The Supreme Court of Appeals of West Virginia affirmed the Circuit Court of Raleigh County's resentencing of A.B. to an aggregate term of five to twenty-five years for child neglect resulting in death and gross child neglect. A.B. appealed on two grounds: first, that her Sixth Amendment right to conflict-free counsel was violated; second, that the State breached its duty under Brady v. Maryland by not disclosing records relating to a key witness. The court clarified that claims of Brady violations involve mixed questions of law and fact, with factual findings reviewed for clear error and legal questions reviewed de novo. Additionally, it established that a constitutional right to counsel includes a right to conflict-free representation. The court also reaffirmed the two-pronged test for ineffective assistance of counsel established in Strickland v. Washington, requiring proof of deficient performance and actual prejudice. To prove a Brady violation, three conditions must be met: the evidence must be favorable, suppressed by the State, and material to the defense. The court ultimately concluded that A.B.'s claims did not warrant reversal of her convictions.
Initials are used to protect the identities of individuals involved in this case, particularly regarding sensitive facts involving infants, in accordance with established legal practices and rules. The case stems from a tragic incident on November 7, 2015, when A.B., after consuming alcohol, accidentally asphyxiated her five-month-old daughter, G.B., by rolling over onto her while asleep. A Raleigh County grand jury indicted A.B. in September 2016 on three counts: child neglect resulting in G.B.'s death and child neglect with risk of serious injury or death concerning her other two children, D.B. (age four) and J.B. (age two).
The State committed to providing continuous open file discovery in line with circuit court orders. A.B. filed a comprehensive discovery motion in October 2016, seeking various documents, including any criminal records or medical conditions of State witnesses. Throughout the case, multiple attorneys represented A.B., including Sarah Smith from the Public Defender Corporation (PDC).
On February 10, 2020, shortly before trial, Smith requested to withdraw as counsel, citing the recent discovery that a State witness, K.S., had previously been involved in a juvenile petition and had been represented by another attorney in the PDC. A.B. initially had her representation through the PDC, later switched to Robert Dunlap Associates, and then returned to the PDC after Dunlap's withdrawal, which was granted by the circuit court. The motion to withdraw was based on issues related to juvenile witnesses, specifically K.S. and M.S., although M.S. was not called as a witness by the State, and A.B. does not claim any error regarding M.S. in her appeal.
Rule 1.10 of the West Virginia Rules of Professional Conduct addresses the imputation of conflicts of interest, while Rule 1.11 specifically outlines conflicts for former and current government officials. During a pretrial hearing on February 19, 2020, attorney Ms. Smith moved to withdraw after discovering that K.S., a potential witness, had previously been a client of her office. Ms. Smith indicated that, upon reviewing K.S.'s files, she obtained information relevant to K.S.'s conduct, which she would need to use during cross-examination. The State opposed her withdrawal, arguing that Ms. Smith had been aware of K.S.'s potential as a witness since at least 2015 and should have recognized any conflict earlier.
The record showed that Ms. Smith's discovery occurred after K.S.'s representation was completed in February 2019, and there was no overlap in the representation of K.S. and A.B., who had different counsel during those periods. Ms. Smith consulted the Office of Disciplinary Counsel regarding concurrent representation and was advised it was not permissible. The circuit court ultimately denied her motion to withdraw but allowed her the opportunity to supplement it if new reasons arose. The State requested that any proposed cross-examination of K.S. be submitted for in camera review to maintain confidentiality, to which Ms. Smith agreed. A.B.'s trial commenced on February 24, 2020, with K.S. providing testimony about her relationship to G.B. and her living situation with A.B.
On November 7, 2015, K.S., age twelve, discovered A.B. lying on top of G.B., an infant, and was unable to awaken A.B. or free G.B., prompting her to seek help from her grandmother. During a subsequent hearing, Ms. Smith, K.S.'s attorney, did not present any records and held an in camera session to discuss potential cross-examination topics including K.S.'s truancy and substance use. Ms. Smith acknowledged the juvenile proceedings started in 2017 and noted that the records did not specify when K.S. began using drugs or alcohol, arguing that this could affect her memory of the incident. The State suggested that Ms. Smith only needed to ask K.S. if she was under the influence during the incident. After confirming there were no objections to limiting the cross-examination, Ms. Smith asked K.S. if she had used any substances on the day or the day before the incident, to which K.S. replied no. Consequently, Ms. Smith concluded that K.S.'s past issues would not be admissible for cross-examination.
