 (2017). Petitioner has included a copy as “Appendix A” to the

petition. 1

JURISDICTION

The Supreme Court of South Carolina decided the direct appeal on December

20, 2017.

Petitioner filed a timely petition for rehearing that was denied on

February 16, 2018. A petition to this Court had to be filed on or before May 17,

On February 16, 2018, after conclusion of the direct appeal, the Supreme

Court of South Carolina issued the remittitur along with a notice of execution. A

stay of execution was entered by the Supreme Court of South Carolina on March 7,

2018 for Petitioner to pursue this action.

1

1

2018. On April 17, 2018, Petitioner sought and received one extension from the

Chief Justice allowing a petition to be filed on or before June 18, 2018. The Court’s

docket reflects the petition was filed on June 15, 2018. Thus, the petition is timely

filed according to the Court’s records, and this Court has jurisdiction under 28

U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

Petitioner submits the Sixth and Fourteenth Amendments of the United

States Constitution are involved to the extent they secure the right to counsel in

state criminal proceedings. (Petition, p. 2).

STATEMENT OF THE CASE

I.

General Procedural History.

The Supreme Court of South Carolina succinctly stated the basis for the

convictions and sentence at issue: “Appellant Luzenski Allen Cottrell was convicted

and sentenced to death by an Horry County jury for the 2002 murder of Myrtle

Beach police officer Joe McGarry.” Cottrell, 809 S.E.2d at 427. The Court also noted

Petitioner was previously tried for Officer’s McGarry’s murder in 2005, but that it

had reversed the murder conviction on direct appeal “finding the trial court erred in

refusing to give the jury an instruction on voluntary manslaughter in addition to

murder. State v. Cottrell, 376 S.C. 260, 265, 657 S.E.2d 451, 454 (2008) (hereinafter

referred to as Cottrell I).” Id. Petitioner’s convictions for assault with intent to kill,

resisting arrest, and grand larceny from the 2005 trial were left undisturbed, and

were not a part of the retrial.

Cottrell, 809 S.E.2d at 428.

2

Upon review of

Petitioner’s five (5) issues presented in his appeal from the retrial – “all of which

involve[d] rulings largely addressed to the trial judge’s discretion,” id. at 427 – the

Supreme Court of South Carolina concluded Petitioner failed to show an abuse of

discretion, and affirmed the conviction and sentence.

II.

General Facts of the Crime.

Shortly after midnight on December 29, 2002, McGarry

and fellow police officer Mike Guthinger entered a Dunkin

Donuts in the city of Myrtle Beach. Both officers were in

uniform and on duty, completing a traffic stop a short

time earlier before deciding to get coffee. Upon entering

Dunkin Donuts, McGarry immediately recognized

Cottrell, who was ordering coffee at the register with two

companions, Diane Lawson and Fred Halcomb. McGarry

was familiar with Cottrell, having had several previous

encounters with him, including arresting Cottrell for

possession with intent to distribute marijuana earlier

that year. More significantly, Lt. Amy Prock of the Myrtle

Beach Police Department had recently notified McGarry

that Cottrell had been identified as a possible suspect

[FN1], in the shooting death of Rick Hartman, whose body

had been found in a rural part of Horry County roughly a

month earlier.

Upon recognizing Cottrell, McGarry informed Guthinger

that Cottrell was identified as a suspect in a shooting and

that he was possibly carrying a gun. Rather than proceed

in line to get coffee, McGarry and Guthinger exited the

Dunkin Donuts and approached Cottrell on the sidewalk

as he stepped out the door. McGarry asked Cottrell

whether he remembered him, and then inquired as to

whether he had taken care of the previous charges for

which McGarry had arrested him. Cottrell indicated they

were all taken care of. At that point, McGarry asked

Cottrell for his identification and informed him he was

going to run an NCIC check to see if Cottrell had any

outstanding warrants.

While waiting for a response from the dispatcher after

calling in Cottrell’s information, McGarry indicated to

3

Cottrell that he was going to perform a pat-down for

weapons. Cottrell told McGarry “no” before turning and

walking away toward another vehicle driven by Donnie

Morgan, who was part of Cottrell’s group but unknown to

the officers at the time. Cottrell’s right hand was

somewhere near the front of his waistband as he turned

and walked away. [FN2] McGarry then immediately

began yelling for Cottrell to stop and show his hands.

