               IN THE SUPREME COURT OF IOWA
                             No. 112 / 05-0692

                             Filed June 8, 2007

STATE OF IOWA,

      Appellee,

vs.

JOEL BRADFORD SMITHERMAN,

      Appellant.

________________________________________________________________________
      Appeal from the Iowa District Court for Hardin County, Jon Scoles,

Judge.



      Appeal   from   jury   verdict   for   murder   in   the   first   degree.

AFFIRMED.



      Mark C. Smith, State Appellate Defender, and James G. Tomka,

Assistant State Appellate Defender, for appellant.


      Thomas J. Miller, Attorney General, Martha E. Boesen, Scott

Brown, and Douglas Hammerand, Assistant Attorneys General, and

Richard N. Dunn, County Attorney, for appellee.
                                     2

CADY, Justice.

      In this case we must determine if the defendant’s constitutional

rights to conflict-free counsel were violated.       In addition, we must

determine whether there was sufficient evidence to convict the defendant

of first-degree murder.   Finding no constitutional violation or problem

pertaining to the sufficiency of the evidence, we affirm the defendant’s

conviction.

      I. Background Facts and Proceedings.
      In 1990 law enforcement officers found Richard Tasler’s skeletal

remains buried on Joel Smitherman’s property. As a result, and after a

long investigation, the State finally charged Smitherman with Tasler’s

murder on May 13, 2004. The court appointed the Marshalltown Public

Defender’s Office (MPDO) to represent Smitherman on May 13, 2004. On

May 17 MPDO attorneys Melissa Anderson and Ray Reel filed their

appearances on behalf of Smitherman.

      On May 18, 2004, a prison inmate—Jason Williamson—came

forward with information related to the prosecution of Smitherman.

Williamson was in jail on felony and serious misdemeanor charges. Reel

represented Williamson on his serious misdemeanor charges, and a

private   attorney   represented   Williamson   on    his   felony   charges.

Williamson was interviewed by law enforcement officials on May 19,

2004. The next day the State informed the MPDO that Williamson would

likely be added to the trial information as a witness for the prosecution.

      On May 21, 2004, Anderson and Reel discussed the addition of

Williamson as a witness. Anderson told Reel she did not want to know

anything about the potential witness or the pending cases against him.

Anderson even indicated she was not sure of Williamson’s name. As a
                                            3

result of their conversation, Reel immediately made the decision to

withdraw from representing Williamson and was relieved of that duty by

May 25. 1

        Reel additionally withdrew from representing Smitherman on May

27. 2   At this time, Reel was replaced by Shannon Leighty, who also

worked for the MPDO. Thereafter, Leighty represented Smitherman as

“second chair” to Anderson. 3           At all times in the present proceeding

Anderson remained as primary counsel to Smitherman.                         The MPDO

represented Smitherman continually from the day he was charged—May

13, 2004—until the day he was sentenced—April 8, 2005. Specifically,

Reel represented Smitherman from May 17 to May 27, and Reel

represented Williamson until May 25.                   Thus, Reel simultaneously

represented Williamson and Smitherman from May 17 to May 25,

although he was not informed that Williamson would be a potential

witness against Smitherman until May 20, and by May 21 he had made

the decision to withdraw from Reel’s case.                   The MPDO, of course,

simultaneously represented Smitherman and Williamson from May 13

         1The record does not exactly disclose when Reel withdrew from representing

Williamson, although a search performed on Iowa Courts Online indicates the court
relieved the MPDO of further responsibility in Williamson’s case on May 25. Anderson
testified that “[u]pon hearing that [Williamson would be a potential witness], I informed
Ray [Reel] that he needed to withdraw immediately from that case. I don’t know for
certainty if that was filed on the 21st of May or if it was the early part of the following
week.” Anderson also testified that “[Reel] withdrew from Williamson within 24 hours
[of hearing that Williamson might be a potential witness].” Thus, it appears from these
statements that Reel made the decision to withdraw on May 21, but did not file his
withdrawal or receive permission to withdraw until May 25.

        2The “Amended and Substituted Appearance” was mailed on May 25, 2004, but
was not filed with the Hardin County district court clerk until May 27, 2004.

