        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT
                             July Term 2014

                     EDDIE VINCENT RUTLEDGE,
                             Appellant,

                                    v.

                         STATE OF FLORIDA,
                              Appellee.

                             No. 4D10-5022

                           [October 29, 2014]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach  County;    Stephen    A.    Rapp,     Judge;  L.T.    Case    No.
502008CF000919AXXMB.

   Jacob M. Noble of Noble Law, Palm Beach Gardens, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Richard
Valuntas, Assistant Attorney General, West Palm Beach, for appellee.

CIKLIN, J.

   The appellant, Eddie Rutledge, timely appeals his convictions and
sentences for first-degree murder and conspiracy to commit murder.
Within a reasonable period of time of becoming aware of it, Rutledge’s
court appointed attorney, Carey Haughwout, put the trial court on notice
that she suspected the State Attorney’s Office was investigating her for
witness tampering. The court erred when it denied Haughwout’s request
that it conduct an inquiry into the potential conflict and the record does
not indicate that Rutledge executed a waiver. Because Rutledge’s Sixth
Amendment right to counsel was violated, we have little choice but to
reverse and remand for a new trial.

   Rutledge argues that his right to the assistance of an attorney was
violated when Haughwout continued to represent him despite the fact
that she was being investigated by the state for witness tampering in
connection with the prosecution of Rutledge. Rutledge frames the error
in two ways. First, he claims the court erred in failing to conduct a
hearing or some type of meaningful inquiry on the potential ethical
conflict and secondly argues ineffective assistance of counsel occurred as
a result of Haughwout’s failure to withdraw.

                                    Facts

     Rutledge and Kenakil Gibson (“co-defendant”) were indicted for capital
murder with a firearm (count I), conspiracy to commit first-degree
murder (count II), and solicitation to commit first-degree murder (count
III).

   The state alleged that Rutledge and the co-defendant killed the victim,
George Mannerino, on the day before the victim was scheduled to testify
against them in an unrelated burglary trial. According to the state,
Mannerino witnessed Rutledge and the co-defendant attempt to break
into and commit a burglary in the Palm Beach Gardens home of
Mannerino’s neighbor. Because of Mannerino’s decision to become
involved and report the criminal act, Rutledge and the co-defendant were
investigated by law enforcement officials, which ultimately led to both
being charged with burglary. The day before Mannerino was set to testify
in the burglary trial, he was shot dead in front of his house by someone
traveling in a car.

   The state additionally alleged that shortly after the murder of Mr.
Mannerino, Rutledge made an unexpected visit to his longtime
acquaintance, Dr. Paul Inkeles, and attempted to persuade Inkeles to
provide a false alibi for him. Rutledge allegedly gave Inkeles several
hundred dollars’ worth of heroin, which Inkeles believed was offered to
induce his false testimony. When law enforcement officials initially
interviewed Inkeles, he said Rutledge was with him at the time of the
victim’s murder although he later recanted that version of events. At the
point in time leading to Rutledge’s trial, Inkeles had a pending case in
Broward County for DUI manslaughter and vehicular homicide.

    During the pre-trial period, the state subpoenaed attorney Steven
Swickle, who represented Inkeles in the Broward County DUI
prosecution. Swickle moved to quash the subpoena and his motion was
taken up in an August 24, 2010 pretrial hearing related to Rutledge’s
case.    During the hearing on the motion to quash, the Rutledge
prosecutor, Andrew Slater, explained to the court that he wanted to ask
Swickle “about conversations that he had with somebody besides his
client.” Slater stated that the subpoena was an “investigative” subpoena
related to “potential criminal charges separate and apart from those
facing [Rutledge].” It was at this juncture that Haughwout announced it
was her understanding from Slater’s statements that “apparently they’re
investigating me and whether I intimidated a witness . . . , so if we’re
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going down these roads, you know, I’d say tread carefully . . . .” The trial
court denied Swickle’s motion to quash the subpoena.

