McCullough v. State

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
May 13, 2003 Session

GERALD W. MCCULLOUGH v. STATE OF TENNESSEE

Direct Appeal from the Circuit Court for Bedford County
No. 9041 Charles Lee, Judge

No. M2002-01768-CCA-R9-CD - Filed August 4, 2003

The Defendant, Gerald W. McCullough, was convicted of aggravated sexual battery. This Court
affirmed the Defendant’s conviction on direct appeal. See State v. Gerald W. McCullough, No.
M1999-01525-CCA-R3-CD, 2000 WL 1246432, at *1 (Tenn. Crim. App., Nashville, Aug. 18,
2000). The Defendant was represented at trial by the Public Defender’s Office. On direct appeal,
the Defendant was represented by Nashville attorney John E. Herbison. After the Defendant’s
conviction was affirmed on direct appeal, the Defendant filed for post-conviction relief. In this
effort, the Defendant was again represented by John E. Herbison. The trial court, on its own motion,
conducted an evidentiary hearing with respect to the conflict of interest inherent in Mr. Herbison’s
representation of the Defendant on post-conviction following his representation of the Defendant on
direct appeal. Following the hearing, the trial court ordered Mr. Herbison removed from his
representation of the Defendant on post-conviction, and further ordered Mr. Herbison to return the
entire retainer fee he had been paid in conjunction with the post-conviction proceeding. The trial
court’s ruling is now before this Court pursuant to an interlocutory appeal. See Tenn. R. App. P. 9.
We affirm the trial court’s order removing Mr. Herbison from further representation of the
Defendant in this case. We remand the trial court’s ruling regarding the refund of Mr. Herbison’s
fee for further proceedings.

Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Affirmed in Part;
Remanded

DAVID H. WELLES, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and ALAN E.
GLENN, JJ., joined.

John E. Herbison, Nashville, Tennessee, for the appellant, Gerald W. McCullough.

Paul G. Summers, Attorney General and Reporter; Christine M. Lapps, Assistant Attorney General;
Mike McCown, District Attorney General; and Michael Randles, Assistant District Attorney
General, for the appellee, State of Tennessee.
 OPINION

A brief explanation of the unique procedural posture of this case will assist in analyzing the
testimony adduced at the evidentiary hearing.

The Defendant was represented at his trial by assistant public defender Andrew Jackson
Dearing, III. Prior to trial, Mr. Dearing filed a motion to suppress one or more statements the
Defendant made incident to his arrest. Mr. Dearing was unsuccessful in his attempt to suppress
these statements. The Defendant was subsequently convicted upon his jury trial of aggravated sexual
battery. After the Defendant’s jury trial, Mr. Dearing filed a motion for new trial. One of the
grounds set forth in the motion was the trial court’s denial of the motion to suppress. The motion
for new trial was denied.

The Defendant filed a direct appeal, but was not represented by Mr. Dearing in this effort.
Rather, through an arrangement with the Public Defender’s Conference, the Public Defender’s Office
assigned the Defendant’s appeal to Mr. John E. Herbison, a lawyer in private practice. Mr. Herbison
raised two issues in the Defendant’s direct appeal: “[w]hether admission of evidence of multiple
instances of sexual contact where the indictment alleged only conduct occurring on one date certain
constitute[d] plain and prejudicial error,” and whether the Defendant’s sentence was excessive. The
trial court’s ruling on the pre-trial suppression motion was not raised in the direct appeal.

The Defendant’s direct appeal was unsuccessful. See State v. Gerald W. McCullough, No.
M1999-01525-CCA-R3-CD, 2000 WL 1246432, at *1 (Tenn. Crim. App., Nashville, Aug. 18,
2000), perm. appeal denied (Tenn. 2001). Hence, the Defendant filed for post-conviction relief,
alleging ineffective assistance of trial counsel. At the Defendant’s request, the Defendant’s parents
hired Mr. Herbison to represent the Defendant in this effort. The trial judge determined that Mr.
Herbison’s representation of the Defendant on post-conviction created a conflict of interest because
the Defendant would thereby be unable to claim ineffective assistance of counsel on his direct
appeal. Accordingly, the trial court held an evidentiary hearing to determine whether the Defendant
had effectively waived this conflict of interest.

Initially, we agree with the trial court that Mr. Herbison’s representation of the Defendant
on post-conviction after having represented him on direct appeal created an actual conflict of
interest. Although petitioners for post-conviction relief are not constitutionally entitled to the
effective assistance of counsel, they do have a statutory right to counsel. See Leslie v. State, 36
S.W.3d 34, 38 (Tenn. 2000); Tenn. Code Ann. § 40-30-207(b)(1). This Court has previously
concluded that this statutory right includes the right to be represented by conflict-free counsel. See
Kevin Burns v. State, No. W2000-02871-CCA-R9-PD, 2001 WL 912817, at *4 (Tenn. Crim. App.,
Jackson, Aug. 9, 2001).