        3Leighty was eventually replaced by Rebecca Hanson, also an attorney for the
MPDO. This replacement took place on February 11, 2005, and was the result of
Leighty transferring offices.
                                      4

(when the court appointed the MPDO to represent Smitherman) until

May 25 (when the court in Williamson’s matter relieved the MPDO of

further responsibility in Williamson’s case).

      Because of our decision in State v. Watson, 620 N.W.2d 233 (Iowa

2000), and the circumstances facing the parties, the State made an

application for a “Watson hearing” on June 11, 2004. In its application

the State set forth the facts above, acknowledged that Reel had been

replaced by Leighty, and stated “[t]he State has also been assured that

Ray Reel will be separated from the current case so that no actual

conflict arises.” The district court held a hearing on the matter on June

28, 2004. At the hearing the state prosecutor, Scott Brown, testified for

the State and said:

              Judge, we filed this application for [a] Watson hearing
      to raise this issue. I don’t want the court to read into that
      we’re wishing the Public Defender’s Office in Marshalltown to
      have to be removed from this case. That’s not our intention
      in filing it. We think we are required to do it whenever there
      is a potential conflict of interest so all this is laid out on the
      record and Mr. Smitherman is aware of the relationship
      between his attorney and a potential prosecution witness.

Likewise, the attorneys for the MPDO argued its representation did not

violate our holding in Watson, and that a “Chinese Wall,” or an office

procedure to insulate Reel from the case, had been put into place.

      At the hearing, the court specifically addressed Smitherman as

follows:

             THE COURT:       Mr. Smitherman, have you had a
      chance to discuss these issues with your attorney Ms.
      Anderson?
             THE DEFENDANT: Yes, I have.
             THE COURT: Do you have any concerns about Ms.
      Anderson continuing in your defense in this case?
             THE DEFENDANT: No. I’m just disappointed in the
      loss of Mr. Reel. . . .
                                    5
             THE COURT:      So you understand, however, that
      because of Mr. Reel’s representation of [Williamson], he is
      prohibited from proceeding in this case?
             THE DEFENDANT: Yes, sir.
             THE COURT: And even though there was a short
      period of time, about maybe a week or so, where Mr. Reel
      represented both you and [Williamson], you’re comfortable
      with the Marshalltown Public Defender’s Office proceeding in
      this case?
             THE DEFENDANT: Yes, I am.

As a result of the hearing the district court entered an order on June 30,

2004 concluding “there is no actual or potential conflict of interest,” and

“that the representation of the defendant by Ms. Anderson and Ms.

Leighty is not precluded by the court’s holding in Watson.”      The case

proceeded to trial and the jury found Smitherman guilty of first-degree

murder. On April 8, 2005 Smitherman was sentenced to life in prison

without parole.
      II. Issues and Standard of Review.

      On appeal, Smitherman makes two arguments: (1) his state and

federal constitutional rights were violated because of an impermissible

conflict of interest that was created by the MPDO’s simultaneous

representation of the prosecution’s witness and himself, and (2) there

was insufficient evidence to convict him of first-degree murder.       Our

review is de novo when the defendant alleges a conflict of interest

implicating the right to counsel. See State v. Powell, 684 N.W.2d 235,

238 (Iowa 2004); Pippins v. State, 661 N.W.2d 544, 548 (Iowa 2003). Our

review is for errors at law when the defendant challenges his or her

conviction based on the sufficiency of the evidence. See State v. Speicher,

625 N.W.2d 738, 740 (Iowa 2001).        “[A] jury verdict is binding on us

when supported by substantial evidence,” and “evidence is substantial if

it could convince a rational jury of a defendant’s guilt beyond a
                                            6

reasonable doubt.” Id. at 740–41 (citing State v. Hopkins, 576 N.W.2d

374, 377 (Iowa 1998); State v. Casady, 597 N.W.2d 801, 804 (Iowa

1999)). We must view the record in the light most favorable to the State,

and consider the evidence supporting not just guilt, but innocence, too.

Id. at 741 (citing Hopkins, 576 N.W.2d at 377).

