DARRYL M. SAMUELS APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE
ON
REVIEW FROM COURT OF APPEALS CASE NO. 2012-CA-000341-MR
MCCRACKEN CIRCUIT COURT NO. 08-CR-00377
COUNSEL FOR APPELLANT: Brandon Neil Jewell Assistant Public
Advocate
COUNSEL FOR APPELLEE: Andy Beshear Attorney General of
Kentucky Leilani K.M. Martin Assistant Attorney General
OPINION
CUNNINGHAM JUSTICE
Darryl
Samuels was convicted of second-degree assault for fighting
with, and biting off the ear of, a fellow inmate. A public
defender from the local Department of Public Advocacy (DPA)
office was appointed to represent him. Prior to trial, his
counsel advised the trial court that another attorney in the
local DPA office was representing the alleged victim in an
unrelated matter. The court determined that this did not
present a conflict of interest that would otherwise require
appointment of new counsel and allowed the trial to proceed.
In this
case, we are called upon to answer the following questions.
Is a public defender's conflict of interest necessarily
imputed to all other public defenders in the same Public
Defender office? Of course the underlying and additional
question is whether Samuels was denied his Sixth Amendment
right to conflict-free counsel? The answer to both of these
questions is no.
I.
Background
On July
9, 2008, Samuels and Christopher Gravett, his then-cellmate
at the McCracken County jail, got into a physical fight in
which Samuels bit off Gravett's ear. As a result, Samuels
was charged with second-degree assault. His primary defense
to the charge was self-defense. Carolyn Keeley, a public
defender working in the DPA's Paducah trial office, was
appointed to represent him.
In the
meantime, Gravett had his own, unrelated legal trouble for
which a different public defender from the Paducah office,
John Johnson, was appointed to represent him. Gravett
ultimately pleaded guilty in that matter, and Johnson's
representation of him ended when his motion for shock
probation was denied on May 12, 2009, eight days before
Samuels's trial on the alleged second-degree assault of
Gravett.
On the
morning of Samuels's trial on May 20, Keeley disclosed to
the trial court, among other things, her office's past
representation of Gravett, which she (incorrectly) believed
was still then ongoing. At that time, she also provided a
waiver for Samuels to sign that laid out the potential
conflict. But he refused to sign the waiver and requested the
appointment of new counsel. The trial court denied the
request, concluding that there was no conflict, and ordered
the trial to proceed.
Samuels
was convicted of second-degree assault and sentenced to ten
years in prison.
He
appealed to the Court of Appeals, claiming that the trial
court's refusal to appoint new counsel had violated his
right to conflict-free counsel under the Sixth Amendment. He
argued that a conflict of interest resulted from Keeley's
past representation of two prosecution witnesses and from the
Paducah Trial Office's dual representation of him and
Gravett. Although the audio of the pre-trial in-chambers
discussion where these potential conflicts were brought to
the. trial court's attention was largely inaudible, the
Court of Appeals discerned that there had been "very
little questioning" by the trial court on this issue.
In. light of this, the Court of Appeals held that
"[b]ecause a conflict of interest is such a pivotal
question, ... a new hearing is required, complete with
findings of fact and conclusions of law." The case was
thus / remanded for "[t]he trial court [to] determine if
the two witnesses and victim / were being actively
represented by Samuels' defense counsel or the Paducah /
DPA in general and whether or not there was a conflict of
interest."
On
remand, the only conflict argued by Samuels pertained to the
Paducah Trial Office's overlapping representation of
Gravett. (The issue of whether the past representation of the
two witnesses presented conflicts of / interest was abandoned
and is no longer an issue in this case.)
At the
evidentiary hearing, Keeley testified that she did hot think
that the overlapping representation had created an actual
conflict of interest. And her supervisor, Directing Attorney
Chris McNeill, testified similarly. Keeley testified that,
despite this belief, she had raised this issue with the court
and attempted to have her client waive any potential conflict
"out of an abundance of caution." There was also
testimony that neither Keeley nor Johnson, the Paducah public
defender who had represented Gravett, had worked on or known
anything about the other's case.
Following
the hearing, the trial court determined that Samuels had not
demonstrated that an actual conflict had existed at his
trial. In particular, the court found that Samuels had not
shown that Keeley had been unable to fully | represent him or
that she had taken or omitted any actions as a result of the
alleged conflict. The court also found that no complaint had
been raised about Keeley's cross-examination of Gravett,
nor had any confidential information been shared about
Samuels or Gravett as a result of the dual representation.
Samuels
again appealed to the Court of Appeals, who this time
affirmed, but for different reasons. Despite finding error in
many of the trial court's findings and conclusions, as
will be discussed in detail below, the Court of Appeals
agreed in the end that Samuels had not shown that his lawyer
had an unconstitutional conflict, of interest during her
representation of him.
This
Court granted Samuels's motion for discretionary review
and affirms.
II.
Analysis
A.
Samuels and Gravett had adverse interests during
Samuels's criminal proceedings.
Criminal
defendants have the right under the Sixth Amendment-as
applied to the states by the Fourteenth Amendment, see
Gideon v. Wainwright, 372 U.S. 335 (1963)-"to have
the Assistance of Counsel for [their] defence." U.S.
Const, amend. VI. This "right to counsel is the right to
the effective assistance of counsel." United States
v. Cronic, 466 U.S. 648, 654 (1984) (quoting McMann
v. Richardson, 397 U.S. 759, 771 n.14 (1970)). And the
right to effective assistance of counsel includes the right
that counsel be conflict-free. Glasser v. United
States, 315 U.S. 60, 70 (1942), superseded inpart on
other grounds by Fed. R. Evid. 104(a) ("[T]he
'Assistance of Counsel' guaranteed by the Sixth
Amendment contemplates that such assistance be untrammeled
and unimpaired by a court order requiring that one lawyer
shall simultaneously represent conflicting interests.");
see also Bartley v. Commonwealth, 400 S.W.3d 714,
719 (Ky. 2013).
The
upshot of the Court of Appeals' opinion is that it
affirmed the trial court's ultimate conclusion that
Samuels's public defender had no actual conflict of
interest while representing him-in other words, that he
received the conflict-free counsel to which he was entitled
under the Sixth Amendment. In signing off on that, however,
the Court of Appeals first criticized several aspects of the
trial courts' findings and conclusions. So we begin our
discussion by addressing and agreeing with those criticisms.
First,
the Court of Appeals was correct to take issue with the trial
court's findings to the extent they focused on the
performance of Samuels's attorney. Specifically, the
trial court's decision relied, in part, on its findings
that "no showing was made that Ms. Keeley was unable to
give her best representation"; "[n]o showing was
made that Ms. Keeley took steps or omitted actions that would
have helped either the Defendant or Mr. ...