Petition — Michigan v. Gallagher

R82 _o99

Office - Supreme Court, U.S.

iov 28 1982

ALEXANDER L. STEVAS,

CLERK

=

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

STATE OF MICHIGAN,

Petitioner

vs.

RAYMOND GALLAGHER,

Respondent

PETITION FOR A WRIT OF CERTIORARI

WILLIAM L. CAHALAN

Prosecuting Attorney

Wayne County

State of Michigan

EDWARD REILLY WILSON

Deputy Chief,

Civil and Appeals

A. GEORGE BEST II (P-27749)

Assistant Prosecuting Attorney

12th Floor, 1441 St. Antoine

Detroit, Michigan 48226

Phone: (313) 224-5827

QUESTION PRESENTED

DID THE MICHIGAN COURT OF APPEALS

AFFIRMATIVELY MISAPPLY CONTROLLING

CASE LAW PRECEDENT RELATING TO THE

GRANT OF A NEW TRIAL ON THE BASIS

OF INEFFECTIVE ASSISTANCE OF COUNSEL

BECAUSE OF AN ALLEGED CONFLICT OF

INTEREST WHERE SAID COURT UPHELD A

GRANT OF NEW TRIAL AFTER FINDING

ONLY A POTENTIAL AND NOT AN ACTUAL

CONFLICT OF INTEREST.

TABLE OF CONTENTS

Index of Authorities ....... 2.6... 6c cece cece ences iii-iv-v

Opinions Below ....... 2.6... cece cece eeceneeee 2

Statement of Jurisdiction ................6600055- 3

Constitutional Provisions Involved ................ 4

Statement of Facts ....... 2.6.6 cece e eee e we eeeee 5-7

Reasons for Granting the Writ.................+.. 8-16

CINIO oon cece cccscccccccccsascecessccees i7

Appendix A Court of Appeals ................ 18-34

AppendixB Courtof Appeals ................ 35-36

eee

—ihi—

INDEX OF AUTHORITIES

Cases

Alexander v Houseright

667 F 2d 556 (CA 8-1981) .... 22... eee eee

Bailey v Redman

657 F 2d 21 (CA 3-1981) .... 2... . eee e eee

Baty v Balkcom

661 F 2d 391 (CA 5-1981) .............45--

Camera v Fogg

658 F 2d 80 (CA 2-1981) ... 2... 6. ee eee eee

Cuyler v Sullivan

446 US 335, 64 L Ed 2d 333 (1980) .........

Daniels v Maggio

669 F 2d 1075 (CA 5-1982) ... 2... 66. - ee eee

Davis v Franzen

671 F 2d 1056 (CA 7-1982) ............-45-

Dently v Lane

665 F 2d 113 (CA 7-1981) ..........0-000--

Gideon v Wainwright

372 US 335, 9 L Ed 2d 799 (1963) ..........

People v Aquilar

105 Mich App 258 (1981) ............0-5-

People v Bentley

GER Se GEO 5 ccs sect ccc tevcctan:

People v Clark

106 Mich App 771 (1981) ............0555-

People v Drielick

400 Mich 559, 567 (1977) .... 6... eee ee eee

—

INDEX OF AUTHORITIES

(Continued)

People v Gallagher

116 Mich App 283, 299 (1982) ............. 6, 7, 9, 11

People v Gardner

SRP CRP TED Conc ccccbvcecapecvess 16

People v Green

96 Mich App 104 (1980) ....... ........... 12

People v Hoffman

81 Mich App 288, 298 (1978) .............. 17

People v Mendez

101 Mich App 735 (1980) ................. 14

People v Villarreal

100 Mich App 379 (1980) ................. 13

Smith v. Bordenkircher

671 F 2d 986, (CA 6, 1982)............ ... 11

United States v Agosto

675 F 2d 965, 970 (CA 8, 1982 ............. 10

United States v Knight

680 F 2d 470 (CA 6-1982) ................. 11

United States v Martinez

630 F 2d 361 (CA 5, 1980) ................ 10

United States v Valenzuela

521 F 2d 414, 416 (CA 8, 1975);

cert den, 47 L Ed 2d 321 (1976) ............ 10

United States v Zatjac

677 F 2d 61, 63 (CA 11, 1982) ............. 10

—

STATUTES

ROCL, TEB.ISTA nc cccccvccncccccccccercceecs

RECE, TEOSIG 2. oc cccccccccccccscusecveseces

OTHER AUTHORITIES

BB UBC BIST). ic cccccccicvceccccccccesess

Sixth Amendment to the

United States Constitution................