       III. Conflict of Interest.

       Conflict-of-interest claims are typically raised in ineffective-

assistance-of-counsel claims. See, e.g., Mickens v. Taylor, 535 U.S. 162,

164, 122 S. Ct. 1237, 1239–40, 152 L. Ed. 2d 291, 299 (2002)

(“[Petitioner] alleg[ed], inter alia, that he was denied effective assistance of

counsel because one of his court-appointed attorneys had a conflict of

interest at trial.”). Smitherman, however, has not specifically alleged an

ineffective-assistance-of-counsel claim.           Nevertheless, he has alleged a

violation of his federal Sixth Amendment rights, and his corresponding

rights under article I, section 10 of Iowa’s Constitution due to an

impermissible conflict of interest. 4 When a defendant alleges a violation
of these constitutional rights due to an impermissible conflict of interest,

our basic analysis does not change depending on how the defendant has

framed the violation—i.e., as a claim of ineffective assistance of counsel

or otherwise.      The analysis we use in this case is largely the same

analysis we would use if the defendant had specifically alleged a claim of

ineffective assistance of counsel due to an impermissible conflict of

interest.    See Watson, 620 N.W.2d at 235–37 (analyzing a conflict-of-

       4These    constitutional provisions safeguard the defendant’s right to a fair trial,
which expressly includes the guarantee to “assistance of counsel.” Iowa Const. art. I,
§ 10; see U.S. Const. amend. VI (using the identical words “Assistance of Counsel”).
The assistance of counsel, of course, implies the effective assistance of counsel. See
Mickens, 535 U.S. at 166, 122 S. Ct. at 1240, 152 L. Ed. 2d at 300 (“[A]ssistance which
is ineffective in preserving fairness does not meet the constitutional mandate . . . .”).
                                         7

interest claim under precedent based on claims of ineffective assistance

of counsel due to a conflict of interest); State v. Williams, 652 N.W.2d

844, 847 (Iowa Ct. App. 2002) (“The foundation for this type of claim

[(allegations of a conflict of interest)] is an alleged denial of an accused’s

constitutional right to effective assistance of counsel.”). The analysis is

basically one question:       whether the defendant has made a showing

whereby we can presume prejudice.            See Watson, 620 N.W.2d at 238

(stating the “legal principles applicable to conflict-of-interest claims” and

recognizing situations where prejudice is presumed, such as “on remand,

[when] an actual conflict is found, prejudice is presumed and reversal is

mandated”).      If so, the defendant’s constitutional rights have been

violated and he or she is entitled to a new trial.
       Notably, this analysis (whether as a specific claim of ineffective

assistance of counsel due to a conflict of interest, or whether as a generic

conflict-of-interest claim) is different than the typical two-part analysis

for claims of ineffective assistance of counsel under Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674,

693 (1984). 5         The difference can be summarized quite easily:               A

defendant has less to prove in conflict-of-interest cases. Whereas in a

typical claim of ineffective assistance of counsel the defendant must

prove prejudice by showing the result of the proceeding would have been

different, a conflict of interest claim only requires the defendant to make

a showing whereby we can presume prejudice. See, e.g., Mickens, 535

U.S. at 174, 122 S. Ct. at 1245, 152 L. Ed. 2d at 306 (noting Strickland

requires “in other ineffectiveness-of-counsel cases . . . a showing of


       5The typical two-part test under Strickland asks (1) whether counsel performed
an essential duty, and if not, (2) whether prejudice resulted. See State v. Lane, 726
N.W.2d 371, 393 (Iowa 2007).
                                            8

probable effect upon the outcome of trial,” but that in conflict of interest

cases such prejudice is presumed when there’s a showing of defense

counsel’s “defective performance”). 6 Thus, in this case we are looking to

see whether Smitherman has made a showing whereby we can presume

prejudice.

