In the Supreme Court of Georgia



                                           Decided: July 11, 2014


              S14A0220. McLAUGHLIN, Warden v. PAYNE.


      HINES, Presiding Justice.

      Warden Gregory McLaughlin appeals the grant of a writ of habeas corpus

to William C. Payne. For the reasons that follow, we affirm.

      In 2006, Payne was convicted on two counts of aggravated child

molestation, three counts of child molestation, and one count of cruelty to

children. At Payne’s trial, then District Attorney for the Douglas Judicial

Circuit, David McDade, appeared as a witness for the State. He identified

himself to the jury as the district attorney, identified the examining prosecuting

attorney as his assistant, and outlined his duties as district attorney. He also

testified that: his daughter was a classmate of the victim named in the

indictment; his daughter told him what she had heard of the crimes; he

participated in an interview of Payne early in the investigation; during the first

few days of the investigation, law enforcement efforts were focused on finding
Payne; and, that after his interview with Payne, he realized he would likely be

a witness at trial, and removed himself from Payne’s prosecution. On appeal,

Payne contended that he was not present at all critical stages of the trial, venue

was not proven, evidence of a prior similar transaction was wrongly admitted,

and trial counsel was ineffective in failing to object to certain evidence. His

convictions were affirmed. See Payne v. State, 290 Ga. App. 589 (660 SE2d

405) (2008). See also Payne v. State, 285 Ga. 137 (674 SE2d 298) (2009),

overruled by Reed v. State, 291 Ga. 10 (727 SE2d 112) (2012).

      In 2009, Payne filed a petition for a writ of habeas corpus, raising, inter

alia, a claim of ineffective assistance of appellate counsel. After multiple

hearings, the habeas court found that McDade had a conflict of interest, had

testified falsely at trial, and that appellate counsel should have pursued these two

issues on appeal. The habeas court also found that had the issues been raised on

appeal, the result of Payne’s direct appeal would have been different;

consequently, that court granted the writ of habeas corpus.

      The warden contends that the habeas court erred in finding that the

representation by Payne’s appellate counsel was ineffective.

      The standard for establishing the ineffective assistance of either trial

                                         2
      counsel or appellate counsel is set forth by The United States
      Supreme Court in Strickland v. Washington, 466 U.S. 668 (104 SC
      2052, 80 LE2d 674) (1984); the standard consists of a two-prong
      analysis in which it must first be shown that counsel's performance
      was deficient, and second that the deficiency prejudiced the defense.
      Battles v. Chapman, 269 Ga. 702 (1) (506 SE2d 838) (1998). In
      order to satisfy the first prong of the test, [Payne] has to overcome
      the strong presumption that his attorneys’ performances fell within
      a wide range of reasonable professional conduct, and that the
      attorneys’ decisions were made in the exercise of reasonable
      professional judgment; the reasonableness of the conduct is
      assessed from the perspective of counsel at the time of trial or
      appeal and under the specific circumstances of the case. Hendricks
      v. State, 290 Ga. 238 (719 SE2d 466) (2011). As to the second
      prong of the test, it must be shown that there is a reasonable
      probability that, absent the cited professional deficiencies by
      counsel, the result would have been different. Id. The failure to
      satisfy either prong of the Strickland test will defeat an ineffective
      assistance of counsel claim. Simpson v. State, 289 Ga. 685, 688 (5)
      (715 SE2d 142) (2011). Furthermore, this Court is to affirm a
      habeas court’s determination of a claim of ineffective assistance of
      counsel unless it is concluded that the habeas court's factual
      findings are clearly erroneous or legally insufficient to support such
      determination. Walker v. Hagins, 290 Ga. 512 (722 SE2d 725)
      (2012).

Barker v. Barrow, 290 Ga. 711, 712 (723 SE2d 905) (2012).

      Prior to trial, Payne filed a “Motion to Disqualify Douglas County District

Attorney’s Office” from acting in the case, citing the designation of McDade as

a witness against him at trial, and urging that this required the disqualification

of the entire Douglas Judicial Circuit District Attorney’s Office, citing inter alia,

                                         3
Rule 3.7 (a) of the Rules of Professional Conduct of the State Bar of Georgia.

That Rule states:

       A lawyer shall not act as advocate at a trial in which the lawyer is
       likely to be a necessary witness except where:
             (1) the testimony relates to an uncontested issue;
             (2) the testimony relates to the nature and value of legal
             services rendered in the case; or
             (3) disqualification of the lawyer would work
             substantial hardship on the client.

And, the principle that a lawyer is to avoid testifying in a case in which he is

acting as an advocate at trial is a longstanding one, which was codified in former

Directory Rule 5-102 of the Rules and Regulations of the State Bar of Georgia,1

which read:

       When a lawyer is a witness for his client, except as to merely formal
       matters, such as the attestation or custody of an instrument and the
       like, he should leave the trial of the case to other counsel. Except
       when essential to the ends of justice, a lawyer should avoid
       testifying in court on behalf of his client.

