Opinion
No. 52524-7-I
Filed: December 13, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 97-1-09201-5. Judgment or order under review. Date filed: 06/19/2003. Judge signing: Hon. Douglas D McBroom.
Counsel for Appellant(s), Suzanne Lee Elliott, Attorney at Law, Ste 1300 Hoge Bldg, 705 2nd Ave, Seattle, WA 98104-1741.
Jahmarris — Informational only (Appearing Pro Se), Doc # 960116, Olympi Corr. Center, 11235 Hoh Mainline, Forks, WA 98331.
Counsel for Respondent(s), Henry James III Corscadden, King County Prosecuting Attorney, 900 4th Ave Ste 1002, Seattle, WA 98164-1048.
Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
The Sixth Amendment to the United State Constitution guarantees a criminal defendant the right to an attorney free from conflicts of interest. State v. Dhaliwal, 150 Wn.2d 559, 566, 79 P.3d 432 (2003). A defendant may waive this right if the waiver is voluntary, knowing, and intelligent. Dhaliwal, 150 Wn.2d at 567. Michael Jahmarris appeals his convictions for forgery, theft, and conspiracy to commit theft, arguing that his attorney had an actual conflict of interest because the attorney was participating in a drug court program at the same time that the attorney was representing him. We affirm the judgment and sentence because (1) Jahmarris was not prejudiced by an actual conflict of interest, (2) Jahmarris's waiver was voluntary, knowing, and intelligent, and (3) this court previously determined that the trial court correctly calculated Jahmarris's offender score.
FACTS
On November 5, 1997, the State charged Michael Jahmarris with nine counts of forgery. On February 13, 1998, the State charged Jahmarris with one count of conspiracy to commit forgery, one count of forgery, one count of conspiracy to commit theft, and one count of first degree theft. A jury convicted Jahmarris on all counts, and the court sentenced him to an exceptional term. Jahmarris appealed. This court affirmed the exceptional sentence, but reversed one count of conspiracy, struck portions of the jury's verdict form as duplicative, and remanded the case for resentencing. Before resentencing, Jahmarris moved for a new trial, alleging that his trial attorney had an actual conflict of interest and performed incompetently at trial. The conflict of interest issue arises from defense counsel's participation in drug court. In July 1997, the State charged Frank Calero with possession of cocaine and he was referred to the drug court program. In February 1998, Calero appeared on behalf of Jahmarris. In May 1998, Calero tested positive for cocaine. The State notified the trial court about Calero's involvement in drug court, and the trial court held a hearing to determine whether Calero had a conflict of interest. During the hearing, independent counsel represented Jahmarris and all parties discussed Calero's involvement in drug court. Jahmarris indicated that he wished to keep Calero as his counsel, and the trial court found that Jahmarris made a voluntary, knowing, and intelligent waiver of his right to argue that Calero's participation in drug court constituted a conflict of interest. Two days after the hearing, Calero provided an adulterated sample during a random drug screen conducted by the drug court.
Both the State and Jahmarris state that this court `struck nine duplicative counts of forgery.' The court did not actually strike the forgery counts. Instead, the court struck the jury's findings on nine counts, but upheld the forgery conviction:
Although we agree with Jahmarris that the jury improperly convicted him twice for forging the same series of nine checks, we uphold all of the convictions after striking the jury's findings in the '98 cause regarding the nine duplicative checks. The remaining 80 checks that the jury found Jahmarris guilty of forging in the '98 cause are sufficient to uphold that conviction.
State v. Russi, No. 43857-3-I slip op. at 1 (Wash.Ct.App., April 9, 2001).
The trial court denied Jahmarris's motion for a new trial and Jahmarris appeals.
ANALYSIS
The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to an attorney free from conflicts of interest. Dhaliwal, 150 Wn.2d at 566. A conflict of interest exists when an attorney represents a client whose interests are `hostile' to the attorney's interests. Mannhalt v. Reed, 847 F.2d 576, 579-80 (9th Cir. 1988). To determine whether reversal is necessary, the court must determine whether the attorney was actively representing conflicting interests and if the actual conflict adversely affected the attorney's performance. State v. Davis, 141 Wn.2d 798, 864, 10 P.3d 977 (2000). The defendant bears the burden of proving that there was an actual conflict and that the conflict affected the attorney's performance. Dhaliwal, 150 Wn.2d at 573. Showing the potential for a conflict is not sufficient; the defendant must show that `counsel actively represented conflicting interests[.]' Dhaliwal, 150 Wn.2d at 573 (quoting Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S. Ct. 1708, 64 L. Ed. 2d. 333 (1980)). When the State is prosecuting an attorney for one crime while the attorney is representing a client that is being prosecuted by the same prosecutor's office, a potential conflict exists. The attorney has an incentive to cooperate with the State to receive a favorable resolution in his or her own case, but also has a duty to act as an adversary in defending his or her client. Thus, there was clearly at least a potential conflict of interest in this case.
