STATE OF LOUISIANA v. CHRISTOPHER HUTSELL (2015)

In this case, the defendant's motion for mistrial was granted because the State's witness against him is also represented by the Orleans Public Defenders, thus creating a conflict of interest for his counsel. The right of a criminal defendant to the assistance of counsel during the proceedings against him is a cornerstone of our legal system. State v. Franklin, 400 So.2d 616, 620 (La. 1981). As a general rule, therefore, Louisiana courts have held that an attorney laboring under an actual conflict of interest cannot render effective legal assistance to the defendant she is representing. Id.

Under Louisiana jurisprudence, an actual conflict of interest arises when “a defense attorney owes duties to a party whose interests are adverse to those of the defendant.․ The interest of the other client and the defendant are sufficiently adverse if it is shown that the attorney owes a duty to the defendant to take some action that could be detrimental to the other client. State v. Cisco, 2001-2732, p. 18 (La. 12/3/03, 18); 861 So.2d 118, 130. The Louisiana Supreme Court has consistently held that a defense attorney required to cross-examine a current or former client on behalf of a current defendant suffers from an actual conflict. Id. (citations omitted). Moreover, in Louisiana “Indigent Defender Boards are ․ treated as the equivalent of private law firms to effectuate a defendant's Sixth Amendment right to effective assistance of conflict-free counsel and the ethical obligation of an attorney associated with other lawyers in a firm to avoid representing a client ‘when any one of them practicing alone would be prohibited from doing so.․’ La. Rules of Professional Responsibility, Rule 1.10(a).” State v. Garcia, 2009-1578, p.38 (La. 11/16/12), 108 So. 3d 1, 28; State v. Connolly, 06-0540 (La.6/2/06), 930 So.2d 951, 954, n. 1; State v. McNeal, 594 So.2d 876 (La.1992).

Therefore, the trial judge did not abuse his discretion in granting the defendant's mistrial.

New Orleans, Louisiana this 13th day of November, 2015.

JUDGE EDWIN A. LOMBARD

JUDGE JOY COSSICH LOBRANO

The State of Louisiana seeks review of the November 12, 2015 ruling of the district court granting a mistrial. For the following reasons, I respectfully dissents and would GRANT the writ and reverse the district court's ruling.

Defendant, Christopher Hutsell, was charged by bill of indictment, filed on June 15, 2015, with one count of second degree murder, for the stabbing death of his girlfriend, in violation of La. R.S. 14:30.1. After voir dire, defense counsel filed a motion for mistrial based upon the fact that a witness for the state has an open domestic abuse battery in municipal court. Defendant argued that because a different attorney from the Orleans Public Defenders (“OPD”) represented the witness on an unrelated matter, the potential for conflict existed. The trial court denied the motion for mistrial but ruled that the witness was prevented from testifying. Subsequently, the district court reversed that ruling.

On November 12, 2015, the defense renewed its motion for mistrial when the State indicated it planned to call the same witness to testify. The district court conducted an in camera, ex parte hearing with defense counsel in order to determine whether a factual basis for the mistrial existed. Trial counsel for the witness appeared to inform the district court of any alleged “conflicts.” After the hearing, a mistrial was declared.

The State noted its intention to take writs and moved for a stay. The district court granted a 24 hour stay pursuant to La. C.Cr. P. art. 775.1. A transcript of the ex parte hearing was placed under seal and forwarded to this Court for review. Additionally, the district court provided a per curiam and the Defendant filed an opposition to the State's writ.

The Louisiana Supreme Court addressed the issue of conflicts of interest and ineffective assistance of counsel resulting from dual representation in State v. Garcia, 2009-1578 (La. 11/16/12), 108 So.3d 1. The court stated:

Assistance of counsel in one's defense and the appointment of counsel if indigent is guaranteed by the Sixth Amendment to the federal constitution59 and by Article I, § 13 of the Louisiana Constitution. When counsel is required, the constitutional mandate for a fair trial requires counsel be competent. See United States v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984); Strickland v. Washington, 466 U.S. 668, 685-86, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The assistance of counsel is an essential right because it is the means by which a defendant asserts all other constitutional rights within our justice system. See Cronic, 466 U.S. at 653-54, 104 S.Ct. 2039. Therefore, when counsel has a conflict of interest, the conflict may thwart the assertion of a full defense to criminal charges. Such conflicts usually arise in the context of joint representation. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). However, joint representation is not per se illegal and does not violate the Sixth Amendment of the United States Constitution or Article I, § 13 of the Louisiana Constitution unless it gives rise to an actual conflict of interest. State v. Ross, 410 So.2d 1388, 1390 (La.1982).

Generally, under our jurisprudence, “Indigent Defender Boards are ․ treated as the equivalent of private law firms to effectuate a defendant's Sixth Amendment right to effective assistance of conflict-free counsel and the ethical obligation of an attorney associated with other lawyers in a firm to avoid representing a client ‘when any one of them practicing alone would be prohibited from doing so.․’ La. Rules of Professional Responsibility, Rule 1.10(a).” State v. Connolly, 06-0540 (La.6/2/06), 930 So.2d 951, 954, n. 1; State v. McNeal, 594 So.2d 876 (La.1992).

Multiple representation is not per se illegal and does not violate the Sixth Amendment to the U. S. Constitution (or Article 1, Section 13 of the Louisiana Constitution) unless it gives rise to a conflict of interest. State v. Ross, 410 So.2d 1388, 1390 (La. 3/1/1982), citing Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L. Ed.2d 426 (1976

The record before us does not indicate that an actual conflict exists between Defendant's attorney and the witness. I disagree with the Defense counsel's assertion that he could be materially limited in his representation of Defendant because of his duty to maintain confidentiality of the witness's information contained in the file of an unrelated case. This is speculative and not supported by the record. Thus, I find neither an actual conflict of interest nor circumstances that would impair Defendant's attorney's representation of Defendant in this case.

Mistrial is a drastic remedy that is only authorized where substantial prejudice will otherwise result to the defendant. State v. Adams, 2007-0977, p. 5 (La. App. 4th Cir. 1/23/08), 6 So.2d 757, 759. No such prejudice has been shown here. The district court erred in granting a mistrial and I would reverse the district court's ruling.

JUDGE MADELEINE M. LANDRIEU