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Hutchings v. State (9/6/2002) ap-1824
Hutchings v. State (9/6/2002) ap-1824
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
PHILLIP LEON HUTCHINGS, JR., )
) Court of Appeals No.
A-7946
Appellant, )
Trial Court No. 3KN-00-1023 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1824 September 6, 2002]
)
Appeal from the Superior Court, Third Judi
cial District, Kenai, Harold M. Brown, Judge.
Appearances: Christine S. Schleuss,
Anchorage, for Appellant. John A. Scukanec,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Phillip Leon Hutchings, Jr., and his brother, Jason
Hutchings, were jointly charged with assaulting two police
officers in the parking lot of the Riverside House in Soldotna.
The two brothers appeared for trial represented by the same
lawyer, Jody P. Brion.
Just before jury selection began, the prosecuting
attorney urged the trial judge to ask the two defendants whether
they knowingly and intelligently waived their right to be
represented by separate attorneys, and whether they understood
that Mr. Brion [would be] representing both of them, although
they might have diverging interests as far as any defense might
be concerned. The judge began to speak, but Mr. Brion
interrupted him:
Defense Attorney: Your Honor, Ill
warrant that I have discussed potential
conflict and diverging interests with both
clients, and both clients are ... informed
and have consented to proceed with me
representing ... both of them in one trial.
That was really one of the first things we
spoke about.
The Court: Okay. And Jason
[Hutchings], you have agreed that Mr. Brion
will represent you?
Jason Hutchings: Yes, Your Honor, I
have.
The Court: And Phillip [Hutchings], you
have agreed that Mr. Brion will represent
you, even though he is representing Jason
also?
Phillip Hutchings: Yes, sir.
The discussion then turned to other matters.
The trial proceeded, and Phillip Hutchings
was ultimately convicted of third-degree
assault and third-degree criminal mischief.
The primary issue in this appeal is
whether the trial judges cursory inquiry and
Hutchingss two-word answer were legally
sufficient to demonstrate that Hutchings
knowingly waived his right to a separate
attorney. For the reasons explained here, we
agree with Hutchings that this record does
not demonstrate a knowing waiver of
independent counsel.
We therefore remand Hutchingss case
to the superior court for a determination of
whether Hutchings in fact understood the
possibility that his interests would diverge
from his brothers interests and, if so,
whether he nevertheless consented to the
joint representation. If the answer to
either of these questions is no, then the
superior court must decide whether Brions
representation of Hutchings was adversely
affected by an actual conflict of interest
between the brothers. The State bears the
burden of proving the absence of prejudicial
conflict beyond a reasonable doubt.
Hutchings raises one other issue on
appeal: whether the States evidence was
sufficient to support his conviction for
third-degree assault. We agree with
Hutchings that the evidence was not
sufficient, and we therefore direct the
superior court to amend the judgement to
reflect a conviction for the lesser included
offense of fourth-degree assault.
When two or more defendants are represented by the same
attorney, Moreau v. State requires a trial judge
to ascertain that each defendant has knowingly
consented to the joint representation despite the
potential conflicts that might arise between the
defendants. Hutchingss trial judge failed to
comply with Moreau, and we must therefore remand
this case to the superior court for a
determination of whether Hutchings was prejudiced
by the joint representation.
Criminal defendants may validly choose to be
represented by the same attorney. As the United
States Supreme Court noted in Holloway v.
Arkansas, [a] common defense often gives strength
against a common attack.1
In the present case, for instance, both
Hutchings brothers testified that they were
leaving the Riverside House peacefully when they
were set upon by the police officers. According
to both brothers, neither of them resisted even
after they were assaulted by the police.
But joint representation also holds potential
dangers for defendants. The defendants may have
differing attitudes toward, or different incentives
for, reaching a plea agreement with the government.
The interests of the defendants may collide regarding
the strategy to be adopted in cross-examining
government witnesses or in presenting witnesses during
the defense case for evidence that reflects favorably
on one defendant may directly or indirectly cast other
defendants in a less favorable light.
(For a more thorough discussion of these
potential dangers, see the commentary to the American
Bar Associations Standards for Criminal Justice: The
Defense Function (3rd edition, 1993), Standard 4-3.5,
Conflict of Interest especially the section of the
commentary entitled Representation of Codefendants.)
