### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE August 14, 2001 Session BEQUIR YMERLI P OTKA, FATMIR AGOLLI, STAVR

I POPA & EPISON PULAHA v. STA TE OF TENNESSEE
Appeal from the Criminal Court for Davidson County No. 2000-C-1348 Steve Dozier, Judge

No. M2000-02305-CCA-R9-CO - Filed January 18, 2002

We granted thedefendants’ application for interlocutory appeal, see Tenn. R. App. P. 9, to review the trial cou

rt’s disqual ification of defense counsel based upon conflicting interests in counsel’s represen tation of all fou

r defendants. B ecause

we conc lude that

the lower

court acted within

its discreti on in disqua

lify ing counsel fro m multiple r eprese ntation, w e affir

m. Tenn. R. App.P. 9; Judgment of the Criminal C ourt Aff

irmed.

J AMES C URWOOD W ITT , J R ., J., delivered the opinion of the court, in which D AVID H. W ELLES and J OE G. R ILEY , JJ., joined.

Mark C. Scruggs, N ashville, Tenness ee, for the Appellants, Be quir Ymer li Potka, Fa

tmir Agolli , Stavri Popa, and Epison Pulaha.

Paul G. Summers , Attorne y Gener al & Repor

ter; Jenn if e r Bledsoe , Assistan

t Attorne y Gener al; Victor S. Johnson, III, District Attorney General; and Brian Holmgren, Assistant District Attorney General, for the Appellee, State of Tenne ssee.
OPINION

Fatmi rAgolli , Bequir Potka, Stavri Popa and Epison Pulaha are charg ed with a variety of crimes apparently

related to a barroom brawl. All four defendants are represe nted by one attor ne y, Mark C. Scruggs. On motion of the state, the trial court found that due to conf licting interest s, the defendants should be required to retain separ ate c ounsel, thereby disqualify ing Mr. Scrugg s. The defendants maintain, as they did in the lo wer cou

rt, that they understand the potential for conflicting interests but, nevertheless, wish to be repr esented jointly by

Mr. Scruggs.

In order to understand the conflict question, an explanation of t h e nature of the charges is pertinent. In indictment number 2000A463, returned March 24, 2000, Agolli and Potka
were charg ed with fo

ur countsof agg

ravate d assault , all f

our defendants were charg ed with one count of vandalism, and Potka was charged with one count of dr iving under the influence. This indictment-2-

was before

the cour t when it ma

de its ruling disallowing joint repr esentation. Subsequently, a superseding indictment was returned which charged each of the four defendants with four counts of aggravated

assault and one count of vandalism and which charg ed Potka with one count of driving under the influence.

At the hearing on the motion to disqualify , defense counsel acknowledged that there
was a “different plea offer for three of them as opposed to one.” He further acknowledg ed that “the problemwith it is . . . three who are no t United States ci tizens could very well be de ported.” He stated this was the “holdup as far as that’s concerned.” Defense counsel stated he only talked to the defenda nts as a group, not individually, a nd advisedthem they

could g et separ

ate coun sel who c ould negotia te with the district attorney. He sa id that “in all likelihood, I think that would probabl y involve some type

of cooperation.” Defense counsel stated a ll defendants wanted him to continue to represent them. As stated, the trial cou rt gra nted the s tate’s motion to disqu alify defense counsel.

Th e defenda

nts moved t

he court for rec onsidera

tion of its o

rder requiring

se parat e counsel fo r e ac h d ef

en da nt , a nd th ey m oved in the alternative for permission to pursue an interlocutory

appeal. See Tenn. R. App. P. 9 (appeal by permission of the trial and appellate courts). The lo we r c ou rt en te re d a n o rd er gr an ti ng pe rm is si on to pu rs ue an in te rl oc ut or y appeal. The defenda nts then fi led an a pplication for interlocutory appeal with this court, and the state did not oppose it. We granted the application. We have now rece ived the briefs and oralarguments, and the case is before us for disposition.

The sole issue presented is whether the lower court erred in requiring that each of

the four defendants be represented by separa te attorneys. The

defendants claim that there is no evidence of an actu al co nflict in this case, and in any e vent, they claim that they have each knowingly

and intellig ently

consented to joint representation after disclosure of potential conf lict s. The sta

te counters with the argument that the trial court had the discretion to require separate counsel for each defendant upon a showing of either an actual conf lict or a serious potential for

conflic ting inte

rests. Furthermore, in the state’s assessment, the trial court acted within that discretion in ruling that the potentia l conflicts in this case warr anted se parate counsel f or each defenda nt.

We begin, of course, with the constitutional right to counsel, grounded in theSixth Amendmen

t. See U.S. Const. Amend. VI ; see also Tenn. Const. art. I, § 9. The rig ht to choose and be represented

by counsel of

one’s choos ing is “comp rehend ed” by the S ixt h Amen dment , alth ough the Amendmen

t is targ eted towa

rd secur ing eff ective c ounsel fo

r an acc used, not u

nco nditionall

y guaranteeing

counsel of one’s preference

. Wheat v. United States , 486 U.S. 1 53, 159, 10 8 S. Ct. 1692, 1697 (198 8); see State v. Carruth ers , 35 S.W.3d 5 16, 546 (Ten n. 2000). Thus, the Sixth Amendment’s right to counsel of choice is a qualified one, also re ferred to as a “presumption in favor of counsel of choice.” Wheat , 486 U.S. at 159-60, 108 S. Ct. at 1697-98. This qualified right may be limited by the court if g ood cause exists. State v. P arrott , 919 S.W.2d 60, 61 (Tenn. Crim. App. 1995).1 The defen dant in this case makes no such arg ume nt, eit her.

2 Inte rest ingl y, our Ru les of C rim in al Proce dur e app ear to requ ire disq ualifica tion if it ap pea rs likely that a conflict w ill arise. Rule 44(c) p rovide s,

W hen ever two or more defendants have been joi ntly charged purs uant to Rule 8( b) or have been joined for t

ria l purs uant to Rule 13, and ar e represented by the same retai ned or assi gned counselor (con tinue d...)
-3- Moreover, the existence of actual co nf li ct s o f i nt er es ts ma y b e goodcause to disqualify counsel which overcomes an accused’ s presum ption favoring counsel of his choice. Parrott , 919 S.W.2d at 61. Cas es in which one attorney represents multiple defendants charged relative to the same criminal episode present situations of special concern due to the possibility of such conflicting interests. Wheat , 486 U.S. at 159-60, 108 S. Ct. at 1697.

The more difficult question is whether the potentialfor conflicting interests may constitute good cause f or disqua lification of coun sel in

multiple representation situations. The law on this point is not entirely clear in Tennessee.

The United States Supreme Court has said that as a function of on e of the “circu mscribed ” aspects of the Sixth

Amendmen

t, a trial court

acts app ropriate ly in inquiring into “possible” conflicting interests and determining whether separate c ounsel is warranted. Wheat , 486 U.S. at 159-160, 108 S. Ct. at 1697. The hi gh court has rec ognized t he inher ent diffi culties in making this determination, which necessarily must be made before t

ria l and therefore without the benefit of hindsight. Id

. at 163, 10 8 S. Ct. at 1699. Although the court recognized a pre sumption in favor of

counsel o f choice , it noted th e presum ption coul d be overc ome not onl y by a showing

of actual conflict but also by a showing of serious potential for conflict. Id . at 164, 108 S. Ct. at 1700. Tennesseedecisions on point are more circumspect in authorizing a trial court to disqualify c ounsel basedup on potential conflict. This court has held that “an actual conflict, rathe r than the mere possibility

[of co nflicti ng interests]” must be shown before disqualification is justified. State v. Parrott , 919 S.W.2d 6 0, 61 (Te nn. Crim. A

pp. 1995) ; State v. Oody , 823 S.W.2d 554, 558 (Tenn. Crim. App. 1991). Under t his l ine of autho rity, a co urt er rs in b asing a disqualification decision on “what might happen.” See Parr ott , 919 S.W.2d at 61.

