ATTORNEYS FOR APPELLANT
Susan K. Carpenter
Public Defender of Indiana
Hope Fey
Deputy Public Defender
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Thomas D. Perkins
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
JACQUELINE LATTA, )
)
Appellant (Petitioner Below), ) Indiana Supreme Court
) Cause No. 46S03-0004-PC-236
v. )
) Indiana Court of Appeals
STATE OF INDIANA, ) Cause No. 46A03-9811-PC-478
)
Appellee (Respondent Below). )
__________________________________________________________________
APPEAL FROM THE LAPORTE CIRCUIT COURT
The Honorable Robert W. Gilmore, Jr., Judge
Cause No. 46C01-8905-CF-065
__________________________________________________________________
ON PETITION FOR TRANSFER
__________________________________________________________________
March 16, 2001
BOEHM, Justice.
In 1990, Jacqueline Latta was convicted of the felony murder of her two-year-old
son Brad Latta and sentenced to fifty years imprisonment. She sought postconviction
relief on the ground that she was denied effective assistance of counsel.
She and her husband, Roger Latta, were tried jointly and were represented by
the same counsel. Latta’s claim of ineffective assistance of counsel included the
contention that this joint representation created an impermissible conflict that adversely affected her
defense. The postconviction court rejected this contention, but on appeal the Court
of Appeals agreed and granted relief in the form of a new trial.
Joint representation is not inherently impermissible. Latta consented to the joint representation
after it was challenged by the State at her trial. The principal
issues raised by the joint representation were whether her consent was knowing and
intelligent and, if so, whether a conflict created by joint counsel can nevertheless
be so severe that a defendant’s Sixth Amendment right to effective counsel requires
a retrial. We have no findings by the postconviction court on either
point. The latter remains an open question under the Sixth Amendment.
We do not resolve the issues raised by joint representation because we find
ineffective assistance of counsel on other grounds and agree that a new trial
is required. However, we include a discussion of the problem of joint
representation in the hope that it is helpful to trial courts facing this
difficult issue.
Factual and Procedural Background
During the night of February 14, 1989, Latta and her husband Roger escaped
with minor injuries when their house burned with their two-year-old son Brad still
inside. The Lattas were questioned two days later. Roger told the
police that he had tried to retrieve Brad from his bed on four
separate occasions. This seemed inconsistent with the absence of any burns on
Roger’s legs or feet. After extensive questioning, Latta implied that she had
some involvement in setting the fire. Latta and Roger were charged with
felony murder in May 1989.
Earl Studtmann was retained by Latta and Roger. After he unsuccessfully moved
for separate trials, he represented both in their joint trial. The defense
was essentially that the fire was accidental and had started in the attic
as a result of faulty wiring. The State presented evidence that an
accelerant was found near the front door of the Lattas’ home. A
mostly empty charcoal lighter fluid container was found in the kitchen. An
arson investigator testified that the burn patterns on the floors of the kitchen,
living room, and Brad’s room also indicated the use of an accelerant.
Latta and Roger were convicted of murder and both were sentenced to fifty
years imprisonment.
On direct appeal, the Court of Appeals concluded, among other things, that (1)
a motion to suppress pretrial statements from both Lattas was properly denied; and
(2) the trial court did not abuse its discretion in ruling inadmissible pictures
of the Lattas’ attic.
Latta v. State, No. 46A04-9007-CR-328 (Ind. Ct. App.
1991) (mem.). Latta then filed a petition for postconviction relief, asserting the
above claims, ineffective assistance of counsel, and newly-discovered evidence. The postconviction court
denied relief, but the Court of Appeals reversed the denial of postconviction relief
and ordered a new trial. The Court of Appeals held that Latta
was denied effective assistance of counsel by reason of Studtmann’s actual conflict of
interest in representing both Latta and Roger. Latta v. State, 722 N.E.2d
389, 392 (Ind. Ct. App. 2000). The court then concluded that Latta
had demonstrated that an actual conflict of interest existed, that this conflict had
adversely affected her representation, and that the representation resulted in actual prejudice.
