PRESENT: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and
Kinser, JJ., and Whiting, Senior Justice

MARK DANA TURNER
                                           OPINION BY
v.   Record No. 991630           SENIOR JUSTICE HENRY H. WHITING
                                          April 21, 2000
COMMONWEALTH OF VIRGINIA


               FROM THE COURT OF APPEALS OF VIRGINIA

      In this appeal of two related criminal convictions, we

consider whether the trial court's rulings on the defendant's

motion for a new trial were erroneous (1) in failing to find

there was a conflict of interest in defense counsel's

representation of the defendant, and (2) in excluding the

defendant's evidence of allegedly inadequate representation.

      On January 12, 1998, Robert Bryan Haskins was appointed as

counsel for Mark Dana Turner who was charged with the murder of

his wife and the use of a firearm in the commission of a felony.

Fourteen days before Turner's trial, Haskins applied for

employment as Assistant Commonwealth's Attorney for Pittsylvania

County in response to an advertisement.   Haskins, who

represented Turner at his trial on April 13, did not tell Turner

of the application.

      A jury convicted Turner of both charges and recommended

sentences totaling 38 years.   Eight days after the trial,

Haskins told his client of the application when the

Commonwealth's Attorney's office notified Haskins that he was
being considered for the position.   Haskins also told Turner

that if he accepted the position, other counsel would have to be

appointed to represent Turner.

     Twelve days after the trial, Haskins was offered the

position and accepted it.   Two days thereafter, Haskins notified

Turner of his acceptance of the job and of the necessity that

other counsel be appointed to represent Turner in the sentencing

and other post trial proceedings.

     Prior to sentencing, Turner's new counsel filed motions to

set aside the jury's verdict and for a new trial upon a number

of grounds.   Two of these grounds were (1) that Turner was

denied the effective assistance of counsel because of an alleged

conflict of interest on Haskins' part, and (2) that Haskins'

"significant and cumulative errors and omissions [affected

Turner's] right to a fair trial with effective assistance of

counsel."

     After hearing and considering evidence and argument, the

court denied Turner's motions to set aside the verdict.   As

pertinent here, the trial court ruled that Haskins had no

conflict of interest in his representation of Turner and that

any alleged ineffective assistance of counsel should be decided

in a later habeas corpus proceeding.   Following a consideration

of additional evidence on the issue of sentencing, the court

imposed the jury-recommended sentences.

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     The Court of Appeals denied Turner's petition for appeal.

We granted Turner an appeal limited to the foregoing issues.

     Turner premises his conflict of interest argument upon the

guaranty of the Sixth Amendment to the United States

Constitution to the effective assistance of counsel.   Strickland

v. Washington, 466 U.S. 668, 686 (1984).   Turner contends that

since Haskins was "actively seeking employment with the

prosecutor" when the case was tried, Haskins' self interest in

seeking employment conflicted with his duty of loyalty to Turner

as his client.   According to Turner, "[i]t is self-evident that

ineffective assistance of counsel may result from an attorney's

own conflict of interest."   When the alleged conflict was

brought to the attention of the court in Turner's motion for a

new trial, Turner claims that "the trial court had a duty to

make inquiry into the conflict and to determine the effect on

the defendant's right to assistance of counsel."   Turner thus

assumes that the filing of the employment application created

the conflict.

     The Commonwealth responds by noting that the court

considered the affidavits filed by Haskins, the Commonwealth's

Attorney, and personnel in the Commonwealth's Attorney's office,

as well as Haskins' testimony, all of which indicated that

Haskins had no contact with the Commonwealth's Attorney's office

about his application until after the trial.   The Commonwealth

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argues that this evidence supported the court's discretionary

ruling that the evidence was insufficient to conclude Haskins

had a conflict of interest in his defense of Turner.   We agree

with the Commonwealth.

     When called as a witness by Turner's new counsel in the

hearing on his motion for a new trial, Haskins testified (1)

that he had no conversations with the Commonwealth's Attorney

about his job application until after the trial, and (2) that he

never had any contact with the Commonwealth's Attorney or anyone

in his office about his representation of Turner after the

trial.   Supporting affidavits of the Commonwealth's Attorney and

personnel in his office indicate that there was no such contact.

     Turner does not claim that he had any additional evidence

of a conflict of interest.   Rather, he argues that Haskins

"admitted the conflict."   We find nothing in the record to

indicate that Haskins expressly admitted that there was a

conflict of interest.    Apparently, Turner concludes that

Haskins' application for employment created the asserted

conflict of interest as a matter of law.

     We have not decided a case similar to this one.    However,

the controlling principles have been articulated in a number of

cases.

     The burden of establishing an alleged conflict of interest

between an attorney and his client is upon the person who

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asserts such a conflict.    Beaver v. Thompson, 93 F.3d 1186, 1192

(4th Cir. 1996) (merely showing that court-appointed defense

attorney also served as a part-time assistant Commonwealth's

Attorney in a neighboring county is insufficient to sustain

burden of presenting convincing evidence of conflict of

interest).   There are conflicts of interest which are apparent

on their face.    Cantrell v. Commonwealth, 229 Va. 387, 393, 329

S.E.2d 22, 26 (1985) (public or private prosecutor of criminal

proceeding cannot simultaneously represent victims of a crime in

a civil action arising therefrom).    However, an attorney's

pending application for employment in opposing counsel's law

firm does not create a conflict of interest on its face between

the attorney and his client.    United States v. Horton, 845 F.2d

1414, 1419 (7th Cir. 1988) (defense attorney's pending

consideration for appointment as United States Attorney not per

se conflict of interest).

     Whether such conflict exists depends in part upon the

evidence of contacts between the prospective employer and

employee.    Garcia v. Bunnell, 33 F.3d 1193, 1199 (9th Cir.