When con sidering the rule of Wheat in contrast with that of Parrott and Oody , we believe th at the sou

ndness of the state court de cisions is q

uestiona ble in lig ht of United State s Supreme Court prec ede nt allowing disqualification based upon serious potential for conflict. See generall y Wheat , 486 U.S. at 159, 108 S. Ct. at 1697. Oody cites no authority for its proposition that only an actu al confl ict will support disqualification, and Parrott ci te s o nl y Oody . There is no suggestion

in either Parrott or Oody tha t t he Tennessee Constitution provides a defendant more protection than the qualified right to counsel of choice contemplated by the Sixth Amendment to the United States Constitution. 1 See gen erally Parrott , 919 S.W.2d a t 61-62; Oody , 823 S.W.2d at 558. On i ssues of fede ral constitutional law, we are bound to follow the rulings of the United States Supreme Court as th

e ultimate authority on feder al constit utional qu estions. 2 State v. P endergra ss ,2 (.. .continued) by retained o r assi gne d co uns el wh o are assoc iated in the p ractice of law , the co urt sh all pro mp tly inquire with res pect to s uch joi nt re prese ntation and s hall pers onall y advis e each de fendant of t he right to the eff ective assistan ce of cou nsel, in clud ing se para te rep resen tation. Unless it appears that there is goo d ca use to believ e no con flict of intere st is likely to a ris e , the c ourt shal l ta ke such
me asure s as m ay b e app rop riate to p rotec t each defe nda nt’s rig ht to co uns el.

Ten n. R. C rim . P. 44 (c) (em pha sis add ed).

At fir st blush, Rule 44( c) appears not to apply to t his cas e at al l. The t ext of that rul e refers to cases joined pursuant to Rule 8(b), but not 8(c). Rule 8( b) dis cusse s j oinder of offens es . Rule 8(c) discusses joi nder of defen dan ts

. Our Ru le 44 (c) w as pa tterne d afte r Fed eral R ule o f Crim inal Pr oce dur e 44 (c). See Tenn. R. Crim . P. 44(c), Advisory Com m’n Cmts. ( subsec ti on 8(c) added “t o conform t he rul e to t he simila r fede ral rule ”). Fed eral R ule 4 4(c) refers to Federal Rule 8( b), t

he la tt er of

which cov ers joinder of defendants. There is no Federal Rule 8(c). Clearl y, Tennessee Ru le 44(c) contemplate s multiple represent ation probl ems which may aris e due to joi nder of defen dan ts

. See Tenn. R. Cr i m. P. 44( c) (“ Whenever two or more defenda nts have been j oint ly cha rged purs uant t o Rule 8( b) .

. . .”) . We bel ieve it apparent

that the refere nce in Te nne ssee R ule 4 4(c) to Te nne ssee R ule 8 (b) is an oversight and was intended to be a reference to Te nne ssee R ule 8 (c). T hus , we c onc lude that T enn essee Ru le 44 (c) ap plies to cases in wh ich th ere is a joinder of defen dan ts , as there is in the case b efore u s.

-4- 13 S.W.3d 389, 397 (Tenn. Crim. App. 1999), perm. app. denied (Tenn. 2 000). Thu s, we conclude that, consistent with Whe at, a trial c ourt has wide-ra nging authorit y todisq ualify counsel fr om representing multiple defendants if there is an actual conflict of interests or a serious potential for conflic t. See Wheat, 486 U.S. a t 159, 164 1 08 S. Ct. at 1697 , 1700. I ts exercis e of that

authority is subject to our review for abuse of discretion. Clinard v. Blackwood , 46 S.W.3d 177, 182 (Tenn. 2001).

We think it is c lear in th e case a t bar tha t serious p otential f

or confl icting in terests existed. The defendants’ attorney was in a situation in which he would be hard-pressed to pursue plea bargaining for the bene

fit of one or some of his clients given the detrimental impact on the remaining clients, particularly if such an agreem

ent calle d for the pleading defendant to testify agains this remaining co-defendants. I n tha t it appe ars that three of the four defendants a re not United States cit

izens and m

ight fa ce depo rtation if convicted, the situ ation in thi s rega rd is exacerbated. If th

e case g oes to trial with one attorney r epresenting all four defendants, one or more of the defendant s may

wish to testify to facts exculpatory to himself but placing the blame on one or more of the other def

e ndants. Counsel would then be in the position of sponsoring testimony detrimen tal to the a