The court held that Latta had waived the issue by failing to object
to joint representation at trial. Nevertheless, the Court of Appeals held that
permitting the joint representation constituted fundamental error and ordered a retrial.
Standard of Review
In postconviction proceedings, the petitioner bears the burden of establishing the grounds for
relief by a preponderance of the evidence. Ind.Post-Conviction Rule 1(5). On
appeal from a negative judgment, to the extent this appeal turns on factual
issues, the defendant must convince this Court that the evidence as a whole
leads unerringly and unmistakably to a decision opposite that reached by the postconviction
court. Trueblood v. State, 715 N.E.2d 1242, 1248 (Ind. 1999) (citing Spranger
v. State, 650 N.E.2d 1117, 1119 (Ind. 1995)).
I. Ineffective Assistance of Counsel, Apart from Issues of Joint Representation
The Sixth Amendment to the United States Constitution guarantees the defendant the right
to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686
(1984). To establish a claim of ineffective assistance, the defendant must
prove that: (1) counsel’s performance fell below an objective standard of reasonableness based
on prevailing norms; and (2) there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.
Id. at 687-88, 694. “A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Id. at 694.
Latta maintains that she was prejudiced by the introduction into evidence of Roger’s
unredacted pre-arrest interview in which Roger was asked and, on counsel’s objection that
“answering it might tend to incriminate,” refused to answer questions such as “Did
Jackie set the fire?” She also points to Studtmann’s closing argument, in
which he referred to the possibility that Roger was innocent but covering up
for Latta: “Now, then, if we would assume for argument’s sake that
Roger was trying to protect Jackie, again, just for argument’s sake, just assume
that, does that make him guilty of anything other than perhaps making a
false statement to police. That is not arson murder.”
Although the Court of Appeals found fundamental error in permitting the joint representation
of both Lattas, we believe this case presents a more conventional claim of
ineffective assistance of counsel independent of the issues raised by joint representation.
A.
Admission of Interviews
Latta argues that her rights were violated when the unredacted pre-arrest interview of
Roger was admitted at trial. This is claimed to have been the
product of ineffective counsel and is also presented as a
Bruton violation.
In Bruton v. United States, the Supreme Court held that admission of one
defendant’s confession inculpating another defendant in a joint trial violated the other defendant’s
right to confrontation, even if the jury was instructed to ignore the statement.
391 U.S. 123, 136-37 (1968).
This presents an unusual
Bruton claim. Bruton is grounded in the right
to confront witnesses, which includes the defendant’s right to cross-examine adverse witnesses.
Pointer v. Texas, 380 U.S. 400, 406-07 (1965). Bruton reasoned
that an inculpatory statement by one defendant may be admissible against that defendant
under the rules of evidence. Because that defendant cannot be compelled to
testify, the other defendant’s right of cross-examination is violated by introduction of the
statement. In this case, Roger did not testify and Latta had no
opportunity to cross-examine him. However, it is not Roger’s testimony, but rather
his silence and their joint counsel’s objections to which Latta objects. Roger
never admitted to any involvement in or knowledge of the fire, but he
failed to answer several questions after Studtmann objected that the question called for
an “incriminating” response. Latta argues persuasively that the effect is the same
as if the court had admitted inculpatory answers from Roger, which would plainly
be a Bruton violation. We agree that admission of Roger’s statements violated
Latta’s right to cross-examine unless Roger testified at trial, which he did not.
The questions to Roger and counsel’s objections bore directly on Latta’s guilt
or innocence and Latta had no opportunity to cross-examine Roger to attempt to
establish that his silence was based on circumstances that do not inculpate her.
Latta urges that this silence was taken by the interrogator as a
refusal to answer. Because of counsel’s description of the question as “incriminating,”
the jury may well have perceived it as inculpatory of either Roger or
both Lattas. However, this was an issue available on the record and
not presented on direct appeal. Accordingly, as a direct Bruton violation, it
was waived. See Trueblood v. State, 715 N.E.2d 1242, 1248 (Ind. 1999)
(issues known and available but not raised on direct appeal are waived for
postconviction proceedings).
Although a
Bruton claim was waived, we think counsel’s failure to object to
an unredacted transcript including objections and unanswered questions from Roger’s pre-arrest interview is
compelling evidence of ineffective assistance of counsel. Latta’s pre-arrest interview also contains
the same objections of counsel. The postconviction court accepted as “strategic” Studtmann’s
testimony that he concluded that it was preferable to give the jury a
transcript with these statements rather than one with portions erased. We cannot
understand this contention. It is difficult to see how a properly redacted
transcript of the interview would have been harmful to Latta, particularly because the
transcript appears to have been prepared on a dot matrix printer and was
therefore presumably easily editable on a computer leaving no trace of omissions.
This “strategy” backfired when, in its closing argument, the State referred to Latta’s
refusal to answer. In short, the postconviction court’s conclusion that this was
trial strategy seems indefensible.
B.
Closing Argument
Latta maintains that Studtmann’s representation of her was ineffective when he asked the
jury to assume, “for argument’s sake, that Roger was trying to protect Jackie.”
Instead of bolstering the common defense of accident, Studtmann in effect offered
the alternative theory to the jury that Latta was the principal offender and
Roger merely a devoted, albeit misguided, spouse. The postconviction court concluded that,
because Roger and Latta “were inquired as to their joint representation by Mr.
Studtmann and the court . . . there was no actual conflict that
had an adverse affect [sic] on Mr. Studtmann’s performance or that she was
prejudiced in any way.”
C. Prejudice from Counsel’s Errors
Because counsel’s performance was deemed adequate, there was no finding by the postconviction
court on the prejudice, if any, resulting from the failure to redact the
statements, the failure to raise a Bruton objection, or the suggestion of apparently
inconsistent defenses. Each of these appears potentially harmful to the defense, but
only the last of the three seems directly related to joint defense as
opposed to inadequate performance whether or not the two defendants had common counsel.
Under the standard set forth in
Strickland, Latta has demonstrated that Studtmann’s performance
fell below prevailing norms, and there is a reasonable probability that, with effective
representation, the result of the proceeding would have been different. The jury
was confronted with numerous objections by Latta’s own counsel intimating that she was
directly involved in Brad’s death and that it was not accidental. Given
the other issues mentioned in Part III, we are satisfied that there is
a “reasonable probability” that Latta would have been acquitted in this circumstantial case
if she had been properly represented. We agree with the Court of
Appeals that the postconviction court was clearly erroneous in finding that Studtmann’s representation
met acceptable performance standards. For the reasons explained in Part II, however,
we do not agree with the court that joint representation is inherently a
Sixth Amendment violation.
II. The Problem of Joint Representation of Both Defendants
Latta asserts that she received ineffective assistance by reason of Studtmann’s joint representation
of Roger and her. She contends that the joint representation created an
impermissible conflict and resulted in actual prejudice to her at trial. In
order to succeed on an ineffectiveness claim based on an actual conflict of
interest, a defendant who does not object to joint representation “at trial must
demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.”
Cuyler v. Sullivan, 446 U.S. 335, 348-49 (1980). Strickland added, without much
explanation, that, once a defendant has demonstrated an actual conflict and an adverse
effect on his lawyer’s performance, the prejudice prong of an ineffective assistance claim
is presumed. 466 U.S. at 692. In addition to the right
to effective counsel, the Sixth Amendment also gives an accused the broad, if
not wholly unrestricted, right to select counsel. This case presented the trial
court with the tension between these two co-existing rights.
A.
Right to Counsel of One’s Choice
The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall .
. . have the assistance of counsel for his defense.” U.S. Const. amend.
VI. The Sixth Amendment right to counsel encompasses a right to counsel
of one’s choice. Powell v. Alabama, 287 U.S. 45, 53 (1932).
Thus, joint representation is not a per se violation of the constitutional guarantee
of effective assistance of counsel. Hanna v. State, 714 N.E.2d 1162, 1166
(Ind. Ct. App. 1999) (citing Holloway v. Arkansas, 435 U.S. 475, 482-83 (1978)).
Moreover, it is clear that under some circumstances a defendant may properly
waive the right to conflict-free representation, Ward v. State, 447 N.E.2d 1169, 1170-71
(Ind. Ct. App. 1983) (citing Holloway, 435 U.S. at 483 n.5), and the
courts recognize that a defendant may benefit from joint representation: “A common defense
often gives strength against a common attack,” Holloway, 435 U.S. at 482-83 (quoting
Glasser v. United States, 315 U.S. 60, 92 (1942)).
A challenge to joint representation of criminal defendants is often presented by the
State and opposed by the defendants. That is what occurred in the
Lattas’ trial. Midway through the joint trial, the State moved for a
mistrial, arguing, among other things, that the testimony of a trooper had given
rise to a conflict of interest. The trooper testified that Latta had
admitted to setting the fire and the State contended this implicated her more
than Roger. Studtmann told the court it was the Lattas’ choice for
him to continue representing them. The trial court followed up by questioning
Latta and Roger regarding joint representation:
THE COURT: Mr. Latta, could I ask you a couple of questions?
MR. LATTA: Yes, Your Honor.
THE COURT: Did you and Mr. Studtmann talk about representation of both you
and your wife, Mrs. Latta?
MR. LATTA: Yes, sir. He said if there’s no conflict—what is that—
THE COURT: Of interest?
MR. LATTA: —interest, there would be no problem in him representing both of
us.
THE COURT: All right. Mrs. Latta are you of the—do you have
the same answers to those questions?
MRS. LATTA: Yes, I do.
THE COURT: In your discussions, did you talk about any risk that could
be involved in joint representation?
MRS. LATTA: Yes, we did.
THE COURT: Okay. And I understand from Mr. Studtmann that both of
you want him to represent you?
MRS. LATTA: Yes, that’s correct.
MR. LATTA: Yes.
THE COURT: As both of you—both of you want him to represent you as
your attorney?
MR. LATTA: Yes.
THE COURT: Is that true, Mr. Latta?
MR. LATTA: Yes.
THE COURT: And is that true, Mrs. Latta?
MRS. LATTA: Yes.
The trial court denied the State’s motion. As the United States Supreme
Court pointed out in
Wheat v. United States, 486 U.S. 153, 159-62 (1988),
this situation presents the trial court with a direct conflict between the defendant’s
claim to counsel of her choice and the risk that either a direct
appeal or a postconviction court will find the joint counsel to have been
ineffective despite the defendants’ insistence on joint representation at trial. This difficulty
is illustrated by a comparison of Hanna with the Court of Appeals’ decision
in Latta’s case. In Hanna, as here, the State moved to
disqualify defense counsel jointly retained by five co-defendants. The defendants had been
advised of the risks of joint representation by defense counsel, a magistrate, and
independent counsel, but voluntarily and knowingly waived the conflict of interest. The
trial court nevertheless granted the State’s motion to disqualify counsel. 714 N.E.2d
at 1164. The Court of Appeals reversed, holding that the trial court
abused its discretion in granting the motion because the State had not established
a conflict sufficient to override the defendant’s choice of counsel. Hanna, 714
N.E.2d at 1168. Thus, in Hanna, the Court of Appeals reversed because
the trial court granted the State’s motion to disqualify counsel, and Latta’s conviction
was reversed because the trial court denied the State’s motion.
B.
The Effect of the Defendant’s Consent to Joint Representation
Relying on Hanna, the Court of Appeals concluded that Latta had not waived
her right to object to joint representation because the trial court had not
sufficiently performed its duty of ensuring Latta’s right to a fair trial in
accordance with the Sixth Amendment right to counsel. Latta, 722 N.E.2d at
393 n.3. The Court of Appeals resolved the issue principally in terms
of waiver. However, Hanna also noted that the court has an independent
interest in ensuring a fair trial and may, in some circumstances, properly refuse
a defendant’s waiver of his right to conflict-free representation. 714 N.E.2d at
1164-65 (quoting Wheat, 486 U.S. at 162 (“‘[W]here a court justifiably finds an
actual conflict of interest, there can be no doubt that it may decline
a proffer of waiver, and insist that defendants be separately represented.’”)). As
Wheat noted, this is true of both an “actual” and a “serious potential
for” conflict. 486 U.S. at 164.