It has been recognized that, if an attorney will appear at trial as a “necessary

witness” under Rule 3.7 (a), disqualification of that attorney as trial counsel is

appropriate. See Clough v. Richelo, 274 Ga. App. 129, 132-133 (1) (616 SE2d


       1
         The Rules of Professional Conduct replaced the Directory Rules in 2001. See In Re
Formal Advisory Opinion 05-11, 284 Ga. 283 (fn. 1) (667 SE2d 93) (2008); American Comp.
Tech., Inc. v. Hardwick, 274 Ga. App. 62, 68 (fn. 1) (616 SE2d 838) (2005).

                                              4
888) (2005).        This Court has observed that there is “conflict inherent in

counsel’s dual role as advocate and witness,” Wright v. State, 267 Ga. 496, 497

(2) (b) (480 SE2d 13) (1997), and for an attorney to act as both witness and

advocate is a circumstance to be avoided. Id. Rather, “[t]he practice of trial

attorneys testifying is not approved by the courts except where made necessary

by the circumstances of the case. [Cit.]” Timberlake v. State, 246 Ga. 488, 500

(7) (271 SE2d 792) (1980).2

       While these considerations would preclude McDade’s acting as an

advocate for the State before the jury, they do not address the issue of whether

his disqualification as trial counsel as a consequence of his role as a witness

should have been imputed to his entire staff. When an attorney is precluded

from “act[ing] as advocate at a trial” under Rule 3.7 (a) because he is a

necessary witness, his status is not automatically imputed to other attorneys in

his office, although the circumstances may leave the other attorneys with their

own disqualifications. “A lawyer may act as an advocate in a trial in which

another lawyer in the lawyer’s firm is likely to be called as a witness unless


       2
          For instance, in Timberlake, this Court did not find any error in allowing the prosecutor
to testify “in rebuttal only for impeachment purposes as to what a defense witness had said to the
prosecutor.” Id. at 501. See also Lance v. State, 275 Ga. 11, 26 (36) (560 SE2d 663) (2002).

                                                 5
precluded from doing so by Rule 1.7 or Rule 1.9.” Ga. R. Prof. Conduct 3.7 (b).

And, precedent of this Court did not require that McDade’s role as a witness

disqualify all those on his staff. In its order denying Payne’s motion to

disqualify the entire Douglas Judicial Circuit District Attorney’s office based

upon McDade’s disqualification as trial counsel, the trial court relied on Brown

v. State, 261 Ga. 66, 72 (9) (401 SE2d 492) (1991). As to the issue of the

district attorney serving as a witness , Brown stated:

       The trial court did not err by denying Brown’s motion to recuse the
       entire office of the district attorney simply because the district
       attorney himself, who was a witness in the case, was disqualified.
       Holiday v. State, 258 Ga. 393 (9) (369 SE2d 241) (1988); Frazier
       v. State, 257 Ga. 690 (9) (362 SE2d 351) (1987).

Brown, supra (Emphasis supplied.)3 When considering a claim of ineffective

assistance of counsel, the reasonableness of counsel’s performance is judged

from counsel’s perspective at the time. Harris v. Upton, 292 Ga. 491, 493 (2)

(739 SE2d 300) (2013). Failure to argue an issue contrary to prevailing law

would be ineffective assistance of counsel “only in a rare case.” Rickman v.

       3
          We note that a number of appellate decisions have recognized that when one assistant
district attorney in an office is disqualified from acting, certain procedures may be employed to
screen that assistant from the prosecution and it is not necessary that the entire district attorney’s
office be disqualified from prosecuting the case. See, e.g., Ferguson v. State, 294 Ga. 484, 485
(2) (754 SE2d 76) (2014); Sealey v. State, 277 Ga. 617, 619 (4) (593 SE2d 335) (2004); Billings
v. State, 212 Ga. App. 125, 128-129 (4) (441 SE2d 262) (1994).

                                                  6
State, 277 Ga. 277, 280 (2) (587 SE2d 596) (2003) (Punctuation omitted.) See

also Redwine v. State, 280 Ga. 58, 62-63 (3) (c) (623 SE2d 485) (2005).

Appellate counsel’s failure to raise on appeal any issue regarding McDade’s

preclusion from serving as a trial advocate under Rule 3.7 (a) of the Rules of

Professional Conduct being imputed to the remainder of his office could not

serve as a basis for a finding of ineffective assistance of appellate counsel.

      Nonetheless, the habeas court found that McDade had a personal interest

in the case that disqualified him from participating in the prosecution of the case

at all, not just from serving as trial counsel. And, this finding does raise an issue

implicating not only McDade’s role in the prosecution, but that of his entire

office. The elected district attorney is not merely any prosecuting attorney. He

is a constitutional officer, and there is only one such officer in each judicial

circuit. Ga. Const. of 1983, Art. VI, Sec. VIII, Para. I (a). Under our State

Constitution, “[i]t shall be the duty of the district attorney to represent the state

in all criminal cases in the superior court of such district attorney’s circuit . . .