ffecte d defendants, who m he also r eprese nts. Jointly represen ted defen dants may waive the right to conflict-free counsel. See Wheat , 486 U.S. at 161-62, 108 S. Ct. at 1698. However, the court may decline to accept the waiver andrequire individual representation of each de fendant. Id. at 162, 108 S. Ct. at 1698. Because a trial court must make a disqualificationdecision before the trial takes place and there fore without the benefit

of hindsig

ht, it is afford

ed “subst antial la titude” to refuse to acce pt waivers of conf

licts3 “The li keli hood and dimensi ons of na scent confl ict s of

interes t are no toriou sly ha rd to p redic t . . . . A few bits of unf or es ee n t es ti mony o r a si ngl e pr evi ous ly unk nown or unnot iced document ma y sign ifican tly shift th e relatio nsh ip between multiple defendants. ” Wheat , 486 U.S. at 163, 108 S. Ct . at 1699.
-5- from the a

ffecte d defendants. 3 Id. at 163, 108 S. Ct. at 1699. A panel of this court has prescribed the following pro cedure for determining whethe r a defendant waives his right to conflict-f ree couns e l and whether the court should accept the waive r.
The [defe ndan t] mu st be present in open court. The parties and the trial court should explain to the [defenda nt] how an actual or potential c onflic t ma y aff ect him and that the [defendant] has a right to b e represented by separa

te cou nsel. The

[defenda nt] must be questioned under oat

h by the parties a

nd the trial court to determine if the [defendant] understands the actual or potent

ial conf lict. The [defenda nt] must state under oath whether he desires to waive the actual or potential conflict. If the [defenda nt] st ates he i s will ing to waive a

ny a ctual or potentia l conflict o f interest , the trial

court sha ll permit the [defenda

nt] to be represented

by private counse

l absent a compelling reason to the contrary

. Shannon L. Smith v. State , No. 02C01-9508-CR-00241, slip op. at 7-8 (Tenn. Crim. App., Jackson, Oct. 23. 1 997); see Tenn. R. Crim. P. 44(c). That procedure was followed in this case.

At the conclusion of the inquiry in this case , the trial court wa s persuaded that the defenda nts “are not aware or do not have the a bility to understand the i mpac t that the potential conflict could have on their defenses.” Although the def endants a nswere d all ques tions fav orably to understanding thenature of the potential conflict, the benefits of separa te representation, and the desire to proce ed with

joint coun sel, the c ourt expre ssed “co ncerns t hat all de fendant s were a

ble to understandall of the questions . . . .” There was a palpable communication bar rier in that all four defenda nts were of Albanian extraction, and three of the four w ere abl e to co mmun icate only thro ugh
an interpreter. The cour

t cited the “langu age ba

rrier”as signi ficant in

its concer n that the defenda nts didnot knowingly

andvoluntarily waive their r ights. The court had the opportunity to observe the defenda nts during their responses to questioning and evaluate any non-verbal indications that they may not have fully under stood the meaning of their responses. See Long v. Tri-Con Indus

. , 996 S.W.2d 173, 178 (Tenn. 1999) (considerable defer ence must be afforded by

appellate court to trial court’s findings relative to weight and cr edibi lity of witness’s testimony , as trial court has opportuni tyto obser ve the witness’s demeanor and hear the testimony ). In addition, one of the defenda nts expressed on the record his fundamental lack

of understanding of the American judicial process
. In this situation, weare con strained to hold that the trial court did not abuse its discretion in declin ing to ac cept the

waiver a nd requir ing sepa rate counsel.-6- In so ruling, we are not holding, nor suggesting that the state can secure disqualification of

able defense counsel by simply making differ

ent plea offers for different defendants or otherwise manufacturing a conflict. As the high court noted in Wheat , the Government may seek to “manufac ture ” a conf lict in ord

er to prevent a defendant

from having a particularly able defense counsel at his side; but trial courts areun do ub te dl y aw ar e o f t hi s p os si bi li ty, andmust take i

t into cons ideratio n along withall of the other factors which inform this sort of decision.
486 U.S. at 163, 108 S. Ct. at 1699.

Therefore, we affirm the lower c ourt’s or

der req uiring t hat each defendant reta

in

separa te counse l.

___________________________________ JAMES CURWOOD WITT, JR., JUDGE