         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                  August 14, 2001 Session

BEQUIR YMERLI POTKA, FATMIR AGOLLI, STAVRI POPA & EPISON
             PULAHA v. STATE OF TENNESSEE

                    Appeal from the Criminal Court for Davidson County
                          No. 2000-C-1348    Steve Dozier, Judge



                   No. M2000-02305-CCA-R9-CO - Filed January 18, 2002


We granted the defendants’ application for interlocutory appeal, see Tenn. R. App. P. 9, to review
the trial court’s disqualification of defense counsel based upon conflicting interests in counsel’s
representation of all four defendants. Because we conclude that the lower court acted within its
discretion in disqualifying counsel from multiple representation, we affirm.

               Tenn. R. App. P. 9; Judgment of the Criminal Court Affirmed.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which DAVID H. WELLES and
JOE G. RILEY, JJ., joined.

Mark C. Scruggs, Nashville, Tennessee, for the Appellants, Bequir Ymerli Potka, Fatmir Agolli,
Stavri Popa, and Epison Pulaha.

Paul G. Summers, Attorney General & Reporter; Jennifer Bledsoe, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and Brian Holmgren, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                            OPINION

                Fatmir Agolli, Bequir Potka, Stavri Popa and Epison Pulaha are charged with a
variety of crimes apparently related to a barroom brawl. All four defendants are represented by one
attorney, Mark C. Scruggs. On motion of the state, the trial court found that due to conflicting
interests, the defendants should be required to retain separate counsel, thereby disqualifying Mr.
Scruggs. The defendants maintain, as they did in the lower court, that they understand the potential
for conflicting interests but, nevertheless, wish to be represented jointly by Mr. Scruggs.

                In order to understand the conflict question, an explanation of the nature of the
charges is pertinent. In indictment number 2000A463, returned March 24, 2000, Agolli and Potka
were charged with four counts of aggravated assault, all four defendants were charged with one count
of vandalism, and Potka was charged with one count of driving under the influence. This indictment
was before the court when it made its ruling disallowing joint representation. Subsequently, a
superseding indictment was returned which charged each of the four defendants with four counts of
aggravated assault and one count of vandalism and which charged Potka with one count of driving
under the influence.

                At the hearing on the motion to disqualify, defense counsel acknowledged that there
was a “different plea offer for three of them as opposed to one.” He further acknowledged that “the
problem with it is . . . three who are not United States citizens could very well be deported.” He
stated this was the “holdup as far as that’s concerned.” Defense counsel stated he only talked to the
defendants as a group, not individually, and advised them they could get separate counsel who could
negotiate with the district attorney. He said that “in all likelihood, I think that would probably
involve some type of cooperation.” Defense counsel stated all defendants wanted him to continue
to represent them. As stated, the trial court granted the state’s motion to disqualify defense counsel.

                The defendants moved the court for reconsideration of its order requiring separate
counsel for each defendant, and they moved in the alternative for permission to pursue an
interlocutory appeal. See Tenn. R. App. P. 9 (appeal by permission of the trial and appellate courts).
The lower court entered an order granting permission to pursue an interlocutory appeal. The
defendants then filed an application for interlocutory appeal with this court, and the state did not
oppose it. We granted the application. We have now received the briefs and oral arguments, and
the case is before us for disposition.

                The sole issue presented is whether the lower court erred in requiring that each of the
four defendants be represented by separate attorneys. The defendants claim that there is no evidence
of an actual conflict in this case, and in any event, they claim that they have each knowingly and
intelligently consented to joint representation after disclosure of potential conflicts. The state
counters with the argument that the trial court had the discretion to require separate counsel for each
defendant upon a showing of either an actual conflict or a serious potential for conflicting interests.
Furthermore, in the state’s assessment, the trial court acted within that discretion in ruling that the
potential conflicts in this case warranted separate counsel for each defendant.

                We begin, of course, with the constitutional right to counsel, grounded in the Sixth
Amendment. See U.S. Const. Amend. VI; see also Tenn. Const. art. I, § 9. The right to choose and
be represented by counsel of one’s choosing is “comprehended” by the Sixth Amendment, although
the Amendment is targeted toward securing effective counsel for an accused, not unconditionally
guaranteeing counsel of one’s preference. Wheat v. United States, 486 U.S. 153, 159, 108 S. Ct.
1692, 1697 (1988); see State v. Carruthers, 35 S.W.3d 516, 546 (Tenn. 2000). Thus, the Sixth
Amendment’s right to counsel of choice is a qualified one, also referred to as a “presumption in favor
of counsel of choice.” Wheat, 486 U.S. at 159-60, 108 S. Ct. at 1697-98. This qualified right may
be limited by the court if good cause exists. State v. Parrott, 919 S.W.2d 60, 61 (Tenn. Crim. App.
1995).