Fourteenth Amendment to the

United States Constitution................

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

STATE OF MICHIGAN,

Petitioner

vs.

RAYMOND GALLAGHER

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS

STATE OF MICHIGAN

NOW COMES William L. Cahalan, Prosecuting At-

torney in and for the County of Wayne, State of

Michigan, by EDWARD REILLY WILSON, Deputy

Chief, Civil and Appeals, and A. GEORGE BEST II,

Assistant Prosecuting Attorney, and prays that a Writ

of Certiorari issue to review the judgment of the Court

of Appeals of the State of Michigan entered in the above

entitled cause on 19 May 1982.

A timely application for rehearing before said Court

was made and denied on 6 July 1982. A timely applica-

tion for leave to appeal was made to the Michigan

Supreme Court and that court denied the petitioner any

relief on 18 October 1982.

anfed

On 19 May 1982 the Michigan Court of Appeals upheld a

grant of new trial to this defendant on one of the two grounds

enunciated by the trial court (the Court of Appeals found one

ground to represent an abuse of discretion.) That opinion is

appended hereto as Appendix A. A timely application for

rehearing was made by petitioner and no relief was granted 6

July 1982. Appendix B. A timely application for leave to ap-

veal was filed by petitioner in the Michigan Supreme Court,

that Court denied any relief by order dated 18 October 1982.

Appendix C.

5

STATEMENT OF JURISDICTION

The opinion of the Michigan Court of Appeals was issued

19 May 1982. The order of that Court denying an application

for rehearing was issued on 6 July 1982. The order of the

Michigan Supreme Court denying application for leave to ap-

peal was issued on 18 October 1982. The jurisdiction of this

Honorable Court is invoked under 28 USC 1257 (3).

duns

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitution

provides:

In all criminal prosecutions, the accus-

ed shall enjoy the right to a speedy and

public trial, by an impartial jury of the

have been committed, which district

shall have been previously ascertained by

law, and to be informed of the nature

and cause of the accusation; to be con-

fronted with the witnesses against him;

to have compulsory process for obtain-

ing witnesses in his favor, and to have

the Assistance of Counsel for his

defense.

The Fourteenth Amendment to the United States Constitu-

tion provides, in relevant part:

No State shall make or enforce any

law which shall abridge the privileges or

immunities of citizens of the United

States; nor shall any State deprive any

person of life, liberty, or property,

without due process of law; nor deny to

any person within its jurisdiction the

equal protection of the laws.

a

STATEMENT OF FACTS

Defendant and a co-defendant were each charged in a two

count information with first degree murder (MCL 750.316)

and conspiracy to commit first degree murder (MCL 750.316,

750.157A). Each was represented by their own counsel.

Defendant was tried by jury and, in conjunction with a co-

defendant, was convicted as charged. Defendant was sentenc-

ed to the legislatively mandated term of life imprisonment as to

both counts in November 1979.

Defendant’s trial counsel filed a motion for new trial.

Defendant then retained new counsel who added several issues

to the new trial motion, one being a claim that defendant had

been denied the effective assistance of trial counsel due to an

alleged conflict of interest springing from trial counsels earlier

representation of another individual who was not a defendant

in the present case.

Extensive hearings were held, and a new trial was granted in

June 1980, the trial court finding that a conflict did exist. Ap-

pellate proceedings were brought by the People and a remand

was ordered by the State Court of Appeals to take additional

testimony. A new hearing was held at the conclusion of which

the trial court again granted defendant a new trial, this time on

two grounds; first, a conflict of interest denying effective

assistance of trial counsel and, second, a ‘‘cumulation’”’ of in-

dividually non-reversible trial errors which equalled a ‘‘miscar-

riage of justice’. New trial grant was again given in October

1980.

