STATE OF LOUISIANA v. ROOSEVELT JOSEPH WEST

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Court of Appeal of Louisiana, First Circuit.

STATE OF LOUISIANA v. ROOSEVELT JOSEPH WEST

NUMBER 2016 KA 1152

Decided: February 17, 2017

BEFORE: WHIPPLE, C.J., GUIDRY, AND MCCLENDON, JJ. Warren L. Montgomery District Attorney, Covington, LA Counsel for Plaintiff/Appellee State of Louisiana Matthew Caplan Assistant District Attorney, Covington, LA Frederick H. Kroenke, Jr. Louisiana Appellate Project, Baton Rouge, LA Counsel for Defendant/Appellant Roosevelt Joseph West

The defendant, Roosevelt Joseph West, was charged by bill of information with obscenity, a violation of La. R.S. 14:106. He pled not guilty and, following a jury trial, was found guilty as charged. The State filed a habitual offender bill of information; the defendant admitted to the prior conviction,1 and the trial court adjudicated him a second-felony habitual offender. The defendant was sentenced to five years imprisonment at hard labor. The defendant now appeals, designating one assignment of error. We affirm the conviction, habitual offender adjudication, and sentence.

FACTS

On May 5, 2015, defense attorney M.B. and secretary/litigation specialist G.F., both with the St. Tammany Parish Public Defender's Office, were at the St. Tammany Parish Jail conducting “72 hour” hearings.2 At these hearings, within 72 hours of arrest, the person arrested meets with a commissioner to set bond and meets with an attorney to determine if he needs representation from the Public Defender's Office.

M.B. and G.F. were set up in a very small room with a desk and chairs. The small room was right off of the video arraignment room (a much larger room), where all of the arrestees gathered and waited to be called, one at a time, into the small room. When the defendant was called into the small room by M.B., the defendant walked past her, pulled the door closed, and grabbed her buttock. M.B. did not react but sat down with the defendant and began to help him fill out his blank application. When the room door closed, it automatically locked, which requires the occupant(s) “to buzz” to get out. While M.B. was asking the defendant basic questions, the defendant pulled down his pants and began masturbating. G.F. informed the defendant that the interview was over. M.B. hit the buzzer for security, and deputies removed the defendant.

ASSIGNMENT OF ERROR

In his sole assignment of error, the defendant argues his conviction and sentence must be reversed because of a conflict of interest that actually prejudiced him. Specifically, the defendant contends defense counsel had a conflict between representation of him and working for the Public Defender's Office.

Both victims in this case were employees of the Public Defender's Office. According to the defendant in brief, the motion to withdraw by the “District Public Defender” stated that the Public Defender's Office had a “personal conflict with irreconcilable differences between the public defender office and the client.” The defendant further states in brief: “The undersigned understands that Ernest Barrow, III was a ‘panel attorney’ for the Public Defender. That is he had a contract to handle a certain number of cases where a conflict existed for a certain amount of money. He was paid by the Public Defender Office.”

The defendant cites “Article XVI, Section 1.8(f) of the Code of Professional Responsibility.”3 The defendant then asserts that Barrow, who was paid by the Public Defender, had a conflict because he had a loyalty to the Public Defender as well as to him (the defendant). The defendant offers no analysis why there was an actual conflict. In the last sentence of his argument, the defendant simply states, “The failure to adequately and appropriately cross examine the two victims is evidence of prejudice to Mr. West.”

We note initially that despite a thorough examination of the appellate record, we have found nothing - no motions, minute entries, hearing colloquies, letters or other correspondence - that makes any mention of a conflict of interest. This issue was never raised pretrial or during trial and, apparently, this is the first instance (on appeal) of the issue being raised by the defendant. Thus, despite the above-mentioned motion to withdraw and its attendant quoted language, we have found no motion to withdraw in the record. Further, the record is devoid of any evidence to establish that Barrow was a “panel attorney” contracted with the Public Defender's Office. The defendant offers quotations and other ostensible record entries in brief but never cites to a page number or other source to indicate where this information was obtained.

In any event, even assuming the defendant's argument to be true, we find the argument baseless. In a case such as the present one, where the defendant did not raise the issue of conflict of interest until after his trial, the defendant must prove that an actual conflict of interest adversely affected his lawyer's performance. See State v. Wille, 595 So. 2d 1149, 1153 (La.), cert. denied, 506 U.S. 880, 113 S. Ct. 231, 121 L. Ed. 2d 167 (1992); State v. Kahey, 436 So. 2d 475, 484 (La. 1983). An actual conflict of interest is established when the defendant proves that his attorney was placed in a situation inherently conducive to divided loyalties. Kahey, 436 So. 2d at 484. See Zuck v. Alabama, 588 F. 2d 436, 439 (5th Cir.), cert. denied, 444 U.S. 833, 100 S. Ct. 63, 62 L. Ed. 2d 42 (1979). Although most conflict of interest cases involve representation of multiple defendants, a conflict of interest may arise between a single defendant and his attorney. Wille, 595 So. 2d at 1153.

Here, the defendant asserts Barrow had a conflict of interest because of an alleged split loyalty between Barrow's representation of him and his contractual relationship with the Public Defender's Office, The defendant's only assertion of the manifestation of the alleged conflict was the supposed inadequate cross-examination of the victims. The defendant, however, offers no instances of inadequacy. It is simply an unsupported assertion. Our own review of the record convinces us that, with the overwhelming testimonial evidence of guilt of the defendant, Barrow's cross-examination was more than adequate. There is simply nothing in the record before us that suggests that an actual conflict of interest existed between Barrow's representation of the defendant and his contractual employment with the Public Defender's Office; as such, the defendant has failed to show that he was actually prejudiced. See State v. Tart, 93-0772, pp. 19-20 (La. 2/9/96), 672 So. 2d 116, 125, cert. denied, 519 U.S. 934, 117 S. Ct. 310, 136 L. Ed. 2d 227 (1996).

Accordingly, the assignment of error is without merit.

CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE AFFIRMED.

Finding defendant failed to prove that an actual conflict of interest adversely affected his lawyer's performance, I concur in the result reached by the majority.

FOOTNOTES

1.   The defendant was convicted of attempted obscenity in 2013.

2.   Because these two women were victims of a sex offense, they are referred to by their initials. See La. R.S. 46:1844(W)(1)(a).

3.   The Code of Professional Responsibility has been replaced by the Louisiana Rules of Professional Conduct, effective January 1, 1987. See Succession of Cloud, 530 So. 2d 1146, 1149 n.8 (La. 1988). Article XVI, Rule 1.8(f) of the Louisiana Rules of Professional Conduct provides:(f) A lawyer shall not accept compensation for representing a client from one other than the client unless:(1) the client gives informed consent, or the compensation is provided by contract with a third person such as an insurance contract or a prepaid legal service plan;(2) there is no interference with the lawyer's independence or professional judgment or with the client-lawyer relationship; and(3) information relating to representation of a client is protected as required by Rule 1.6.

GUIDRY, J.

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