When Cottrell did not comply, McGarry unholstered his

weapon and again commanded Cottrell to show his hands.

With Cottrell’s back still turned to him, McGarry

reholstered his weapon and rushed towards Cottrell from

behind, struggling to grab Cottrell's right hand which was

near the front of his waistband, while McGarry’s left hand

was somewhere on Cottrell’s upper back or shoulder,

attempting to gain control of him.

The pair stumbled and separated as they slid toward the

rear of the Morgan vehicle. As they regained their balance

and squared up, Cottrell raised a .45 caliber handgun and

fired a shot, striking McGarry in the face from eight to

twelve inches away. The shot incapacitated McGarry, who

fell backwards and struck his head on the pavement.

[FN3]

Immediately upon seeing Cottrell shoot McGarry,

Guthinger drew his weapon and fired several shots at

Cottrell, striking him in the leg as Cottrell sought cover

behind Morgan’s car. [FN4] Guthinger and Cottrell

continued to exchange gunfire, and numerous vehicles

and nearby buildings were struck by bullets. At some

point during the shootout, Cottrell told Guthinger he was

surrendering, prompting Guthinger to leave his protected

position to place him under arrest. However, as he

approached, Cottrell reloaded his firearm and resumed

shooting at Guthinger, who retreated to cover and called

for backup.

Cottrell fled the scene and responding officers engaged in

a high speed chase through Myrtle Beach until his

getaway vehicle was brought to a halt using stop sticks to

disable the tires, and he was placed under arrest. Police

recovered the .45 caliber weapon that was forensically

matched to the bullet which killed McGarry, along with

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another loaded .357 revolver in the backseat. Officers

attempted to perform CPR on McGarry, but he passed

away in the Dunkin Donuts parking lot.

_________________

[FN1] Halcomb was also identified as a suspect in

Hartman’s death, but he was not immediately

recognizable to the officers.

[FN2] Cottrell was wearing an oversized, baggy jersey,

which Guthinger testified made it impossible for him to

see whether he had a concealed handgun underneath,

though he also stated that such oversized clothing was

often worn for the purposes of concealing illegal weapons.

Though there was no eye witness testimony to confirm it,

the State’s theory was that at some point while waiting

for the NCIC to come back, McGarry caught a glimpse or

saw the imprint of a concealed handgun on Cottrell’s

person, thereby causing McGarry’s rapid change in

demeanor and his instructions to Cottrell to keep his

hands visible.

[FN3] Guthinger testified he witnessed Cottrell raise his

gun and shoot McGarry, and that the sound of the first

shot was simultaneous with the muzzle blast he saw from

the gun’s muzzle. Guthinger then heard a second shot but

did not see a muzzle flash. Experts confirmed that

McGarry’s weapon fired a shot, and Lawson, who

witnessed the events from the passenger seat in

Halcomb’s vehicle, testified that McGarry’s weapon

discharged while he was falling backwards after being

shot by Cottrell.

[FN4] There was some dispute as to when Cottrell was

shot. The defense produced an expert who testified that

Cottrell was shot from the front, attempting to convince

the jury that McGarry fired the first shot and struck

Cottrell. Guthinger testified that he shot Cottrell, and

that Cottrell was moving without any signs of injury

immediately after shooting McGarry, and only after

Guthinger fired at him did Cottrell begin hopping or

limping on one leg. In a statement to police following the

shooting, Cottrell stated he believed it was Guthinger who

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shot him, not McGarry. Lawson also confirmed that it was

Cottrell who fired the first shot, while McGarry then fired

as he was falling to the ground.

Cottrell, 809 S.E.2d at 427–28.

III.

Relevant Procedural History for the Question Presented.

The Supreme Court of South Carolina opinion also set out these particular

facts in regard to Petitioner’s claim the trial judge erred in removing his first

appointed attorneys:

Weeks prior to the scheduled start of Cottrell’s second

trial in March 2012, the solicitors representing the State

had separate conversations with Cottrell’s appointed

attorneys, at which time each accused co-counsel of

misconduct and questioned their ability to adequately

represent Cottrell in light of their difficulty working

together. The solicitors made the trial judge aware of

these allegations, and he conducted discussions in

chambers with the appointed attorneys, who both

confirmed they had indeed made the allegations brought

to light by the State. Both attorneys also indicated they

felt their inability to work together jeopardized Cottrell’s

defense.

