Murder Trial Raises Ethical Dilemma Over Representing Defendant, Witness

Where the lawyer for a criminal defendant had also previously represented a key witness for the prosecution, there was a clear conflict of interest, the Court of Appeals ruled April 3.
But the conflict wasn’t fatal, the court held, because it did not adversely affect the representation.
The unpublished ruling is State v. Hyman (Lawyers Weekly No. 07-16-0463, 12 pages).
This marks the second time the Appeals Court has taken a look at this case. On both occasions, the panel considered the ethical dilemma that arose when it was revealed in a murder trial that one of the defendant’s lawyers had formerly represented one of the state’s eyewitnesses. Both times, the panel denied the defendant’s attempts to have his conviction overturned on that basis.
In Hyman I, the Appeals Court determined that there was a clear conflict of interest but remanded for findings on whether the conflict had adversely affected the representation. See State v. Hyman, 172 N.C. App. 173, 616 S.E.2d 28 (2005).
In Hyman II, the panel affirmed the trial court’s conclusion that the conflict had not hampered defense representation.
The decision was written by Judge John M. Tyson, with Judges Martha A. Geer and Rick Elmore concurring.
Murder Case Appointment
In May 2001, attorney Teresa Smallwood was appointed to represent the defendant on charges of first-degree murder. In September 2003, the case went to trial in Bertie County.
At trial, Derek Speller, a friend of the defendant’s prior to the murder, testified for the state. Speller gave eyewitness testimony adverse to the defendant. He also testified that Smallwood and her law partner, Tonza Ruffin, had represented him at a probation violation hearing in September 2002. He said the only conversation he and Smallwood had about the Hyman case occurred in the parking lot of Smallwood’s law office, when he told Smallwood that he could not help her.
On remand, it was determined that Speller had retained Smallwood’s law partner to represent him on a probation violation hearing and that at some point Smallwood stepped in for her partner to enter a plea on the probation matter.
“Smallwood testified her only contact with Speller occurred during this representation, which lasted between five to 10 minutes,” according to the opinion. “She did not speak to Speller about anything other than the probation violation. Smallwood testified she had not represented Speller on any other matter, including the charge that culminated in the probation judgment. During Smallwood’s representation of Speller, she: (1) never spoke with Speller about defendant; (2) did not obtain any information from Speller about defendant during her representation of Speller; and (3) did not learn any impeaching information about Speller during her representation of him.”
Smallwood testified that all later conversations with Speller had taken place in the context of her investigation as counsel for Hyman.
Ethical Minefield
“[R]epresentation of the defendant as well as a prosecution witness (albeit in another matter) creates several avenues of possible conflict for an attorney,” according to the opinion. “Confidential communications from either or both of a revealing nature which might otherwise prove to be quite helpful in the preparation of a case might be suppressed. Extensive cross-examination, particularly of an impeaching nature, may be held in check. Duties of loyalty and care might be compromised if the attorney tries to perform a balancing act between two adverse interests.”
Judge Tyson found that despite the conflict of interest, Smallwood’s representation had not been adversely affected by her previous representation of Speller.
In so concluding, Judge Tyson cited the following: