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State v. Stephens

May 27, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
EDWIN STEPHENS, AND DEFENDANT, ALBERT HENRY, AND EACH OF THEM, APPELLANT.



Appeal from Superior Court of King County. Docket No: 95-1-02274-6. Date filed: 09/18/95. Judge signing: Hon. Ann Schindler.

Authored by William W. Baker. Concurring: Susan R. Agid, Walter E. Webster.

The opinion of the court was delivered by: Baker

BAKER, C.J. - In the context of a personal restraint petition (PRP), if a defendant can establish the existence of an actual conflict of interest, the defendant is entitled to a conclusive presumption of prejudice, which may lead to a Conclusion that the defendant was denied effective assistance of counsel and mandate that the PRP be granted. However, where there is no evidence of a direct conflict of interest, we analyze the argument as we would for any claim of ineffective assistance of counsel. The defendant must prove both deficient performance and resulting prejudice. Because Albert Henry has failed to satisfy either of these prongs, we dismiss his PRP. We also hold that there was sufficient evidence to support the jury's verdict of guilty, and affirm Henry's conviction.

Because this opinion will not be published, and the parties are familiar with the facts, we proceed without an introductory summary of the facts.

I

When a defendant raises constitutional issues in a PRP, our decision depends upon the strength of the showing made in the PRP:

1. If a petitioner fails to meet the threshold burden of showing actual prejudice arising from constitutional error, the petition must be dismissed;

2. If a petitioner makes at least a prima facie showing of actual prejudice, but the merits of the contentions cannot be determined solely on the record, the court should remand the petition for a full hearing on the merits or for a reference hearing pursuant to RAP 16.11(a) and RAP 16.12;

3. If the court is convinced a petitioner has proven actual prejudicial error, the court should grant the Personal Restraint Petition without remanding the cause for further hearing. *fn1

Henry argues in his personal restraint petition that he was denied effective assistance of counsel because his attorney failed to call his co-defendant as a witness under circumstances amounting to an actual conflict of interest. Henry specifically alleges that his attorney excessively deferred to co-counsel and effectively put the interests of co-counsel, and thus co-defendant, over his interests.

If a defendant can establish the existence of an actual conflict of interest that adversely affected his lawyer's performance, prejudice will be presumed. *fn2 The application of conflict of interest analysis in an ineffective assistance claim is not limited to joint representation of co-defendants. *fn3 An actual conflict of interest exists "when a defense attorney owes duties to a party whose interests are adverse to those of the defendant." *fn4 But to prevail, the defendant must demonstrate that his attorney actively represented conflicting interests. *fn5

Henry's attorney did not owe a duty to any party whose interests were adverse to Henry's interest, nor did the attorney actively represent conflicting interests. *fn6 Henry's attorney declined to call Henry's co-defendant as a witness. We reject Henry's characterization of that decision as excessive deference to co-counsel because the record is clear that counsel's decision was due to her belief that presenting the testimony of Henry's co-defendant would violate her ethical duty as an officer of the court. Her concern was grounded in her direct observation of co-counsel's motion to withdraw from representation when the co-defendant made known his intention to testify, and the fact that the Judge granted the motion after an in camera Discussion.

We hold that the circumstances of this case did not present an actual conflict of interest. We therefore reject Henry's argument that this court should apply the Cuyler *fn7 test and the conclusive presumption of prejudice obtained by a showing of an actual conflict of interest, and hold that the proper analytical framework is the ...


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