# FILED
January 7, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON NOVEMBER SESSION, 1997

MICHAEL MCNEIL, ) ) No. 02C01-9705-CC-00168 Appellant ) ) MADISON COUNTY vs. ) ) Hon. WHIT LAFON, Judge STATE OF TENN ESSEE, ) ) (Post-Conviction) Appellee )
For the Appellant : For the Appellee : Frank Deslauriers John Knox Walkup P.O. Box 1156 Attorney General and Repor ter Covington, TN 38019 Deborah A. Tu llis Assistant Attorney Gener al Criminal Justice Div

ision 450 James Robertson Parkwa y Nashville, TN 37243-0493 James G. (Jerry) Wo

odall District Attorney General Al Earls Asst. District Attor

ney General Lowell Thomas S tate Office Bldg. Jackson, TN 38301

OPINION FILED: REMANDED
David G. Hay

es , Judge1 W e address only those issues which ha ve been properly briefed and which are supported by legal authority. The remaining issues are waived. Tenn . R. App. P. 36(a).

2 State v. And erso n and McN eil , C.C.A. No. 3 (Tenn. Crim. App. a t Jackson, Apr. 25, 1990), perm. to appeal de nied , (Tenn . July 30, 199 0). 2 OPINION
The appellant, Michael McNeil, appeals the Madison County Circuit Court’s denial of his petition for post-conviction relief ari sing from his 1989 convic tions for three counts of grand larceny and three counts of burglary. These convictions served as trigge ring offenses for the jury’ s finding that the appellant w as an habitual criminal. According ly, the sentences wer e enhanced to six life sentenc es. On March 30, 1993, the appellant fil ed a pro se petition for post-convic tion relief alleging ineffective assistance of counsel based upon (1) a conflict of inter est arising from joint representation of the appell ant and his co-defendant and (2) defici ent performance in failing to pres ent an alibi defense. 1

After a review of the rec ord before us, we remand to the t rial court for further proceedings consistent w ith this opinion.

Background
The appellant’s jury convictions for burglary and theft stem from his and his co-defe ndant’s unexplain ed posse ssion of recently st olen prop erty. 2 The vehicle in which the appellant w

as a passenger and whic h was being driv

en by his codefendant was stopped by a law enforcement officer on Interstate 40 becaus e of the erratic manner in whi ch it was being dri ven. Items stolen from three r ecent burglaries were found in the vehicle. At trial and during various pre-trial proceedings, the appellant and his co-defendant w ere jointly represent

ed by Larry Fitz

gerald, an attorney retained by members of their respective families.3 Motion to Suppr ess at 2.
4 An electri c clock which had beenunplugged and removed fr om the wall i n one of the burglaries had stop ped at 12 :07 p.m . All of the burg laries occ urred on the sam e day. 3 At the November 26, 1996, post-conviction hearing, the appellant presented testimony which he argues clearly supports a conflict of interest based upon this joint representation. Speci fically, the appellant ass erts that there was no pr oof to connect him with the stol en goods. In support of this pos ition, he offers the statement of his co-defendant at the suppre ssion hearing wherei n the co-defendant, Anderson, testified that “it w as [my] car and basicall y everything in that car belonged to [me].” 3 Contemporaneously, the appel lant, when questioned by attorney Fitzgerald, denied any

proprietary interes

t in the contents of the car. M oreover, in a sworn statement attached to his petition, the appellant stated that he and his codefendant were offered a negotiated fifteen y ear plea agreement and that hiscodefendant wanted to accept the offer. The ag reement, however, w as contingent upon both defendants accepting the of fer, and, since the appellant maintained his innocence, the offer was rejec ted.
As to the claim of deficient performance at trial, the appellant contends that two witnesses, Margaret Reed and Cerita McNeil, would hav e established an alibi. Cerita McNei l, the appellant’s sister, testified at the hearing that , prior to the appellant’s trial, she discussed his case with Mr. Fitzgeral d. She related that she informed Mr. Fitzger

ald that her brother left her ho use in Memphis around 11:30 a.m. on the day of the burglari es. The proof at trial placed the time of one of the three burgl aries in M adison Count y at 12:07 p. m. 4 She stated that, although she attended her brother’s tri al, she was never c alled as a witness by

Mr. Fitzgeral d. Ms. McNeil averr

ed that she again attempted to inform h im about her testimony immediately prior to trial, but Fitzgerald ignored her. Although Margaret Reed did not testify at the post-conv iction hearing, the subst ance of her testimony at the appellant’s preliminary hearing was introduced. At the preliminary hearing, Ms. Reed testified that the appellant w as at her home in Brownsv ille between 12:00 and4

12:30 p.m. on the day of the burglaries.
In reference to the proffered alibi pr oof of Ms. Reed, Mr. Fitzgerald testified that he was unaware of her testimony at the appellant’s preliminary hearing. He explained that he did not rep resent the appellant at that ti me and he had not reviewed the preliminary hearing tapes nor had he discussed with the appellant’s counsel the proof introduced at the preliminary hearing . Regarding the proffered alibi testimony of Ms. McNeil, Mr. Fitzgerald testified that this witness was simply lying and that she had n ever di scussed with h im any a libi pr

oof.
On direct examination, M r. Fitzgerald tes tified that he saw no conflict arising from his joint representation of the appellant and the co-defendant, Anders on. The following colloquy

between appellant's tri al counsel, Larry Fitzgerald, and postconviction counsel char acterizes trial co unsel's position as it r elates to the issue of joint representation and confli ct of interest.
Q. Are you aware of any disciplinary rules or regulations about confli cts of interest in representing two defendants in a criminal matter? A. Well you have to discuss it w ith them, and then you have to make a decision on whether y

