Is Dual Representation on 1172.6 Resentencing Proper?
In 1995, Mark Damon Foley, Raymond Edward Gladden and Patrick Francis Cummings were convicted in Shasta County Superior Court of felony murder arising out of a plot to kidnap, assault and extort Duane McBroome over unpaid debt related to methamphetamine purchases.
Mr. Gladden tasked the other two defendants with collecting $1,800 from Mr. McBroome and told the other two defendants he wanted Mr. McBroome’s front teeth knocked out. Mr. Gladden was not present at the scene. Mr. Cummings was the actual killer, using Mr. Foley’s gun after wrestling it away from him. Mr. Foley then took the gun and drove away, throwing the gun out the window, while driving back to Mr. Gladden’s house to tell him Mr. McBroome had been killed.
At trial, Mr. Gladden’s counsel argued that Mr. Gladden was not guilty of felony murder because he was not present at the scene of the murder, did not supply a weapon and did not assist in concealment of the murder weapon or the body, and did not direct either defendant (Mr. Foley or Mr. Cummings) to kill Mr. McBroome – he only told them to knock out his front teeth. His attorney pointed out, “you don’t kill your customers or you won’t be a very profitable drug dealer.”
At trial, Mr. Foley’s counsel argued that although Mr. Foley brought Mr. McBroome over to the house where Mr. Cummings (the actual killer) was staying and apparently had Mr. Cummings summoned to the house, any kidnapping ended when the group were in the kitchen and Cummings took Mr. Foley’s gun. Mr. Foley’s counsel argued, moreover, that it was not foreseeable that Mr. Cummings would take Mr. Foley’s gun and kill Mr. McBroome.
Both Mr. Foley and Mr. Gladden were then convicted on a felony murder theory.
In 2019, both Mr. Foley and Mr. Gladden filed separate petitions for resentencing under Penal Code § 1172.6.
The trial judge consolidated the petitions and appointed the same attorney to represent both Mr. Foley and Mr. Gladden at a consolidated evidentiary hearing.
At the hearing, to preserve the convictions, the prosecution was required to prove that both Mr. Foley and Mr. Gladden were major participants in the underlying felony of kidnapping and that they acted with reckless indifference to human life. The trial court stated that it found neither defendant was the actual killer and neither defendant acted with the intent to kill.
Counsel for both Mr. Foley and Mr. Gladden then argued factors she considered favorable to both defendants, but the same factors could not favor both and conceded Mr. Gladden “certainly had the stronger petition.” The judge then granted only Mr. Gladden’s petition.
Mr. Foley then appealed the ruling denying his petition for resentencing to the California Court of Appeal for the Third District in Sacramento, arguing that his right to counsel was violated because there was a conflict of interest between himself and Mr. Gladden, so the same attorney could not represent both he and Mr. Gladden.
The Third District agreed with Mr. Foley. The Third District explained that a petitioner may show his or her right to counsel was violated when he or she can show: (1) counsel worked under an actual conflict of interest that adversely affected his or her performance; and (2) without that deficient performance, it is reasonably probable the result would have been different. People v. Johnson (2018) 6 Cal. 5th 541, 578.
As to deficient performance, an actual conflict of interest between codefendants may arise where, for example, counsel for multiple defendants “might injure one defendant by arguments in favor of another.” People v. Odom (1965) 236 Cal. App. 2d 876, 878. In People v. Chacon (1968) 69 Cal. 2d 765, a capital murder trial, the California Supreme Court observed, “[counsel] cannot simultaneously argue with any semblance of effectiveness that each defendant is most deserving of the lesser penalty.”
Here, both defendants had competing interests in showing that he was not a major participant and did not act with reckless indifference to human life. Thus, the argument would necessarily need to be that the other defendant was a major participant and he was not. One attorney could not argue this for both defendants.
Thus, the Third District found Mr. Foley was prejudiced and that he was entitled to a new resentencing hearing.
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