At the time Mr. Herbison accepted employment on this matter, and at the time of the hearing,
the ethical conduct of Tennessee lawyers was governed by Tennessee Supreme Court Rule 8, also

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known as the Code of Professional Responsibility. 1 Disciplinary Rule 5-101 of the Code of
Professional Responsibility provides that, “[e]xcept with the consent of the client after full
disclosure, a lawyer shall not accept employment if the exercise of professional judgment on behalf
of the client will be or reasonably may be affected by the lawyer’s own financial, business, property,
or personal interests.” Tenn. Sup. Ct. R. 8, DR 5-101(A) (2002).2 In the context of this case, it is
reasonable to anticipate that Mr. Herbison’s financial, business and/or personal interests may affect
his professional judgment insofar as advising the Defendant about any possible ineffectiveness on
his part with respect to the direct appeal.3 Where an attorney is placed in a position of divided
loyalties -- here, between himself and his client -- an actual conflict is created. See State v.
Culbreath, 30 S.W.3d 309, 312 (Tenn. 2000) (holding that an actual conflict of interest “includes any
circumstance in which an attorney cannot exercise his or her independent professional judgment free
of ‘compromising interests and loyalties’”). An attorney with an actual conflict of interest is subject
to disqualification. See State v. Tate, 925 S.W.2d 548, 553 (Tenn. Crim. App. 1995).

As provided by Disciplinary Rule 5-101, actual conflicts of interest can be waived by the
client after full disclosure. Thus, before an attorney who maintains an actual conflict of interest in
his or her representation of a client is allowed to continue his or her representation, there must be
(1) full disclosure of the conflict of interest, and (2) an effective waiver by the client. To be
effective, the waiver must demonstrate that the client fully understands the nature of the conflict and
how it might affect him or her; that the client understands his or her right to the appointment of other
counsel if necessary; and that, notwithstanding the potential ill effects, the client desires to proceed
with his or her lawyer. See Burns, 2001 WL 912817, at *7. Even where a client demonstrates a
knowing and voluntary waiver of a conflict of interest, however, trial courts have “substantial
latitude in refusing waivers of conflicts since the likelihood and dimensions of conflict are often
difficult to predict.” Id., 2001 WL 912817, at *4.

Our review of a trial court’s disqualification of an attorney on the basis of a conflict of
interest is limited to determining whether the trial court thereby abused its discretion. See Clinard
v. Blackwood, 46 S.W.3d 177, 182 (Tenn. 2001). An abuse of discretion occurs when the trial court
applies an incorrect legal standard, or reaches a decision which is against logic or reasoning and
causes an injustice to the complaining party. See State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999).
However, this Court closely scrutinizes a trial court’s order of disqualification because it involves

1
Effective March 1, 2003, the Code of Professional Responsibility was replaced by the Tennessee Rules of
Professional Conduct, likewise codified at Tennessee Supreme Court Rule 8.

2
The analogous provision in the Rules of Professional Conduct states that “A lawyer shall not represent a client
if the representation of that client may be materially limited by . . . the lawyer’s own interests, unless: (1) The lawyer
reasonably believes the representation will not be adversely affected; and (2) The client consents in writing after
consultation.” Tenn. Sup . Ct. R. 8 , RPC 1.7(b) (2003).

3
This Court is familiar with Mr. Herbison’s zealous advocacy on behalf of his clients. The matters addressed
herein are in no way meant to imply that Mr. Herbison’s representation of the Defendant on direct appeal was deficient.

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an interpretation of rules governing ethical behavior of attorneys. See Clinard, 46 S.W.3d at 182.

We turn now to the evidence adduced at the hearing on this matter.

The Defendant testified that he has a twelfth grade education and also worked on a paralegal
course in prison in the late 1980s for about a year and a half. He explained that his parents retained
Mr. Herbison to represent the Defendant at the Defendant’s request. He stated that he told his
parents that Mr. Herbison had done

an excellent job on the [direct] appeal[] with nothing to work with. And I said -- I
told them that the man didn’t have anything to work with much, and he has done real
good, even though it was denied, and I think that he would probably be a good lawyer
to do the post conviction, probably my best chance to have a good lawyer, and I
wanted . . . Mr. Herbison to be on the post conviction because he already knew the
case and the ins and outs of what has been done legally about this and that.