Even if we were to conclude that Latta’s waiver of Studtmann’s conflict was
knowing and voluntary, the issue remains whether her initial waiver may serve to
waive all future conflicts and any ineffective assistance of counsel claim based on
these conflicts. Justice Marshall, concurring and dissenting in
Cuyler, thought it impossible
to waive all potential conflicts, especially where a waiver is obtained in the
early stages of trial before it is feasible to contemplate all of the
possible conflicts. 446 U.S. at 354 n.1. But the United States
Supreme Court has given us no further clear guidance on this point.
Hanna observed that the State has an independent interest in a fair trial,
714 N.E.2d at 1164-65, but that cannot override the defendant’s right to proceed
pro se, which is surely also a hazardous choice. Sherwood v. State,
717 N.E.2d 131, 137 (Ind. 1999) (citing Faretta v. California, 422 U.S. 806
(1975)). Wheat also cited the “institutional interest” in a fair proceeding.
Arguably the proper inference from Wheat is that this institutional interest justifies overriding
the defendant’s choice of joint counsel but still permits a waiver to preclude
a later claim of ineffective assistance. Wheat itself expressly reserved this issue
for another day, as it noted, “without passing judgment on, the apparent willingness
of Courts of Appeals to entertain ineffective-assistance claims from defendants who have specifically
waived the right to conflict-free counsel.” 486 U.S. at 161-62.
The post-
Wheat federal circuit decisions have split on the question of whether a
waiver eliminates further claims based on conflict. Compare United States v. Hall,
200 F.3d 962, 965-67 (6th Cir. 2000) (reversing conviction on direct appeal because
of ineffective assistance of counsel due to conflict of interest even though the
trial court had repeatedly warned defendant of conflict, and stating that the defendant’s
waiver “does not bind the courts”), and United States v. Swartz, 975 F.2d
1042, 1049 (4th Cir. 1992) (a waiver obtained pursuant to Federal Rule of
Criminal Procedure 44(c), which places a duty on the trial court to inform
defendant of potential conflicts where defendant is jointly represented, “may not serve to
waive all conflicts of interest that arise throughout the course of that defendant’s
criminal proceedings”), with United States v. Lowry, 971 F.2d 55, 63-64 (7th Cir.
1992) (any ineffective assistance claim based on conflict of interest is barred where
defendant knowingly and voluntarily waives conflict).
C.
The Issue for the Trial Court
In Wheat, the five-Justice majority reaffirmed the well established presumption in favor of
counsel of defendant’s choice. 486 U.S. at 164. The United States
Supreme Court nevertheless affirmed the trial court’s grant of the prosecution’s motion to
disqualify joint counsel, and held the trial court should be given wide discretion
in this area. Id. at 162-63. Justice Stevens, joined by Justice
Blackmun in dissent, agreed that the trial court should be given wide discretion,
but found that discretion abused by a grant of the government’s effort to
deny the defense joint counsel of their choice. Id. at 173.
Thus, although seven Justices differed in outcome on the facts in Wheat, there
was broad agreement that the trial court must be given latitude in its
efforts to navigate the Scylla and Charybdis posed by the conflicting Sixth Amendment
rights to counsel of one’s choice and to competent counsel. We conclude
that trial court discretion is necessary because of the tension between these two
important rights that must be resolved by the trial court at a time
when all relevant information is typically unavailable due to both attorney-client confidences and
reluctance to expose trial strategies in advance.
