JONES, Judge.
This case arises out a decision from the McCracken Circuit Court finding that the Appellant, Darryl M. Samuels, did not raise an actual conflict of interest at trial. We AFFIRM, but for a different reason than articulated by the trial court.
The events giving rise to this action took place in July of 2008 while Samuels was being held at the McCracken County Jail as a pretrial detainee. On July 9, 2008, Samuels became involved in a verbal dispute with another inmate, Christopher Gravett. The dispute soon turned physical. During the physical altercation, Samuels allegedly struck Gravett in the face and head several times, jumped on Gravett's back, and then bit his left ear completely off. Samuels maintains that he acted in self-defense at all times.
On September 12, 2008, the McCracken County Grand Jury indicted Samuels for committing the offense of second-degree assault, a class C felony. Attorney Carolyn Keeley from the Paducah office of the Kentucky Department of Public Advocacy (hereinafter "DPA") was appointed to represent Samuels.
On the morning of the trial, the court held a pretrial hearing in chambers. During the conference, Keeley informed the trial court that she believed Gravett was represented by other attorneys at the Paducah DPA; she also indicated she represented two potential prosecution witnesses who were also inmates at the time of the alleged assault. Keeley stated that she was concerned that this could present a potential conflict of interest.
Keeley presented Samuels with a document setting forth the reasons for the potential conflict and requested that he sign it to waive the conflict. Samuels refused to sign the document or otherwise waive the conflict. Samuels indicated that he believed the conflict would adversely affect Keeley's ability to try his case. The trial court questioned Samuels further about the matter.
The case was tried before a jury in a single day. The jury returned a guilty verdict on the assault charge. On July 23, 2009, the trial court sentenced Samuels to ten years' incarceration. Keeley continued to represent Samuels through the final sentencing hearing.
With the assistance of new counsel, Samuels appealed his conviction to our Court. On appeal, Samuels argued that his rights under the United States Constitution were deprived because of Keeley's conflicts of interest as related to Gravett and the two prosecution witnesses. We determined that Keeley's representation could have amounted to a conflict of interest, but found the factual record incomplete to enable us to meaningfully review the issue. Samuels v. Commonwealth, 2011 WL 846180 (Ky. App. 2011)(2009-CA-001420-MR). We remanded Samuels's case to the trial court with directions to conduct a full evidentiary hearing on the conflict issue. Id. We held as follows:
Id. at *1.
As instructed, on remand, the trial court conducted an evidentiary hearing.
The DPA had previously represented Gravett in connection with a felony that he pleaded guilty to on July 5, 2007. Gravett was on probation for this conviction when he faced parole revocation in early 2008. On June 30, 2008, the court conducted a parole revocation hearing. Gravett was sanctioned to serve ninety days in jail for violating his parole. Gravett was serving out his sanction when the alleged assault occurred on July 9, 2008.
Gravett served out his ninety-day sanction for the parole violation and was presumably released sometime in September of 2008. On January 9, 2009, Gravett was indicted on additional felony charges. The additional charges also led to Gravett's parole being revoked. Johnson was appointed to represent Gravett on both the new charges and the parole revocation. Gravett pleaded guilty to the new charges on April 8, 2009, and was sentenced to serve four years. On May 8, 2009, Johnson filed motions for shock probation with respect to both the prior sentence for which Gravett's parole had been revoked and the new sentence arising out of his guilty plea. The court denied those motions on May 12, 2009, eight days before Samuels's trial was to commence.
The trial court first noted that there was no simultaneous representation because Johnson stopped representing Gravett eight days before Samuels's trial began. It characterized this situation as one where "the defense counsel has only previously represented an adverse witness." The trial court also concluded that Samuels's and Gravett's interests at trial were not adverse to one another because Gravett's interests would not be impacted by his testimony against Samuels. Lastly, the trial court concluded that even if there was a conflict, Samuels could not prevail because he failed to show any deficient performance by Keeley. The trial court stated: "at the evidentiary hearing, no showing was made that Ms. Keeley was unable to give her best representation to the Defendant." For these reasons, the trial court concluded that Samuels had failed to show that a conflict of interest existed that deprived him of his Sixth Amendment right to counsel.
In reviewing this matter, we must first determine whether the trial court's findings are supported by substantial evidence. Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky. 1998) (citing Ornelas v. United States, 517 U.S. 690, 697, 116 S.Ct. 1657, 1662, 134 L.Ed.2d 911 (1996)). If the trial court's factual findings are not clearly erroneous, then we conduct a de novo review of the trial court's application of the law to the facts. Id.