The Defendant testified that, prior to his retention, Mr. Herbison explained to the Defendant that,
if he represented the Defendant on the post-conviction, the Defendant would not be able to complain
about anything Mr. Herbison had done or failed to do on the direct appeal. The Defendant explained
that Mr. Herbison had encouraged him to consult with other attorneys, but the Defendant did not do
so. The Defendant stated that he had reviewed the work that Mr. Herbison had done on his direct
appeal, and that he was satisfied that Mr. Herbison had done “quite a good job” on that matter. He
also let an inmate-paralegal in prison review the direct appeal, who described it to the Defendant as
“real good work.” He stated that it did not bother him “at all” that he would not be able to complain
about Mr. Herbison’s work on the direct appeal if Mr. Herbison represented him on post-conviction.
The Defendant reiterated that he thought Mr. Herbison was his “best prospect” to handle the post-
conviction proceeding, adding that Mr. Herbison was already familiar with the case and would not
need additional time to get acquainted with the facts and proceedings that had already taken place.

On cross-examination, the State’s attorney’s asked the Defendant what would happen if the
Defendant were successful in his quest for post-conviction relief. The Defendant responded that he
did not “really understand the question.” When the State reframed the question in terms of what the
result would be if he “won” his proceeding, the Defendant responded:

The result would be tremendous because this has been devastating. This has
taught me something I never realized before. It has taught me that I have been a child
all of my life in and out of prison, in and out of prison. It doesn’t make any sense.
And it has taught me to be dependent upon my own self and not dependent o[n]
others. It has taught me to certainly know the difference between right and right
[sic]. And it has also taught me to listen and then respond, and it has taught me many
things. But I really think that it has -- actually, to be completely honest, this has
helped me because I did not commit this offense, and that is why I am here today.
...

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 But I really don’t understand the question of what you are trying to find.
(emphasis added). When asked if he understood the nature of the conflict which was at issue in the
hearing, the Defendant replied, “I really don’t understand why any of this is taking place because I
feel that two American citizens anywhere inside the United States, never been arrested before in their
life, can hire any attorney they want to, under any circumstances.” He explained that he did not want
a new lawyer because he “would have to explain this and that and this and that over again,” and that
he is “not very good at that.”

The State’s attorney asked the Defendant if anyone had explained to him that he could raise
as an issue in his post-conviction petition that the suppression issue had not been raised in his direct
appeal. The Defendant replied that he did not remember talking about that. He stated that he did
understand that now, and that he would not be able to raise that issue in his petition if Mr. Herbison
continued to represent him. When asked why he was willing to give up a potential issue, the
Defendant responded, “Because I don’t want no more Public Defenders. That is what got me here
now. I had a Public Defender who didn’t do nothing. My mom and dad has hired [Mr. Herbison]
with all of the money they had. I can’t get no more lawyers.” He explained further:

And he is the only lawyer that I trust and that I know that does good work. I know
he does good work. I saw it. I read it. I looked at it. I went over it a lot.
And I need some help, and I don’t know lawyers. I have been -- I have been
locked up in prison for the last four years. I don’t know how I know anybody. And
I just need a good lawyer, and I know he is a good lawyer. And I don’t understand
a lot.

He reiterated that he understood “right now” that he was waiving the issue of Mr. Herbison’s failure
to raise the suppression issue on direct appeal if he kept Mr. Herbison as his lawyer in this
proceeding.

On redirect, the Defendant explained that Mr. Herbison had kept telling him that he would
not be able to complain about anything Mr. Herbison had done on the direct appeal if the Defendant
retained him on the post-conviction. Mr. Herbison then asked the Defendant if, after hearing the
State’s questions, he still wanted Mr. Herbison to represent him. The following colloquy then
occurred:

A. I guess that would be -- I don’t know. I understand -- see, the State hasn’t
heard the truth. The State doesn’t even know the truth, and I was interrupted
when I was trying to tell the State the truth, and so that stopped. I don’t even
remember what your question was right this minute. But the State needs to
know about the night that I got arrested, where I was –
Q. Are you having some difficulty?
A. Well, I am having difficulty because I shouldn’t be locked up. I should not
be locked up. Yeah, I admitted to smoking a joint. Sure. That don’t make
me no child molester. I admitted to driving without a driver’s license, but

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 that don’t make no child molester. I mean the State needs to know about the
night I got locked up. This is crazy.
Q. Given everything that you know now, who do you want to represent you in
this post conviction proceeding?
A. I am mixed up. I don’t know what to do. I mean I know you do good work,
and I would rather have you. But then [the State’s attorney] says that it’s
going to hurt me. But I know you know the case. And if I could just let the
State know something that has never been talked about. I was not allowed
to say a word at trial. I didn’t say anything. The State don’t even know what
happened the night that I got arrested, and it is very, very, very important, and
it deals with these[sic] suppression hearing. And if I could just have the
opportunity to tell Your Honor what happened that night, I would maybe get
some way to pick -- make a better decision because I don’t know.