      In Watson, we held that under the Sixth Amendment we could

presume prejudice when there was an actual conflict the trial court

should have known about, and yet failed to inquire into. 620 N.W.2d at

237–39.      In so holding, we examined United States Supreme Court

precedent, and cases interpreting that precedent, to reject a requirement

that the defendant must show his counsel’s performance was adversely

affected by the conflict of interest. Id. at 236–38. We said,

            Our review of the cases leads us to agree with those
      courts holding that where the trial court knew or should
      have known of a particular conflict, reversal is required

      6Perhaps   this was best explained in the following:

              [I]t also follows that defects in assistance that have no probable
      effect upon the trial’s outcome do not establish a constitutional violation.
      As a general matter, a defendant alleging a Sixth Amendment violation
      must demonstrate a “reasonable probability that, but for counsel’s
      unprofessional errors, the result of the proceeding would have been
      different.”
              There is an exception to the general rule. We have spared the
      defendant the need of showing probable effect upon the outcome, and
      have simply presumed such effect, where assistance of counsel has been
      denied entirely or during a critical stage of the proceedings. When that
      has occurred, the likelihood that the verdict is unreliable is so high that
      a case-by-case inquiry is unnecessary. But only in “circumstances of
      that magnitude” do we forgo individual inquiry into whether counsel’s
      inadequate performance undermined the reliability of the verdict.
              We have held in several cases that “circumstances of that
      magnitude” may also arise when the defendant’s attorney actively
      represented conflicting interests.

Mickens, 535 U.S. at 166, 122 S. Ct. at 1240–41, 152 L. Ed. 2d at 300–01 (internal
citations omitted).
                                    9
      without a showing that the conflict adversely affected
      counsel’s performance, even though no objection was made
      at trial.

Id. at 238. Instead, all that was required was an actual conflict, which

we defined as “ ‘a situation conducive to divided loyalties.’ ” Id. at 239

(quoting Smith v. Lockhart, 923 F.2d 1314, 1320 (8th Cir. 1991)).

      Less than two years later, however, the United States Supreme

Court reached a contrary conclusion.     In Mickens, the Supreme Court

reviewed its precedent and concluded

      the [Cuyler v.] Sullivan[, 446 U.S. 335, 100 S. Ct. 1708, 64
      L. Ed. 2d 333 (1980),] standard is not properly read as
      requiring inquiry into actual conflict as something separate
      and apart from adverse effect. An “actual conflict,” for Sixth
      Amendment purposes, is a conflict of interest that adversely
      affects counsel’s performance.

535 U.S. at 172 n.5, 122 S. Ct. at 1244 n.5, 152 L. Ed. 2d at 305 n.5.

Thus, when the trial court failed to conduct an inquiry (or even if it did

conduct an inquiry), the Supreme Court required the defendant to show

his counsel’s performance was adversely affected by the conflict of

interest before it would presume prejudice and find a Sixth Amendment

violation warranting reversal. Id. at 172–73, 122 S. Ct. at 1244–45, 152

L. Ed. 2d at 304–05.
      We recognize our holding in Watson under the Sixth Amendment is

impacted by the Supreme Court’s decision in Mickens.           Of course,

Watson may still be valid under our state constitution.      See State v.

Cline, 617 N.W.2d 277, 285 (Iowa 2000) (recognizing we can provide

greater protections under our state constitution), disavowed on other

grounds by State v. Turner, 630 N.W.2d 601, 606 n.2 (Iowa 2001). But

we need not decide that question now because a different question is

before us:   namely, under what circumstances are we to presume
                                    10

prejudice when the trial court has performed an inquiry?            We are

convinced those circumstances must include the defendant’s ability to

show what was required in Mickens—adverse effect upon defense

counsel’s performance.     While we were willing to presume prejudice

without requiring adverse effect in Watson, we believe the facts of Watson

are sufficiently distinguishable from this case so the reasons behind our

holding in Watson, even if still viable after Mickens under our state

constitution, are not applicable here. Under the circumstances in this

case, we hold Smitherman must show adverse effect in order to prevail

under either the Sixth Amendment or article I, section 10 of the Iowa

Constitution.
      The differences between this case and Watson are immediately

apparent. Most notably, the trial court in this case conducted an inquiry

into the conflict in order to protect the defendant’s rights. This inquiry,

together with Smitherman’s lack of objection, casts a different light on

the need for the automatic reversal rule we recognized in Watson. When

conflicted defense counsel represents a defendant during the course of

the trial because the court did not conduct an inquiry into the conflict,

our confidence in the result of the verdict is undermined. Mickens, 535

U.S. at 168, 122 S. Ct. at 1241–42, 152 L. Ed. 2d at 301–02.          Joint

representation is inherently suspect because it can effectively seal the

lips of the attorney on critical matters and tend to prevent the attorney,

often in very subtle ways, from providing effective representation.      Id.