The Sixth Amendment, which applies to the states through the Fourteenth Amendment, guarantees a defendant "the right ... to have the Assistance of Counsel for his defence." U.S. Const. amend. VI.; Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969). "[I]t has long been recognized that the right to counsel is the right to the effective assistance of counsel." U.S. v. Cronic, 466 U.S. 648, 654, 104 S.Ct. 2039, 2044, 80 L.Ed.2d 657 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771, n. 14, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970)). In turn, effective counsel means conflict-free counsel. Burger v. Kemp, 483 U.S. 776, 796-97, 107 S.Ct. 3114, 3127, 97 L.Ed.2d 638 (1987); Bartley v. Commonwealth, 400 S.W.3d 714, 719 (Ky. 2013).
In evaluating a Sixth Amendment challenge predicated on counsel's alleged conflict of interest, it is of paramount importance to recognize that there are two different standards. Beard v. Commonwealth, 302 S.W.3d 643 (Ky. 2010). Which standard applies depends on whether the conflict was raised for the first time at (or before) trial or at some later point during post-conviction proceedings. Id.
As the Beard court explained, if the defendant or his counsel raises the alleged conflict at or before trial, we follow the standard set out in Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). Holloway instructs us that to prevail on a Sixth Amendment challenge based on a conflict of interest that was raised at or before trial, a defendant need only show that his counsel had a conflict of interest. Id. Where the defendant shows that his counsel had a conflict, reversal is automatic. Id. The defendant is not required to make any showing that the conflict actually prejudiced him or impacted his counsel's performance. Beard, 302 S.W.3d at 645-47.
For unpreserved objections (i.e., objections not raised until after trial) to conflicted counsel, we follow the more stringent standard set out in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), and Mickens v. Taylor, 535 U.S. 162, 172, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2001). See Bartley v. Commonwealth, 400 S.W.3d 714, 719 (Ky. 2013). Under this standard, the defendant is required to prove both the existence of a conflict and that the conflict actually prejudiced him. Id.; Kirkland v. Commonwealth, 53 S.W.3d 71, 75 (Ky. 2001).
While the trial court cited the Holloway standard, it made and appeared to rely on findings related to Keeley's performance. Specifically, the trial court's findings of fact state:
Samuels raised his objections regarding the conflict before the start of trial. In keeping with Holloway, the trial court should have limited its inquiry to determining whether a conflict of interest existed. As explained by the United States Supreme Court, the reason for this is that it is often difficult, if not impossible, to determine whether a conflict impacted counsel's performance throughout the course of the criminal proceedings:
Holloway, 435 U.S. at 490-91, 98 S.Ct. at 1182.
Had the trial court concluded that a conflict existed, it would have been required to automatically reverse Samuels's conviction irrespective of its opinion that the conflict did not detrimentally impact Keeley's performance at trial. Thus, the remainder of our discussion will be limited to whether the trial court correctly found that no conflict existed.
Although not entirely clear, the trial court appears to have based its conclusion that no conflict existed partially on the fact that there was no simultaneous representation when Samuels's case went to trial. To this end, the trial court explicitly found that the DPA's representation of Gravett terminated on May 12, 2009, eight days before Samuels's trial began. It characterized Samuels's case as one "wherein the defense counsel has only previously represented an adverse witness."
The Sixth Amendment right to counsel attaches long before trial. It "attaches during `the initiation of adversary judicial criminal proceedings.'" Montejo v. Louisiana, 556 U.S. 778, 802, 129 S.Ct. 2079, 2094, 173 L.Ed.2d 955 (2009) (quoting Rothgery v. Gillespie County, 554 U.S. 191, 128 S.Ct. 2578, 2583, 171 L.Ed.2d 366 (2008)). "[T]o deprive a person of counsel during the period prior to trial may be more damaging than denial of counsel during the trial itself." Maine v. Moulton, 474 U.S. 159, 170, 106 S.Ct. 477, 484, 88 L.Ed.2d 481 (1985).
If an actual conflict existed during the critical investigatory phase of Samuels's trial, it could not have been erased by the mere fact that the simultaneous representation ceased on the eve of trial. See, e.g., State v. Watson, 620 N.W.2d 233, 240 (Iowa 2000) (rejecting the state's characterization as one of past representation where it was undisputed that counsel represented both the witness and the defendant during "some portion of the pre-trial period"). The determinative inquiry within the context of the Sixth Amendment must focus on whether there was simultaneous representation throughout critical points of the criminal proceedings.
Samuels's case involved a claim of self-defense. Interviewing other witnesses and investigating Gravett's background would have been critical for Samuels to mount a successful defense at trial. If an actual conflict did exist during this pretrial period, it could not have been remedied by ceasing the dual representation immediately prior to trial. The damage would have already taken place. Accordingly, we conclude that the trial court erred when it found that Samuels's case raised only an issue of past representation.
In analyzing the adverse interest element, the trial court focused almost entirely on whether Samuels's trial could impact the charges against Gravett. It concluded that since Gravett had already pleaded guilty and had been denied shock probation, he had nothing to gain from seeing Samuels convicted. We believe that the trial court took a far too narrow view.