1994), cert. denied, 514 U.S. 1024 (1995).    In Garcia, defense

counsel's plans to begin working for the district attorney's

office after the conclusion of a criminal case did not create a

conflict of interest since defense counsel did not discuss the

case with the district attorney's office and there was no other

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evidence of a conflict.    Id.   And, whether the evidence is

sufficient to establish the conflict is a discretionary decision

of the court in which the issue is raised.       See Lux v.

Commonwealth, 24 Va. App. 561, 569, 484 S.E.2d 145, 149 (1997).

In Lux, the Commonwealth's Attorney was held to be disqualified

from prosecuting a defendant's revocation of probation

proceedings because there was insufficient evidence of effective

screening of contacts between an assistant Commonwealth's

Attorney who had formerly been the defendant's counsel and other

attorneys in the Commonwealth's Attorney's office who were

working on the defendant's case.       Id. at 575-76, 484 S.E.2d at

152.

       Applying these principles, we hold that the trial court did

not abuse its discretion in concluding that Turner failed to

sustain his burden of establishing that Haskins' application for

employment created an impermissible conflict between Haskins'

duty of loyalty to his client and his desire to obtain

employment. 1   Since the court could have found from the evidence

that Haskins had done nothing more than file the application, we



1
 If Haskins had told his client of the application and, if the
client felt that it created a conflict of interest, Haskins
could have submitted the matter to the court for decision before
trial. This would have avoided the risk that the court may have
concluded that there was a conflict and ordered a new trial.



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find no merit in Turner's contention that the court erred in

failing to find that there was a conflict of interest.

     This brings us to the issue of the exclusion of Turner's

evidence of Haskins' alleged instances of ineffective assistance

of counsel at trial.   Turner sought to introduce this evidence

in support of his motion for a new trial.    Citing Walker v.

Mitchell, 224 Va. 568, 299 S.E.2d 698 (1983), the trial court

refused to hear this evidence on the ground that it was

admissible only in subsequent habeas corpus proceedings.

     Turner contends, however, that the court failed in its duty

to inquire into the conflict and to determine its effect on his

right to the effective assistance of counsel.   This contention

assumes that there was a conflict of interest, and that the

court did not inquire into that conflict.    As we have noted, the

record shows that the court considered evidence and argument on

the conflict of interest issue.   As we have already indicated,

we find no error in the court's ruling that the evidence was

insufficient to establish such a conflict.

     Accordingly, the court ruled correctly that the issues

raised by Turner's claim of the ineffective assistance of

counsel should be decided in habeas corpus proceedings.    As we

noted in Walker, "in the interests of both the Commonwealth and

the accused, the ends of justice dictate the adoption of a rule

restricting to habeas corpus proceedings the litigation of

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claims of ineffective assistance of counsel."     Id. at 570, 299

S.E.2d at 699.   Thus, we reject Turner's contention that the

court erred in excluding his evidence of the alleged ineffective

assistance of counsel.   This rejection is without prejudice to

Turner's right to raise these issues in a later habeas

proceeding if he be so advised.

     Accordingly the judgment of the trial court will be

                                                            Affirmed.

JUSTICE KOONTZ, with whom JUSTICE HASSELL joins, dissenting.

     I respectfully dissent.

     “It is axiomatic that an accused, when placed upon trial

for his life or liberty, is to have thrown around him every

safeguard known to the law, in order that he may be afforded a

fair and impartial trial.”     Brown v. Commonwealth, 138 Va. 807,

816, 122 S.E. 421, 424 (1924).    The right to a fair and

impartial trial “lies at the very basis of organized society and

confidence in our judicial system.”     Temple v. Moses, 175 Va.

320, 336, 8 S.E.2d 262, 268 (1940); see also Cantrell v. Crews,

259 Va. 47, 50-51, 523 S.E.2d 502, 503-04 (2000).

     Those trained in the law and rightfully possessing

unfaltering confidence in our judicial system to afford a fair

trial to a defendant, even under the unusual circumstances of

this case, will understand the majority’s opinion.    I have no

doubt, however, that those trained in the law would not

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knowingly choose to be tried under the same circumstances as the

defendant.   The line between a mere potential conflict of

interest and an actual conflict here is too thin and subtle;

most defendants, if not all, would seek new counsel.   Those not

trained in the law would be even more inclined to do so.

Nevertheless, I cannot join the majority opinion because, in my

view, the facts of this case clearly represent a circumstance

calculated to undermine society’s confidence in our judicial

system.

     The Commonwealth appointed Haskins as Turner’s counsel.

Fourteen days before trial, Haskins applied for employment with

the Commonwealth’s Attorney who was prosecuting Turner.    Haskins

knew that his application was under consideration by the

Commonwealth’s Attorney during Turner’s trial.   Nevertheless,

Haskins made no disclosure of these circumstances to Turner

until after the trial and before Turner was sentenced.    Thus,

Haskins denied Turner the opportunity to seek new counsel if he

had so desired.   No defendant should unknowingly be tried under

such circumstances.

     Undoubtedly, it would be incomprehensible to the public

that a defendant’s right to a fair trial was not seriously

compromised in a case, such as here, where the Commonwealth

appoints an attorney to represent the defendant and during the

trial that attorney is actively seeking employment with the

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prosecuting attorney.    Public confidence in the judicial system

rests, at least in part, on the proposition that one’s attorney

has undivided loyalty.   Even the appearance of a conflict of

interest undermines that confidence.    In short, the present

case, in my view, is a “textbook” example of what should not be

permitted regardless of how effectively the court-appointed

attorney may represent the defendant.

     Accordingly, I would hold as a matter of law that Turner

was denied his right to a fair trial and that the trial court

erred in not granting him a new trial.




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