Weeks v. State, 378 S.E.2d 895 (Ga. Ct. App. 1989). · Go Syfert
Weeks v. State, 378 S.E.2d 895 (Ga. Ct. App. 1989). Cases Citing This Book View Copy Cite
“in light of the total absence of any indication of prejudice, defendant cannot rely on speculative harm.”
34 citation events (13 in the last 25 years) across 1 distinct court.
Strongest positive: Morris v. State (gactapp, 2013-11-15)
Treatment trajectory · 1990 → 2026 · click a year to view as-of
1990 2008 2026
Top citers, strongest first. 13 distinct citers.
discussed Cited as authority (quoted) Morris v. State (2×) also: Cited "see"
Ga. Ct. App. · 2013 · signal: see · quote attribution · 1 verbatim quote · confidence high
in light of the total absence of any indication of prejudice, defendant cannot rely on speculative harm.
discussed Cited as authority (quoted) Kevin Scott Morris v. State (2×) also: Cited "see"
Ga. Ct. App. · 2013 · signal: see · quote attribution · 1 verbatim quote · confidence high
in light of the total absence of any indication of prejudice, defendant cannot rely on speculative harm.
examined Cited as authority (rule) Burns v. State (3×) also: Cited "see"
Ga. Ct. App. · 2005 · confidence medium
Redd v. State, 264 Ga. 399, 400 , 444 S.E.2d 776 (1994). [6] See United States v. Trevino, 992 F.2d 64, 66 (5th Cir.1993). [7] See United States v. Munoz, 23 Fed.Appx. 13, 15 (II) (1st Cir.2001). [8] Id. [9] Arnold v. State, 253 Ga.App. 387, 389 (3), 559 S.E.2d 131 (2002). [10] See Frazier v. State, 257 Ga. 690, 694 (9), 362 S.E.2d 351 (1987). [11] See Petty v. State, 260 Ga.App. 38, 41 (2)(a), 579 S.E.2d 23 (2003); Capers v. State, 220 Ga.App. 869, 873-874 (2), 470 S.E.2d 887 (1996). [12] Petty, supra. [13] Id. [14] Lamb v. State, 267 Ga. 41, 41-42 (1), 472 S.E.2d 683 (1996). [15] Woods, supr…
discussed Cited as authority (rule) Hudson v. State
Ga. Ct. App. · 1998 · confidence medium
Further, even if the trial court had accepted Hudson’s assertion of such potential conflict, prejudice to the defendant “is presumed only if the defendant demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer’s performance.” (Citations and punctuation omitted.) Weeks v. State, 190 Ga. App. 373, 374 ( 378 SE2d 895 ) (1989).
discussed Cited as authority (rule) Green v. State
Ga. Ct. App. · 1996 · confidence medium
Prejudice is presumed only if the defendant demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer’s performance.” (Citation and punctuation omitted.) Weeks v. State, 190 Ga. App. 373, 374 ( 378 SE2d 895 ) (1989).
cited Cited as authority (rule) Jones v. State
Ga. Ct. App. · 1993 · confidence medium
Weeks v. State, 190 Ga. App. 373, 375 (2) ( 378 SE2d 895 ) (1989); Rule 15 (c) (2).
discussed Cited as authority (rule) Ward v. State (2×)
Ga. Ct. App. · 1990 · confidence medium
Did counsel have to, or did he in fact, slight the defense of one defendant for ... another?" (Cit.)' [Cit.]" Barnes v. State, 160 Ga. App. 232, 233 ( 286 SE2d 519 ) (1981). "`An actual conflict exists if counsel's introduction of probative evidence or plausible arguments that would significantly benefit one defendant would damage the defense *167 of another defendant whom the same counsel is representing.' [Cits.]" Weeks v. State, 190 Ga. App. 373, 374 (1) ( 378 SE2d 895 ) (1989). "`(T)o justify separate counsel, the conflict may not be merely theoretical or speculative, but must have some su…
cited Cited as authority (rule) Jones v. State
Ga. Ct. App. · 1990 · confidence medium
Weeks v. State, 190 Ga. App. 373, 375 (2) ( 378 SE2d 895 ) (1989). 5.
discussed Cited "see" Jeffrey Alan Bourassa v. State (2×)
Ga. Ct. App. · 2018 · signal: see · confidence high
See Weeks v. State, 190 Ga. App. 373, 374 (1) ( 378 SE2d 895 ) (1989).
discussed Cited "see" Bourassa v. State (2×)
Ga. Ct. App. · 2018 · signal: see · confidence high
See Weeks v. State , 190 Ga. App. 373 , 374 (1), 378 S.E.2d 895 (1989).
discussed Cited "see" Mitchell v. State (2×)
Ga. Ct. App. · 1990 · signal: see · confidence high
See Weeks v. State, 190 Ga. App. 373, 375 (2) ( 378 SE2d 895 ).
discussed Cited "see, e.g." Bertholf v. State (2×)
Ga. Ct. App. · 1997 · signal: see also · confidence medium
See also Weeks v. State, 190 Ga. App. 373, 374 (1) ( 378 SE2d 895 ) (1989) (no actual conflict where attorney had previously withdrawn as-counsel for witness).
discussed Cited "see, e.g." Stephens v. State (2×)
Ga. Ct. App. · 1994 · signal: see also · confidence low
See also Weeks v. State, 190 Ga. App. 373 (1) ( 378 SE2d 895 ) (1989).
Weeks
v.
the State
77180.
Court of Appeals of Georgia.
Feb 10, 1989.
378 S.E.2d 895
F. Jordan Dowdell, for appellant., Willis B. Sparks III, District Attorney, Kimberly S. Shumate, Vernon R. Beinke, Thomas J. Matthews, Assistant District Attorneys, for appellee.
Pope, McMurray, Benham.
Cited by 16 opinions  |  Published
1 passages pin-cited by 2 cases
Pinpoint authority: #44,764 of 633,719
Citer courts: Court of Appeals of Georgia (2)
Pope, Judge.

