                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2008-CT-01341-SCT

JULIUS WESLEY KIKER

v.

STATE OF MISSISSIPPI

                             ON WRIT OF CERTIORARI


DATE OF JUDGMENT:                         07/22/2008
TRIAL JUDGE:                              HON. ROBERT P. KREBS
COURT FROM WHICH APPEALED:                GEORGE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   PERCY STANFIELD
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: LAURA HOGAN TEDDER
NATURE OF THE CASE:                       CIVIL - POST-CONVICTION RELIEF
DISPOSITION:                              REVERSED AND REMANDED - 02/17/2011
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       EN BANC.

       KITCHENS, JUSTICE, FOR THE COURT:

¶1.    Julius Wesley Kiker was convicted by a jury of the March 6, 2002, murder of his wife,

Renee Kiker, and sentenced to life imprisonment. The Court of Appeals was assigned his

direct appeal and affirmed both his conviction and sentence. Kiker v. State (Kiker I), 919

So. 2d 190 (Miss. Ct. App. 2005). Two years later, a panel of this Court granted Kiker leave

to proceed in the trial court on his post-conviction claim that his Sixth Amendment rights

were violated due to his trial counsel’s representation of a witness for the State. An

evidentiary hearing was held in the George County Circuit Court, and the trial judge denied
Kiker’s petition. Kiker appealed the denial of his petition, and the Court of Appeals

affirmed. Kiker v. State (Kiker II), 2009 WL 3740685 (Miss. Ct. App. Nov. 10, 2009). This

Court granted Kiker’s petition for writ of certiorari. Finding that Kiker’s attorney had an

actual conflict of interest, and that Kiker did not waive that conflict, we reverse the Court of

Appeals’ decision and the trial judge’s denial of Kiker’s petition for post-conviction relief.

                                             Facts

¶2.    On the evening of March 6, 2002, Kiker’s mother called the George County Sheriff’s

Department to report that she could not get through to her son’s home telephone. When a

deputy sheriff arrived at Kiker’s home, he found Kiker standing over his wife’s dead body

holding the instrument of her death, a firearm.

¶3.    Kiker testified at trial, asserting that his wife’s demise had resulted from an accident.

Kiker said that they had been arguing when Renee came after him with a gun, threatening

to kill him. According to Kiker, Renee was accidentally shot as they were struggling over

the gun. It was undisputed that he and Renee had a tumultuous relationship, and evidence

was adduced that each spouse had engaged in physical abuse of the other.

¶4.    The only direct evidence to dispute Kiker’s version of events came from Bobby

Crawford, a jailhouse informant. Crawford testified that, while they were in jail together,

Kiker had told him that he could no longer withstand his wife’s mistreatment and had

intentionally shot her in the head.

¶5.    Kiker was represented at trial by two attorneys, Darryl Hurt, Sr., and Sidney Barnett.

During Hurt’s cross-examination of Crawford, Hurt asked Crawford whether he was under

a criminal indictment. The prosecutor objected, arguing that pending criminal charges were

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not admissible for impeachment purposes under the Mississippi Rules of Evidence. The

prosecutor further commented, “we were also made aware earlier of a concern of Mr.

Barnett, the situation.” After a brief reply argument from Hurt, the prosecutor withdrew his

objection, and the following exchange occurred, in the jury’s presence:

       Hurt:         Are you presently under an indictment for a crime by the Grand
                     Jury of this County?

       Crawford:     You’ll have to ask my lawyer right there, Mr. Barnett. I am
                     going to Drug Court rehab.

       Hurt:         I want you to answer my question.

       Crawford:     I’m answering it the best I can. I don’t know it if [sic] was an
                     indictment or not. I know I did four months on my sentence and
                     I’m going to a drug rehab. I’m not an educated man.

       Hurt:         But I’m asking you a question. I’m not going to argue with you,
                     sir. I’m merely asking you a question, and I would like for you
                     to answer it. Have you been indicted by the George County
                     Grand Jury for a crime?

       Crawford:     Yes, sir.

       Hurt:         And what is that crime for which you’ve been indicted?

       Crawford:     Manufacturing.

(Emphasis added.) Shortly thereafter, Hurt concluded his cross-examination of Crawford.

¶6.    Beyond Crawford’s in-court statement that Barnett was his attorney, nothing else

appears in the record on direct appeal regarding Barnett’s representation of both Kiker and

Crawford. When Kiker testified in his defense, his attorneys did not ask him about the

confession he allegedly had made to Crawford while the two were in jail. Crawford could




                                             3
not recall when he was in jail with Kiker, and, other than Crawford’s testimony, the record

does not indicate whether Crawford and Kiker were in fact incarcerated at the same time.