    Two days later on August 26, Haughwout then filed her own motion to
quash the state’s subpoena of attorney Swickle, which alleged the
following. Inkeles was represented by Swickle on the unrelated Broward
DUI charge. Haughwout spoke to Inkeles with Swickle’s permission and,
after Haughwout’s conversation with Inkeles, the state subpoenaed
attorney Swickle without notice to Haughwout.        Based on Slater’s
statements at the August 24th hearing on Swickle’s motion to quash,
Haughwout believed the state sought to discover the contents of her
conversation with Inkeles, which she argued in her motion to quash, was
protected by work product.        The trial court summarily denied
Haughwout’s motion to quash, without comment.

   On August 31, 2010, Haughwout further moved to disqualify the
State Attorney’s Office or alternatively exclude Inkeles as a state witness
in the prosecution of Rutledge.         Haughwout also filed a motion
captioned, “Motion to Disclose Alleged Criminal Investigation” in which
Haughwout put the court on notice that a conflict of interest between
Haughwout and her client, Rutledge, might have been created based on
the state’s apparent investigation into Haughwout’s contact with Dr.
Inkeles. In her motion, Haughwout explained that she had obtained a
transcript of an apparent investigative statement Inkeles gave in
response to an “inquir[y] into [Haughwout’s] efforts on behalf of
[Rutledge].” Haughwout expressed uncertainty as to whether the state
was in fact investigating her, and she stated that “[Rutledge] believe[d]
this investigation [was] a ruse, conducted in order to interfere in his right
to counsel,” but “he [was] entitled to know whether in fact there is or was
such an investigation and the details of said investigation.”

   The state filed a response to the motions filed by Haughwout.
According to the state, Haughwout told attorney Swickle that she would
cross-examine Inkeles about his pending DUI manslaughter if Inkeles
took the stand in the state’s prosecution against Rutledge. Swickle then,
according to the state, told Slater his client would therefore exercise his
right not to testify. According to Slater, the state had become aware of
“serious and credible allegations that [Haughwout] engaged in
misconduct by threat or intimidation toward state witness . . . Inkeles,”
and it had a “good faith basis for investigating these allegations, [which
were] directly brought to [the state’s] attention by attorney Swickle,
strongly suggesting potential misconduct by defense counsel with a
material State witness in a capital case.”


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   As to the defense motion to disqualify the State Attorney’s Office in its
prosecution of Rutledge, the state argued that disqualification was not
necessary, as it had withdrawn its subpoena and suspended its
investigation of Haughwout. The state conceded, however, that if the
investigation was reinstated at some point, another Florida state
attorney’s office should assume control of the matter, because of the
“institutional and ongoing relationship between the [15th Judicial
Circuit’s] Public Defender’s Office and the State Attorney’s Office.”

   On the morning of jury selection at Rutledge’s September 1st trial,
Haughwout reminded the court about the pending motions to disqualify
the state and to require the state to disclose whether it was conducting a
criminal investigation against Haughwout:

      MS. HAUGHWOUT: Okay. And, Judge, I just -- there are
                     some other matters. We have filed a
                     motion     to    disqualify   the   State
                     attorney’s office and requested an
                     evidentiary hearing based on that. We
                     have also filed a motion to disclose
                     the details of the State’s allegation of
                     criminal activity and essentially that is
                     Mr. Rutledge’s right to know if the
                     Court remembers last week that the
                     State was in here on a subpoena
                     saying they were conducting an
                     independent criminal investigation of
                     somebody else and essentially what
                     we’ve learned -- and I’m not going to
                     argue the motion, the details at this
                     point -- is that that investigation
                     involves me, and it is our position
                     that Mr. Rutledge is entitled to the
                     details   of    that   investigation   to
                     determine whether there is a conflict
                     in our representation of him given -- it
                     is the same prosecuting authority
                     that is prosecuting him as is engaged
                     in a supposed criminal investigation of
                     his lawyer, so.