Following this, K.S.'s grandmother provided extensive testimony about finding G.B. in A.B.'s room, describing the room's squalor and A.B.'s altered state. The grandmother recounted that K.S. alerted her about G.B. not moving, leading to her intervention and calling 911. She noted the presence of empty alcohol bottles in the room and described A.B. as incoherent when emergency responders arrived. Law enforcement officers, including Corporal Timothy Hughes, testified to the strong smell of alcohol from A.B. at the hospital and described the state of the home as chaotic, with debris and trash obstructing visibility on the floor.
A.B.'s living conditions were described as appalling, filled with trash, soiled clothing, and rotting food, making the environment unlivable. Cpl. Hughes discovered molded food, trash, alcohol bottles, and cigarette butts near the bed. Sergeant Morgan Bragg's investigation into the death of G.B. involved taking approximately 130 photographs, which were entered into evidence, illustrating the squalid state of A.B.'s room. Notably, a vodka bottle was found, which A.B. admitted to consuming on the day G.B. died from asphyxiation. Emergency responders, including Anthony Wilcox, observed rigor mortis on G.B. upon arrival, indicating death had occurred hours earlier. Richard Garten assessed A.B., noting signs of alcohol abuse and slurred speech. A.B. disclosed she had been drinking throughout the day, with her blood alcohol level measured at 0.289, deemed high by Dr. Hannibal Mahdi, who treated her. Dr. Can Metin Savasman conducted G.B.'s autopsy, determining asphyxia as the cause of death. Dr. John Patrick Fernald testified about the dangers of an intoxicated adult sleeping with an infant and characterized A.B.'s living conditions as the worst he had seen in his 19 years of medical practice. A.B.'s husband testified about their drinking habits, though inconsistencies emerged during cross-examination. The jury convicted A.B. on three counts of child neglect, leading to a sentencing hearing on July 16, 2020. A.B. received consecutive sentences totaling between three and fifteen years for child neglect resulting in G.B.'s death, along with additional sentences for neglect concerning two other children. An order for resentencing was entered on September 22, 2020, in anticipation of an appeal.
A.B. appealed her case, claiming a violation of her Sixth Amendment right to conflict-free counsel, which arose when the circuit court denied her attorney's motion to withdraw due to a conflict of interest. The court held oral arguments on January 12, 2022, and subsequently requested supplemental briefs to examine potential Brady violations as outlined in State v. Youngblood. After reviewing the additional materials and hearing further arguments, the case was submitted for decision.
In addressing A.B.'s claims, the court noted that the standard of review for disqualification of counsel due to conflict of interest is an abuse of discretion, as established in previous cases including State ex rel. Blake v. Hatcher. A.B. argued that the circuit court's decision led to ineffective assistance of counsel, which is considered a form of conflict-of-interest claim under the Sixth Amendment. The court highlighted that it is unusual for ineffective assistance claims to succeed on direct appeal, advocating that such claims should typically be developed in a habeas corpus context before being appealed.
The court decided to review A.B.'s claim due to the specific circumstances of her case. It clarified that an ineffective assistance claim involves mixed questions of law and fact, with findings of historical fact reviewed for clear error and legal conclusions reviewed de novo. Furthermore, A.B. alleged that the State failed to disclose documents related to a witness, which could constitute a Brady violation. The court underscored that Brady claims also involve mixed questions of law and fact, where factual findings are reviewed under a clearly erroneous standard and legal questions de novo.
A.B. raises two assignments of error regarding the alleged violation of her due process rights when the circuit court denied her trial counsel's motion to withdraw due to a conflict of interest. A.B. claims that her Sixth Amendment right to conflict-free counsel was breached because her attorney, Ms. Smith, could not advocate zealously for her while also protecting the confidences of a State witness, K.S. The State argues that no actual conflict adversely affected A.B.'s representation.
