Caddie v. Warden

Orth, J., delivered the opinion of the Court. ¹⁹³ This is an application for leave to appeal from an order of the Circuit Court for Washington County denying relief sought under the Uniform Post Conviction Procedure Act. The applicant and a codeiendant were found guilty of grand larceny by a jury in the Circuit Court for Washington County. The applicant was sentenced to an imprisonment for an indeterminate period not to exceed 4 years accounting from February 16, 1967, and the codefendant for a term of 4 years accounting from April 8, 1967. In his petition, one of the applicant’s allegations is that his attorney, whom he privately retained to represent him at his trial, was appointed by the court to represent the codefendant also and that as there was a conflict of interest between him and the codefendant, he did not receive a fair trial.

Upon a hearing on the petition, the lower court found that the attorney retained by the appellant was appointed by the trial court to represent the codefendant with instructions to the attorney that if he felt there was a conflict of interest to so inform the court. After talking to each of his clients, the attorney decided there was no conflict. After “the testimony was in” at the trial, however, the attorney, as he testified at the post conviction hearing, “felt obliged to and did argue to the jury, that there was more evidence against the applicant than there was against the codefendant.” The hearing court, after reviewing the evidence produced at the trial, found that there was “a lamentable and deplorable conflict of interest,” and that the applicant “had a right to be disturbed when his attorney told the jury that there was more evidence against him than there was against” the codefendant. It is stated in the memorandum accompanying the order: “The concept of conflict of interest is based on the theory that no man can serve two masters, and certainly the attorney found himself in a most unenviable position when it came to argue the case to the jury.

The conflict of interest here was sharp and clear”. After so finding, the hearing court concluded that although the applicant “was in a way used to help (the codefendant), a matter of which he was rightfully disturbed, nevertheless his predicament did not help (the codefendant), and