ATTORNEYS FOR APPELLANT
Susan K. Carpenter
Public Defender of Indiana
Hope Fey
Deputy Public Defender
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Thomas D. Perkins
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
JACQUELINE LATTA, )
)
Appellant (Petitioner Below), ) Indiana Supreme Court
) Cause No. 46S03-0004-PC-236
v. )
) Indiana Court of Appeals
STATE OF INDIANA, ) Cause No. 46A03-9811-PC-478
)
Appellee (Respondent Below). )
__________________________________________________________________
APPEAL FROM THE LAPORTE CIRCUIT COURT
The Honorable Robert W. Gilmore, Jr., Judge
Cause No. 46C01-8905-CF-065
__________________________________________________________________
ON PETITION FOR TRANSFER
__________________________________________________________________
March 16, 2001
BOEHM, Justice.
In 1990, Jacqueline Latta was convicted of the felony murder of her
two-year-old son Brad Latta and sentenced to fifty years imprisonment. She
sought postconviction relief on the ground that she was denied effective
assistance of counsel. She and her husband, Roger Latta, were tried
jointly and were represented by the same counsel. Latta’s claim of
ineffective assistance of counsel included the contention that this joint
representation created an impermissible conflict that adversely affected
her defense. The postconviction court rejected this contention, but on
appeal the Court of Appeals agreed and granted relief in the form of a new
trial.
Joint representation is not inherently impermissible. Latta consented
to the joint representation after it was challenged by the State at her
trial. The principal issues raised by the joint representation were
whether her consent was knowing and intelligent and, if so, whether a
conflict created by joint counsel can nevertheless be so severe that a
defendant’s Sixth Amendment right to effective counsel requires a retrial.
We have no findings by the postconviction court on either point. The
latter remains an open question under the Sixth Amendment. We do not
resolve the issues raised by joint representation because we find
ineffective assistance of counsel on other grounds and agree that a new
trial is required. However, we include a discussion of the problem of
joint representation in the hope that it is helpful to trial courts facing
this difficult issue.
Factual and Procedural Background
During the night of February 14, 1989, Latta and her husband Roger
escaped with minor injuries when their house burned with their two-year-old
son Brad still inside. The Lattas were questioned two days later. Roger
told the police that he had tried to retrieve Brad from his bed on four
separate occasions. This seemed inconsistent with the absence of any burns
on Roger’s legs or feet. After extensive questioning, Latta implied that
she had some involvement in setting the fire. Latta and Roger were charged
with felony murder in May 1989.
Earl Studtmann was retained by Latta and Roger. After he
unsuccessfully moved for separate trials, he represented both in their
joint trial. The defense was essentially that the fire was accidental and
had started in the attic as a result of faulty wiring. The State presented
evidence that an accelerant was found near the front door of the Lattas’
home. A mostly empty charcoal lighter fluid container was found in the
kitchen. An arson investigator testified that the burn patterns on the
floors of the kitchen, living room, and Brad’s room also indicated the use
of an accelerant. Latta and Roger were convicted of murder and both were
sentenced to fifty years imprisonment.
On direct appeal, the Court of Appeals concluded, among other things,
that (1) a motion to suppress pretrial statements from both Lattas was
properly denied; and (2) the trial court did not abuse its discretion in
ruling inadmissible pictures of the Lattas’ attic. Latta v. State, No.
46A04-9007-CR-328 (Ind. Ct. App. 1991) (mem.). Latta then filed a petition
for postconviction relief, asserting the above claims, ineffective
assistance of counsel, and newly-discovered evidence. The postconviction
court denied relief, but the Court of Appeals reversed the denial of
postconviction relief and ordered a new trial. The Court of Appeals held
that Latta was denied effective assistance of counsel by reason of
Studtmann’s actual conflict of interest in representing both Latta and
Roger. Latta v. State, 722 N.E.2d 389, 392 (Ind. Ct. App. 2000). The
court then concluded that Latta had demonstrated that an actual conflict of
interest existed, that this conflict had adversely affected her
representation, and that the representation resulted in actual prejudice.