In Moreau v. State, 588 P.2d 275 (Alaska
1978), the Alaska Supreme Court adopted a procedure to
ensure that criminal defendants are aware of the
pitfalls of joint representation. The court declared
that trial judges should
address each defendant personally and
forthrightly advise [them] of the potential
dangers of [being represented] by counsel
with a conflict of interest. [Defendants]
must be at liberty to question the court as
to the nature and consequences of [their
choice of] representation. ... [Generally],
the court should seek to elicit a narrative
response from each defendant that [they have]
been advised of [their] right to effective
representation, that [they] understand[] the
details of [their] attorneys possible
conflict of interest and the potential perils
of such a conflict, that [they have]
discussed the matter with [their] attorney or
... with outside counsel, and that [they]
voluntarily waive[] [their right to separate
counsel].
Id. at 284 n.27.2
The supreme court cautioned that
even though the requisite waiver might
sometimes be shown through a defendants
[m]ere assent in response to a series of
questions from the bench, it is generally
preferable to have each defendant personally
articulate in detail [their] intent to forego
this significant constitutional protection.3
The State acknowledges that Judge
Brown did not conduct this kind of inquiry in
Hutchingss case. Nevertheless, the State
argues that the abbreviated inquiry quoted
above was sufficient to satisfy Moreau. The
State points out that, in Moreau itself, the
trial judge did not personally address the
two defendants; instead, the judge relied on
the statement of the defendants shared
attorney that the defendants had expressed
the desire to be jointly represented.4
It is true that the supreme court
upheld the waiver in Moreau even though
neither defendant was personally addressed by
the court or said anything on the record.
But Moreau adopted a stiffer standard for
future cases. The supreme court declared
that its new procedure the one outlined
above [would] be applied to Alaska cases
tried after the mandate is issued in the
instant appeal.5 In other words, the inquiry
conducted by the trial judge in Moreau would
not pass muster now. We thus conclude that
the inquiry in Hutchingss case does not meet
the Moreau standard.
Moreau holds that, because the
inquiry was insufficient, it is now the
States burden to prove beyond a reasonable
doubt that a prejudicial conflict did not
exist between the two Hutchings brothers.6
Nevertheless, the State asks us to make
Hutchings shoulder the burden of proving
prejudice.
The State points out that, under
federal constitutional law, when a defendant
does not raise their attorneys conflict of
interest until after trial, it is the
defendants burden to show that a conflict
actually existed and that it adversely
affected the attorneys performance.7 The
State acknowledges that in State v.
Celikoski, 866 P.2d 139, 141-42 (Alaska App.
1994), we held that the Moreau rule is based
on Alaska law and that it is purposely more
protective of defendants rights than
corresponding federal law. However, the
State urges us to reconsider Celikoski and
then supplant the Moreau rule with the
federal rule in other words, make Hutchings
prove that an active conflict existed and
that it adversely affected his attorneys
performance.
We believe that it would be
inappropriate for us to revise the Moreau
rule a rule formulated by our supreme court
under the guise of reconsidering Celikoski.
If the State believes that the post-Moreau
development of federal law justifies a re-
examination of the burden of proof announced
in Moreau, the State should pursue this
matter with the supreme court.
We therefore will hold the State to
the burden of proving that no prejudicial
conflict existed. However, it is impossible
to determine this question on the existing
record.
An attorneys conflicting loyalty to
another client is a species of ineffective
assistance of counsel. And, as we have noted
in previous decisions, a defendants claim of
ineffective assistance of counsel can rarely
be resolved based solely on the record of the
proceedings in which the defendant allegedly
received the ineffective assistance. As we
explained in Sharp v. State, an attorneys
trial decisions including which potential
defenses to pursue, whether to object to the
evidence offered by the government, how to
cross-examine government witnesses, and
whether and how to present a defense case
generally rest on considerations of strategy
and trial tactics that are not directly
addressed in open court.8 Thus, when a
defendant raises a claim of ineffective
assistance of counsel, we almost always
require that claim to be litigated first in
the trial court (generally, through a
petition for post-conviction relief) before
we address it on appeal.9
When a Moreau violation occurs, the
courts must determine whether a prejudicial
conflict existed between the co-defendants.10
As we discussed earlier in this opinion, the
potential conflicts between co-defendants
generally arise from considerations of trial
strategy and from evaluations of the evidence
(both the evidence to be presented by the
government and the evidence available to the
defense). These matters are rarely discussed
openly on the record during the defendants
trial. Thus, when a Moreau violation occurs
and a court is obliged to determine whether a
potential conflict actually flowered into an
active conflict that adversely affected the
attorneys representation of one or more co-
defendants, a court must conduct the type of
inquiry that occurs during the litigation of
a petition for post-conviction relief except
that, under Moreau, the State bears the
burden of proof (the burden of proving beyond
a reasonable doubt that the defendants
representation was not prejudicially affected
by an active conflict of interest).