The new trial hearings revealed that defendant's trial

counsel had several years earlier represented an individual who

was not a defendant here, in a federal narcotics case. That in-

dividual was now alleged by defendants new appellate counsel

to be an ‘‘alternate suspect’’ to the crimes of which this defen-

dant was convicted.

Police testimony indicated that at no time had they ever un-

covered any evidence or “‘leads’’ pointing to this ‘‘alternate

hediien

suspect’’ as having had any involvement in the crimes charged

agains: this defendant.

Testimony from trial counsel’s private investigator indicated

that even after some 400 hours of research and witness inter-

views, he had discovered no ‘‘links’’ between the crimes charg-

ed and the ‘‘alternate suspect’’ (9 July: 16, 29, 39; 24 Sept:

9-12, 17-18, 20-21; 24, 56)

Trial counsel testified that there was no conflict of interest,

that he never had or obtained any evidence or information

alluding to a “‘live’’ ‘‘alternate suspect’’; that he never sup-

pressed any such information and that he did not structure his

presentation of the case or his preparation of it in such a man-

ner as to shield this ‘‘alternate suspect’’. (24 Sept: 68-71,

74-75, 92, 132-136; 25 Sept: 85-88, 99-101, 113-114)

The ‘‘alternate suspect’’ testified that he had no involve-

ment in the charged crimes and that he had had no contact

with the defendant’s trial counsel immediately prior to or dur-

ing the trial of defendant. (28 Sept: 132-166)

The People sought leave to appeal such order, leave being

granted by the State Court of Appeals. That court found an

abuse of discretion by the trial court in holding that cumulative

errors justified a new trial. That court noted that, “‘in fact,

there has been absolutely no showing of trial error. We con-

clude, therefore, that the trial judge abused his discretion in

granting a new trial and upcen a miscarriage of justice.’’ People

v Gallagher, 116 Mich App 283, 299 (1982)

The Michigan Court of Appeals did however decide that the

trial court had not abused its discretion in granting a new trial

on the basis of ineffective counsel because,

** ... the record does support a finding that

defense counsel’s former representation of an

alternate suspect in this case ‘“‘may’’ have in-

hibited counsel’s directives concerning the in-

vestigatory process, which, in turn, ‘“‘may’’ have

difttes

affected counsels examination and _ cross-

examination of witnesses and the manner in

which the trial was conducted.

... it is unclear whether defendant was ever in-

formed of the potential conflict of interest ...

People v Gallagher, supra, 294.

The Court of Appeals concluded that,

On the record, we are convinced that the trial

court was correct in finding that a conflict of in-

terest ‘“‘may’’ have prejudiced the defendant's

trial and that no valid waiver had occurred.

Gallagher, supra, 295.

The Court of Appeals thus found only that a “‘potential’’

conflict of interest ‘‘may’’ have existed during defendant's

trial.

A timely application for rehearing was denied by that court.

The Michigan Supreme Court also denied the People any relief

upon their review of the People’s Application for Leave to Ap-

peal.

bin

REASONS FOR GRANTING THE WRIT

THE MICHIGAN COURT OF APPEALS AF-

FIRMATIVELY MISAPPLIED CONTROLL-

ING CASE LAW PRECEDENT RELATING

TO THE GRANT OF A NEW TRIAL ON THE

BASIS OF INEFFECTIVE ASSISTANCE OF

COUNSEL BECAUSE OF AN ALLEGED

CONFLICT OF INTEREST WHERE SAID

COURT UPHELD A NEW TRIAL AFTER

HAVING FOUND ONLY A POTENTIAL AND

NOT AN ACTUAL CONFLICT OF IN-

TEREST.

The Michigan Court of Appeals was squarely presented with

the question of whether there had been ineffective assistance

of trial counsel based on an alleged conflict of interest springing

from the years-prior representation by that counsel of an in-

dividual alleged (after trial) to be an ‘‘alternate suspect’’ in the

crimes charged against defendant. The Michigan Court of Ap-

peals reviewed the trial and post-trial record and upheld the

new trial grant of the trial court. The People allege that that

action was taken in total disregard of controlling United States

Supreme Court precedents.