The court held that Latta had waived the issue by failing to object to
joint representation at trial. Nevertheless, the Court of Appeals held
that permitting the joint representation constituted fundamental error and
ordered a retrial.
Standard of Review
In postconviction proceedings, the petitioner bears the burden of
establishing the grounds for relief by a preponderance of the evidence.
Ind.Post-Conviction Rule 1(5). On appeal from a negative judgment, to the
extent this appeal turns on factual issues, the defendant must convince
this Court that the evidence as a whole leads unerringly and unmistakably
to a decision opposite that reached by the postconviction court. Trueblood
v. State, 715 N.E.2d 1242, 1248 (Ind. 1999) (citing Spranger v. State, 650
N.E.2d 1117, 1119 (Ind. 1995)).
I. Ineffective Assistance of Counsel, Apart from Issues of Joint
Representation
The Sixth Amendment to the United States Constitution guarantees the
defendant the right to effective assistance of counsel. Strickland v.
Washington, 466 U.S. 668, 686 (1984). To establish a claim of ineffective
assistance, the defendant must prove that: (1) counsel’s performance fell
below an objective standard of reasonableness based on prevailing norms;
and (2) there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different. Id. at 687-88, 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at
694.
Latta maintains that she was prejudiced by the introduction into
evidence of Roger’s unredacted pre-arrest interview in which Roger was
asked and, on counsel’s objection that “answering it might tend to
incriminate,” refused to answer questions such as “Did Jackie set the
fire?” She also points to Studtmann’s closing argument, in which he
referred to the possibility that Roger was innocent but covering up for
Latta: “Now, then, if we would assume for argument’s sake that Roger was
trying to protect Jackie, again, just for argument’s sake, just assume
that, does that make him guilty of anything other than perhaps making a
false statement to police. That is not arson murder.”
Although the Court of Appeals found fundamental error in permitting
the joint representation of both Lattas, we believe this case presents a
more conventional claim of ineffective assistance of counsel independent of
the issues raised by joint representation.
A. Admission of Interviews
Latta argues that her rights were violated when the unredacted pre-
arrest interview of Roger was admitted at trial. This is claimed to have
been the product of ineffective counsel and is also presented as a Bruton
violation. In Bruton v. United States, the Supreme Court held that
admission of one defendant’s confession inculpating another defendant in a
joint trial violated the other defendant’s right to confrontation, even if
the jury was instructed to ignore the statement. 391 U.S. 123, 136-37
(1968).
This presents an unusual Bruton claim. Bruton is grounded in the
right to confront witnesses, which includes the defendant’s right to cross-
examine adverse witnesses. Pointer v. Texas, 380 U.S. 400, 406-07 (1965).
Bruton reasoned that an inculpatory statement by one defendant may be
admissible against that defendant under the rules of evidence. Because
that defendant cannot be compelled to testify, the other defendant’s right
of cross-examination is violated by introduction of the statement. In this
case, Roger did not testify and Latta had no opportunity to cross-examine
him. However, it is not Roger’s testimony, but rather his silence and
their joint counsel’s objections to which Latta objects. Roger never
admitted to any involvement in or knowledge of the fire, but he failed to
answer several questions after Studtmann objected that the question called
for an “incriminating” response. Latta argues persuasively that the effect
is the same as if the court had admitted inculpatory answers from Roger,
which would plainly be a Bruton violation. We agree that admission of
Roger’s statements violated Latta’s right to cross-examine unless Roger
testified at trial, which he did not. The questions to Roger and counsel’s
objections bore directly on Latta’s guilt or innocence and Latta had no
opportunity to cross-examine Roger to attempt to establish that his silence
was based on circumstances that do not inculpate her. Latta urges that
this silence was taken by the interrogator as a refusal to answer. Because
of counsel’s description of the question as “incriminating,” the jury may
well have perceived it as inculpatory of either Roger or both Lattas.
However, this was an issue available on the record and not presented on
direct appeal. Accordingly, as a direct Bruton violation, it was waived.