      THE COURT:            Does this have to do with Dr. Inkeles?

      MS. HAUGHWOUT: Yes

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THE COURT:         Well, your motions are denied on that
                   without any evidentiary hearing. We
                   don’t need an evidentiary hearing, I’ve
                   read the motion so they’re denied.
                   What’s next?

                            ***

MS. HAUGHWOUT: And this morning we filed a motion to
               disclose the details of this alleged
               investigation, and the law is pretty
               clear that it can constitute a conflict of
               interest for a person accused of a crime
               to have a lawyer who is under
               investigation.

THE COURT:         I don’t think anybody has accused you
                   of a crime.

MS. HAUGHWOUT: In fact, that is exactly what has
               occurred, and that is what was alleged
               by the State last week in the motion,
               and we have the transcript of that
               where we allege they were investigating
               a separate criminal investigation, and
               that as I learned and then as we saw
               from the interview with [Dr.] Inkeles, it
               clearly relates to me and my
               questioning of Dr. Inkeles. The State’s
               response that they filed this morning
               makes that abundantly clear that that
               is the investigation.

THE COURT:         Look, look, look, it is commonplace for
                   lawyers to ask witnesses, did you talk
                   with the other attorney, the State
                   attorney? Yes. What did you say to
                   him? What did he say to you; that’s
                   usually the Defense during that
                   questioning.    Nobody says there’s a
                   conflict of interest that somebody
                   violated the law, and that sort of
                   happened here in reverse when this
                   witness sort of changed    his   mind,
                   decided he wasn’t going to talk,
                           5
                            through the advice of his lawyer, so
                            that we’re making a problem out of a
                            little mole hill.

   The trial proceeded unabatedly and the jury eventually returned guilty
verdicts on the charges of first-degree murder and conspiracy to commit
murder and not guilty of solicitation to commit first-degree murder.

   Rutledge appeals, arguing a violation of his Sixth Amendment Right to
Counsel. He asserts that upon Haughwout’s notification and request for
hearing, the trial court was required to permit an inquiry to determine
whether a conflict of interest existed. We agree.

                                 Analysis

                            Guiding Principles

    In Lee v. State, 690 So. 2d 664 (Fla. 1st DCA 1997), the First District
set forth the guiding principles governing pretrial disclosures of potential
conflicts of interest:

         Implicit in the Sixth Amendment right to counsel is the
      right to the effective assistance of counsel. Strickland v.
      Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063-64,
      80 L. Ed. 2d 674 (1984). An actual conflict of interest can
      impair the performance of a lawyer and ultimately result in a
      finding that the defendant did not receive the effective
      assistance of counsel. Cuyler v. Sullivan, 446 U.S. 335, 345,
      100 S. Ct. 1708, 1717, 64 L. Ed. 2d 333 (1980); see also
      Holloway v. Arkansas, 435 U.S. 475, 481, 98 S. Ct. 1173,
      1177, 55 L. Ed. 2d 426, 434 (1978). When defense counsel
      makes a pretrial disclosure of a possible conflict of interest
      with the defendant, the trial court must either conduct an
      inquiry to determine whether the asserted conflict of interest
      will impair the defendant’s right to the effective assistance of
      counsel or appoint separate counsel.

Id. at 667.

                 Waiver by Defendant of Potential Conflict

  A defendant’s fundamental right to conflict-free counsel can be
waived:


                                     6
         A defendant may waive this right by choosing to proceed
      to trial with an attorney who has an adverse conflict of
      interest. United States v. Garcia, 517 F.2d 272, 276 (5th Cir.
      1975). “Thus, even though the right to competent counsel is
      ‘fundamental,’ [footnote omitted], it may nonetheless be
      waived.” Id. A determination that defendants have waived
      the right to conflict-free counsel disposes of the need to
      evaluate the actual or potential ineffectiveness of counsel
      caused by the alleged conflicts of interest. Id. at 277. “The
      determination of whether there has been an intelligent
      waiver of right to counsel must depend, in each case, upon
      the particular facts and circumstances surrounding the
      case, including the background, experience, and conduct of
      the accused.” Id. at 277 n. 5, quoting Johnson v. Zerbst, 304
      U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461, 1466
      (1938).