Here, when the prosecutor raised
the issue of a potential conflict of
interest, the defense attorney broke into the
conversation to assure the trial judge that
he had discussed potential conflict and
diverging interests with both [of his]
clients, and that the two brothers had given
their informed consent to the joint
representation. To determine whether Phillip
Hutchings was prejudiced by the joint
representation, the superior court must
therefore investigate these attorney-client
conversations.
On this point, we note the
Minnesota Supreme Courts decision in Mercer
v. State, 290 N.W.2d 623 (Minn. 1980). In
Mercer, the trial judge failed to conduct the
inquiry mandated by State v. Olsen11 (the
Minnesota forerunner of our supreme courts
decision in Moreau), and so the trial judge
was later obliged to hold a hearing to
investigate potential conflicts of interest
between the co-defendants. At this hearing,
the trial judge found that the defendant was
not entitled to relief. On appeal, the
Minnesota Supreme Court upheld this ruling,
finding it significant that the ...
petitioners attorney warned petitioner of the
potential of a conflict but [the] petitioner
was not concerned about this and ... ,
indeed, ... suggested the joint
representation.12
We therefore remand Hutchingss case
to the superior court so that the parties can
litigate the question of whether Hutchings
received ineffective assistance of counsel
despite potential conflicts of interest
between Hutchings and his brother. The
superior court should (1) investigate the
possible conflicts of interest between the
brothers, (2) determine whether Phillip
Hutchings was apprised of these possible
conflicts when he consented to the joint
representation, and (3) determine whether any
of the potential conflicts of interest
between the brothers actually ripened into an
active conflict that adversely affected
Brions representation of Phillip Hutchings.
Because Hutchings has raised the
issue of conflict of interest, he has waived
his attorney-client privilege to the extent
necessary to resolve this claim. See Alaska
Evidence Rule 503(d)(3), which states that
the attorney-client privilege does not apply
to [any] communication relevant to an issue
of breach of duty by the lawyer to his
client. Thus, the State can require the
testimony of both Hutchings and Brion.
(It is also possible that Phillip
Hutchingss waiver encompasses his brothers
statements to their shared attorney. We do
not decide this issue.)
The States evidence is not sufficient to support a
finding that Hutchings committed assault with a
dangerous instrument; we therefore reverse his
conviction for third-degree assault and reduce the
conviction to fourth-degree assault.
Hutchings raises one other point on appeal, a
point that we can resolve without waiting for the
superior courts findings on remand. The issue is
the sufficiency of the evidence to support
Hutchingss conviction for third-degree assault.
Hutchings was charged with this offense for
kicking one of the police officers. According to
the States evidence, Officers Shayne LaCroix and
Gisele Webster were attempting to control
Hutchingss brother Jason in the parking lot. As
the officers confronted Jason, Hutchings
approached LaCroix from behind, with his fist
drawn back as if to strike the officer. LaCroix
turned and blocked the attack, then began to
wrestle with Hutchings. The two men fell to the
ground. Hutchings lay on the ground, with LaCroix
in a half-crouch over him. Suddenly, Hutchings
straightened one of his legs and kicked LaCroix in
the back of the head, either once or twice.
Hutchings was wearing heavy boots, and the
blow was delivered forcefully enough that a fellow
officer heard the impact. The victim of the
assault, Officer LaCroix, felt a sharp pain in his
head and saw stars. Other officers described
LaCroix as staggering around, dazed and unsteady
on his feet. The blow left LaCroix feeling
nauseous, and afterwards he had a headache and a
large lump on the back of his head.
When LaCroix went to the hospital to be
examined, the emergency room doctor concluded that
LaCroix had probably suffered a mild concussion but had
not suffered brain injury. He therefore released
LaCroix from medical care. The doctor verified that a
person could die from a blow to the head if it was
administered forcefully enough, but he did not assert
that LaCroix had been in danger of death or serious
physical injury from Hutchingss kick.
Hutchings was convicted of third-degree
assault under AS 11.41.220(a)(1)(B) recklessly causing
physical injury to another person by means of a
dangerous instrument. The States evidence was clearly
sufficient to support a finding that Hutchings
recklessly caused physical injury to LaCroix.13 The
question is whether the States evidence is sufficient
to support a finding that Hutchingss boot-shod foot
constituted a dangerous instrument.
