Appeal from a judgment of the United States District Court for the Eastern District of New York, Jack B. Weinstein, Judge, granting appellee's petition for a writ of habeas corpus on the ground that he had been unconstitutionally denied his Sixth Amendment right to effective assistance of counsel in a state criminal trial by reason of his trial attorney's joint representation of a co-defendant in the trial. Reversed.
Before Mansfield, Timbers, Circuit Judges, and Hoffman, District Judge.*fn*
The issue on this appeal by the Chairman of the New York State Parole Department from the grant by Judge Weinstein of the Eastern District of New York of a writ of habeas corpus sought by appellee Smith, a state prisoner now on parole, is whether Smith had been unconstitutionally denied the effective assistance of counsel in a state criminal trial by reason of his trial attorney's joint representation of a co-defendant in the trial. We reverse for lack of a sufficient showing that appellee was prejudiced by the joint representation.
On December 13, 1965, appellee and his co-defendant, John Saddler, were found guilty, after a jury trial in Kings County Supreme Court, of robbery in the first degree, grand larceny, and assault in the second degree. On April 11, 1966, Smith was sentenced to a term of 10 to 15 years imprisonment. He appealed this conviction to the Appellate Division, Second Department, raising, among other issues, the question of whether he had been denied effective assistance of counsel by reason of the joint representation. The conviction was unanimously affirmed on December 29, 1967. Leave to appeal to the New York Court of Appeals was denied on January 29, 1968. Thereafter, Smith brought three Coram nobis petitions, two of which dealt with the claimed conflict of interest between Smith and his co-defendant.
On May 30, 1975, following denial of Smith's last state Coram nobis petition and his release on parole, he filed in the Eastern District of New York his present petition. After delays occasioned by non-prosecution of his petition and two appeals, the application was the subject of an evidentiary hearing before Judge Weinstein.
The record reveals that the state indictment, trial and conviction of Smith and of a co-defendant John Saddler, also known as "Horse" or "Ironhorse," arose out of their robbery of a dice game during the early morning hours of March 10, 1975. Both Smith and Saddler were previously known to the dice game players, who promptly assisted the police in tracking them down on the same day to an apartment in the "Red Hook" or "Erie Basin" section of Brooklyn where they were caught red-handed, each in possession of fruits of the robbery. Upon arrest either Smith or Saddler uttered an inculpatory statement to the effect that the victims of the robbery "didn't have to do this," since they "could have got together, or straightened things out, later."
At the state trial four participants in the dice game were called as witnesses and positively identified Smith and Saddler as the two robbers. The evidence of their guilt was sufficiently strong to lead Judge Weinstein later to remark with respect to Smith, " the evidence is so overwhelming here that I don't think Clarence Darrow could have done anything for the defendant."
Shortly after their arrest, Smith and Saddler determined to retain an attorney, Smith gave Saddler money for this purpose and Saddler retained Eugene Pelcyger, Esq., whom Saddler had employed on various occasions. Smith, who was 30 years of age and had been educated through the eleventh grade in high school, had a prior criminal record consisting of various misdemeanor convictions and had used lawyers previously. Prior to trial the prosecutor offered both defendants, who were charged with felonies (robbery in the first degree and grand larceny) the opportunity to plead guilty to assault in the third degree, a felony for which each would receive a 21/2 to 3-year sentence, provided both would plead guilty. However, when Saddler refused, petitioner followed suit, saying "I don't want to deal with it, Horse, unless you deal with it."
During the trial the judge explored the proposed plea bargain thoroughly with the two defendants, pointing out to Smith that if he pleaded to the lesser charge he could expect a "humane sentence" whereas if he were found guilty the court would be required, because of his criminal record, to sentence him to a minimum of 10 years imprisonment, with the possibility of a maximum of 30 years. Neither defendant opted to plead guilty.
During the course of the colloquy with the court regarding the plea bargain Pelcyger suggested to the trial judge that he be permitted to withdraw as counsel for the defendants because they were expressing disagreement with his trial strategy, and if the trial should result in guilty verdicts, they would blame him, claiming he "framed them, railroaded them." When the judge, despite denials by the defendants of dissatisfaction with their jointly-retained attorney, announced that he was going to declare a mistrial, permitting Pelcyger to withdraw, and would arrange for other counsel to represent them, both defendants staunchly insisted that they wanted Pelcyger to represent them and not new counsel. Finally the trial judge relented, observing that Pelcyger had been "a very competent lawyer" in handling the case, and permitted the trial to continue. Thus the record is clear that the discord between Pelcyger and his two clients did not arise from any conflict of interest between the defendants but from their criticism of strategy pursued by their counsel on behalf of both. Nor was it at any time suggested by anyone that there was a potential conflict of interest or that appointment of separate counsel for each defendant was advisable.
The trial continued, with four witnesses positively identifying the two defendants as the robbers and some identifying the jewelry found on the defendants at the time of arrest to be that taken by the robbers. Neither of the defendants, who had prior criminal records, took the witness stand in their defense. Not surprisingly, both were found guilty.
The hearing before Judge Weinstein upon appellee's petition was brief, consisting of the introduction of portions of the state court record, which were the subject of argument by counsel, and of testimony by Smith. Because Pelcyger was out of the state at the time of the hearing, he was not available to testify. Smith described the arrest of Saddler and himself, their retention of Pelcyger to represent them, the rejection of Saddler and himself of the prosecutor's proposal (conveyed by Pelcyger) for a "package deal" under which each would be sentenced from two and one-half to three years upon guilty pleas to the lesser charge, the state trial judge's explanation of the mandatory minimum sentences that would be required upon conviction after trial, and the consequences of the proposed plea bargain for Smith and Saddler. Smith testified that he was never advised of the advantages to him of having his own separate counsel.
Judge Weinstein grounded his decision granting the writ principally upon his conclusion that there was a conflict of interest between the two defendants, which may have precluded Pelcyger from seeking a separate plea bargain for Smith and from permitting Smith, who had a less serious criminal record than Saddler, to take the witness stand in his own defense. The district court also alluded to "a serious question of identification which should have been handled by a separate attorney," and "a serious question of how the statement of the defendant or the co-defendant at the time of apprehension should be used." (App. 44-46). The court concluded that ...