Mark Turner v. Commonwealth

PRESENT: 	Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and
Kinser, JJ., and Whiting, Senior Justice
MARK DANA TURNER
OPINION BY
v. 	Record No. 991630 	SENIOR JUSTICE HENRY H. WHITING
April 21, 2000
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal of two related criminal convictions, we
consider whether the trial court's rulings on the defendant's
motion for a new trial were erroneous (1) in failing to find
there was a conflict of interest in defense counsel's
representation of the defendant, and (2) in excluding the
defendant's evidence of allegedly inadequate representation.
On January 12, 1998, Robert Bryan Haskins was appointed as
counsel for Mark Dana Turner who was charged with the murder of
his wife and the use of a firearm in the commission of a felony.
Fourteen days before Turner's trial, Haskins applied for
employment as Assistant Commonwealth's Attorney for Pittsylvania
County in response to an advertisement. 	Haskins, who
represented Turner at his trial on April 13, did not tell Turner
of the application.
A jury convicted Turner of both charges and recommended
sentences totaling 38 years. 	Eight days after the trial,
Haskins told his client of the application when the
Commonwealth's Attorney's office notified Haskins that he was

being considered for the position. 	Haskins also told Turner
that if he accepted the position, other counsel would have to be
appointed to represent Turner.
Twelve days after the trial, Haskins was offered the
position and accepted it. 	Two days thereafter, Haskins notified
Turner of his acceptance of the job and of the necessity that
other counsel be appointed to represent Turner in the sentencing
and other post trial proceedings.
Prior to sentencing, Turner's new counsel filed motions to
set aside the jury's verdict and for a new trial upon a number
of grounds. 	Two of these grounds were (1) that Turner was
denied the effective assistance of counsel because of an alleged
conflict of interest on Haskins' part, and (2) that Haskins'
"significant and cumulative errors and omissions [affected
Turner's] right to a fair trial with effective assistance of
counsel."
After hearing and considering evidence and argument, the
court denied Turner's motions to set aside the verdict. 	As
pertinent here, the trial court ruled that Haskins had no
conflict of interest in his representation of Turner and that
any alleged ineffective assistance of counsel should be decided
in a later habeas corpus proceeding. 	Following a consideration
of additional evidence on the issue of sentencing, the court
imposed the jury-recommended sentences.
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The Court of Appeals denied Turner's petition for appeal.
We granted Turner an appeal limited to the foregoing issues.
Turner premises his conflict of interest argument upon the
guaranty of the Sixth Amendment to the United States
Constitution to the effective assistance of counsel. 	Strickland
v. Washington, 466 U.S. 668, 686 (1984). 	Turner contends that
since Haskins was "actively seeking employment with the
prosecutor" when the case was tried, Haskins' self interest in
seeking employment conflicted with his duty of loyalty to Turner
as his client. 	According to Turner, "[i]t is self-evident that
ineffective assistance of counsel may result from an attorney's
own conflict of interest." 	When the alleged conflict was
brought to the attention of the court in Turner's motion for a
new trial, Turner claims that "the trial court had a duty to
make inquiry into the conflict and to determine the effect on
the defendant's right to assistance of counsel." 	Turner thus
assumes that the filing of the employment application created
the conflict.
The Commonwealth responds by noting that the court
considered the affidavits filed by Haskins, the Commonwealth's
Attorney, and personnel in the Commonwealth's Attorney's office,
as well as Haskins' testimony, all of which indicated that
Haskins had no contact with the Commonwealth's Attorney's office
about his application until after the trial. 	The Commonwealth
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argues that this evidence supported the court's discretionary
ruling that the evidence was insufficient to conclude Haskins
had a conflict of interest in his defense of Turner. 	We agree
with the Commonwealth.
When called as a witness by Turner's new counsel in the
hearing on his motion for a new trial, Haskins testified (1)
that he had no conversations with the Commonwealth's Attorney
about his job application until after the trial, and (2) that he
never had any contact with the Commonwealth's Attorney or anyone
in his office about his representation of Turner after the
trial. 	Supporting affidavits of the Commonwealth's Attorney and
personnel in his office indicate that there was no such contact.
Turner does not claim that he had any additional evidence
of a conflict of interest. 	Rather, he argues that Haskins
"admitted the conflict." 	We find nothing in the record to
indicate that Haskins expressly admitted that there was a
conflict of interest. 	Apparently, Turner concludes that
Haskins' application for employment created the asserted
conflict of interest as a matter of law.
We have not decided a case similar to this one. 	However,
the controlling principles have been articulated in a number of
cases.
The burden of establishing an alleged conflict of interest
between an attorney and his client is upon the person who
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asserts such a conflict. 	Beaver v. Thompson, 93 F.3d 1186, 1192
(4th Cir. 1996) (merely showing that court-appointed defense
attorney also served as a part-time assistant Commonwealth's
Attorney in a neighboring county is insufficient to sustain
burden of presenting convincing evidence of conflict of
interest). 	There are conflicts of interest which are apparent
on their face. 	Cantrell v. Commonwealth, 229 Va. 387, 393, 329
S.E.2d 22, 26 (1985) (public or private prosecutor of criminal
proceeding cannot simultaneously represent victims of a crime in
a civil action arising therefrom). 	However, an attorney's
pending application for employment in opposing counsel's law
firm does not create a conflict of interest on its face between
the attorney and his client. 	United States v. Horton, 845 F.2d
1414, 1419 (7th Cir. 1988) (defense attorney's pending
consideration for appointment as United States Attorney not per
se conflict of interest).
Whether such conflict exists depends in part upon the
evidence of contacts between the prospective employer and
employee. 	Garcia v. Bunnell, 33 F.3d 1193, 1199 (9th Cir.