See Trueblood v. State, 715 N.E.2d 1242, 1248 (Ind. 1999) (issues known and
available but not raised on direct appeal are waived for postconviction
proceedings).
Although a Bruton claim was waived, we think counsel’s failure to
object to an unredacted transcript including objections and unanswered
questions from Roger’s pre-arrest interview is compelling evidence of
ineffective assistance of counsel. Latta’s pre-arrest interview also
contains the same objections of counsel. The postconviction court accepted
as “strategic” Studtmann’s testimony that he concluded that it was
preferable to give the jury a transcript with these statements rather than
one with portions erased. We cannot understand this contention. It is
difficult to see how a properly redacted transcript of the interview would
have been harmful to Latta, particularly because the transcript appears to
have been prepared on a dot matrix printer and was therefore presumably
easily editable on a computer leaving no trace of omissions. This
“strategy” backfired when, in its closing argument, the State referred to
Latta’s refusal to answer. In short, the postconviction court’s conclusion
that this was trial strategy seems indefensible.
B. Closing Argument
Latta maintains that Studtmann’s representation of her was ineffective
when he asked the jury to assume, “for argument’s sake, that Roger was
trying to protect Jackie.” Instead of bolstering the common defense of
accident, Studtmann in effect offered the alternative theory to the jury
that Latta was the principal offender and Roger merely a devoted, albeit
misguided, spouse. The postconviction court concluded that, because Roger
and Latta “were inquired as to their joint representation by Mr. Studtmann
and the court . . . there was no actual conflict that had an adverse affect
[sic] on Mr. Studtmann’s performance or that she was prejudiced in any
way.”
C. Prejudice from Counsel’s Errors
Because counsel’s performance was deemed adequate, there was no
finding by the postconviction court on the prejudice, if any, resulting
from the failure to redact the statements, the failure to raise a Bruton
objection, or the suggestion of apparently inconsistent defenses. Each of
these appears potentially harmful to the defense, but only the last of the
three seems directly related to joint defense as opposed to inadequate
performance whether or not the two defendants had common counsel.
Under the standard set forth in Strickland, Latta has demonstrated
that Studtmann’s performance fell below prevailing norms, and there is a
reasonable probability that, with effective representation, the result of
the proceeding would have been different. The jury was confronted with
numerous objections by Latta’s own counsel intimating that she was directly
involved in Brad’s death and that it was not accidental. Given the other
issues mentioned in Part III, we are satisfied that there is a “reasonable
probability” that Latta would have been acquitted in this circumstantial
case if she had been properly represented. We agree with the Court of
Appeals that the postconviction court was clearly erroneous in finding that
Studtmann’s representation met acceptable performance standards. For the
reasons explained in Part II, however, we do not agree with the court that
joint representation is inherently a Sixth Amendment violation.
II. The Problem of Joint Representation of Both Defendants
Latta asserts that she received ineffective assistance by reason of
Studtmann’s joint representation of Roger and her. She contends that the
joint representation created an impermissible conflict and resulted in
actual prejudice to her at trial. In order to succeed on an
ineffectiveness claim based on an actual conflict of interest, a defendant
who does not object to joint representation “at trial must demonstrate that
an actual conflict of interest adversely affected his lawyer’s
performance.” Cuyler v. Sullivan, 446 U.S. 335, 348-49 (1980). Strickland
added, without much explanation, that, once a defendant has demonstrated an
actual conflict and an adverse effect on his lawyer’s performance, the
prejudice prong of an ineffective assistance claim is presumed. 466 U.S.
at 692. In addition to the right to effective counsel, the Sixth Amendment
also gives an accused the broad, if not wholly unrestricted, right to
select counsel. This case presented the trial court with the tension
between these two co-existing rights.
A. Right to Counsel of One’s Choice
The Sixth Amendment guarantees that “[i]n all criminal prosecutions,
the accused shall . . . have the assistance of counsel for his defense.”
U.S. Const. amend. VI. The Sixth Amendment right to counsel encompasses a
right to counsel of one’s choice. Powell v. Alabama, 287 U.S. 45, 53
(1932). Thus, joint representation is not a per se violation of the
constitutional guarantee of effective assistance of counsel. Hanna v.