It does not follow, however, that because a trial judge may properly refuse
a waiver even if the waiver is knowing and voluntary, a trial judge
must do so. Although a fair trial is the ultimate goal, we
believe an important step in evaluating whether the actual conflict or serious potential
for conflict is sufficient to override the defendant’s express choice of counsel is
an assessment of the defendant’s apprehension of the dangers of joint representation.
Even if the defendant’s consent to joint representation is ultimately determined to preclude
a subsequent claim of ineffective assistance grounded in conflict, trial courts should still
make appropriate inquiry. And, regardless of the ultimate resolution of the issue
left open in
Wheat, we think the presumption of deference to the defendant’s
choice is strengthened by confidence that it is an informed and individual choice
by the defendant. Thus, the trial court should attempt to discern “whether
the defendant knew enough to make the choice an informed one—a rational reconciliation
of risks and gains that are in the main understood.” United States
v. Roth, 860 F.2d 1382, 1387-88 (7th Cir. 1988).
Although we resolve this appeal on grounds unrelated to the joint representation, because
the issue was addressed by the Court of Appeals, we do so as
well. In this case, the trial court’s questioning was quite brief.
It established in conclusory terms that Latta had been informed of the risks
associated with joint representation and that she wished for Studtmann to represent her,
but did not develop any record as to what her understanding of those
risks was. At the postconviction hearing, Studtmann testified that he had explained
the risks of joint representation to the Lattas “rather at length,” and discussed
the idea of separate counsel with them at the time he moved for
separate trials. A trial court may be hard pressed to know how
much questioning is enough to establish a knowing and voluntary waiver of a
defendant’s right to conflict-free representation.
Id. at 1387 (“It is . .
. always possible to say that the judge could have mentioned one more
thing.”). Frequently the initiative to terminate joint representation before or at trial
comes from the prosecution, not from a disgruntled defendant or from the court
on its own motion. The reasons for this are typically tactical.
A splintered defense is more likely to produce a plea agreement with weaker
links in the defense chain and may ultimately produce that result as to
all if some defendants become potential witnesses for the State. Evaluation of
the degree of understanding of the risk of joint representation is made more
difficult for the trial court because it cannot explore each defendant’s understanding of
the pros and cons of this arrangement in detail without intruding on both
client confidences and the attorney’s work product.
Here we have only the conclusory testimony at trial that the Lattas discussed
the risks, and their attorney’s testimony in the postconviction proceeding that this was
done “rather at length.” Accepting Latta’s waiver is consistent with the recognition
that the Sixth Amendment provides not only the right to counsel, but the
right to counsel of one’s choice. Indeed, four Justices in
Wheat took
the view that accepting the waiver and allowing joint representation was constitutionally required
under the circumstances of that case. 486 U.S. at 165-66 (Marshall, J.,
joined by Brennan, J., dissenting); 486 U.S. at 172-73 (Stevens, J., joined by
Blackmun, J., dissenting). Although not an absolute right, the right to counsel
of one’s choice is not one with which courts should be eager to
interfere: “Lawyers are not fungible, and often the most important decision a defendant
makes in shaping his defense is the selection of an attorney. In
situations where a defendant is able to retain counsel privately, ‘the choice of
counsel rests in his hands, not in the hands of the state.’” Hanna,
714 N.E.2d at 1165-66 (citations omitted). A defendant’s exercise of the Sixth
Amendment right to control the choice of counsel may ultimately prove disastrous.
Nevertheless, we have recently held in another context that unwarranted interference with that
Sixth Amendment right may, as in Hanna, require reversal. See Sherwood, 717
N.E.2d at 132 (imposing hybrid representation on a defendant who waives his right
to counsel and chooses instead to exercise his right to represent himself violates
the Sixth Amendment).
D.
The Issue in Postconviction Proceedings
The first issue for the postconviction court was whether, under these circumstances, it
was within the trial court’s discretion to accept Latta’s waiver of conflict-free representation.