1994), cert. denied, 514 U.S. 1024 (1995). 	In Garcia, defense
counsel's plans to begin working for the district attorney's
office after the conclusion of a criminal case did not create a
conflict of interest since defense counsel did not discuss the
case with the district attorney's office and there was no other
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evidence of a conflict. 	Id. 	And, whether the evidence is
sufficient to establish the conflict is a discretionary decision
of the court in which the issue is raised. 	See Lux v.
Commonwealth, 24 Va. App. 561, 569, 484 S.E.2d 145, 149 (1997).
In Lux, the Commonwealth's Attorney was held to be disqualified
from prosecuting a defendant's revocation of probation
proceedings because there was insufficient evidence of effective
screening of contacts between an assistant Commonwealth's
Attorney who had formerly been the defendant's counsel and other
attorneys in the Commonwealth's Attorney's office who were
working on the defendant's case. 	Id. at 575-76, 484 S.E.2d at
152.
Applying these principles, we hold that the trial court did
not abuse its discretion in concluding that Turner failed to
sustain his burden of establishing that Haskins' application for
employment created an impermissible conflict between Haskins'
duty of loyalty to his client and his desire to obtain
employment.1 Since the court could have found from the evidence
that Haskins had done nothing more than file the application, we
1If Haskins had told his client of the application and, if the
client felt that it created a conflict of interest, Haskins
could have submitted the matter to the court for decision before
trial. 	This would have avoided the risk that the court may have
concluded that there was a conflict and ordered a new trial.
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find no merit in Turner's contention that the court erred in
failing to find that there was a conflict of interest.
This brings us to the issue of the exclusion of Turner's
evidence of Haskins' alleged instances of ineffective assistance
of counsel at trial. 	Turner sought to introduce this evidence
in support of his motion for a new trial. 	Citing Walker v.
Mitchell, 224 Va. 568, 299 S.E.2d 698 (1983), the trial court
refused to hear this evidence on the ground that it was
admissible only in subsequent habeas corpus proceedings.
Turner contends, however, that the court failed in its duty
to inquire into the conflict and to determine its effect on his
right to the effective assistance of counsel. 	This contention
assumes that there was a conflict of interest, and that the
court did not inquire into that conflict. 	As we have noted, the
record shows that the court considered evidence and argument on
the conflict of interest issue. 	As we have already indicated,
we find no error in the court's ruling that the evidence was
insufficient to establish such a conflict.
Accordingly, the court ruled correctly that the issues
raised by Turner's claim of the ineffective assistance of
counsel should be decided in habeas corpus proceedings. 	As we
noted in Walker, "in the interests of both the Commonwealth and
the accused, the ends of justice dictate the adoption of a rule
restricting to habeas corpus proceedings the litigation of
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claims of ineffective assistance of counsel." 	Id. at 570, 299
S.E.2d at 699. 	Thus, we reject Turner's contention that the
court erred in excluding his evidence of the alleged ineffective
assistance of counsel. 	This rejection is without prejudice to
Turner's right to raise these issues in a later habeas
proceeding if he be so advised.
Accordingly the judgment of the trial court will be
Affirmed.
JUSTICE KOONTZ, with whom JUSTICE HASSELL joins, dissenting.
I respectfully dissent.
“It is axiomatic that an accused, when placed upon trial
for his life or liberty, is to have thrown around him every
safeguard known to the law, in order that he may be afforded a
fair and impartial trial.” 	Brown v. Commonwealth, 138 Va. 807,
816, 122 S.E. 421, 424 (1924). 	The right to a fair and
impartial trial “lies at the very basis of organized society and
confidence in our judicial system.” 	Temple v. Moses, 175 Va.
320, 336, 8 S.E.2d 262, 268 (1940); see also Cantrell v. Crews,
259 Va. 47, 50-51, 523 S.E.2d 502, 503-04 (2000).
Those trained in the law and rightfully possessing
unfaltering confidence in our judicial system to afford a fair
trial to a defendant, even under the unusual circumstances of
this case, will understand the majority’s opinion. 	I have no
doubt, however, that those trained in the law would not
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knowingly choose to be tried under the same circumstances as the
defendant. 	The line between a mere potential conflict of
interest and an actual conflict here is too thin and subtle;
most defendants, if not all, would seek new counsel. 	Those not
trained in the law would be even more inclined to do so.
Nevertheless, I cannot join the majority opinion because, in my
view, the facts of this case clearly represent a circumstance
calculated to undermine society’s confidence in our judicial
system.
The Commonwealth appointed Haskins as Turner’s counsel.
Fourteen days before trial, Haskins applied for employment with
the Commonwealth’s Attorney who was prosecuting Turner. 	Haskins
knew that his application was under consideration by the
Commonwealth’s Attorney during Turner’s trial. 	Nevertheless,
Haskins made no disclosure of these circumstances to Turner
until after the trial and before Turner was sentenced. 	Thus,
Haskins denied Turner the opportunity to seek new counsel if he
had so desired. 	No defendant should unknowingly be tried under
such circumstances.
Undoubtedly, it would be incomprehensible to the public
that a defendant’s right to a fair trial was not seriously
compromised in a case, such as here, where the Commonwealth
appoints an attorney to represent the defendant and during the
trial that attorney is actively seeking employment with the
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prosecuting attorney. 	Public confidence in the judicial system
rests, at least in part, on the proposition that one’s attorney
has undivided loyalty. 	Even the appearance of a conflict of
interest undermines that confidence. 	In short, the present
case, in my view, is a “textbook” example of what should not be
permitted regardless of how effectively the court-appointed
attorney may represent the defendant.
Accordingly, I would hold as a matter of law that Turner
was denied his right to a fair trial and that the trial court
erred in not granting him a new trial.
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