State, 714 N.E.2d 1162, 1166 (Ind. Ct. App. 1999) (citing Holloway v.
Arkansas, 435 U.S. 475, 482-83 (1978)). Moreover, it is clear that under
some circumstances a defendant may properly waive the right to conflict-
free representation, Ward v. State, 447 N.E.2d 1169, 1170-71 (Ind. Ct. App.
1983) (citing Holloway, 435 U.S. at 483 n.5), and the courts recognize that
a defendant may benefit from joint representation: “A common defense often
gives strength against a common attack,” Holloway, 435 U.S. at 482-83
(quoting Glasser v. United States, 315 U.S. 60, 92 (1942)).
A challenge to joint representation of criminal defendants is often
presented by the State and opposed by the defendants. That is what
occurred in the Lattas’ trial. Midway through the joint trial, the State
moved for a mistrial, arguing, among other things, that the testimony of a
trooper had given rise to a conflict of interest. The trooper testified
that Latta had admitted to setting the fire and the State contended this
implicated her more than Roger. Studtmann told the court it was the
Lattas’ choice for him to continue representing them. The trial court
followed up by questioning Latta and Roger regarding joint representation:
THE COURT: Mr. Latta, could I ask you a couple of questions?
MR. LATTA: Yes, Your Honor.
THE COURT: Did you and Mr. Studtmann talk about representation of
both you and your wife, Mrs. Latta?
MR. LATTA: Yes, sir. He said if there’s no conflict—what is that—
THE COURT: Of interest?
MR. LATTA: —interest, there would be no problem in him representing
both of us.
THE COURT: All right. Mrs. Latta are you of the—do you have the same
answers to those questions?
MRS. LATTA: Yes, I do.
THE COURT: In your discussions, did you talk about any risk that
could be involved in joint representation?
MRS. LATTA: Yes, we did.
THE COURT: Okay. And I understand from Mr. Studtmann that both of
you want him to represent you?
MRS. LATTA: Yes, that’s correct.
MR. LATTA: Yes.
THE COURT: As both of you—both of you want him to represent you as
your attorney?
MR. LATTA: Yes.
THE COURT: Is that true, Mr. Latta?
MR. LATTA: Yes.
THE COURT: And is that true, Mrs. Latta?
MRS. LATTA: Yes.
The trial court denied the State’s motion. As the United States
Supreme Court pointed out in Wheat v. United States, 486 U.S. 153, 159-62
(1988), this situation presents the trial court with a direct conflict
between the defendant’s claim to counsel of her choice and the risk that
either a direct appeal or a postconviction court will find the joint
counsel to have been ineffective despite the defendants’ insistence on
joint representation at trial. This difficulty is illustrated by a
comparison of Hanna with the Court of Appeals’ decision in Latta’s case.
In Hanna, as here, the State moved to disqualify defense counsel jointly
retained by five co-defendants. The defendants had been advised of the
risks of joint representation by defense counsel, a magistrate, and
independent counsel, but voluntarily and knowingly waived the conflict of
interest. The trial court nevertheless granted the State’s motion to
disqualify counsel. 714 N.E.2d at 1164. The Court of Appeals reversed,
holding that the trial court abused its discretion in granting the motion
because the State had not established a conflict sufficient to override the
defendant’s choice of counsel. Hanna, 714 N.E.2d at 1168. Thus, in Hanna,
the Court of Appeals reversed because the trial court granted the State’s
motion to disqualify counsel, and Latta’s conviction was reversed because
the trial court denied the State’s motion.
