State v. Roberts10/26/1999
ker, 74 Wn. App. at 42.
A defense lawyer's prior representation of a prosecution witness, without more, does not demonstrate an actual conflict of interest justifying disqualification. Hunsaker, 74 Wn. App. at 46. Here, Mr. Roberts has not established that Mr. Earl's prior representation of Billy Reyes was "substantially related" to this case, and thus has failed to demonstrate an actual conflict justifying disqualification under RPC 1.9(a). Mr. Roberts also contends Mr. Earl obtained information during the course of his representation of Billy Reyes but was prevented by RPC 1.9(b) from using that information to impeach Mr. Reyes' credibility. However, a Disposition of prior criminal charges against Mr. Reyes would have been available to Mr. Roberts' defense as a part of the required discovery process. See Hunsaker, 74 Wn. App. at 47-48; State v. Anderson, 42 Wn. App. 659, 664, 713 P.2d 145 (1986); CrR 4.7(a)(1)(vi).
Mr. Roberts contends Mr. Earl knew prior drug-related charges against Mr. Reyes were dismissed without prejudice in return for Mr. Reyes' agreement to work as a police informant. He reasons Mr. Earl's failure to use this information to impeach Mr. Reyes demonstrated an actual conflict of interest. The record does not support this allegation. Mr. Roberts' new counsel had an opportunity to explore the circumstances of the prior representation in a factfinding hearing after trial, during which Mr. Earl was required to testify. Even the new attorney's hearsay affidavit containing statements from Billy Reyes himself failed to articulate any reason for his fear of police. On this record, Mr. Roberts has failed to establish an actual conflict of interest by his trial attorney.
The court did not err in denying Mr. Roberts' motion for a new trial.
A related issue is whether Mr. Earl's representation at trial deprived Mr. Roberts of his right to effective assistance of counsel. The Sixth Amendment and article I, section 22 of the Washington Constitution require that criminal defendants have effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996). To establish counsel was constitutionally deficient, a defendant bears the burden of showing that his attorney's performance fell below an objective standard of reasonableness and that the deficiency prejudiced him. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
In determining whether counsel's performance was deficient, there is a strong presumption of adequacy. McFarland, 127 Wn.2d at 335. Competency is not measured by the result. State v. Early, 70 Wn. App. 452, 461, 853 P.2d 964 (1993), review denied, 123 Wn.2d 1004 (1994). "{T}he court must make every effort to eliminate the distorting effects of hindsight and must strongly presume that counsel's conduct constituted sound trial strategy." In re Personal Restraint of Rice, 118 Wn.2d 876, 888-89, 828 P.2d 1086, cert. denied, 506 U.S. 958 (1992) (citing Strickland, 466 U.S. at 689); see Hendrickson, 129 Wn.2d at 77-78. Decisions on whether to call witnesses and the determination of subjects for examination or cross examination generally are not bases for concluding counsel's performance was deficient. State v. Piche, 71 Wn.2d 583, 590-91, 430 P.2d 522 (1967), cert. denied, 390 U.S. 912 (1968); State v. Wilkinson, 12 Wn. App. 522, 525-26, 530 P.2d 340, review denied, 85 Wn.2d 1006 (1975).
To demonstrate prejudice, a defendant must establish "that counsel's errors were so serious as to deprive {him} of a fair trial, a trial whose result is reliable." Strickland, 466
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