The court reaffirms that both the U.S. Constitution and West Virginia Constitution guarantee defendants the right to effective assistance of counsel, which includes representation free from conflicts of interest. Claims of ineffective assistance of counsel based on conflicts are assessed under the Strickland v. Washington standard, which requires showing that counsel's performance was deficient and that this deficiency prejudiced the defense. A less stringent standard may apply in cases involving conflicts of interest, making it easier for a petitioner to demonstrate ineffective assistance.
A.B. contends that the circuit court compelled Ms. Smith to violate professional conduct rules concerning conflicts of interest by denying her withdrawal request. However, the court concludes that it need not determine whether any ethical rules were violated.
In Holloway v. Arkansas, the Supreme Court established that automatic reversal occurs when a trial court improperly mandates joint representation despite timely objections. Two years later, Cuyler v. Sullivan clarified that a trial court is not obligated to investigate potential conflicts unless it is aware or should reasonably be aware of them. In Sullivan, the Court determined that defendants who fail to object during trial must prove that an actual conflict adversely affected their counsel’s performance to establish a Sixth Amendment violation. This case, while not involving jointly represented co-defendants, included multiple concurrent representations by a single attorney across separate trials. The Tenth Circuit outlined a bifurcated standard for conflict of interest claims: if a defendant objects pre-trial, prejudice is presumed and automatic reversal occurs; if no objection is raised, the defendant must demonstrate an actual conflict adversely affecting representation, with insufficient demonstration leading to standard Strickland review.
Mickens v. Taylor further developed these principles, focusing on what a defendant must prove when a trial court neglects to investigate a known or reasonably known potential conflict. Though involving successive representation, the case was argued with the understanding that absent an exception, Sullivan's standards would apply. The case highlighted the inherent dangers of joint or multiple representation and the complexities in assessing prejudice in such scenarios.
The legal standards for evaluating ineffective assistance of counsel differ based on the type of representation involved. In cases of concurrent representation, as established in Sullivan, a showing of defective performance is required without needing to prove the probable effect on the trial outcome. Courts have broadly applied Sullivan to various attorney conflicts, including obligations to former clients and personal or financial interests of counsel. However, the Supreme Court in Mickens noted that Sullivan's language does not definitively support this broad application and emphasized the significant risk of prejudice in situations of multiple concurrent representation.
The Federal Rules of Criminal Procedure differentiate between concurrent and prior representation, mandating a trial court inquiry into potential conflicts for jointly charged defendants (Rule 44(c)), whereas no such inquiry is required for prior representation in related matters. The Mickens Court did not decide whether the protections of Holloway or Sullivan apply to cases of successive representation, indicating that the extension of Sullivan to such instances remains unresolved.
In the current case, both parties applied the Sullivan test; however, it was determined that this approach was inappropriate due to the nature of the representation being successive rather than concurrent. The distinction between joint and multiple representation was clarified, with joint representation defined as simultaneous representation in the same proceeding and multiple representation as simultaneous representation in separate proceedings, as noted by the Sixth Circuit in McFarland v. Yukins.
Successive representation is defined by the Sixth Circuit in Jalowiec v. Bradshaw as a scenario where defense counsel has previously represented a co-defendant. In the case discussed, Ms. Smith represented A.B. during a criminal proceeding, while a different attorney from the Public Defender's Corporation (PDC) represented K.S. in an earlier, unrelated juvenile matter, which characterizes the situation as one of successive representation. The Supreme Court has not definitively ruled on the applicability of the Holloway or Sullivan tests to successive representation. Despite addressing ineffective assistance of counsel claims related to conflicts of interest, the implications of Mickens remain unclear. Other jurisdictions, including the Supreme Court of Kentucky, apply the Strickland standard to assess successive conflicts of interest, although the applicability of Sullivan remains an open question. The Kentucky Supreme Court noted that while Mickens recognized a high probability of prejudice in joint representation cases, not all attorney conflicts present the same challenges. The core issue in Blake involved the standing of the State to disqualify a defense attorney due to conflicts arising from prior representation of a State witness.