The basic question was whether defendant’s Sixth Amend-

ment rights were violated. The Sixth Amendment is applicable

to the states via the Fourteenth Amendment. Gideon v Wain-

wright, 372 US 335, 9 L Ed 2d 799 (1963). Here, the Court of

Appeals dealing with the Sixth Amendment, totally disregard-

ed Cuyler v Sullivan, 446 US 335, 64 L Ed 2d 333 (1980).

The Court of Appeals in its opinion noted that,

.-. record does support a finding that defense

counsel’s former representation of an alternate

suspect in this case ‘‘may have inhibited counsel's

directives concerning the investigatory process

which, in turn, “‘may’’ have affected counsel’s ex-

amination and cross-examination of witnesses

and the manner in which the trial was conducted.

tions

The most troublesome aspect of this case is that

it is unclear whether defendant was ever informed

of the potential conflict of interest and risks pur-

suant thereto and whether the defendant had con-

sented to counsel’s representation when and if

such disclosure was made.

On this record, we are convinced that the trial

court was correct in finding that a conflict of in-

terest ‘‘may’’ have prejudiced the defendant’s

trial and that no valid waiver had occurred.

People v Gallagher, 116 Mich App 283, 294-295 (1982) (em-

phasis added).

The correct standard as been succinctly and cogently set

forth by the United States Supreme Court in Cuyler v Sullivan,

supra.

In order to establish a violation of the Sixth

Amendment, a defendant who raised no objec-

tion at trial must demonstrate that an actual con-

flict of interest adversely affected his lawyer’s per-

formance.

... until a defendant shows that his counsel ac-

tively represented conflicting interests, he has not

established the constitutional predicate for his

claim of ineffective assistance.

We hold that the possibility of conflict is insuf-

ficient to impugn a criminal conviction. In order

to demonstrate a violation of his Sixth Amend-

ment rights, a defendant must establish that an

actual conflict of interest adversely affected his

mak, performance. (346, 347, 348) (emphasis

<$De

This standard, one which requires the showing of an actual,

presently extant, conflict of interest and not merely a ‘‘poten-

tial conflict’’ would mandate the reversal of the opinion of the

Court of Appeals and of the trial court below.

What is readily apparent from a reading of the Court of Ap-

peals decision is that it did not accept any trial court finding of

an ‘‘actual conflict of interest.’’ The very language utilized

shows beyond peradventure that had the Court of Appeals

utilized Cuyler, supra, they would have reversed the trial court

and not affirmed it.

As noted in United States v Zatjac, 677 F 2d 61, 63 (CA 11,

1982),

For a conflict of interest to cause ineffective

assistance of counsel the conflict must be actual,

not merely hypothetical or speculative. Cuyler v

Sullian, (cite omitted); United States v Fox, F2d

99, 102 (CAS, 1980)

This principle has also been expressed with unmistakable

clarity in numerous other cases; United States v Martinez, 630

F2d 361 (CA 5, 1980); United States v Agosto, 675 F2d 965,

970 (CA 8, 1982); United States v Valenzuela, 521 F2d 414, 416

(CA 8, 1975); cert den, 47 L Ed 2d 321 (1976); Bailey v Red-

man, 657 F 2d 21 (CA 3-1981); Camera v Fogg, 658 F 2d 80

(CA 2-‘981); Baty v Balkcom, 661 F 2d 391 (CA 5-1981);

Dently v Lane, 665 F 2d 113 (CA 7-1981); Alexander v

Housewright, 667 F 2d 556 (CA 8-1981); Daneils v Maggio,

669 F 2d 1075 (CA 5-1982); Davis v Franzen, 671 F 2d 1056

(CA 7-1982)

The Sixth Circuit has recently expounded its view on this

question and has reached an identical result.

... The Cuyler test directs us to determine, on

the facts of each case, whether there is an actual

conflict of interest and whether that conflict has

caused ineffective performance in violation of the

processes of the Sixth Amendment made ap-

plicable to state proceedings by the Due Process

Clause of the Fourteenth Amendment.