In response to the Defendant’s attempts to address the merits of his post-conviction claim, Mr.
Herbison explained that he would have the opportunity to tell that story when the trial court held the
hearing on the merits of the petition. Mr. Herbison then asked, “With that understanding, who do
you want to represent you?” The Defendant responded, “Okay. Now, here is my question? Now,
when the Court, for the very first time, hears the truth and it deals with suppression, where is it going
to leave me when it can’t be brought back up?” The Defendant then began to describe his arrest and
interrogation.

At this point, the trial court intervened and explained the issue involving the suppression
motion which the Defendant would have to waive in order to continue being represented by Mr.
Herbison. The court then asked the Defendant if he wanted some time to make his decision. The
Defendant stated, “Your Honor, I need to speak with the District Attorney --” The judge repeated
his question. The Defendant responded, “I can’t answer [the question] until I speak to someone.”

After a recess, Mr. Herbison recalled the Defendant to the stand. After establishing that they
had discussed this matter during the recess, Mr. Herbison asked the Defendant what his
understanding was of what could and what could not be brought up in the post-conviction proceeding
regarding the suppression issue. The Defendant answered, “My understanding is that the filing or
the adequacy or inadequacy by [trial counsel] could be brought up, not the ruling.” Later, the trial
court asked the Defendant if he had discussed with Mr. Herbison prior to the hearing the advantages
and disadvantages of the suppression issue having not been raised in the direct appeal. The
Defendant answered, “No, sir.”

At the end of the hearing, the trial court ordered Mr. Herbison to withdraw as post-conviction
counsel to the Defendant. The court stated:

There is an obvious conflict between a person who has handled an appeal for a
defendant and then turns around to file a petition for post-conviction and it is quite
obvious he can’t raise anything, any effective assistance of counsel issues in the post

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 conviction as it relates to the appeal since he was the appellate counsel. So the issue
then is whether [the Defendant] fully understands that he forever waives that
potential remedy.
For the first time, according to [the Defendant’s] testimony, he learned that
there is a potential issue that could have been raised regarding the ineffective
assistance of counsel on appeal. He learned that today.
Now he says later that, no, he thought about it. And the Court will have some
comment on that in a few moments.
But initially in his cross-examination by the State and when asked by the
Court on numerous occasions, “Understanding that, is it your desire to go further
with Mr. Herbison?”
And quite frankly, he would not answer those questions that was put to him
by the State and was put to him by the Court.
The Court draws the conclusion from that that [the Defendant] did not
understand what he was waiving. He had only considered that for the first time. It
should have been a matter that he and Mr. Herbison had -- should have discussed
thoroughly before today. According to the [D]efendant, they had only discussed in
general terms that he could hire another attorney, but he was without any independent
legal advice with regard to whether he should waive those appellate issues, except
maybe for some inmates. And the inmates usually are not very good lawyers, . . . .
The Court is troubled that [the Defendant] changed his story, and that was
after he had consulted with Mr. Herbison. What the Court is troubled about is that
it points to the problem here because [the Defendant] was clearly confused; clearly
in the eyes of the Court, did not understand those issues that he might be raising, but
after it was explained to him by his attorney at the break, he then understood it.
Therein is the problem.
The Court finds that the [D]efendant has not freely and voluntarily, and more
particularly -- or he has freely and voluntarily, but has not knowingly, waived the
potential conflict that could arise from Mr. Herbison’s employment in this matter.

The record fully supports the trial court’s conclusion that the Defendant did not have a
thorough understanding of the nature of the conflict of interest that Mr. Herbison’s representation
created. Given that the Defendant did not possess the requisite thorough understanding, the trial
court did not abuse its discretion in refusing to accept the purported waiver. Accordingly, the trial
court committed no error in ordering Mr. Herbison removed from the case.

In conjunction with removing Mr. Herbison from his representation of the Defendant in this
proceeding, the trial court ordered Mr. Herbison to refund the entire retainer he had been paid by the
Defendant’s parents. Mr. Herbison now contends that the trial court was without authority to do so.
The State responds that this issue has been waived.