(citing Holloway v. Arkansas, 435 U.S. 475, 489–90, 98 S. Ct. 1173,

1181, 55 L. Ed. 2d 426, 438 (1978)). The nature of the conflict makes it

difficult to effectively measure the harm visited on the trial by conflicted

counsel. Id. On the other hand, when the court makes an inquiry in
                                           11

some form into the conflict, the attorney is no longer quietly inflicting the

inherent harm into the trial that supports the automatic reversal rule.

Instead, a prophylactic inquiry by the court ameliorates the suspicion of

harm and lessens the need for a rigid rule of automatic reversal. See

Holloway, 435 U.S. at 489, 98 S. Ct. at 1181, 55 L. Ed. 2d at 437 (noting

the rigidity of such a rule because a conviction could be reversed even if

no actual prejudice is shown and the defendant is clearly guilty).

Additionally, the lack of objection by the defendant, or explicit

acquiescence in his representation, 7 makes it more palatable to impose
an   obligation     to   show     an    adverse     effect   on    defense     counsel’s

performance.

       In this case, all parties and the court were manifestly aware of the

conflict, and took several precautions to assure the defendant’s rights

were not violated.       These precautions included setting up a “Chinese

wall” between Reel and the rest of the MPDO, and ending the MPDO’s

representation of Williamson and Reel’s representation of Smitherman.

In addition, all parties, including the defendant himself, believed the

situation did not present an impermissible conflict of interest. Finally,

while Reel and the MPDO represented both Smitherman and Williamson

at the same time, such simultaneous representation was very brief.



       7The    State additionally argued Smitherman waived his right to conflict-free
counsel. See Holloway, 435 U.S. at 483 n.5, 98 S. Ct. at 1178 n.5, 55 L. Ed. 2d at 433
n.5 (“A defendant may waive his right to the assistance of an attorney unhindered by a
conflict of interest.”). This issue is moot in light of our holding. Therefore, we express
no opinion as to whether Smitherman’s acquiescence in his representation amounted to
a valid waiver of his right to conflict-free counsel, see United States v. Brekke, 152 F.3d
1042, 1045 (8th Cir. 1998) (noting such a waiver “must be knowing, voluntary, and
intelligent”), or whether such a waiver is adjudged by the same exacting standards we
have required in order to waive the right to counsel, see Hannan v. State, ___ N.W.2d
___, ___ (Iowa 2007).
                                          12

       Moreover, even if Reel was required to withdraw and such

withdrawal was imputed to the MPDO, 8 the imputed disqualification rule

Smitherman cites does not itself establish a constitutional violation. See

Nix v. Whiteside, 475 U.S. 157, 165, 106 S. Ct. 988, 993, 89 L. Ed. 2d

123, 134 (1986) (“[B]reach of an ethical standard does not necessarily

make out a denial of the Sixth Amendment guarantee of assistance of

counsel.”); Iowa Code of Prof’l Responsibility, DR 5-105(E) (imputing the

disqualification of one lawyer to the lawyer’s firm); see also Lambert v.

Blodgett, 393 F.3d 943, 986 (9th Cir. 2004) (“[T]he Supreme Court has

never applied the ethical imputed disqualification rule in Sixth

Amendment analysis.”).            In addition, we are not persuaded by

Smitherman’s argument that the MPDO’s investigator labored under an

impermissible conflict of interest. The Sixth Amendment guarantees the

right to conflict-free counsel, and Smitherman has not shown how the

MPDO investigator was involved in Williamson’s and Smitherman’s

cases, or how such involvement would establish a violation of the

constitutional right to conflict-free counsel.
       Of course, the most important point is that Smitherman has not

shown his counsel was adversely affected by the conflict of interest.