Defendant Willie Weeks was found guilty by a jury of one count of racketeering and five counts of commercial gambling. On appeal he argues that he was denied effective assistance of counsel because his retained counsel previously represented one of the State’s witnesses, and that his attorney’s duty of confidentiality to his former client prevented him from conducting a thorough and sifting cross-examination of the witness.

The record shows that defense counsel’s representation of the witness had ended in 1985, when the witness entered a plea of guilty to the charges against him. Defense counsel was made aware of the possibility that the witness might appear for the State prior to the time trial commenced in 1987. However, it appears that counsel did not make a formal motion to withdraw until after the State’s direct examination of the witness, at which time counsel indicated to the court that the witness had made statements to counsel during his prior representation of the witness which differed from the witness’ testimony at trial, but that his duty of confidentiality to his former client prevented him from inquiring into the discrepancy. Counsel did not indicate that the witness’ prior statement was more favorable to his client than that asserted at trial or that his previous attorney-client relationship with the witness provided him with exculpatory information which he was unable to use at trial.

The court denied the request to withdraw, reasoning that because the discrepancy was known only to present counsel another attorney would be in no better position to cross-examine the witness, and hence defense counsel’s representation of the defendant was as good as, if not better than, another attorney who lacked present counsel’s specific knowledge.

1. On appeal defendant argues that his counsel’s duty of confidentiality to his former client created an actual conflict of interest requiring an automatic reversal of his conviction. See United States [*374] v. Martinez, 630 F2d 361 (5th Cir. 1980), cert. denied, 450 U. S. 922 (101 SC 1373, 67 LE2d 351) (1981). However, in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984) the United States Supreme Court rejected a per se rule of presumed prejudice for all cases involving conflicts of interest. “Prejudice is presumed only if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of interest adversely affected his lawyer’s performance.’ ” Id. at 692, citing Cuyler v. Sullivan, 446 U. S. 335, 348, 350 (100 SC 1708, 64 LE2d 333) (1980). “An actual conflict exists if counsel’s introduction of probative evidence or plausible arguments that would significantly benefit one defendant would damage the defense of another defendant whom the same counsel is representing.” Westbrook v. Zant, 704 F2d 1487, 1499 (11th Cir. 1983) quoting Baty v. Balkcom, 661 F2d 391, 395 (5th Cir. 1981), cert. denied, 456 U. S. 1011 (102 SC 2307, 73 LE2d 1308) (1982). See also Kennedy v. State, 177 Ga. App. 543 (1) (340 SE2d 204) (1986).

Applying this standard to the case at bar, it is clear that counsel was not “actively representing conflicting interests.” As stated above, the attorney-client relationship between defense counsel and the witness ended in 1985 when the witness pled guilty to the charges against him. At the time defendant’s trial commenced several years later, the former attorney-client relationship had been entirely severed. “ ‘[A]ctive representation of conflicting interests’ connotes more than merely cross-examining a former client. . . .” United States v. Olivares, 786 F2d 659, 663 (5th Cir. 1986).

We likewise find no merit to defendant’s argument that counsel’s previous representation of the witness adversely affected counsel’s performance in that it prevented him from conducting a thorough and sifting cross-examination of the witness. The record shows that the attorney conducted a vigorous cross-examination, in which he attempted to show that the witness was a criminal, but that the defendant was not, and that the relationship between the defendant and the witness did not involve criminal activity. Furthermore, although counsel did owe his former client a continuing duty of confidentiality, the record does not suggest and defendant does not argue on appeal that the statement the witness had previously made to counsel was more favorable to the defendant than the testimony given at trial. Moreover, defense counsel did not seek the witness’ permission to inquire into the alleged confidential matter, although the State assured the witness prior to giving his testimony that any statements made by him at trial would not be used as the basis of further prosecution. “In light of the total absence of any indication of prejudice, defendant cannot rely on speculative harm caused by speculative confidential information to show that he was deprived of his constitutional rights at trial.” United States v. Donatelli, 484 F2d 505, 507 (1st Cir. 1973).[*375] See also United States v. Olivares, supra; Montgomery v. State, 156 Ga. App. 448, 453 (2) (275 SE2d 72) (1980); Dixon v. State, 144 Ga. App. 27 (1) (240 SE2d 302) (1977).

Decided February 10, 1989 Rehearing denied February 21, 1989 F. Jordan Dowdell, for appellant. Willis B. Sparks III, District Attorney, Kimberly S. Shumate, Vernon R. Beinke, Thomas J. Matthews, Assistant District Attorneys, for appellee.

2. Inasmuch as defendant has presented no argument or citation of authority in support of his final enumeration, it is deemed abandoned pursuant to Court of Appeals Rule 15 (c) (2).

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.