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 As noted above, this matter is before this Court upon an interlocutory appeal pursuant to Rule
9 of the Tennessee Rules of Appellate Procedure. “For interlocutory appeals, the only issues that
can be raised are those certified in the trial court’s order granting permission to seek an interlocutory
appeal and in the appellate court’s order granting the interlocutory appeal.” Heatherly v. Merrimack
Mut. Fire Ins. Co., 43 S.W.3d 911, 914 (Tenn. Ct. App. 2000). In this case, the trial court’s order
states the following:

The attorney of record on this post-conviction matter, John Edward Herbison,
is hereby removed as attorney for the petitioner. Mr. Herbison shall return the entire
retainer fee which he has been paid to [the Defendant’s] family in order that the
petitioner may retain the attorney of his choice.
The Court further grants permission for an interlocutory appeal from the
Court’s determination in this matter pursuant to Rule 9 of the Tennessee Rules of
Appellate Procedure, both on the Court’s own initiative and in accordance with the
indication of petitioner’s counsel that, had the Court not acted on its own initiative
as to permission to appeal, counsel would have made an oral motion therefor. . . . .
. . . Permission to appeal is granted in order to develop a body of law as how
the right to retained counsel of one’s choosing relates to [post-conviction]
proceedings.

We note that at the conclusion of the hearing of this matter, the trial court expressly granted
permission to appeal the issue concerning Mr. Herbison’s retainer, remarking that it was unsure
whether it had the authority to order the return of the retainer.4

We must also consider, however, this Court’s order granting the interlocutory appeal. That
document grants review of the trial court’s decision “to relieve retained counsel of further
representation of the appellant in his post-conviction proceeding.” The order makes no express
reference to the trial court’s ruling concerning Mr. Herbison’s retainer. Nevertheless, we do not
think it necessary to construe our order so narrowly as advocated by the State. The trial court’s order
of disqualification included, in pari materia, an order that Mr. Herbison refund his retainer. The
application filed in this Court seeking Rule 9 review refers to the ordered refund. This matter has
not been waived.

Nevertheless, the record does not contain sufficient information to permit this Court to rule
on the trial court’s order of refund. Our supreme court has held that an attorney’s breach of his or
her ethical obligations may give rise to a forfeiture of his or her fees. See Crawford v. Logan, 656
S.W.2d 360, 364 (Tenn. 1983). Before a forfeiture is warranted, however, there must be a finding
of prejudice to the client. See id. at 365. Thus, “[e]ach case involving misconduct of an attorney

4
W ith respe ct to the trial court’s expressed concern with its authority to order a refund, we note that our supreme
court has previously stated that “[i]t is well settled that the licensing and regulatio n of attorneys practicing law in co urts
of Tennesse e is squa rely within the inherent autho rity of the jud icial branch of government.” Smith County Ed uc. Ass’n
v. Anderson, 676 S.W .2d 328, 333 (Tenn. 1984 ).

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and the forfeiture of his fee must be viewed in the light of the particular facts and circumstances of
the case.” Id. Our court of appeals has noted that

[c]onsiderations relevant to the question of forfeiture include: (1) the gravity of the
violation, (2) the willfulness of the violation, (3) the effect of the violation on the
value of the lawyer’s work for the client, (4) any other threatened or actual harm to
the client, and (5) the adequacy of other remedies.

Hiram Seibers, Jr. v. Pepsi-Cola bottling Co., et. al., No. M1999-02559-COA-R3-CV, 2000 WL
1862833, at *4 (Tenn. Ct. App., Nashville, Dec. 21, 2000).

In this case, the trial court did not make all of the findings necessary to support an order of
forfeiture of Mr. Herbison’s fees. Accordingly, we vacate that portion of the trial court’s order and
remand for further proceedings in order to determine whether, and in what amount, if any, a
forfeiture of Mr. Herbison’s fee is warranted. We also note that it may be helpful to the trial court
to hear testimony from the Defendant’s parents who are the other parties to Mr. Herbison’s fee
agreement. Pertinent to the inquiry is what portion of any fees already paid had actually been earned
as of the time the trial court issued its notice of hearing on the matter of Mr. Herbison’s
representation. It may also be helpful for the trial court to refer to Rule of Professional Conduct 1.5,
which sets forth a number of considerations useful in determining the reasonableness of any fee
which the trial court determines Mr. Herbison may be entitled to keep. See Tenn. Sup. Ct. R.8, RPC
1.5.

The judgment of the trial court disqualifying Mr. Herbison from further representation of
the Defendant in this matter is affirmed. The trial court’s order regarding the refund of Mr.
Herbison’s fee is remanded for further proceedings as set forth above.

___________________________________
DAVID H. WELLES, JUDGE

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