¶7.    The same attorneys, Barnett and Hurt, represented Kiker on direct appeal. The case

was assigned the Court of Appeals, which affirmed his conviction and sentence. Kiker I, 919

So. 2d 190. As Kiker’s attorney on direct appeal, Barnett served as Kiker’s advocate until

at least October 11, 2005, the date on which the Court of Appeals affirmed Kiker’s

conviction. Kiker I, 919 So. 2d 190. Exactly two weeks later, Barnett was in the George

County Circuit Court representing Crawford, a key witness against Kiker, on a guilty plea.

Thus, Barnett’s concurrent representation of Kiker and Crawford went on for years.

¶8.    On November 8, 2007, a panel of this Court granted, in part, Kiker’s application for

leave to proceed in the trial court on the post-conviction issue of “whether Kiker’s Sixth

Amendment rights were violated due to his trial counsel’s representation of a witness for the

State.” An evidentiary hearing was held in the George County Circuit Court before the same

judge who had presided over Kiker’s trial.

¶9.    At the post-conviction hearing, Kiker testified that Barnett had been appointed by the

court to represent him “a couple of days after it happened,” and that Kiker’s family had hired

Hurt shortly thereafter. According to Kiker, he met with both attorneys several times before

his trial and was told that Crawford would testify against him. However, Kiker was never

told that Barnett also represented Crawford, and Kiker claimed that he first learned of this

conflict when Crawford was on the witness stand. Kiker testified that had he been informed

of Barnett’s representation of Crawford, he would not have waived the conflict of interest

and would have sought replacement counsel.

                                              4
¶10.   The State presented two witnesses at the post-conviction hearing: Lee Martin, the

assistant attorney general who prosecuted Kiker’s murder case, and Kevin Bradley, the

assistant district attorney who handled the charges against Crawford. Martin testified that,

shortly after Kiker’s trial began, Barnett informed the prosecution and the trial judge that he

was representing Crawford on pending, drug-related charges. While Martin agreed that

Kiker should have been made aware of the conflict, neither he nor the trial judge had taken

any action to ensure that Kiker was timely informed of this conflict. Martin testified that he

did not know of any plea arrangement associated with Crawford’s testifying against Kiker.

¶11.   Bradley testified concerning the handling and disposition of the charges against

Crawford, asserting that the plea deal offered to Crawford was not in exchange for his

testimony against Kiker. Crawford was indicted on June 18, 2002, for possession of

methamphetamine and possession of methamphetamine precursors. On December 3, 2002,

a bench warrant for contempt was issued for Crawford, but the warrant was lifted on

February 4, 2003, roughly eleven days after Kiker was indicted for murder. Crawford

testified in Kiker’s trial on July 31, 2003, and as demonstrated by his testimony, seemed

confused about the nature and status of the charges against him and attempted to defer the

question to his lawyer, Barnett. On October 20, 2003, less than two months after Kiker’s

trial, another bench warrant was issued for Crawford, but he was not arrested until July 19,

2005. On October 25, 2005, with Barnett as his attorney, Crawford pled guilty to both counts

contained in the June 18, 2002, indictment and also pled guilty to failure to register as a sex




                                              5
offender.1 Crawford received an eight-year sentence on each of the drug charges, with three

years to serve, and five years on the failure-to-register charge, with two years to serve. The

sentences for the drug charges were ordered to run consecutively, and the sentence for his

failure to register was ordered to run concurrently with the other sentences, giving him a total

of six years to serve. Crawford was ordered to be incarcerated in a facility separate from

Kiker and from another man against whom he had provided incriminating testimony in a case

unrelated to Kiker’s.

¶12.   The trial judge entered a written order denying Kiker’s petition for post-conviction

relief, finding that “there was not an actual conflict in existence at the time the State’s

witness Bobby Crawford, testified during the murder trial of Julius Wesley Kiker.” The

judge also based his decision on findings that: Hurt was Crawford’s lead attorney; the State

did not offer a plea deal to Crawford in exchange for his testimony; Crawford was not

Kiker’s codefendant and was not involved in the murder of Renee Kiker; Crawford’s

testimony was not the “centerpole” of the State’s case; and Kiker’s attorneys were not

deficient and provided effective assistance of counsel. The Court of Appeals agreed with the

trial judge’s reasoning and affirmed the denial of Kiker’s petition. Kiker II, 2009 WL

3740685.




       1
           It is unclear when Crawford was charged with failure to register as a sex offender.
Numerous documents related to Crawford’s criminal charges were received into evidence
at the post-conviction hearing as State’s Exhibit 1. Kiker’s attorney designated this exhibit
as part of the record on appeal, but the George County Circuit Clerk’s office included only
State’s Exhibit 2, the transcript of Crawford’s plea colloquy, as part of the record on appeal.
Kiker’s attorney did not certify the record as complete pursuant to Mississippi Rule of
Appellate Procedure 10(b)(5).