          A defendant's waiver must be established by ‘“clear,
      unequivocal, and unambiguous language.’” Id. at 278. The
      record should show, in some way, that the defendant was
      aware of the conflict of interest; realized the conflict could
      affect the defense; and knew of the right to obtain other
      counsel. See United States v. Petz, 764 F.2d 1390, 1393–94
      (11th Cir. 1985); Garcia, 517 F.2d at 278 (describing
      procedure to obtain waiver). Although the court should try
      to elicit narrative replies, “[m]ere assent in response to a
      series of questions from the bench” may in some cases
      constitute adequate waiver. Id.

U.S. v. Rodriguez, 982 F.2d 474, 477 (11th Cir. 1993).

   The record before us clearly indicates that there was no waiver by
Rutledge in any manner. He was not questioned by anyone in the
courtroom nor given any opportunity to consider his options. Other than
the same rumor his attorney, Ms. Haughwout, apparently heard, the cold
record establishes that Rutledge was not provided with the pertinent
information to which he was fundamentally entitled. It is axiomatic that
Rutledge could not make an informed decision on the issue of waiver
without first receiving relevant details and being otherwise informed.

                             Harmless Error

  The state urges us to apply a harmless error analysis; something
which we simply are unable to do. If an allegation of potential conflict is
made, a hearing or some type of questioning or discussion is mandatory.
                                    7
If the trial court fails to make the inquiry or other equivalent probe, an
appellate court’s harmless error analysis would be virtually impossible to
perform because “‘any action the lawyer refrained from taking because of
the conflict would not be apparent from the record.’” Hannah v. State, 42
So. 3d 951, 955 (Fla. 4th DCA 2010) (quoting Thomas v. State, 785 So.
2d 626, 629 (Fla. 2d DCA 2001)). See also Lee, 690 So. 2d at 669
(recognizing that where there is an alleged conflict of interest between a
lawyer and client, trial court’s inadequate inquiry cannot be treated as
harmless error). With respect to certain types of ethical conflicts, the
United States Supreme Court has opined that “reversal is automatic”:

      [T]he assistance of counsel is among those “constitutional
      rights so basic to a fair trial that their infraction can never
      be treated as harmless error.” Chapman v. California, [386
      U.S. 18, 23 (1967)]. Accordingly, when a defendant is
      deprived of the presence and assistance of his attorney,
      either throughout the prosecution or during a critical stage
      in, at least, the prosecution of a capital offense, reversal is
      automatic. Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct.
      792, 9 L. Ed.2d 799 (1963); Hamilton v. Alabama, 368 U.S.
      52, 82 S. Ct. 157, 7 L. Ed.2d 114 (1961); White v. Maryland,
      373 U.S. 59, 83 S. Ct. 1050, 10 L. Ed.2d 193 (1963).

Holloway, 435 U.S. at 489.

                Possible Manifestations of Ethical Conflicts

    It is certainly not our intent to overstate the potential consequences of
a failure to act in situations such as the one before us. Nonetheless,
there is a fairly significant number of viable scenarios which underscore
the urgency of the matter and cry out the need for trial courts to take
substantive action when this type of potential conflict is brought to the
trial court’s attention. In United States v. McLain, 823 F.2d 1457 (11th
Cir. 1987), overruled on other grounds as recognized in U.S. v. Watson,
866 F.2d 381, 385 n.3 (11th Cir. 1989), the Eleventh Circuit, in a
somewhat similar fact pattern, mused about the competency of a defense
lawyer’s representation of his or her client when faced with their own
criminal prosecution:

      Although [defense lawyer] Johnson testified that he was not
      worried about the investigation, his client, having hired
      Johnson for his sterling reputation would have reacted
      differently. Furthermore, the increased intensity of the
      government's investigation of Johnson’s records should have
      convinced him of the seriousness of his situation and the
                                     8
      conflict between his desires to aide his client and save
      himself.

