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April 21, 2000

Record No. 991630





PRESENT: Carrico, C.J., Lacy, Hassell, Keenan,
Koontz, and Kinser, JJ., and Whiting, Senior Justice


In this appeal of two related criminal
convictions, we consider whether the trial court’s rulings on the
defendant’s motion for a new trial were erroneous (1) in failing
to find there was a conflict of interest in defense counsel’s
representation of the defendant, and (2) in excluding the
defendant’s evidence of allegedly inadequate representation.

On January 12, 1998, Robert Bryan Haskins was
appointed as counsel for Mark Dana Turner who was charged with
the murder of his wife and the use of a firearm in the commission
of a felony. Fourteen days before Turner’s trial, Haskins applied
for employment as Assistant Commonwealth’s Attorney for
Pittsylvania County in response to an advertisement. Haskins, who
represented Turner at his trial on April 13, did not tell Turner
of the application.

A jury convicted Turner of both charges and
recommended sentences totaling 38 years. Eight days after the
trial, Haskins told his client of the application when the
Commonwealth’s Attorney’s office notified Haskins that he was
being considered for the position. Haskins also told Turner that
if he accepted the position, other counsel would have to be
appointed to represent Turner.

Twelve days after the trial, Haskins was
offered the position and accepted it. Two days thereafter,
Haskins notified Turner of his acceptance of the job and of the
necessity that other counsel be appointed to represent Turner in
the sentencing and other post trial proceedings.

Prior to sentencing, Turner’s new counsel filed
motions to set aside the jury’s verdict and for a new trial upon
a number of grounds. Two of these grounds were (1) that Turner
was denied the effective assistance of counsel because of an
alleged conflict of interest on Haskins’ part, and (2) that
Haskins’ "significant and cumulative errors and omissions
[affected Turner’s] right to a fair trial with effective
assistance of counsel."

After hearing and considering evidence and
argument, the court denied Turner’s motions to set aside the
verdict. As pertinent here, the trial court ruled that Haskins
had no conflict of interest in his representation of Turner and
that any alleged ineffective assistance of counsel should be
decided in a later habeas corpus proceeding. Following a
consideration of additional evidence on the issue of sentencing,
the court imposed the jury-recommended sentences.

The Court of Appeals denied Turner’s petition
for appeal. We granted Turner an appeal limited to the foregoing

Turner premises his conflict of interest
argument upon the guaranty of the Sixth Amendment to the United
States Constitution to the effective assistance of counsel. Strickland
v. Washington
, 466 U.S. 668, 686 (1984). Turner contends that
since Haskins was "actively seeking employment with the
prosecutor" when the case was tried, Haskins’ self interest
in seeking employment conflicted with his duty of loyalty to
Turner as his client. According to Turner, "[i]t is
self-evident that ineffective assistance of counsel may result
from an attorney’s own conflict of interest." When the
alleged conflict was brought to the attention of the court in
Turner’s motion for a new trial, Turner claims that "the
trial court had a duty to make inquiry into the conflict and to
determine the effect on the defendant’s right to assistance of
counsel." Turner thus assumes that the filing of the
employment application created the conflict.

The Commonwealth responds by noting that the
court considered the affidavits filed by Haskins, the
Commonwealth’s Attorney, and personnel in the Commonwealth’s
Attorney’s office, as well as Haskins’ testimony, all of which
indicated that Haskins had no contact with the Commonwealth’s
Attorney’s office about his application until after the trial.
The Commonwealth argues that this evidence supported the court’s
discretionary ruling that the evidence was insufficient to
conclude Haskins had a conflict of interest in his defense of
Turner. We agree with the Commonwealth.

When called as a witness by Turner’s new
counsel in the hearing on his motion for a new trial, Haskins
testified (1) that he had no conversations with the
Commonwealth’s Attorney about his job application until after the
trial, and (2) that he never had any contact with the
Commonwealth’s Attorney or anyone in his office about his
representation of Turner after the trial. Supporting affidavits
of the Commonwealth’s Attorney and personnel in his office
indicate that there was no such contact.

Turner does not claim that he had any
additional evidence of a conflict of interest. Rather, he argues
that Haskins "admitted the conflict." We find nothing
in the record to indicate that Haskins expressly admitted that
there was a conflict of interest. Apparently, Turner concludes
that Haskins’ application for employment created the asserted
conflict of interest as a matter of law.

We have not decided a case similar to this one.
However, the controlling principles have been articulated in a
number of cases.

The burden of establishing an alleged conflict
of interest between an attorney and his client is upon the person
who asserts such a conflict. Beaver v. Thompson, 93 F.3d
1186, 1192 (4th Cir. 1996) (merely showing that court-appointed
defense attorney also served as a part-time assistant
Commonwealth’s Attorney in a neighboring county is insufficient
to sustain burden of presenting convincing evidence of conflict
of interest). There are conflicts of interest which are apparent
on their face. Cantrell v. Commonwealth, 229 Va. 387, 393,
329 S.E.2d 22, 26 (1985) (public or private prosecutor of
criminal proceeding cannot simultaneously represent victims of a
crime in a civil action arising therefrom). However, an
attorney’s pending application for employment in opposing
counsel’s law firm does not create a conflict of interest on its
face between the attorney and his client. United States v.
, 845 F.2d 1414, 1419 (7th Cir. 1988) (defense
attorney’s pending consideration for appointment as United States
Attorney not per se conflict of interest).