Jahmarris argues that there was an actual conflict of interest. The State, on the other hand, argues that there was not an actual conflict of interest because Jahmarris has not shown that Calero was putting his interests above that of his client. Even assuming an actual conflict exists, the defendant bears the burden of proving that the conflict adversely affected the attorney's performance. Dhaliwal, 150 Wn.2d at 573. Jahmarris argues that Calero's performance at trial was deficient and contrary to Jahmarris's interest because Calero mentioned a prior burglary conviction during his opening statement. Jahmarris initially told the police that he did not know that the checks were forged and that he cashed them to help his friend hide money from the friend's spouse. In order to put on this defense at trial, Jahmarris would have to testify. The State argues that it was reasonable for Calero to mention the prior conviction if Jahmarris was going to testify at trial, since the conviction would be admissible for impeachment purposes. The decision of whether to have a defendant testify is tactical, as is the decision to bring up a prior conviction to bolster the defendant's credibility when the conviction would be admissible on cross-examination. The fact that Jahmarris ultimately did not testify, by itself, does not render Calero's performance deficient. There may be many reasons why a defendant and his or her attorney would decide that the defendant would not testify during the course of the trial. Logically, Calero could decide initially to be very open and candid with the jury by mentioning the prior conviction during his opening statement. Thus, under the circumstances, Jahmarris has not established that Calero's representation was deficient.
Additionally, even if Calero performed deficiently, Jahmarris must prove that the error was not harmless. Here, Jahmarris admitted to passing nearly ninety forged checks. All of the checks appeared to be payroll checks and were for approximately $1,000 each. His fingerprints were on most of the checks, and bank personnel could identify him. Jahmarris went to several banks a day and used his name or one of two false names to cash the checks. Under these circumstances, Calero's statement regarding the previous conviction was not prejudicial as the evidence against Jahmarris was overwhelming. Thus, Jahmarris has failed to prove that he was prejudiced by an actual conflict of interest.
The State also argues that even if there was an actual conflict of interest, Jahmarris effectively waived his right to challenge Calero's representation based on a conflict of interest. A defendant may waive a conflict of interest as long as the waiver is voluntary, knowing, and intelligent. Dhaliwal, 150 Wn.2d at 567. Here, Jahmarris argues that the attempted waiver was not knowing or intelligent because Calero did not disclose all material facts to him. Specifically, Jahmarris argues that Calero did not disclose his contemporaneous drug use. Reading the hearing transcript in its entirety shows that Jahmarris did make a knowing, intelligent, and voluntary waiver of the conflict. Jahmarris was represented by independent counsel at this hearing, and independent counsel recommended that Jahmarris retain Calero as his attorney. Both Calero and the State discussed their views on the existence of a conflict of interest. Calero represented that he did not feel compelled to serve `two masters' and that he would receive no benefit by performing poorly in Jahmarris's case. The trial judge repeatedly asked Jahmarris if he understood the nature of the situation and whether he wished to retain Calero as counsel. Jahmarris indicated that he understood the situation and that he wished to keep Calero as his counsel. Jahmarris also indicted that there was no evidence that Calero's drug issues affected his performance in court. Finally, to alleviate the possibility of conflict, the court instructed the prosecutor handling Jahmarris's case not to have any contact with the prosecutor handling Calero's case in drug court. The record shows that the trial court carefully explored the issue of a conflict. Thus, under the circumstances, Jahmarris effectively waived any conflict of interest.
Finally, Jahmarris argues that the trial court erred in calculating his offender score. The State argues that Jahmarris is collaterally estopped from raising this issue. The original trial court determined that the convictions did not constitute the same criminal conduct. Additionally, this court affirmed the trial court's calculation of offender score in Jahmarris's previous appeal: `Because we affirm all of the forgery convictions, we also hold that the trial court did not err in calculating Jahmarris's offender score, or by relying on that offender score in imposing the exceptional sentence.' State v. Russi, No. 43857-3-I slip op. at 8 (Wash.Ct.App., April 9, 2001). Jahmarris is therefore estopped from arguing that his offender score is incorrect and we affirm his sentence.
Affirmed.
AGID and GROSSE, JJ., Concur.