{ "id": 1669033, "name": "Larry CHAMBERS v. STATE of Arkansas", "name_abbreviation": "Chambers v. State", "decision_date": "1978-10-02", "docket_number": "CR 78-79", "first_page": "279", "last_page": "282", "citations": [ { "type": "official", "cite": "264 Ark. 279" }, { "type": "parallel", "cite": "571 S.W.2d 79" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "98 S. Ct. 1173", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 2258 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/us/435/0475-01" ] }, { "cite": "298 F. 2d 461", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 229545 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/f2d/298/0461-01" ] }, { "cite": "339 F. 2d 79", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 884006 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/f2d/339/0079-01" ] }, { "cite": "419 U.S. 1110", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6503106, 6503011, 6502426, 6502726, 6502833, 6502933, 6502618, 6502523, 6503197 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/us/419/1110-08", "/us/419/1110-07", "/us/419/1110-01", "/us/419/1110-04", "/us/419/1110-05", "/us/419/1110-06", "/us/419/1110-03", "/us/419/1110-02", "/us/419/1110-09" ] }, { "cite": "256 Ark. 738", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724688 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/ark/256/0738-01" ] }, { "cite": "479 S.W. 2d 873", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1972, "opinion_index": 0 }, { "cite": "252 Ark. 505", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1630118 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/ark/252/0505-01" ] } ], "analysis": { "cardinality": 455, "char_count": 6186, "ocr_confidence": 0.877, "pagerank": { "raw": 2.601301434155757e-07, "percentile": 0.8195141878928076 }, "sha256": "c41b8902d4c5b8e606af0c6f8eb79bf603764e050ea1f81cef0352f3902751ae", "simhash": "1:135093cc6f845da9", "word_count": 1039 }, "last_updated": "2023-07-14T18:22:41.361067+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Harris, C.J., and Holt and Hickman, JJ." ], "parties": [ "Larry CHAMBERS v. STATE of Arkansas" ], "opinions": [ { "text": "George Rose Smith, Justice.\nThis is a petition for post-conviction relief under Criminal Procedure Rule 37. The petitioner alleged, among other things, ineffective assistance of counsel as a ground for withdrawing his plea of guilty. After an evidentiary hearing the trial court denied the petition.\nAt the evidentiary hearing Chambers\u2019s present counsel, who was appointed, asked that the witnesses be excluded from the courtroom, as required by the statutes. Ark. Stat. Ann. \u00a7 43-2021 (Repl. 1977); Uniform Rules of Evidence, Rule 615, Ark. Stat. Ann. \u00a7 28-1001 (Supp. 1977). Mike Etoch, as retained counsel, had represented Chambers when he first pleaded not guilty and when he changed his plea to guilty. Mr. Etoch was a prospective witness at the hearing, but the court refused to exclude him, on the ground that the allegations of ineffective assistance of counsel had in effect made him a party to the proceeding.\nThe court was mistaken in its ruling. The older statute, \u00a7 43-2021, states that the judge \u201cshall\u201d exclude the witnesses. It is mandatory. Vaughn v. State, 252 Ark. 505, 479 S.W. 2d 873 (1972). If the Uniform Rule of Evidence has superseded the earlier statute, it too uses the word \u201cshall\u201d and must also be construed to be mandatory. Mr. Etoch was present as a prospective witness, not as a party. The court\u2019s ruling that he was in effect a party seems to imply that he might have some bias or personal interest in the proceeding. We do not detect anything of the kind in his testimony, but if any such feeling existed it would be all the more reason for his exclusion. The statutes are designed to minimize the effects of partiality on the part of witnesses.\nThe State argues that Mr. Etoch\u2019s presence during the hearing was proper under Uniform Rule 615, which excepts from exclusion \u201ca person whose presence is shown by a party tobe essential to the presentation of his cause.\u201d The exception is said to contemplate \u201csuch persons as an agent who handled the transaction being litigated or an expert needed to advise counsel in the management of the litigation.