In a pre-trial hearing, the trial judge expressed his

concerns over the allegations made by Cottrell’s

attorneys, questioning whether it was possible for them to

effectively represent Cottrell. Cottrell’s attorneys stated

they could put their differences aside and work together

so the case could proceed, but acknowledged they would

defer to the trial judge’s decision. One of the attorneys

admitted that the allegations were probably sufficient to

solidify post-conviction relief if the case went forward. The

trial judge then gave Cottrell an opportunity to discuss

the matter with his attorneys. After their discussion,

Cottrell reiterated he felt confident in his attorneys’

ability to represent him, but that he would defer to the

trial judge’s decision. Ultimately, due to his concerns for

Cottrell’s representation and the ability of the attorneys

to overcome their problems just two weeks before trial,

6

the trial judge decided to relieve both attorneys. After

appointing new defense counsel, [FN5] the trial judge

afforded Cottrell more than two years before rescheduling

the trial so that his new attorneys would have adequate

time to prepare.

________________

[FN5] There is no dispute over replacement counsel’s

qualifications to represent Cottrell.

Cottrell, 809 S.E.2d at 428–29.

REASONS WHY CERTIORARI SHOULD BE DENIED

Petitioner requests “error” correction and an advisory opinion in the form of

“an authoritative statement by this Court” to guide state courts in application of a

formula to individual factual situations where appointed counsel may need to be

relieved and new counsel appointed. His problem is two-fold. First, if the Court

should wish to grant a fact-intensive review of the rare situation evident in the

record, there is no error to correct. The trial judge, faced with admitted accusations

by both defense attorneys of unethical conduct sufficient to prompt a duty to report

to disciplinary counsel, see Petition Appendix B, p. 12, and admission by both

defense attorneys that the tension among the attorneys had actually been to “the

detriment of [the] defense,” see Petition Appendix B, p. 7, removed counsel and

appointed new qualified counsel to represent Petitioner. The judge was well within

his discretion. The action was reasonable and warranted under the facts of this

case. Second, Petitioner has failed to suggest any formula for such a fact-specific

inquiry, and none is readily apparent. Further, the fact pattern in this case does

not lend itself to exploring any subtleties in application of some yet undefined

7

formula. The direct appeal opinion reflects no dissent from the five-member state

supreme court reviewing the trial judge’s action, and even the concurring opinion

that challenged the disposition method, did not challenge the correctness of the

disposition under the rare fact pattern presented:

In a written order, the trial court stated first chair “made

serious allegations of dishonesty and unethical conduct

against her co-counsel,” and second chair “challenged

[first chair’s] competence, work ethic, and personal life.”

The court stated, “Each acknowledged having made the

statements against co-counsel and that they believed the

statements to be true.”

In conclusion, the trial court should have made specific

findings on the record, and given that it did not do so, this

Court should remand with a requirement that those

findings be made now. However, I acknowledge the trial

court was in a very difficult position. In ten years as a

trial judge in which I presided over hundreds of criminal

trials and numerous capital cases, I never faced an

“extreme situation” like this. I am not sure how I would

have handled it if I had. Reading this record convinces me

that a dilemma of this magnitude will almost never arise.

While I steadfastly disagree with the majority’s

characterization of the trial court’s power to resolve this

problem as one of “wide latitude” or “considerable

discretion,” I do believe that on these unique facts the

failure of the trial court to make specific findings that

would form the basis for a legal disqualification does not

warrant a new trial.

Cottrell, 809 S.E.2d at 439–40 (Few, J., concurring).

Indeed, Petitioner did not even challenge the disposition of this matter on

appeal in his petition for rehearing. 2 He made no argument challenging application

Petitioner raised two issues in his petition for rehearing: one challenging the

disposition of a voir dire issue; and one challenging disposition of an issue

contesting the exclusion of a witness. (Jan. 4, 2018 Petition for Rehearing, pp. 1-4).

2

8

of the law, or a misunderstanding regarding the facts in regard to the state supreme

court opinion. See generally Rule 221 (a), South Carolina Appellate Court Rules (“A

petition … shall state with particularity the points supposed to have been

overlooked or misapprehend by the court.”).