The term dangerous instrument is defined in
AS 11.81.900(b)(14). The pertinent portion of this
definition states that a dangerous instrument is
anything that, under the circumstances in which it is
used, ... is capable of causing death or serious
physical injury.
We have previously held that if the
assailants attack causes death or serious physical
injury, this will be prima facie evidence that a
dangerous instrument was used.14 But that was not the
case here. Thus, the State was obliged to present
other evidence to show that Hutchings used his shod
foot in a manner that created an actual and substantial
risk of death or serious physical injury to LaCroix.15
As the emergency room doctor noted, a blow to
the head is capable of killing someone if the blow is
administered forcefully enough. But that is not the
question posed by the statute. Rather, the question is
whether, under the particular circumstances presented
here, Hutchings used his foot in a manner that created
a substantial risk of serious physical injury. As this
Court noted in Konrad v. State, It is the actual use of
the instrument ... that must be considered, not
abstract possibilities for use of the instrument in
hypothetical cases.16
In Willett v. State17, we discussed the
specific issue of when a shod foot could be deemed a
dangerous instrument. We stated that the inquiry ...
must center on the manner in which the kick was
administered and the victims vulnerability to the
kick.18
Here, Hutchings was lying on the ground and
his victim, LaCroix, was on his feet crouched over him.
Hutchings was wearing heavy boots, and he was able to
land one or possibly two blows in rapid succession from
his prone position. But these blows did not cause
serious harm to LaCroix, and LaCroix was able to end
the assault by straightening up and walking away (since
Hutchings remained lying on the ground). There is
little to indicate that LaCroix was in any greater
physical danger than if Hutchings had punched him in
the head when he was not looking.
Given these circumstances, we conclude that
the States evidence was insufficient to support a
finding that Hutchingss shod foot constituted a
dangerous instrument. We therefore reverse Hutchingss
conviction for third-degree assault.
However, as we noted above, the States
evidence is clearly sufficient to support the jurys
finding that Hutchings recklessly caused physical
injury to LaCroix. We therefore direct the superior
court to amend the judgement to reflect a conviction
for the lesser included offense of fourth-degree
assault under AS 11.41.230(a)(1) recklessly caus[ing]
physical injury to another person.
Conclusion
This case is REMANDED to the superior court
for a hearing on whether Hutchings received ineffective
assistance of counsel because of an active, prejudicial
conflict of interest between Hutchings and his brother,
Jason. The superior court shall make findings on this
issue and shall transmit those findings to this Court
within 90 days of our decision. The parties shall then
have 30 days to file memoranda responding to the
superior courts findings. Upon our receipt of the
parties memoranda, we shall resume our consideration of
this issue.
In the meantime, Hutchingss conviction for
third-degree assault is REVERSED. The superior court
is directed to reduce the crime to the lesser included
offense of fourth-degree assault, and to re-sentence
Hutchings.
_______________________________
1 435 U.S. 475, 482-83; 98 S.Ct. 1173, 1178; 55 L.Ed.2d
426, 433 (1978).
2 Quoting State v. Olsen, 258 N.W.2d 898, 906 (Minn. 1977).
3 Moreau 588 P.2d at 284 n.27.
4 See id. at 283.
5 Id. at 284 (emphasis added).
6 Id. at 284.
7 See Cuyler v. Sullivan, 446 U.S. 335, 348 & n.14, 100
S.Ct. 1708, 1718 & n.14, 64 L.Ed.2d 333, 347 & n.14
(1980).
8 837 P.2d 718, 722 (Alaska App. 1992).
9 See Sharp, 837 P.2d at 722; Barry v. State, 675 P.2d
1292, 1295-96 (Alaska App. 1984).
10Moreau, 588 P.2d at 284.
11258 N.W.2d 898 (Minn. 1977).
12Mercer, 290 N.W.2d at 626.
13 See AS 11.81.900(b)(45), which defines physical injury
as physical pain or [any] impairment of physical condition.
14 See Konrad v. State, 763 P.2d 1369, 1374 (Alaska App.
1988).
15 See Konrad v. State, 763 P.2d 1369, 1375 (Alaska App.
1988).
16 763 P.2d 1369, 1373 (Alaska App. 1988).
17 836 P.2d 955 (Alaska App. 1992).
18 Id. at 959.