Whether such conflict exists depends in part
upon the evidence of contacts between the prospective employer
and employee. Garcia v. Bunnell, 33 F.3d 1193, 1199 (9th
Cir. 1994), cert. denied, 514 U.S. 1024 (1995). In Garcia,
defense counsel’s plans to begin working for the district
attorney’s office after the conclusion of a criminal case did not
create a conflict of interest since defense counsel did not
discuss the case with the district attorney’s office and there
was no other evidence of a conflict. Id. And, whether the
evidence is sufficient to establish the conflict is a
discretionary decision of the court in which the issue is raised.
See Lux v. Commonwealth, 24 Va. App. 561, 569, 484
S.E.2d 145, 149 (1997). In Lux, the Commonwealth’s
Attorney was held to be disqualified from prosecuting a
defendant’s revocation of probation proceedings because there was
insufficient evidence of effective screening of contacts between
an assistant Commonwealth’s Attorney who had formerly been the
defendant’s counsel and other attorneys in the Commonwealth’s
Attorney’s office who were working on the defendant’s case. Id.
at 575-76, 484 S.E.2d at 152.

Applying these principles, we hold that the
trial court did not abuse its discretion in concluding that
Turner failed to sustain his burden of establishing that Haskins’
application for employment created an impermissible conflict
between Haskins’ duty of loyalty to his client and his desire to
obtain employment.
[1] Since the court could have found from the evidence that
Haskins had done nothing more than file the application, we find
no merit in Turner’s contention that the court erred in failing
to find that there was a conflict of interest.

This brings us to the issue of the exclusion of
Turner’s evidence of Haskins’ alleged instances of ineffective
assistance of counsel at trial. Turner sought to introduce this
evidence in support of his motion for a new trial. Citing Walker
v. Mitchell
, 224 Va. 568, 299 S.E.2d 698 (1983), the trial
court refused to hear this evidence on the ground that it was
admissible only in subsequent habeas corpus proceedings.

Turner contends, however, that the court failed
in its duty to inquire into the conflict and to determine its
effect on his right to the effective assistance of counsel. This
contention assumes that there was a conflict of interest, and
that the court did not inquire into that conflict. As we
have noted, the record shows that the court considered evidence
and argument on the conflict of interest issue. As we have
already indicated, we find no error in the court’s ruling that
the evidence was insufficient to establish such a conflict.

Accordingly, the court ruled correctly that the
issues raised by Turner’s claim of the ineffective assistance of
counsel should be decided in habeas corpus proceedings. As we
noted in Walker, "in the interests of both the
Commonwealth and the accused, the ends of justice dictate the
adoption of a rule restricting to habeas corpus proceedings the
litigation of claims of ineffective assistance of counsel." Id.
at 570, 299 S.E.2d at 699. Thus, we reject Turner’s contention
that the court erred in excluding his evidence of the alleged
ineffective assistance of counsel. This rejection is without
prejudice to Turner’s right to raise these issues in a later
habeas proceeding if he be so advised.

Accordingly the judgment of the trial court
will be



joins, dissenting.

I respectfully dissent.

"It is axiomatic that an accused, when
placed upon trial for his life or liberty, is to have thrown
around him every safeguard known to the law, in order that he may
be afforded a fair and impartial trial." Brown v.
, 138 Va. 807, 816, 122 S.E. 421, 424 (1924). The
right to a fair and impartial trial "lies at the very basis
of organized society and confidence in our judicial system."
Temple v. Moses, 175 Va. 320, 336, 8 S.E.2d 262, 268
(1940); see also Cantrell v. Crews, 259 Va.
47, 50-51, 523 S.E.2d 502, 503-04 (2000).

Those trained in the law and rightfully
possessing unfaltering confidence in our judicial system to
afford a fair trial to a defendant, even under the unusual
circumstances of this case, will understand the majority’s
opinion. I have no doubt, however, that those trained in the law
would not knowingly choose to be tried under the same
circumstances as the defendant. The line between a mere potential
conflict of interest and an actual conflict here is too thin and
subtle; most defendants, if not all, would seek new counsel.
Those not trained in the law would be even more inclined to do
so. Nevertheless, I cannot join the majority opinion because, in
my view, the facts of this case clearly represent a circumstance
calculated to undermine society’s confidence in our judicial

The Commonwealth appointed Haskins as
Turner’s counsel. Fourteen days before trial, Haskins
applied for employment with the Commonwealth’s Attorney who
was prosecuting Turner. Haskins knew that his application was
under consideration by the Commonwealth’s Attorney during
Turner’s trial. Nevertheless, Haskins made no disclosure of
these circumstances to Turner until after the trial and before
Turner was sentenced. Thus, Haskins denied Turner the opportunity
to seek new counsel if he had so desired. No defendant should
unknowingly be tried under such circumstances.

Undoubtedly, it would be incomprehensible to
the public that a defendant’s right to a fair trial was not
seriously compromised in a case, such as here, where the
Commonwealth appoints an attorney to represent the defendant and
during the trial that attorney is actively seeking employment
with the prosecuting attorney. Public confidence in the judicial
system rests, at least in part, on the proposition that
one’s attorney has undivided loyalty. Even the appearance of
a conflict of interest undermines that confidence. In short, the
present case, in my view, is a "textbook" example of
what should not be permitted regardless of how effectively the
court-appointed attorney may represent the defendant.

Accordingly, I would hold as a matter of law
that Turner was denied his right to a fair trial and that the
trial court erred in not granting him a new trial.



[1] If Haskins had told his client of
the application and, if the client felt that it created a
conflict of interest, Haskins could have submitted the matter to
the court for decision before trial. This would have avoided the
risk that the court may have concluded that there was a conflict
and ordered a new trial.