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                 Moreover, the existence of actual conflicts of interests may be good cause to
disqualify counsel which overcomes an accused’s presumption favoring counsel of his choice.
Parrott, 919 S.W.2d at 61. Cases in which one attorney represents multiple defendants charged
relative to the same criminal episode present situations of special concern due to the possibility of
such conflicting interests. Wheat, 486 U.S. at 159-60, 108 S. Ct. at 1697.

                The more difficult question is whether the potential for conflicting interests may
constitute good cause for disqualification of counsel in multiple representation situations. The law
on this point is not entirely clear in Tennessee.

                The United States Supreme Court has said that as a function of one of the
“circumscribed” aspects of the Sixth Amendment, a trial court acts appropriately in inquiring into
“possible” conflicting interests and determining whether separate counsel is warranted. Wheat, 486
U.S. at 159-160, 108 S. Ct. at 1697. The high court has recognized the inherent difficulties in
making this determination, which necessarily must be made before trial and therefore without the
benefit of hindsight. Id. at 163, 108 S. Ct. at 1699. Although the court recognized a presumption
in favor of counsel of choice, it noted the presumption could be overcome not only by a showing of
actual conflict but also by a showing of serious potential for conflict. Id. at 164, 108 S. Ct. at 1700.
Tennessee decisions on point are more circumspect in authorizing a trial court to disqualify counsel
based upon potential conflict. This court has held that “an actual conflict, rather than the mere
possibility [of conflicting interests]” must be shown before disqualification is justified. State v.
Parrott, 919 S.W.2d 60, 61 (Tenn. Crim. App. 1995); State v. Oody, 823 S.W.2d 554, 558 (Tenn.
Crim. App. 1991). Under this line of authority, a court errs in basing a disqualification decision on
“what might happen.” See Parrott, 919 S.W.2d at 61.

               When considering the rule of Wheat in contrast with that of Parrott and Oody, we
believe that the soundness of the state court decisions is questionable in light of United States
Supreme Court precedent allowing disqualification based upon serious potential for conflict. See
generally Wheat, 486 U.S. at 159, 108 S. Ct. at 1697. Oody cites no authority for its proposition that
only an actual conflict will support disqualification, and Parrott cites only Oody. There is no
suggestion in either Parrott or Oody that the Tennessee Constitution provides a defendant more
protection than the qualified right to counsel of choice contemplated by the Sixth Amendment to the
United States Constitution.1 See generally Parrott, 919 S.W.2d at 61-62; Oody, 823 S.W.2d at 558.
On issues of federal constitutional law, we are bound to follow the rulings of the United States
Supreme Court as the ultimate authority on federal constitutional questions.2 State v. Pendergrass,


         1
             The defen dant in this case makes no such arg ume nt, either.
         2
          Interestingly, our Rules of C riminal Procedure app ear to requ ire disq ualifica tion if it ap pears likely that a
conflict will arise. Rule 44(c) provides,

         Whenever two or more defendants have been jointly charged pursuant to Rule 8(b) or have been
         joined for trial pursuant to Rule 13, and are represented by the same retained or assigned counsel or
                                                                                                         (con tinued...)

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13 S.W.3d 389, 397 (Tenn. Crim. App. 1999), perm. app. denied (Tenn. 2000). Thus, we conclude
that, consistent with Wheat, a trial court has wide-ranging authority to disqualify counsel from
representing multiple defendants if there is an actual conflict of interests or a serious potential for
conflict. See Wheat, 486 U.S. at 159, 164 108 S. Ct. at 1697, 1700. Its exercise of that authority is
subject to our review for abuse of discretion. Clinard v. Blackwood, 46 S.W.3d 177, 182 (Tenn.
2001).

                We think it is clear in the case at bar that serious potential for conflicting interests
existed. The defendants’ attorney was in a situation in which he would be hard-pressed to pursue
plea bargaining for the benefit of one or some of his clients given the detrimental impact on the
remaining clients, particularly if such an agreement called for the pleading defendant to testify
against his remaining co-defendants. In that it appears that three of the four defendants are not
United States citizens and might face deportation if convicted, the situation in this regard is
exacerbated. If the case goes to trial with one attorney representing all four defendants, one or more
of the defendants may wish to testify to facts exculpatory to himself but placing the blame on one
or more of the other defendants. Counsel would then be in the position of sponsoring testimony
detrimental to the affected defendants, whom he also represents.

                Jointly represented defendants may waive the right to conflict-free counsel. See
Wheat, 486 U.S. at 161-62, 108 S. Ct. at 1698. However, the court may decline to accept the waiver
and require individual representation of each defendant. Id. at 162, 108 S. Ct. at 1698. Because a
trial court must make a disqualification decision before the trial takes place and therefore without
the benefit of hindsight, it is afforded “substantial latitude” to refuse to accept waivers of conflicts


         2
          (...continued)
         by retained or assigned counsel who are associated in the practice of law , the co urt shall promp tly
         inquire with respect to such joint representation and shall personally advise each defendant of the
         right to the effective assistance of counsel, including separate represen tation. Unless it appears that
         there is goo d cause to believe no conflict of interest is likely to a rise, the court shall take such
         me asure s as m ay be app ropriate to p rotect each defenda nt’s right to co unsel.