Appellants have not adduced evidence that

counsel ‘‘actively represented conflicting in-

terests’’ and the District Court’s finding that

there was =o conflict of interest in this case is not

clearly erroneous. The Cuyler court states that

until a defendant shows that his counsel actively

represented conflicting interests, he has not

established the constitutional predicate for his

claim of ineffective assistance.

Smith v Bordenkircher, 671 F2d 986, (CA 6, 1982); United

States v Knight, 680 F 2d 470 (CA 6-1982).

It is thus clear that the Court of Appeals here reversibly er-

red. It is also clear that a review of its decision shows that it

found no actual conflict of interest thus requiring it to reverse

the trial court below and set aside the grant of new trial.

The above was noted by the one Judge who dissented in

Gallagher, supra.

I respectfully dissent. Although the majority

accepts the trial court’s determination that a con-

flict of interest existed and focuses its attention on

whether the conflict affected counsel’s perfor-

mance, I find no basis for concluding that a con-

flict was established.

In order to establish ineffective assistance of

counsel, defendant must demonstrate an actual

conflict of interest which adversely affects his

lawyer’s performance. He must show that his

counsel actively represented conflicting interests.

Cuyler v Sullivan, 446 US 335; 100 S. Ct 1708; 64

L Ed 2d 333 (1980). The trial court was of the opi-

nion that a conflict existed because counsel had

=)

represented Mr. X on a prior Occasion and

because of an alleged personal relationship bet-

ween the two. I find neither to be supported by

the evidence.

Any conclusion that counsel actively

represented conflicting interests because of this

prior attorney-client relationship is based upon

speculation and conjecture only, not upon the

evidence. Counsel was not serving two masters.

See Olshen v McMann, 378 F2d 993 (CA 2, 1967),

United States ex rel Kachinsky v Cavell, 453 F2d

581 (CA 3, 1971) (counsel formerly represented a

prosecution wi ness).

Counsel did not have two clients to whom he

owed his undivided loyalty. He was not con-

fronted with a situation where his efforts to pro-

tect the interests of one client would cause him to

sacrifice the interests of the other client which he

was also ethically obligated to protect. No actual

conflict of interest existed because of counsel’s

former representation of Mr. X.

The trial court was also of the opinion that

because of a continuing personal relationship bet-

ween counsel and Mr. X, counsel sought to pro-

tect Mr. X at defendant’s expense. I do not

believe that the evidence justifies such a deter-

(299-301)

The Court of Appeals decision was also in conflict with

prior Michigan authorities (which ‘nplicitly follow Cuyler

In People v Green, 96 Mich App 104 (1980), the following

situation obtained:

—13—

At the preliminary examination, appointed

counsel indicated to the court that he had

represented the key prosecution witness in the

past and that another member of his firm was

presently representing the witness on a pending

charge. Counsel stated that he had discussed the

matter with the defendant, who had no objection

to counsel conducting the preliminary examina-

tion. Counsel further stated that if the defendant

were bound over for trial, he would withdraw as

defendant’s attorney. The examination commenc-

ed, and resulted in the defendant being bound

over. Counsel promptly moved to and did

withdraw.

Defendant argues first that representation of a

defendant and a key prosecution witness amounts

to ineffective assistance of counsel per se. We

decline to apply a per se rule under the facts of the

present case. See People v Van Brocklin, 76 Mich

App 427, 430; 257 NW2d 107 (1977). The facts

underlying this declination are that counsel was

not presently representing the witness, that the

representation of the defendant took place at the

preliminary examination and that defendant con-

sented to such representation after having discuss-

ed the matter with counse!. We hold that absent

some showing of prejudice arising from the con-

flict of interest, the defendant was not denied ef-

fective assistance of counsel. We further hold that

no such prejudice was extant here. (107-108).

In that case, there existed an actual conflict of interest —

one which was acknowledged by defense counsel and by the

trial court. That actual conflict did not however prejudice the

defendant in any degree. Defendant’s conviction was affirm-

ed.