The record supports the trial judge committed no error in these unique

circumstances, and the Supreme Court of South Carolina reasonably and logically

affirmed without offense to this Court’s precedent. Petitioner fails to present a

compelling case for review.

I.

The Supreme Court of South Carolina did not err in affirming the trial

court’s ruling, under the unique circumstances in this case, to appoint

new, qualified counsel to ensure a fair trial for both the indigent

capital defendant and the state.

Petitioner’s claim of unwarranted interference with the attorney-client

relationship lacks merit factually and legally. Rather than supporting the state

supreme court “exceeded the boundaries set by this Court’s cases” on removal, (see

Petition, p. 11), the state court’s opinion reflects it considered and was guided by

this Court’s precedent. In particular, the state court addressed, and rejected,

Petitioner’s argument on direct appeal that “the trial judge’s removal of his counsel

[was] arbitrary and unsupported by any basis in the record,” relying on United

States v. Gonzalez–Lopez, 548 U.S. 140, 150 (2006). Cottrell, 809 S.E.2d at 430. The

largest point of distinction was readily apparent – this Court in Gonzalez-Lopez was

not considering whether a discretionary ruling was erroneous, thus there was no

reasoning on application of discretion which would apply.

9

Id. (citing Gonzalez-

Lopez, 548 U.S. at 152). However, the Supreme Court of South Carolina also noted

this Court “reiterated the wide latitude that must be afforded to trial courts in

balancing the right to counsel choice with the needs of fairness, and its ‘interest in

ensuring that criminal trials are conducted within the ethical standards of the

profession and that legal proceedings appear fair to all who observe them.’” Id.

(quoting Gonzalez-Lopez, 548 U.S. at 152).

Petitioner’s claim fails to account for the trial court’s, and the appellate

court’s, consideration of the fairness in the proceedings for all parties. The judicial

system effects balance in the rights of all parties – it is not solely a source of defense

rights which a defendant may opt to waive or impose at his discretion. See Stein v.

New York, 346 U.S. 156, 197 (1953), overruled on other grounds in Jackson v.

Denno, 378 U.S. 368 (1964) (“The people of the State are also entitled to due process

of law.”). See also Payne v. Tennessee, 501 U.S. 808, 827 (1991) (‘“[J]ustice, though

due to the accused, is due to the accuser also. The concept of fairness must not be

strained till it is narrowed to a filament. We are to keep the balance true.’”) (quoting

Snyder v. Mass., 291 U.S. 97, 122 (1934)). While true there is not complete balance

or wholly reciprocal rights in all Constitutional measures, it should be without

question that the goal remains the same – a fair trial. The trial judge in the instant

case struck a balance in favor of protecting the integrity of the proceedings, which,

in turn fully protected Petitioner’s right to counsel and his right to a fair trial.

Petitioner’s argument fails to take into account the ethical assertions – confirmed

separately to the trial judge – which leads to a much greater concern than ordinary

10

reversal for a bad choice during representation. This was very much a part of the

South Carolina Supreme Court’s ruling:

Given the trial judge’s discretionary authority and his

duty to ensure the integrity of the judicial process and

safeguard Cottrell’s right to effective counsel, we find the

trial judge did not abuse his discretion in removing

Cottrell’s attorneys and appointing new counsel.

Cottrell, 809 S.E.2d at 430 (emphasis added).

Moreover, contrary to Petitioner’s suggestion, there was not a complete

absence of fact finding or investigation as to the basis for the disqualification. The

Supreme Court of South Carolina acknowledged its precedent that prefers fuller

factual development on claims removal is necessary, 3 but resolved in this case:

…these concerns are mitigated because in addition to the

in camera discussions, the trial judge did in fact hold a

hearing to allow Cottrell and his attorneys to be heard on

the matter. We acknowledge it is somewhat problematic

that the record does not indicate with specificity what the

allegations of misconduct and disagreement actually

entail, but the attorneys’ confirmation that the

accusations were made and the absence of any rebuttal

weighs in favor of affirming the trial judge’s decision.