Ten n. R. C rim. P. 44(c) (em phasis add ed).

         At first blush, Rule 44(c) appears not to apply to this case at all. The text of that rule refers to cases joined
pursuant to Rule 8(b), but not 8(c). Rule 8(b) discusses joinder of offenses. Rule 8(c) discusses joinder of defen dan ts.
Our Rule 44(c) w as patterned after Fed eral Rule of Crim inal Procedure 44(c). See Tenn. R. Crim . P. 44(c), Advisory
Com m’n Cmts. (subsection 8(c) added “to conform the rule to the similar fede ral rule”). Fed eral Rule 44(c) refers to
Federal Rule 8(b), the latter of which cov ers joinder of defendants. There is no Federal Rule 8(c). Clearly, Tennessee
Rule 44(c) contemplates multiple representation problems which may arise due to joinder of defen dan ts. See Tenn. R.
Crim. P. 44(c) (“Whenever two or more defendants have been jointly charged pursuant to Rule 8(b) . . . .”). We believe
it apparent that the reference in Te nne ssee R ule 44(c) to Te nne ssee R ule 8(b) is an oversight and was intended to be a
reference to Te nne ssee R ule 8(c). Thus, we c onc lude that Tenn essee Rule 44(c) ap plies to cases in wh ich there is a
joinder of defen dan ts, as there is in the case before us.




                                                            -4-
from the affected defendants.3 Id. at 163, 108 S. Ct. at 1699. A panel of this court has prescribed
the following procedure for determining whether a defendant waives his right to conflict-free counsel
and whether the court should accept the waiver.

                             The [defendant] must be present in open court. The
                             parties and the trial court should explain to the
                             [defendant] how an actual or potential conflict may
                             affect him and that the [defendant] has a right to be
                             represented by separate counsel. The [defendant] must
                             be questioned under oath by the parties and the trial
                             court to determine if the [defendant] understands the
                             actual or potential conflict. The [defendant] must state
                             under oath whether he desires to waive the actual or
                             potential conflict. If the [defendant] states he is
                             willing to waive any actual or potential conflict of
                             interest, the trial court shall permit the [defendant] to
                             be represented by private counsel absent a compelling
                             reason to the contrary.

Shannon L. Smith v. State, No. 02C01-9508-CR-00241, slip op. at 7-8 (Tenn. Crim. App., Jackson,
Oct. 23. 1997); see Tenn. R. Crim. P. 44(c). That procedure was followed in this case.

                At the conclusion of the inquiry in this case, the trial court was persuaded that the
defendants “are not aware or do not have the ability to understand the impact that the potential
conflict could have on their defenses.” Although the defendants answered all questions favorably
to understanding the nature of the potential conflict, the benefits of separate representation, and the
desire to proceed with joint counsel, the court expressed “concerns that all defendants were able to
understand all of the questions . . . .” There was a palpable communication barrier in that all four
defendants were of Albanian extraction, and three of the four were able to communicate only through
an interpreter. The court cited the “language barrier” as significant in its concern that the defendants
did not knowingly and voluntarily waive their rights. The court had the opportunity to observe the
defendants during their responses to questioning and evaluate any non-verbal indications that they
may not have fully understood the meaning of their responses. See Long v. Tri-Con Indus., 996
S.W.2d 173, 178 (Tenn. 1999) (considerable deference must be afforded by appellate court to trial
court’s findings relative to weight and credibility of witness’s testimony, as trial court has
opportunity to observe the witness’s demeanor and hear the testimony). In addition, one of the
defendants expressed on the record his fundamental lack of understanding of the American judicial
process. In this situation, we are constrained to hold that the trial court did not abuse its discretion
in declining to accept the waiver and requiring separate counsel.


         3
          “The likelihood and dimensions of nascent conflicts of interest are no toriou sly hard to p redict . . . . A few bits
of unforeseen testimony or a single previously unknown or unnoticed document ma y sign ificantly shift the relationship
between multiple defendants.” Wheat, 486 U.S. at 163, 108 S. Ct. at 1699.

                                                             -5-
                In so ruling, we are not holding, nor suggesting that the state can secure
disqualification of able defense counsel by simply making different plea offers for different
defendants or otherwise manufacturing a conflict. As the high court noted in Wheat,

               the Government may seek to “manufacture” a conflict in order to
               prevent a defendant from having a particularly able defense counsel
               at his side; but trial courts are undoubtedly aware of this possibility,
               and must take it into consideration along with all of the other factors
               which inform this sort of decision.

486 U.S. at 163, 108 S. Ct. at 1699.



               Therefore, we affirm the lower court’s order requiring that each defendant retain

separate counsel.




                                                       ___________________________________
                                                       JAMES CURWOOD WITT, JR., JUDGE




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