A full Mickens analysis was not performed in cases of conflict of interest following Blake, although the Sullivan standard has been used for successive representation. For instance, in Daniel C. v. Ames, the petitioner did not meet the Sullivan test criteria. Similar findings occurred in Bennett v. Ballard and Rogers, where no actual conflict was established in a public defender's representation. The Steward Court, influenced by Sixth Circuit precedent, applied the Strickland standard to successive representation cases, which has been similarly adopted by other courts. The distinction between concurrent and successive representation is critical; the Sullivan standard applies to concurrent cases, while the Strickland standard governs successive representations. The Supreme Court has not extended the Sullivan standard to successive representation cases, thus requiring a showing of actual prejudice rather than a mere conflict of interest. The precedents indicate that while concurrent representation poses a higher risk for ineffective assistance, successive representation, particularly when interests are unrelated, does not automatically imply prejudice. Claims of conflict in successive representation necessitate proof of actual prejudice, aligning with the caution advised in Mickens regarding the application of Sullivan and Holloway. Courts vary in their approaches to conflict-of-interest claims, which can be assessed under either the Strickland or Sullivan standards.
In cases involving successive or simultaneous representation of clients in related matters, this Court has historically applied the Sullivan analysis rather than the Strickland framework for claims of ineffective assistance of counsel. However, influenced by the Supreme Court's cautionary remarks in Mickens, the Court now emphasizes the necessity for defendants to demonstrate actual prejudice when raising constitutional claims of ineffective assistance based on successive representation. This means showing a reasonable probability that, absent counsel's errors, the outcome of the proceedings would have differed, in line with Strickland v. Washington.
Furthermore, West Virginia's Rule 44(c) offers additional safeguards against the risks of joint representation. It mandates that courts inquire about joint representation when multiple defendants share counsel and ensures that each defendant is informed of their right to effective assistance, including separate representation, unless a lack of conflict is clearly established.
In applying Strickland's second prong to A.B.'s case, the analysis focuses on whether she has shown prejudice from the trial court's refusal to relieve her counsel. A.B. argues that K.S.’s testimony would have been undermined had her counsel been allowed thorough cross-examination. However, the Court finds no prejudice since the jury had ample evidence to convict A.B. without K.S.’s brief testimony, which spanned only two-and-a-half pages. The State presented extensive testimony from multiple witnesses, totaling nearly 200 pages, detailing the circumstances surrounding the case, including observations by A.B.’s grandmother and the testimony of emergency responders and medical professionals regarding A.B.'s mental state and the living conditions of her children.
Overwhelming evidence, aside from K.S.’s brief testimony, established A.B.’s guilt on all three counts. The trial court determined that even if A.B.'s counsel performed deficiently, it did not affect the trial's outcome due to the substantial evidence against A.B. A.B. failed to demonstrate that the trial's result would have changed, resulting in no error found.
In relation to a claimed Brady violation, A.B. argued that the State did not disclose juvenile records of K.S. The State contended that it did not withhold any such records. A Brady violation requires three conditions: the evidence must be favorable to the defendant, must have been suppressed by the State, and must be material enough to prejudice the defense. A.B. could not satisfy the third requirement regarding the materiality of the juvenile records, as their absence did not undermine confidence in the verdict. The court emphasized that a reasonable probability must exist that the disclosed evidence would alter the trial's outcome, which A.B. failed to establish. Additionally, it was noted that while the State disputed the non-disclosure, there were discussions during the trial indicating that the defense already had access to certain psychological records.
Reversal of the verdict is not warranted in cases where undisclosed evidence may be helpful to the defense but is unlikely to alter the outcome. The withheld evidence should be assessed in the context of the entire record. In this case, extensive testimony from multiple witnesses detailed the circumstances of G.B.'s suffocation under A.B. and A.B.'s intoxication. Notably, K.S.'s grandmother corroborated these accounts with even greater detail. Five witnesses, including an emergency room doctor, confirmed A.B.'s high blood alcohol content of .289 on November 7, 2015. Additionally, testimonies highlighted the poor living conditions affecting children's safety. After reviewing K.S.’s juvenile records alongside the totality of evidence, it was concluded that disclosing these records would not have changed the outcome of A.B.'s trial. Even with the ability to challenge K.S.’s credibility, the overwhelming evidence against A.B. would likely have overshadowed any potential doubt. Therefore, the third component of the Brady/Youngblood analysis was not met, leading to the affirmation of the lower court's decision.