Moreover, once one of Cottrell’s attorneys admitted on the

record that he believed Cottrell would likely prevail on

PCR based on these allegations, we find the trial judge

had little choice but to remove the attorneys to preserve

the integrity of the trial in accordance with GonzalesLopez and Sanders. The right to counsel is not so absolute

that it requires a trial judge to preside over a trial,

exhausting the time of attorneys, jurors, and judicial staff

despite an admission by a defendant’s attorney that the

The Supreme Court of South Carolina made referenced to its prior case of

State v. Sanders, and the direction: “As a procedural safeguard, an evidentiary

hearing is appropriate to determine whether there is evidence to support counsel’s

removal.” State v. Sanders, 341 S.C. 386, 390–91, 534 S.E.2d 696, 698 (2000).

3

11

integrity of the verdict is in doubt due to conduct falling

below the accepted standards of the legal profession.

Based on the above analysis, we find the trial judge acted

within the limits of his discretionary powers and did not

violate Cottrel’s Sixth Amendment right to counsel by

removing his appointed attorneys and replacing them

with new counsel. Had the attorneys denied the

allegations or objected to the trial judge’s remedy of

removal, more complete findings of fact may have been

appropriate, but the limited findings in the record are

bolstered by the attorneys’ acquiescence to the trial

judge’s ruling. Though deference is afforded to a

defendant’s attorney-client relationship once established,

that relationship is limited by a trial judge’s obligation to

safeguard the integrity of the judicial process, as the trial

judge did here. Thus, we find no error in the trial judge’s

removal and replacement of Cottrell’s appointed

attorneys.

Cottrell, 809 S.E.2d at 431.

The facts of record well-support these critical findings.

a.

The fact pattern in this case shows allegations of unethical

behavior so extreme as to have obligated the trial judge to seek

disciplinary counsel review of former appointed counsel’s actions, and

supported removal to ensure integrity in the proceedings and a fair

trial.

Approximately three (3) weeks before the scheduled capital case re-trial was

to occur, the trial judge, Judge Hyman, was informed Petitioner’s court-appointed

trial counsel, Lisa Kimbrough, Esq., (1st chair) and Stuart Axelrod, Esq., (2nd

chair), had made serious accusations of unethical and unprofessional conduct

against each other.

Solicitor Greg Hembree and then Deputy Solicitor Jimmy

Richardson both provided memoranda regarding the allegations. The memorandum

from the deputy solicitor Richardson reflected:

12

Talked with Stuart [Axelrod] for a few minutes before our

status conference. He repeated his dissatisfaction with his

co-counsel Lisa Armstrong. He repeated that Lisa was

lazy, not easily motivated and drank too much. Stuart

said that he had to take the lead on getting started for

this trial because Lisa would never request discovery, look

into getting experts, and investigate the details of the

shooting or possibilities of misconduct by the MBPD.

Stuart also said that he decided to storm ahead and take

this case on himself. He realized he was second chair but

that he was going to do the work because Armstrong was

either incapable or too lazy to start.

I do not remember the first date that Stuart mentioned

his problems with Armstrong to me but I know he has

expressed concerns over her abilities more than a few

times.

(Petition Appendix B, Court Exhibit 1. R. p. 378). 4

The memorandum of the solicitor reflected similar concerns:

… Lisa offered how sorry she was that my office had to

work with her co-counsel, Stuart Axelrod, on a regular

basis. I agreed with her that he was very difficult to work

with and that his clients frequently received stiffer prison

sentences due to his advice and approach.

Lisa then went into a rather lengthy discussion that in

her career practicing law she had never worked with any

lawyer more dishonest or unethical than Mr. Axelrod.

She went on to say that they were not working together at

all and that she could not wait to get this case concluded

just to get away from him. From her demeanor it was

clear that she strongly disliked her co-counsel.

Ms. Armstrong also stated that Mr. Axelrod was fixated

on the wrong strategy for this type of case and that he

wouldn’t listen to her advice regarding guilt phase

This “storm ahead and take the case” assertion appears supported by the

later pro se motion to keep Mr. Axelrod on the case, as Petitioner repeatedly refers

to him as lead counsel. (See Appendix C).

4

13

strategy. I agreed with her that what I perceived his

strategy was [was] not the strategy I would use if I were

defending the case. She never specifically revealed any

strategy and I made my judgment based on what Mr.

Axelrod has revealed to others along with what I

anticipate his strategy to be based on the discovery he has

requested.

After that conversation and knowing what Mr. Axelrod

said to Deputy Solicitor Richardson about Ms. Armstrong,

I became very concerned about the defendant’s ability to

be effectively represented by this defense team.

(Petition Appendix B, Court Exhibit 2, R. p. 379).

Further, as the Supreme Court of South Carolina noted, Judge Hyman met

with counsel to explore the allegations. Cottrell, 809 S.E.2d at 431. On March 5,

2012, Judge Hyman held a status hearing. He met with each trial counsel

separately in chambers to discuss the matter. Judge Hyman convened another

hearing on March 8, 2012.

Judge Hyman confirmed he had met in chambers

separately with both capital defense counsel after the March 5th hearing. (Petition

Appendix B, R. pp. 365-66). Judge Hyman also noted that he was satisfied from his

discussions with counsel that the memoranda provided to him by Solicitor Hembree

and Deputy Solicitor Richardson were correct – defense counsel were each alleging

serious misconduct against each other. Both counsel confirmed privately to Judge

Hyman they had made the allegations against each other, and both counsel believed

the allegations were true. (Petition Appendix B, R. p. 366). Both counsel told him

in chambers on March 5th that in their opinion Petitioner’s defense was being

jeopardized. (Petition Appendix B, R. p. 366). Mr. Axelrod stated, based on the

allegations made, the case if it went forward would probably be reversed on post14

conviction relief (PCR). (Petition Appendix B, R. p. 370). Petitioner stated he was

not aware of the allegations being made by defense counsel against each other.

After meeting with defense counsel privately, Petitioner stated he wanted Mr.

Axelrod to stay on the case. (Petition Appendix B, R. pp. 372-73).

At the conclusion of the hearing, Judge Hyman ruled reluctantly that he had

no choice but to relieve both counsel, continue the case indefinitely, and appoint

new qualified counsel. Judge Hyman noted he was doing so in order to protect

Petitioner’s right to the effective assistance of counsel. (Petition Appendix B, R. pp.

373-75). He issued a written Order on March 13, 2012 confirming his ruling. He

noted the “serious allegations of dishonesty and unethical conduct” and “concerns

about counsel’s inability to coordinate trial strategy,” and concluded:

I have carefully explained my concerns to the defendant.

He stated that he thought his attorneys could resolve

their problems and continue with his defense. However,

my duty at this point is to protect this defendant by

taking the course most likely to assure he will be

effectively represented and his constitutional rights will

be preserved. I am not unaware of the delay and expense

to be caused by my decision. Nevertheless, I must take

the extreme measure of relieving counsel and appoint new

counsel.

(Petition Appendix B, R. p. 380).

As the Supreme Court of South Carolina resolved, the trial judge was faced

with a rare set of facts and exercised his discretion to balance Petitioner’s right to

counsel within the actions necessary to preserve the integrity of the capital trial.

There was no abuse of discretion in these discrete circumstances. See United States

v. Howard, 115 F.3d 1151, 1155 (4th Cir. 1997) (“a trial court ‘must have sufficiently

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broad discretion to rule without fear that it is setting itself up for reversal on

appeal’ if it disqualifies a defendant’s chosen lawyer.”) (quoting United States v.

Williams, 81 F.3d 1321, 1324 (4th Cir.1996)).

b.

Petitioner’s argument critically omits consideration of the

necessity of a fair trial for all parties and the trial court’s duty to

protect the integrity of the proceedings.

“[W]hile the right to select and be represented by one’s preferred attorney is

comprehended by the Sixth Amendment, the essential aim of the Amendment is to

guarantee an effective advocate for each criminal defendant rather than to ensure

that a defendant will inexorably be represented by the lawyer whom he prefers.”

Wheat v. United States, 486 U.S. 153, 159 (1988). See also Morris v. Slappy, 461

U.S. 1, 14 (1983) (the Sixth Amendment secures the right to counsel, but does not

guarantee a criminal defendant a “meaningful attorney-client relationship” with

counsel) (quotation marks in original). “[T]he purpose of providing assistance of

counsel ‘is simply to ensure that criminal defendants receive a fair trial ....’” Wheat

v. United States, 486 U.S. 153, 159 (1988) (quoting Strickland v. Washington, 466

U.S. 668, 689 (1984)).