We think the defendant’s waiver should be presumed valid, and the burden
in postconviction proceedings is on the defendant to prove otherwise. If there
is evidence supporting the conclusion of an uninformed, or worse, improperly influenced waiver,
the postconviction court must assess the defendant’s appreciation of the risks. If
knowing and voluntary, the waiver is at least entitled to a very strong
presumption of validity, and may be conclusive, because it invokes her right to
counsel of her choice. If the waiver does not preclude a subsequent
claim of ineffective assistance, there remains the issue, as
Cuyler put it, of
whether “an actual conflict of interest adversely affected [the] lawyer’s performance.” Cuyler,
446 U.S. at 348-49. If so, prejudice under Strickland is presumed.
The trial court’s investigation of the level of Latta’s understanding of these risks
was cursory at best. The postconviction court made no finding as to
that understanding. Because we find Latta’s counsel to have been ineffective irrespective
of these issues, we need not resolve them on appeal. However, we
caution trial courts in similar circumstances that it is prudent at least to
inquire in greater detail as to the defendant’s understanding of potential areas of
conflict. Here, these included the risk that defenses may not be fully
aligned, and that evidence exculpatory of one may be inculpatory of another.
E.
Ineffective Assistance and Fundamental Error
The Court of Appeals, despite finding Latta’s waiver to be based on an
incomplete probing by the trial court, held that the failure to object waived
the issue on appeal. Notwithstanding that waiver, the Court of Appeals concluded
that the proceedings in the trial court constituted fundamental error—error so egregious that
the entire proceeding was undermined—and was therefore available in postconviction proceedings despite waiver.
There are several problems with this analysis. The principal case cited
by the Court of Appeals for finding fundamental error is Whittle v. State,
542 N.E.2d 981 (Ind. 1989), overruled on other grounds by Scisney v. State,
701 N.E.2d 847 (Ind. 1998). Whittle held that the defendant’s claim of
inadequate inquiry by the trial court into the propriety of joint representation was
waived on direct appeal because there was no objection to the joint representation
raised by any party at trial. 542 N.E.2d at 985. Whittle
did not find fundamental error. Rather that decision went on to address
the merits of the ineffective assistance claim that was based on the joint
representation. In so doing, the decision cited and applied Strickland and Cuyler
as well as cases from this Court announcing the same standards. That
claim was not held to have been waived. Rather, it was rejected
because Whittle failed to show an actual conflict (the defenses were common) or
an adverse effect. 542 N.E.2d at 986-87.
Fundamental error is “permitted to preserve certain egregious claims of error even if
they were not objected to or were available but not raised on appeal.”
Baird v. State, 688 N.E.2d 911, 916 (Ind. 1997). Ordinarily, however,
fundamental error analysis has no application in postconviction proceedings. An ineffective assistance
of counsel claim is permitted in postconviction proceedings for the reasons explored in
Woods v. State, 701 N.E.2d 1208 (Ind. 1998). The flaw the Court
of Appeals identified in Latta’s conviction is at bottom ineffective assistance of counsel
based on impaired counsel arising from joint representation. Latta consented to the
joint representation. The issue as to that claim is whether that consent
waived any claim of ineffective assistance. If it did, Latta cannot complain
on appeal or in postconviction about the consequences of her election to proceed
with joint counsel. If the waiver was defective, she has her claim
of ineffective assistance and it is properly asserted in postconviction proceedings. Cuyler
expressly sets forth the standard to follow where an ineffectiveness claim is based
on counsel’s conflict of interest. Because it involves balancing the conflicting Sixth
Amendment interests, the merits of the claim may depend on the circumstances leading
up to the defendant’s consent to joint representation, but it has nothing to
do with fundamental error.
III. Latta’s Other Claims
Latta raises a number of other matters she contends establish either ineffective assistance
or newly discovered evidence. These include failure to offer evidence that there
was no insurance on Brad’s life after an officer testified that Latta had
said there was such a policy. She also points to scientific testimony
that she claims establishes that charcoal lighter fluid could not have been a
cause of the fire. These and other matters can be addressed on
retrial. Some of these seem plausible, but we need not address them
in view of our holding that ineffective assistance is supported by the events
described in Part I.
Conclusion
We reverse the denial of postconviction relief and remand for a new trial.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.