ou think it’s a conflict. I thought I did that. Q. Did you discuss that w ith them individually

or in a group? A. I’m not sure. I’ve talk ed to one without the other, an d I’ve talked to both of them together a lot. Q. But you don’t know w hen you talked to either of them abo ut the conflict? A. I don’t rememb

er, but I’m s ure I discus sed it with them. Later and somewhat contradictory to his earlier testimony, Fitzgerald testified, “I discussed with both of them ex tensively about my representation of both of them. They - I asked them did they think it was a conflic

t.” Fitzgerald c

onceded that had he known that the stolen property was being claimed exclusivelyby the codefendant, then a conflict would hav e existed requirin g his withdraw al from the case. He also recalls that he r ecommended that neither defendant should testify as both5

had extensive crimin al convictions. How ever, he qualified this

statement by adding that the appellant never expressed a desire to testify and that, if he h ad so requested, he would hav e called him to the stand. Mr. Fitzgerald confir med that the State had offered a “package” plea offer of fifteen y ears, but added that both defendants wanted to proceed to trial.

Analysis
At the conclusion of the hearing , neither side offered any arg ument and the trial court took the matter under advisement with the following statement: [f]or the record, the Court finds that Mr. Fitzger

ald who represented [the appellant] is a competent attorney in handling this case and did what could be reasonably expected of him, and the Defendant received a fair trial , and for that reason the Petition for Post-Conviction Relief is denied. Subsequently, the trial

court, without any fin dings of fact, entered a wri tten order summarily dismissing

the appellant’s petition, c oncluding that: the petitioner has not carr ied his burden of proof . . .nor has the petitioner shown any actual conflict that existed between him and his co-defendant during the trial of this case. The trial court’s failure to make any discernible find ings of fact and conclusions of law as required by

Tenn. Code Ann. § 40-30-118(b) pr ecludes any meaningful review of the merits of the appellant’s Sixth Amendment c laim.
As may be observed from the r ecord in this cause, essentially all of the predicate factual questions p osed at the hearing whi ch underlie the issues of ineffective assistance remain in dispute. Of particular c oncern is the issue of whether the appellant was denied ineffective assistance of counsel due to a conflict of interest. Joint represent ation of co-defendants does not per se constitute ineffective assistance of counsel due to a conf lict of interest. Rather, there must also be evidence that tri al counsel “actively represented conflicting i nterests and that6

an actual conflict of interest adversely affected his lawyer’s performan ce.” Strickland v. Washington , 466 U.S. 668, 692, 104 S.Ct. 2052, 2067 (1984) (quotation omitted). To determine whether an actual conflict of interest exist s . . . [A]ppellants must make a factual showing of inconsistent interests and must demonstrate that the attorney ‘made a choice between possible alternative c

ourses of action, such as eli citing (or failing to elicit) evidence helpful to one client but harmful to the oth er. If he did not make such a choice, the conflict remained hypothe tical.’ . . . There is no violation where the conflict is ‘irrelevant or merely hypothetical’; there must be an ‘actual sig nificant conflict.’ . . . The Supreme Court has observed, however, that a conflict of intere st stemming from multiple representation may prevent an attor ney ‘from exploring possible plea negotiations and the poss ibility of an agreement to testify for the prosecution.’ Holloway v. Ar kansas , 435 U.S. 475, 490, 98 S.Ct. 1173, 1181(1978). Thomas v. Foltz , 818 F.2d 476, 481 (6th Cir. 1987). Finally, we note that, although a showing of adverse effect is required, this showing does not equate to a showing of actual pr ejudice as required under the second p rong of Strickland . A petitioner need not show that the result of the trial would have been different without the conflict of intere st, rather, only that the conflict had some adverse effect on counsel’s performance. McConico v. State , 919 F.2d 1543, 1548 (11th Cir. 1990). "[I]f the def endant is able to demonstrate that a conflict of interest had an adverse impac t . . . prejudice wi ll be presumed." Foltz , 818 F.2d at 482.
Accordingly, purs uant to the above principle s, we remand the claim of ineffectiveness based upon a conflict of interest for the following determinations: 1. Whether Anderson told his attorney or otherwise signed a statement acknowledging that the goods in the car were his; 2. What plea offers were extended to both defendants and whether Anderson at any time advi sed his attorney that he w anted to accept a plea offer; 3. Whether an actual conf lict of interest existed from trial counsel’s joint representation;7 4. If an actual conflict of interest existed, whether the c onflict had an adverse impact on trial counsel’s representation of the appellant; 5. Whether trial counsel properly advised the appellant that a p otential conflict of interest exist ed; and 6. Whether the appellant waived his r ight to conflict-free representation. With reference to the claim that trial couns el was ineffective for faili ng to present an alibi defense, we likewise remand for findings as to whether trial counsel’s performance was deficient and, if so, whether the app ellant suffered prejudice as a result.
The importance of this case and the under lying issues is underscored by the imposition of six life senten ces. For the foregoing r easons, we remand for entry of written findings of fact and c onclusions of law on all issues presented as requi red by Tenn. Code Ann. § 40-30-118(b). Upon remand, th e trial court shall receive such further testimony as the parties might wish to offer, i ncluding the testimony of Anderson, the prosecutor w ho extended plea offers and any other relevant witnesses who did no t testify at the o riginal hearing.

____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

__________________________________ GARY R. WADE , Judge

__________________________________ JOE G. RILEY, Judge