\u201d 28 USCA, Federal Rules of Evidence, Rule 615, Notes of Advisory Committee (1975). Mr. Etoch did not fall in either category. He was present simply as a witness, not as a sort of co-counsel for the State to defend against the assertions of his former client.\nWe also find by the weight of the evidence that there was in fact ineffective assistance of counsel. The charges of burglary and theft were filed against the appellant, Larry Chambers, against his brother, Danny Chambers, and against a third defendant, James Cooper. Mr. Etoch was first employe'll as paid counsel by the father of the Chambers brothers. When it developed that young Cooper was indigent, Mr. Etoch was appointed to defend him as well.\nA postoffice had been burglarized. Mr. Etoch testified at the hearing below that the State had a strong case against Danny Chambers and Cooper. Their fingerprints had been found inside the postoffice, and they had confessed. The State had \u201ca cinch conviction\u201d against them. Larry, however, had made no statement, and his fingerprints were not found inside the postoffice. \u201cHowever,\u201d according to Mr. Etoch, \u201cthe other two boys in their confession had given them full information that Larry was with them, sitting in the car, etc., and things.\u201d\nThe two who confessed had no criminal record. Larry had shot a police officer and was on parole after having served six years in prison. According to Mr. Etoch, the sheriff\u2019s office offered to give Danny and Cooper suspended sentences if they would turn state\u2019s evidence against Larry. Mr. Etoch, in view of the conflict of interest, discussed the matter at length with Larry\u2019s father and with Larry. He explained that he was willing to represent either brother at a trial, but he could not continue to represent all three defendants unless they pleaded guilty. The discussions eventually led to pleas of guilty by all three.\nWe have no doubt at all about Larry\u2019s having been entitled to independent counsel. The duty of a lawyer in Mr. Etoch\u2019s position is clearly stated in the ABA Standards Relating To the Defense Function, \u00a7 3.5 (b) (1971):\nExcept for preliminary matters such as initial hearings or applications for bail, a lawyer or lawyers who are associated in practice should not undertake to defend more than one defendant in the same criminal case if the duty to one of the defendants may conflict with the duty to another. The potential for conflict of interest in representing multiple defendants is so grave that ordinarily a lawyer should decline to act for more than one of several co-defendants except in unusual situations when, after careful investigation, it is clear that no conflict is likely to develop and when the several defendants give an informed consent to such multiple representation.\nSee also the Code of Professional Responsibility, Canon 5 (1975).\nWe do not consider it to be material that Mr. Etoch was serving as paid counsel rather than by appointment. We have applied our standard of professional competency to non-appointed counsel. Kerr v. State, 256 Ark. 738, 512 S.W. 2d 13 (1974), cert. den. 419 U.S. 1110 (1975). Nor does it matter that all the clients knew about the joint representation, a circumstance that does not appear to have existed in two somewhat similar cases. Randazzo v. United States, 339 F. 2d 79 (5th Cir. 1964); Porter v. United States, 298 F. 2d 461 (5th Cir. 1962). The controlling and inescapable fact is that it was necessarily impossible for Mr. Etoch to give sound disinterested counsel to every one of three clients whose best interests were in direct and irreconcilable conflict. The absolute necessity for independent counsel was so clear-cut that Larry\u2019s plea of guilty cannot be allowed to stand. Cf. Holloway v. Arkansas, 98 S. Ct. 1173 (1978).\nReversed and remanded for further proceedings.\nWe agree.\nHarris, C.J., and Holt and Hickman, JJ.", "type": "majority", "author": "George Rose Smith, Justice." } ], "attorneys": [ "Jesse E. (Rusty) Porter, Jr., for appellant.", "Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Deputy Atty. Gen., for appellee." ], "corrections": "", "head_matter": "Larry CHAMBERS v. STATE of Arkansas\nCR 78-79\n571 S.W. 2d 79\nOpinion delivered October 2, 1978\n(Division I)\nJesse E. (Rusty) Porter, Jr., for appellant.\nBill Clinton, Atty. Gen., by: Joseph H. Purvis, Deputy Atty. Gen., for appellee." }, "file_name": "0279-01", "first_page_order": 307, "last_page_order": 310 }