                                                6
                                          Discussion

¶13.   “In all criminal prosecutions, the accused shall enjoy the right . . . to have Assistance

of Counsel for his defence.” U.S. Const. amend. VI. See also Miss. Const. art. 3, § 26 (“In

all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or

both . . . .”) “[A]dept representation encompasses two broad principles: minimum

competence and loyal assistance.” Armstrong v. State, 573 So. 2d 1329, 1331 (Miss. 1990)

(citation omitted). Moreover, constitutional guarantees of due process of law require

undivided loyalty of defense counsel. Littlejohn v. State, 593 So. 2d 20, 23 (Miss. 1992)

(citing U.S. Const. amend. V; Alvarez v. U.S., 580 F. 2d 1251, 1256 (5th Cir. 1978) (Porter

v. U.S., 298 F. 2d 461, 464 (5th Cir. 1962)). See also Miss. Const. art. 3, § 14 (“No person

shall be deprived of life, liberty, or property except by due process of law.”).

¶14.   “Under our system of jurisprudence, if a lawyer is not one hundred percent loyal to

his client, he flunks.” Littlejohn, 593 So. 2d at 22. Because “[l]oyalty is an essential

element in the lawyer’s relationship to a client,” the Mississippi Rules of Profession Conduct

prohibit a lawyer’s representing conflicting interests without knowing and informed consent

from the client(s). Miss. R. Prof’l Conduct 1.7 & cmt.2 If an impermissible conflict arises


       2
           Mississippi Rule of Professional Conduct 1.7(b) provides,

       A lawyer shall not represent a client if the representation of that client may be
       materially limited by the lawyer's responsibilities to another client or to a third
       person, or by the lawyer’s own interests unless the lawyer reasonably believes:

       (1) the representation will not be adversely affected; and

       (2) the client has given knowing and informed consent after consultation. The
       consultation shall include explanation of the implications of the representation

                                               7
after the lawyer already has undertaken representation, the lawyer should withdraw from the

case. Miss. R. Prof’l Conduct 1.7 cmt, 1.16. “Defense counsel have an ethical obligation

to avoid conflicting representations and to advise the court promptly when a conflict of

interest arises during the course of trial.” Cuyler v. Sullivan, 446 U.S. 335, 346, 100 S. Ct.

1708, 64 L. Ed. 2d 333 (1980).

¶15.   When a trial judge becomes aware that the accused is being represented by an attorney

with an actual conflict of interest,

       The trial judge is under a duty to advise the defendant of his right to separate,
       independent counsel. In order for a defendant effectively to waive his right to
       conflict-free counsel, the trial judge should affirmatively participate in the
       waiver decision by eliciting a statement in the narrative form from the
       defendant indicating that he fully understands the nature of the situation and
       has knowingly and intelligently made the decision to proceed with the
       challenged counsel.

Littlejohn, 593 So. 2d at 25 (quoting Alvarez 580 F. 2d at 1259-60) (internal citations

omitted). Likewise, the prosecution has an obligation to notify the trial court when it

becomes aware that the defense attorney has an actual conflict of interest in his

representation of the accused. Id.

¶16.   When the accused is represented by an attorney with an actual conflict of interest, the

accused has received ineffective assistance of counsel as a matter of law, and “reversal is

automatic irrespective of a showing of prejudice unless [the accused] knowingly and

intelligently waived his constitutional right to conflict free representation.” Armstrong, 573

So. 2d at 1335. Thus, the standard set out in Strickland v. Washington, 466 U.S. 668, 694,



       and the advantages and risks involved.


                                              8
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), requiring a showing of “a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different,” is inapplicable to cases when the defendant’s attorney “actively represented

conflicting interests.” Mickens v. Taylor, 535 U.S. 162, 166, 122 S. Ct. 1237, 152 L. Ed. 2d

291 (2001). As this Court has recognized,

       Once an actual conflict is demonstrated, a showing of specific prejudice is not
       necessary, for to hold otherwise would engage a reviewing court in unreliable
       and misguided speculation as to the amount of prejudice suffered by a
       particular defendant.      An accused’s constitutional right to effective
       representation of counsel is too precious to allow such imprecise calculations.

Littlejohn, 593 So. 2d at 25 (quoting Alvarez 580 F. 2d at 1259).

¶17.   On the other hand, when there existed only a potential conflict of interest at trial, a

defendant must demonstrate on appeal that “a conflict of interest actually affected the

adequacy of his representation.” Mickens, 535 U.S. at 168 (quoting Sullivan, 446 U.S. at

348-49). An example of a potential conflict of interest is when an attorney undertakes dual

representation of codefendants without any objection. Sullivan, 446 U.S. 335. Without

objection from defense counsel, “trial courts may assume either that multiple representation

[of codefendants] entails no conflict or that the lawyer and his clients knowingly accept such

risk of conflict as may exist.” Id. at 346.