B. The Effect of the Defendant’s Consent to Joint Representation
Relying on Hanna, the Court of Appeals concluded that Latta had not
waived her right to object to joint representation because the trial court
had not sufficiently performed its duty of ensuring Latta’s right to a fair
trial in accordance with the Sixth Amendment right to counsel. Latta, 722
N.E.2d at 393 n.3. The Court of Appeals resolved the issue principally in
terms of waiver. However, Hanna also noted that the court has an
independent interest in ensuring a fair trial and may, in some
circumstances, properly refuse a defendant’s waiver of his right to
conflict-free representation. 714 N.E.2d at 1164-65 (quoting Wheat, 486
U.S. at 162 (“‘[W]here a court justifiably finds an actual conflict of
interest, there can be no doubt that it may decline a proffer of waiver,
and insist that defendants be separately represented.’”)). As Wheat noted,
this is true of both an “actual” and a “serious potential for” conflict.
486 U.S. at 164.
Even if we were to conclude that Latta’s waiver of Studtmann’s
conflict was knowing and voluntary, the issue remains whether her initial
waiver may serve to waive all future conflicts and any ineffective
assistance of counsel claim based on these conflicts. Justice Marshall,
concurring and dissenting in Cuyler, thought it impossible to waive all
potential conflicts, especially where a waiver is obtained in the early
stages of trial before it is feasible to contemplate all of the possible
conflicts. 446 U.S. at 354 n.1. But the United States Supreme Court has
given us no further clear guidance on this point. Hanna observed that the
State has an independent interest in a fair trial, 714 N.E.2d at 1164-65,
but that cannot override the defendant’s right to proceed pro se, which is
surely also a hazardous choice. Sherwood v. State, 717 N.E.2d 131, 137
(Ind. 1999) (citing Faretta v. California, 422 U.S. 806 (1975)). Wheat
also cited the “institutional interest” in a fair proceeding. Arguably the
proper inference from Wheat is that this institutional interest justifies
overriding the defendant’s choice of joint counsel but still permits a
waiver to preclude a later claim of ineffective assistance. Wheat itself
expressly reserved this issue for another day, as it noted, “without
passing judgment on, the apparent willingness of Courts of Appeals to
entertain ineffective-assistance claims from defendants who have
specifically waived the right to conflict-free counsel.” 486 U.S. at 161-
62.
The post-Wheat federal circuit decisions have split on the question of
whether a waiver eliminates further claims based on conflict. Compare
United States v. Hall, 200 F.3d 962, 965-67 (6th Cir. 2000) (reversing
conviction on direct appeal because of ineffective assistance of counsel
due to conflict of interest even though the trial court had repeatedly
warned defendant of conflict, and stating that the defendant’s waiver “does
not bind the courts”), and United States v. Swartz, 975 F.2d 1042, 1049
(4th Cir. 1992) (a waiver obtained pursuant to Federal Rule of Criminal
Procedure 44(c), which places a duty on the trial court to inform defendant
of potential conflicts where defendant is jointly represented, “may not
serve to waive all conflicts of interest that arise throughout the course
of that defendant’s criminal proceedings”), with United States v. Lowry,
971 F.2d 55, 63-64 (7th Cir. 1992) (any ineffective assistance claim based
on conflict of interest is barred where defendant knowingly and voluntarily
waives conflict).
C. The Issue for the Trial Court
In Wheat, the five-Justice majority reaffirmed the well established
presumption in favor of counsel of defendant’s choice. 486 U.S. at 164.
The United States Supreme Court nevertheless affirmed the trial court’s
grant of the prosecution’s motion to disqualify joint counsel, and held the
trial court should be given wide discretion in this area. Id. at 162-63.
Justice Stevens, joined by Justice Blackmun in dissent, agreed that the
trial court should be given wide discretion, but found that discretion
abused by a grant of the government’s effort to deny the defense joint
counsel of their choice. Id. at 173. Thus, although seven Justices
differed in outcome on the facts in Wheat, there was broad agreement that
the trial court must be given latitude in its efforts to navigate the
Scylla and Charybdis posed by the conflicting Sixth Amendment rights to
counsel of one’s choice and to competent counsel. We conclude that trial
court discretion is necessary because of the tension between these two
important rights that must be resolved by the trial court at a time when
all relevant information is typically unavailable due to both attorney-
client confidences and reluctance to expose trial strategies in advance.