A conflict during representation arises from competing interests or duties that create the potential for prejudice. Beard, 302 S.W.3d at 647. Our Supreme Court recognized in Beard that simultaneous representation of both a prosecution witness and a criminal defendant could create a conflict of interest that violates the Sixth Amendment. Id. Here, we add an extra layer because not only was Gravett the main prosecution witness, he was also the victim.
"The victim of a crime is not a detached observer of the trial of the accused." Castillo v. Estelle, 504 F.2d 1243, 1245 (5th Cir. 1974). This is especially true in the Commonwealth of Kentucky where we have a victim's rights statute, Kentucky Revised Statutes (KRS) 421.500, which requires, among other things, for the prosecution to consult with the victim "on the disposition of the case including dismissal, release of the defendant pending judicial proceedings, any conditions of release, a negotiated plea, and entry into a pretrial diversion program." KRS 421.500(6). Moreover "[a] victim has the right to submit a `victim impact statement' pursuant to KRS 421.520, and the trial court must consider that statement `prior to any decision on the sentencing ... of the defendant.'" Hoskins v. Maricle, 150 S.W.3d 1, 26 (Ky. 2004). Under KRS 532.032, the trial court also has the authority to order the convicted defendant to pay restitution to the victim in criminal cases.
We believe that there are few interests more adverse in the criminal justice system than those of the accused and the victim. Our statutes place the victim on special footing. Furthermore, in a case like the present where the defendant is claiming self-defense, the victim's credibility is directly adverse to the defendant. Within the context of our criminal justice system, we believe that the victim's interests are inherently so adverse and hostile to the defendant's interests that it would be impossible for a single lawyer to simultaneously represent both the victim and the defendant even in unrelated matters. It is impossible to see how a single attorney could give both the defendant and the victim the type of undivided loyalty required for effective representation.
As the Missouri Court of Appeals explained: "Where counsel's representation of a defendant may be hampered by the duty of loyalty and care to two competing interests, as when counsel represents both the defendant and the defendant's alleged victim, the defendant is precluded from receiving the advice and assistance sufficient to afford the defendant the quality of representation the Sixth Amendment guarantees." State ex rel. Horn v. Ray, 325 S.W.3d 500, 510 (Mo. App. E.D. 2010).
Thus, we conclude that the trial court erred to the extent it found that Samuels and Gravett did not have adverse interests. Gravett was more than a prosecution witness; he was the victim. A victim's interests in a criminal prosecution are so inherently adverse to the defendant's interests that we are hard pressed to imagine any scenario where a single lawyer could fulfill his duties to both parties simultaneously.
We believe that the interests of Samuels and Gravett were adverse enough to one another that a single lawyer could not have permissibly represented both at the same time. However, the facts adduced at the evidentiary hearing showed that a single lawyer did not represent both Samuels and Gravett. Samuels was represented by Keeley. Gravett was represented by Johnson. However, Keeley and Johnson were both attorneys working out of the same DPA office in Paducah.
In support of his argument, Samuels argued at the remand hearing that Kentucky Rules of Professional Conduct (Rules of the Supreme Court [SCR] 3.130) are determinative of this issue. He particularly relied on SCR 3.130(1.10), which governs the imputation of conflicts of interest. It provides:
Id. Samuels maintains that because Keeley and Johnson were both employed by the Paducah DPA office, this Rule imputes their individual conflicts to another.
To date, our appellate courts have not decided whether and to what extent public defender organizations are to be deemed "firms" for the purposes of SCR 3.130(1.10).
In analyzing constitutional claims, like the present, "a court must be careful not to narrow the wide range of conduct acceptable under the Sixth Amendment so restrictively as to constitutionalize particular standards of professional conduct and thereby intrude into the state's proper authority to define and apply the standards of professional conduct applicable to those it admits to practice in its courts." Nix v. Whiteside, 475 U.S. 157, 165, 106 S.Ct. 988, 993, 89 L.Ed.2d 123 (1986). In deciding a nearly identical case, the Supreme Court of Colorado, explained:
West v. People, 341 P.3d 520, 531 (Colo. 2015).
Keeley's and Johnson's ethical obligations vis-à-vis SCR 3.130(1.10) do not define the scope of Samuels's rights under the United States Constitution. Instead, we must look at Samuels's individual case to determine whether his counsel had an actual conflict for the purpose of the Sixth Amendment. The facts adduced at the remand hearing were clear that Keeley never represented Gravett, knew nothing about the details of his case, and had no duty or loyalty to him directly. Likewise, Johnson had never worked on Samuels's case, knew nothing about the details of his case, and owed no duty or loyalty directly to Samuels.
The facts show that two different DPA attorneys working independently of one another happened, for a period of time, to represent both the victim, Gravett, and the defendant, Samuels. Without a showing that the two collaborated or were involved in each other's cases during the relevant time period, we do not believe that the mere fact that they both worked for DPA is sufficient to prove that an actual conflict of interest existed under the Sixth Amendment.
For the reasons set forth above, we AFFIRM the McCracken Circuit Court.
ALL CONCUR.