Id. at 1464. Even though McLain found a presumptive actual conflict and
while it can be fairly argued that the ramifications of similar hypothetical
scenarios are remote, trial courts must intercede. Appellate tribunals
must necessarily rely on the trial court to flesh out the details of
potential ethical conflicts between counsel and their clients and thus an
inquiry is mandatory. The sanctity of the Sixth Amendment depends
upon it.

   Haughwout put the trial court on notice that it appeared she was
being investigated by the state for attempting to intimidate or otherwise
tamper with a state witness in the state’s prosecution of Rutledge.
Clearly, this was sufficient to trigger an immediate alarm on the part of
everyone in the courtroom and the certain need for a meaningful on-the-
record discussion. Unfortunately, the court essentially disregarded the
matter, finding, without any substantive inquiry, that Haughwout was
making a “problem out of a little mole hill.”

   The McLain court partially relied upon and therefore quoted a most
basic tenet of the Model Code: “[A] lawyer should not accept proffered
employment if his personal interests or desires will, or there is a
reasonable possibility that they will, affect adversely the advice to be
given or services to be rendered the prospective client.” Id. at 1463
(emphasis in original) (quoting MODEL CODE of PROF’L RESPONSIBILITY EC
5-2 (1987)).

   The professional responsibilities of attorneys licensed by the Florida
Bar are similarly stringent under the Rules Regulating the Florida Bar.
While the rules do not directly address the situation at issue here, the
comment to Rule 4-1.7, which governs conflicts of interest involving
current clients, provides pertinent language which bears repeating:

         Loyalty and independent judgment are essential elements
      in the lawyer’s relationship to a client. Conflicts of interest
      can arise from the lawyer’s responsibilities to another client,
      a former client or a third person, or from the lawyer’s own
      interests.

   R. Regulating Fla. Bar 4-1.7 (2014).

   Before us on appeal, the state urges that there was no evidence of an
actual conflict, suggesting that because it had “suspended” the criminal
investigation of Haughwout, any potential ethical conflict between
                                     9
Haughwout and her client was thereby summarily extinguished.
Apparently envisioning the possibility of renewing the Haughwout
investigation, however, the state suggested that if the investigation was
recommenced, the matter would necessarily be transferred to a different
prosecutor’s office within the state.

                                Conclusion

    Whether the investigation was suspended or not and whether a
renewal of such an investigation was possible or not and whether an
actual conflict existed or not, the proceedings below should have taken a
detour.      Once Haughwout’s ethical responsibilities as to her
representation of Rutledge were called into question, the trial court was
required to take affirmative action to ferret out the facts underlying the
potential conflict. And, of course, it matters not if the state attorney or
even the defense attorney herself believed no (perceived or actual) conflict
of interest existed. See Forsett v. State, 790 So. 2d 474, 474-75 (Fla. 2d
DCA 2001) (granting new trial where defense counsel informed court he
had represented a state witness but opined he did not believe it created a
conflict of interest, and trial court did not conduct inquiry or obtain a
waiver from defendant).

    At the risk of being redundant, we once again emphatically state that
when a pretrial disclosure of a possible conflict of interest is raised, “the
trial court must either conduct an inquiry to determine whether the
asserted conflict of interest will impair the defendant’s [Sixth Amendment
right] or appoint separate counsel.” Lee, 690 So. 2d at 667 (citing
Holloway, 435 U.S. at 484).

   The remainder of claims raised by Rutledge are without merit and we
thus decline further comment.

   Reversed and remanded for a new trial.

STEVENSON and FORST, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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