In People v Villarreal, 100 Mich App 379 (1980), the court

held that:

In order for ineffective assistance of counsel to

result from shared counsel by co-defendants,

there must be a showing of actual prejudice:

**Specifically, a defendant is entitled to ‘the un-

divided loyalty of his counsel’. People v Gardner,

385 Mich 392, 400; 189 NW2d 229, 234 (1971).

‘**‘Where counsel have represented co-

defendants, we have required a showing of actual

prejudice before finding reversal warranted. Peo-

ple v Jones, 64 Mich App 659, 667-668; 236

NW2d 531, 536 (1975), People v Marshall, 53

Mich App 181, 189-190; 218 NW2d 847, 852

(1974); People v Hilton, 26 Mich App 274, 276;

182 NW 2d 29, 30 (1970). This is because such

relationships do not inevitably involve conflicts of

interests. People v Hilton, Supra.’’ People v Van

Brocklin, 76 Mich App 427, 430; 257 NW2d 107

(1977).

See also Holloway v Arkansas, 435 US 475, 482;

98 S. Ct 1173; 55 L Ed 2d 426 (1978). (389-390)

(emphasis added).

Again, an actual conflict of interest was affirmatively found

to exist.

In People v Mendez, 101 Mich App 735 (1980), the court

held that,

Defendant first argues that he was deprived of

effective assistance of counsel by the joint

representation of all of the defendants by retained

counsel. At the insistence of the prosecutor

several purported waivers were made by the

defendants of any claim of conflict arising out of

the multiple representation. The dispute over the

validity of these waivers need not be addressed by

this court with regard to defendant Mendez

because a review of the transcript in this case in-

dicates that defendant Mendez was not prejudiced

= =

by the multiple representation of himself and his

codefendants by retained counsel.

In order for ineffective assistance of counsel to

result from shared counsel by codefendants there

must be a showing of actual prejudice. People v

Van Brocklin, 76 Mich App 427; 257 NW2d 107

(1977) (736-737) (emphasis added).

Again, actual prejudice springing from an actual conflict of

interest must exist prior to any relief being granted.

In People v Aquilar, 105 Mich App 258 (1981), the defen-

dant argued that there existed a conflict of interest from joint

representation. After a full review no such actual conflict was

found, the conviction was affirmed.

In People v Clark, 106 Mich App 771 (1981), the court held:

Joint representation of defendants, however,

does not always lead to a conflict of interest of

such magnitude as to warrant reversal. Where an

attorney has represented two or more codefen-

dants at one trial, this Court has required a show-

ing of actual prejudice as a prerequisite for fin-

ding reversible error. People v Jones, 64 Mich

App 659; 236 Nw2d 531 (1975), People v Hilton,

26 Mich App 274; 182 NW2d 29 (1970) (emphasis

added).

In People v Bentley, 402 Mich 121 (1978) the Supreme Court

of Michigan stated,

The Defendant-Appellant’s ... trial attorney also

represented a co-defendant with conflicting in-

terest. (122).

The Supreme Court did not find that the trial counsel

‘‘may’’ have had conflicting considerations or that there was a

“*possibility’’ of a conflict of interest. They specifically and

~y

directly and expressly found an actual, presently extant con-

flict which, having been found to exist, did ‘‘result in at least

some prejudice to Bentley’’ (123). Bentley itself is thus 2 uthori-

ty for a result which is directly opposite to that reached! by the

Court of Appeals in this instant case. (The clear import of

Bentley was again recognized, and reaffirmed, in People v

Gardner, 406 Mich 369 (1979).

tnd

CONCLUSION

Inasmuch as the Michigan Courts recognize that ‘‘in matter

of Federal constitutional interpretation our fealty is to the

United States Supreme Court”’, the People request that this

Honorable Court direct compliance with its binding

precedents. People v Hoffman, 81 Mich App 288, 298 (1978);

People v Drielick, 400 Mich 559, 567 (1977)

WHEREFORE the People respectfully request that this

Honorable Court grant this Petition.

Respectfully submitted,

WILLIAM L. CAHALAN

Prosecuting Attorney

EDWARD REILLY WILSON

Deputy Chief,

Civil and Appeals

A late we

ee

A. GEORGE B Il (P-27749)

Assistant Prosecuting Attorney

12th Floor, 1441 St. Antoine

Detroit, Michigan 48226

Phone: 224-5827

Dated: October 28, 1982

AGB:ag