It does not follow, however, that because a trial judge may properly
refuse a waiver even if the waiver is knowing and voluntary, a trial judge
must do so. Although a fair trial is the ultimate goal, we believe an
important step in evaluating whether the actual conflict or serious
potential for conflict is sufficient to override the defendant’s express
choice of counsel is an assessment of the defendant’s apprehension of the
dangers of joint representation. Even if the defendant’s consent to joint
representation is ultimately determined to preclude a subsequent claim of
ineffective assistance grounded in conflict, trial courts should still make
appropriate inquiry. And, regardless of the ultimate resolution of the
issue left open in Wheat, we think the presumption of deference to the
defendant’s choice is strengthened by confidence that it is an informed and
individual choice by the defendant. Thus, the trial court should attempt
to discern “whether the defendant knew enough to make the choice an
informed one—a rational reconciliation of risks and gains that are in the
main understood.” United States v. Roth, 860 F.2d 1382, 1387-88 (7th Cir.
1988).
Although we resolve this appeal on grounds unrelated to the joint
representation, because the issue was addressed by the Court of Appeals, we
do so as well. In this case, the trial court’s questioning was quite
brief. It established in conclusory terms that Latta had been informed of
the risks associated with joint representation and that she wished for
Studtmann to represent her, but did not develop any record as to what her
understanding of those risks was. At the postconviction hearing, Studtmann
testified that he had explained the risks of joint representation to the
Lattas “rather at length,” and discussed the idea of separate counsel with
them at the time he moved for separate trials. A trial court may be hard
pressed to know how much questioning is enough to establish a knowing and
voluntary waiver of a defendant’s right to conflict-free representation.
Id. at 1387 (“It is . . . always possible to say that the judge could have
mentioned one more thing.”). Frequently the initiative to terminate joint
representation before or at trial comes from the prosecution, not from a
disgruntled defendant or from the court on its own motion. The reasons for
this are typically tactical. A splintered defense is more likely to
produce a plea agreement with weaker links in the defense chain and may
ultimately produce that result as to all if some defendants become
potential witnesses for the State. Evaluation of the degree of
understanding of the risk of joint representation is made more difficult
for the trial court because it cannot explore each defendant’s
understanding of the pros and cons of this arrangement in detail without
intruding on both client confidences and the attorney’s work product.
Here we have only the conclusory testimony at trial that the Lattas
discussed the risks, and their attorney’s testimony in the postconviction
proceeding that this was done “rather at length.” Accepting Latta’s waiver
is consistent with the recognition that the Sixth Amendment provides not
only the right to counsel, but the right to counsel of one’s choice.
Indeed, four Justices in Wheat took the view that accepting the waiver and
allowing joint representation was constitutionally required under the
circumstances of that case. 486 U.S. at 165-66 (Marshall, J., joined by
Brennan, J., dissenting); 486 U.S. at 172-73 (Stevens, J., joined by
Blackmun, J., dissenting). Although not an absolute right, the right to
counsel of one’s choice is not one with which courts should be eager to
interfere: “Lawyers are not fungible, and often the most important decision
a defendant makes in shaping his defense is the selection of an attorney.
In situations where a defendant is able to retain counsel privately, ‘the
choice of counsel rests in his hands, not in the hands of the state.’”
Hanna, 714 N.E.2d at 1165-66 (citations omitted). A defendant’s exercise
of the Sixth Amendment right to control the choice of counsel may
ultimately prove disastrous. Nevertheless, we have recently held in
another context that unwarranted interference with that Sixth Amendment
right may, as in Hanna, require reversal. See Sherwood, 717 N.E.2d at 132
(imposing hybrid representation on a defendant who waives his right to
counsel and chooses instead to exercise his right to represent himself
violates the Sixth Amendment).
D. The Issue in Postconviction Proceedings
The first issue for the postconviction court was whether, under these
circumstances, it was within the trial court’s discretion to accept Latta’s
waiver of conflict-free representation. We think the defendant’s waiver
should be presumed valid, and the burden in postconviction proceedings is
on the defendant to prove otherwise. If there is evidence supporting the
conclusion of an uninformed, or worse, improperly influenced waiver, the
postconviction court must assess the defendant’s appreciation of the risks.