There is nothing in the record to suggest defense counsel’s performance


       8We   express no opinion as to whether the MPDO was required to withdraw
under our old or new ethical rules, although we note several authorities recognize that
different rules should govern the imputation of conflicts among government lawyers.
See United States v. Reynoso, 6 F. Supp. 2d 269, 272 (N.Y.S.D. 1998) (discussing these
authorities, and noting “The American Law Institute has also recognized that imputed
disqualification under DR 5-105(D) [(it later became DR 5-105(E))] should not
automatically apply to public defender offices”); Model Rules of Prof’l Conduct r. 1.11
cmt. 2 (2003) (“Because of the special problems raised by imputation within a
government agency, paragraph (d) does not impute the conflicts of a lawyer currently
serving as an officer or employee of the government to other associated government
officers or employees, although ordinarily it would be prudent to screen such lawyers.”);
Iowa R. of Prof’l Conduct 32:1.11 cmt. 2 (same).
                                     13

was affected by a conflict of interest. Smitherman argues otherwise, and

says he would have accepted a plea agreement to a lesser charge had his

counsel acted differently. He also argues a more zealous defense would

have   found    additional   exculpatory    evidence   and   exploited   the

weaknesses in the State’s case. This, however, is not a showing that his

counsel was adversely affected by a conflict of interest. There is simply

no connection between the alleged conflict and the alleged deficiencies in

Smitherman’s defense. See, e.g., United States v. Stitt, 441 F.3d 297, 303

(4th Cir. 2006) (recognizing a three-part test to determine whether

adverse effect has been shown, which includes a determination that the

alleged deficiency is causally connected to the conflict).
       Smitherman’s basic argument is that there was a conflict under

Watson that requires us to reverse his conviction. As we have already

stated, we are not willing to follow Watson in these circumstances, even

under article I, section 10 of the Iowa Constitution. Because we require

adverse effect to be shown under these circumstances, it would not

matter if we found Smitherman’s counsel labored under an “actual

conflict” as we defined that term in Watson (a situation conducive to

divided loyalties), because his defense counsel did not labor under an

“actual conflict” as the United States Supreme Court has defined the

term (one requiring adverse effect).          As a result, Smitherman’s

constitutional rights to conflict-free counsel were not violated.

       IV. Sufficiency of the Evidence.

       Smitherman claims there is insufficient evidence to support the

verdict. See State v. Legear, 346 N.W.2d 21, 23 (Iowa 1984) (recognizing

substantial evidence must exist to uphold the verdict). The State initially

argues Smitherman cannot raise this argument because he failed to
                                       14

preserve error. We will assume Smitherman preserved error to reach the

merits of his argument.

       In this case, Smitherman primarily attacks the State’s theory of the

case. The State theorized that Smitherman was paid to shoot Tasler in

1986 because Tasler had become a liability to an individual named Tim

Houser, who was Tasler’s partner in a cocaine dealing business. There

was evidence to suggest Smitherman lured Tasler to go with him on a

trip, that he shot Tasler five times in the back of the head, and that he

then   buried   Tasler’s   body   on    his   property   near    Union,   Iowa.

Furthermore,    evidence    revealed    Smitherman       lied   about   Tasler’s

whereabouts following the murder, and told others he had shot

“someone.” Smitherman also attempted to bribe a cell mate to lie for him

about the matter.
       Smitherman largely points to evidence at trial that Houser, not

Smitherman, had the motive to kill Tasler.        Furthermore, Smitherman

points to evidence that suggested Tasler planned his own disappearance,

and had plans to disguise his physical appearance through plastic

surgery.   Moreover, some witnesses testified Tasler was seen after the

date the State claimed he was killed by Smitherman.

       The jury had two distinct theories presented at trial. They were

required to sift through the conflicting evidence and assess the credibility

of the witnesses.   In the end, it is clear the verdict revealed the jury

rejected Smitherman’s theory and evidence, and found the State’s

evidence to be more compelling. Upon our review of all the evidence, we

conclude substantial evidence supports the verdict.
                                   15

      V. Conclusion.

      We need not determine the validity of the defendant’s alleged

waiver because we find the defendant has failed to show his counsel’s

performance was adversely affected by the alleged conflict of interest in

this case. As a result, he has not established a violation under the Sixth

Amendment or the Iowa Constitution and is not entitled to a new trial.

Finally, there was sufficient evidence to convict him of first-degree

murder.
      AFFIRMED.

      All justices concur except Appel, J., who takes no part.