.” Id. at Para. I (d). The elected district attorney appoints the assistant district

attorneys, OCGA § 15-18-14, the assistant district attorneys serve only at his

pleasure, and their authority is derived from him. OCGA § 15-18-19 (b). In a

                                          7
Georgia criminal prosecution,

      the whole proceeding, from the time the case is laid before the
      [district attorney] until the rendition of the verdict, is under the
      direction, supervision, and control of that officer, subject to such
      restriction as the law imposes. Counsel employed to assist in the
      prosecution of criminal cases can perform no duties as such except
      those agreeable to and under the direction of the [district attorney.]

Jackson v. State, 156 Ga. 842, 850 (3) (120 SE 535) (1923). This Court has

recognized that “a Georgia district attorney is of counsel in all criminal cases or

matters pending in his circuit. This includes the investigatory stages of matters

preparatory to the seeking of an indictment as well as the pendency of the case.

[Cit.]” King v. State, 246 Ga. 386, 389 (7) (271 SE2d 630) (1980).

And, for a prosecutor to have a conflict in such a case is contrary to public

policy, and can warrant a new trial. See Lane v. State, 238 Ga. 407, 408-410

(4) (233 SE2d 375) (1977). See also Clifton v. State, 187 Ga. 502, 504 (1) (2

SE2d 102) (1939).

      When the elected district attorney is wholly disqualified from a case, the

assistant district attorneys — whose only power to prosecute a case is derived

from the constitutional authority of the district attorney who appointed them —

have no authority to proceed. While the statutory law permits the chief assistant


                                         8
district attorney to temporarily accept the powers and duties of the elected

district attorney in the event that the elected district attorney is physically

disabled, mentally disabled, or temporarily absent from the circuit, see OCGA

§ 15-18-15 (b) (1) - (3), in the event that the elected district attorney is wholly

disqualified, the statutes contemplate something else. Under OCGA § 15-18-5

(a):

       When a district attorney’s office is disqualified from interest or
       relationship to engage in a prosecution, the district attorney shall
       notify the Attorney General of the disqualification. Upon receipt of
       such notification, the Attorney General shall:
              (1) Request the services of and thereafter appoint a district
              attorney, a solicitor-general, or a retired prosecuting attorney
              . . .;
              (2) Designate an attorney from the Department of Law; or
              (3) Appoint a competent attorney to act as district
              attorney pro tempore in place of the district attorney.

And, it is uncontroverted that no appointment or designation under OCGA § 15-

18-5 (a) was made in this case.

       The habeas court’s finding that McDade had a personal interest in the

prosecution was supported in the record. As the habeas court noted, McDade

testified before the jury that his conversation with his daughter was “very

troubling,” and that his daughter’s conversation with the victim was emotional.


                                         9
McDade described his relationship with his daughter as very close, and her as

an emotional person; he testified that his daughter’s concern caused him to pay

particular attention to the situation, and that he was “concerned that she’s

concerned.” The habeas court also noted that, at trial, McDade had bolstered the

credibility of another witness. Further, the habeas court noted that McDade had

testified at the hearing on the motion to disqualify the district attorney’s office

that he had ceased to act in the prosecution shortly after the November 14, 2000

interview with Payne, but found that, nonetheless, the screening procedures

supposedly erected to isolate McDade from the prosecution were not

maintained, specifically citing testimony that, sometime in 2005 or 2006,

McDade was involved in a witness interview with the victim. Accordingly, the

habeas court did not clearly err in finding that McDade had a disqualifying

conflict of interest in Payne’s prosecution in that he had “acquired a personal

interest or stake in the defendant's conviction.” Williams v. State, 258 Ga. 305,

314 (2) (B) (369 SE2d 232) (1988).

      As noted, the assistant district attorney who acted at trial did so under the

authority vested in McDade as the elected district attorney.           McDade’s

disqualifying personal conflict of interest removed that authority, and he was not

                                        10
replaced as provided for by statute. As far as the opinion in Brown, supra,

shows, that case involved an elected district attorney unable to serve as an

advocate at trial because he was appearing as a witness; it did not involve an

elected district attorney who was absolutely disqualified from any involvement

in the prosecution because he had a personal conflict of interest. Thus, Brown

would not have foreclosed an appeal based on the conflict of interest found by

the habeas court. Accordingly, it was not error for the habeas court to conclude

that, had this issue been raised on appeal, the result of his appeal would have

been different. Barker, supra.4

       Judgment affirmed.           All the Justices concur, except Nahmias and

Blackwell, JJ., who concur in the judgment only, and Melton, J., who dissents.




       4
          As we affirm the habeas court on this ground, it is unnecessary to examine the habeas
court’s finding that a portion of McDade’s testimony at trial was objectively false, or its
conclusion that if the issue had been pursued on appeal, the result of Payne’s appeal would have
been different.

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