¶18.   Therefore, whether Kiker must demonstrate prejudice turns on whether there was an

actual, as opposed to a potential, conflict of interest. In the present case, by representing

Kiker and a witness against him, Barnett clearly was “actively represent[ing] conflicting

interests.” Mikens, 535 U.S. at 166. Barnett owed a duty of loyalty both to Kiker and to

Crawford, a duty that was impossible to fulfill if one of his clients was offering testimony

                                              9
against the other. As Crawford’s attorney, Barnett had the duty to advise Crawford, who was

facing criminal charges of his own, of his right against self-incrimination. Barnett also had

the duty to counsel Crawford in his decision of whether to testify against Kiker. On the other

hand, as Kiker’s attorney, Barnett was charged with attacking Crawford’s credibility, which

would have included an inquiry into Crawford’s criminal background, and his current

circumstances, with which Barnett should have been intimately familiar. Barnett could not

have acted as a zealous advocate for Kiker without disclosing information about Crawford

which he gained as Crawford’s lawyer. Likewise, Barnett could not have acted as an

advocate for Crawford after seeking, on behalf of Kiker, to undermine Crawford’s credibility.

Whether it was Hurt or Barnett who actually cross-examined Crawford during Kiker’s trial

is of no consequence. Both lawyers were present, ostensibly working together on behalf of

Kiker. Presumably, they also had worked together in preparation for trial.

¶19.   Although this Court has never dealt with this specific situation, many courts have

rightly held that when a defense attorney contemporaneously represents a prosecution

witness, there is a per se, actual conflict of interest. See e.g., People v. Thomas, 545 N.E.2d

645 (Ill. 1989) (“Where defense counsel has represented a State’s witness, a per se conflict

of interests exists if the professional relationship between the attorney and the witness is

contemporaneous with counsel’s representation of defendant.”); Commonwealth v. Hodge,

434 N.E.2d 1246 (Mass. 1982) (per se denial of effective assistance of counsel when defense

counsel’s partner represented prosecution witness in unrelated civil matter); People v.

Stewart, 511 N.Y.S.2d 715 (N.Y. App. Div. 1987) (prejudice presumed where lawyer also

represented defendant’s father in unrelated civil case and father testified against son).

                                              10
Therefore, we find that Barnett was under an actual conflict of interest, and Kiker need not

demonstrate any specific prejudice to his defense.

¶20.   The Court of Appeals recognized that Barnett had a conflict of interest, but it agreed

with the trial judge that Hurt’s role as the lead attorney cured this conflict. Kiker II, 2009

WL 3740685, at *5. Specifically, the Court of Appeals held that “[d]espite Barnett’s conflict

of interest, the situation was remedied by Hurt’s representation of Kiker and his handling of

the vast majority of the trial, including the questioning of Crawford.” Id. We disagree.

Even if one were able to divine from the record that Barnett “played a negligible role in the

trial,” a judgment which we do not have sufficient information to make, Barnett’s conflict

was imputed to his cocounsel by virtue of their association in the joint undertaking of

representing Kiker. See Miss. R. Prof’l Conduct 1.10.

¶21.   The Court of Appeals also put stock in its conclusion that “[w]hen Barnett became

aware of the conflict, he brought it to the attention of the circuit court and the State.” Id. at

*4. First, we cannot discern from the record when it was that Barnett became aware of the

conflict. The State disclosed Crawford’s name as a potential witness months before trial.

Barnett should have been aware of the conflict then. However, he failed to mention his

representation of the prosecution witness until after Kiker’s trial had begun. Furthermore,

Barnett’s ethical obligation was not satisfied simply by informing the court and the

prosecution of the actual conflict. He had a duty to withdraw from the case, or, if feasible,

to tell Kiker about the conflict and to seek to obtain a knowing and informed waiver from his

client. Miss. R. Prof’l Conduct 1.7, 1.16.




                                               11
¶22.   Moreover, the trial court itself had an affirmative duty, upon being informed of the

conflict, to ascertain from Kiker himself whether he was aware of the conflict and its inherent

propensity to impact him adversely, and, if so, whether Kiker, with full awareness of the

conflict’s potential ramifications, wished to waive the conflict or obtain new counsel.

Littlejohn, 593 So. 2d at 25.

¶23.   It is undisputed that Kiker himself did not waive this actual conflict of interest. The

trial judge, the defense attorneys, and the prosecutor knew about the conflict, and all of them

failed in their respective duties. In the absence of a knowing and intelligent waiver from

Kiker, prejudice is presumed, and we must reverse the conviction and remand the case. Id.

¶24.   REVERSED AND REMANDED.

    WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, RANDOLPH,
LAMAR, CHANDLER AND PIERCE JJ., CONCUR.




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