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Starnes v. State9/14/2000
ial counsel appropriately brought the nature of the conflict to the attention of the trial court. If trial counsel timely and properly brought this to the attention of the trial court and the request was denied, it would be difficult to find any deficiency by trial counsel. Otherwise, counsel may have been deficient. A remand is necessary to determine this issue, and a transcript of the hearing on the motion to withdraw should be presented.
It is also apparent from the appellate record that trial counsel did not represent the petitioner on appeal, but rather the public defender was appointed. It is further apparent from this court's opinion in the direct appeal that appellate counsel did not raise the issue of the alleged failure of the trial court to grant the motion to withdraw. This issue was not addressed in the post-conviction court and should be addressed upon remand. Accordingly, we remand for the following determinations to be made:
1. During voir dire prior to the trial of the defendant, was a statement made, as alleged in the petition for post-conviction relief, that a potential juror had been in the house of the defendant's father and had seen "too many things in the house," and, if so, was it likely that if a mistrial had been requested because of this statement it would have been granted?
2. What was the theory of the defense when the defendant and his wife were to be tried together?
3. What were the theories of the defense when the defendant and his wife were tried separately?
4. What was the "conflict" alleged in trial counsel's October 1994 motion to withdraw?
5. Did trial counsel allege, prior to the trial of the defendant, that he had a conflict of interest in continued representation of the defendant and, if so, did he raise this issue in an adequate fashion?
6. Was appellate counsel ineffective for not raising, on appeal, the issue of whether trial counsel had a conflict in representing both the defendant and his wife?
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