If knowing and voluntary, the waiver is at least entitled to a very strong
presumption of validity, and may be conclusive, because it invokes her
right to counsel of her choice. If the waiver does not preclude a
subsequent claim of ineffective assistance, there remains the issue, as
Cuyler put it, of whether “an actual conflict of interest adversely
affected [the] lawyer’s performance.” Cuyler, 446 U.S. at 348-49. If so,
prejudice under Strickland is presumed.
The trial court’s investigation of the level of Latta’s understanding
of these risks was cursory at best. The postconviction court made no
finding as to that understanding. Because we find Latta’s counsel to have
been ineffective irrespective of these issues, we need not resolve them on
appeal. However, we caution trial courts in similar circumstances that it
is prudent at least to inquire in greater detail as to the defendant’s
understanding of potential areas of conflict. Here, these included the
risk that defenses may not be fully aligned, and that evidence exculpatory
of one may be inculpatory of another.
E. Ineffective Assistance and Fundamental Error
The Court of Appeals, despite finding Latta’s waiver to be based on an
incomplete probing by the trial court, held that the failure to object
waived the issue on appeal. Notwithstanding that waiver, the Court of
Appeals concluded that the proceedings in the trial court constituted
fundamental error—error so egregious that the entire proceeding was
undermined—and was therefore available in postconviction proceedings
despite waiver. There are several problems with this analysis. The
principal case cited by the Court of Appeals for finding fundamental error
is Whittle v. State, 542 N.E.2d 981 (Ind. 1989), overruled on other grounds
by Scisney v. State, 701 N.E.2d 847 (Ind. 1998). Whittle held that the
defendant’s claim of inadequate inquiry by the trial court into the
propriety of joint representation was waived on direct appeal because there
was no objection to the joint representation raised by any party at trial.
542 N.E.2d at 985. Whittle did not find fundamental error. Rather that
decision went on to address the merits of the ineffective assistance claim
that was based on the joint representation. In so doing, the decision
cited and applied Strickland and Cuyler as well as cases from this Court
announcing the same standards. That claim was not held to have been
waived. Rather, it was rejected because Whittle failed to show an actual
conflict (the defenses were common) or an adverse effect. 542 N.E.2d at
986-87.
Fundamental error is “permitted to preserve certain egregious claims
of error even if they were not objected to or were available but not raised
on appeal.” Baird v. State, 688 N.E.2d 911, 916 (Ind. 1997). Ordinarily,
however, fundamental error analysis has no application in postconviction
proceedings. An ineffective assistance of counsel claim is permitted in
postconviction proceedings for the reasons explored in Woods v. State, 701
N.E.2d 1208 (Ind. 1998). The flaw the Court of Appeals identified in
Latta’s conviction is at bottom ineffective assistance of counsel based on
impaired counsel arising from joint representation. Latta consented to the
joint representation. The issue as to that claim is whether that consent
waived any claim of ineffective assistance. If it did, Latta cannot
complain on appeal or in postconviction about the consequences of her
election to proceed with joint counsel. If the waiver was defective, she
has her claim of ineffective assistance and it is properly asserted in
postconviction proceedings. Cuyler expressly sets forth the standard to
follow where an ineffectiveness claim is based on counsel’s conflict of
interest. Because it involves balancing the conflicting Sixth Amendment
interests, the merits of the claim may depend on the circumstances leading
up to the defendant’s consent to joint representation, but it has nothing
to do with fundamental error.
III. Latta’s Other Claims
Latta raises a number of other matters she contends establish either
ineffective assistance or newly discovered evidence. These include failure
to offer evidence that there was no insurance on Brad’s life after an
officer testified that Latta had said there was such a policy. She also
points to scientific testimony that she claims establishes that charcoal
lighter fluid could not have been a cause of the fire. These and other
matters can be addressed on retrial. Some of these seem plausible, but we
need not address them in view of our holding that ineffective assistance is
supported by the events described in Part I.
Conclusion
We reverse the denial of postconviction relief and remand for a new
trial.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.