In Wheat, this Court found a limited right to choice of counsel, which “is

circumscribed in several important respects.” Id. For example, a criminal defendant

does not have the right to insist upon representation by an attorney who has an

actual conflict of interest. Id. at 160.

Further, this Court found while “a

presumption in favor of petitioner’s counsel of choice” may exist, “that presumption

may be overcome….”

Id. at 164. Upon information of an issue with counsel’s

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representation, the trial court should make “evaluation of the facts and

circumstances of each case” and the determination of whether removal is warranted

“must be left primarily to the informed judgment of the trial court.” Id.

In Gonzalez-Lopez, this Court had the opportunity to again affirm what has

long been determined; that an indigent defendant does not share a right to choice of

counsel with those defendants who are not indigent. The Court also “recognized a

trial court’s wide latitude in balancing the right to counsel of choice against the

needs of fairness and against the demands of its calendar.” 548 U.S. at 152 (citing

Wheat, 486 U.S. at 163-164 and Morris v. Slappy, 461 U.S. at 11-12). “Ethical

considerations and rules of court prevent counsel from making dilatory motions,

adducing inadmissible or perjured evidence, or advancing frivolous or improper

arguments” though vigorous representation at trial is always required. McCoy v.

Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 435, 108 S. Ct. 1895 (1988).

Waiver of a potential conflict cannot always cure the danger in keeping counsel on

the case. See, for example, United States v. Orgad, 132 F. Supp. 2d 107, 120–21

(E.D.N.Y. 2001) (“desire to waive his right to conflict-free counsel is immaterial, as

the number and depth of the conflicts in this case lead me to conclude that the

representation of Orgad by Richards at trial would pose too great a threat to the

Court’s institutional interest in the integrity of the trial itself.”) (citing Wheat, 486

U.S. at 162–63).

“Where this Sixth Amendment right is invoked, the court must balance the

defendant’s right to his own freely chosen counsel against the need to maintain the

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highest ethical standards of professional responsibility.” State v. Sanders, 341 S.C.

386, 390, 534 S.E.2d 696, 697–98 (2000) (citing United States v. Cunningham, 672

F.2d 1064 (2nd Cir. 1982)). “Violation of accepted rules of professional conduct

which result in the ‘erosion of public confidence in the integrity of the bar and of the

legal system’ also may justify disqualification of defendant’s chosen counsel.” United

States v. Collins, 920 F.2d 619, 627 (10th Cir. 1990).

South Carolina precedent has long recognized “where an accused’s

representation is patently inadequate and incompetent, the trial judge is under a

duty to intervene to the extent of insuring that the rights of the accused are

afforded adequate protection.” State v. Lewis, 255 S.C. 466, 472, 179 S.E.2d 616, 619

(1971). But South Carolina is readily cognizant of the restraint of that duty: “such

obligation imposes upon the court no duty to intervene merely because it feels that

counsel is not experienced or skillful” lest there be unwarranted interference with

the exercise of a defendant’s rights. Id.

Judge Hyman did not abuse his discretion in addressing this issue from the

perspective of fairness and integrity of the trial and the protection of the

defendant’s rights. The facts presented a dilemma. Both appointed attorneys had

accused each other of unethical or unprofessional conduct in the representation.

Both separately informed Judge Hyman in chambers that they had in fact made the

allegations and believed them to be true. Both informed Judge Hyman, at that

time, they believed the actions of their co-counsel and the problems they had with

each other had prejudiced Petitioner’s defense. Judge Hyman did not want to

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remove counsel or grant a continuance; however, he felt he had no alternative given

that approximately three (3) weeks before the capital trial Petitioner’s two (2) trial

attorneys were accusing each other of unethical or unprofessional conduct; their

relationship had jeopardized the defense; and, Judge Hyman was obligated to report

the allegations against each attorney to the appropriate professional governing or

investigating body. His ruling allowed for the protection of the right to counsel and

integrity of the proceedings. Again, there is no error to correct.

CONCLUSION

For all the foregoing reasons, the petition should be denied.

Respectfully submitted,

July 19, 2018.

Columbia, South Carolina.

_______________________________________

MELODY J. BROWN

Senior Assistant Deputy Attorney General

Office of the Attorney General

State of South Carolina

Post Office Box 11549

Columbia, South Carolina 29211

(803) 734-6305

ATTORNEY FOR RESPONDENT

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