NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: October 15, 2024
S24A0448. ROSENBAUM v. THE STATE.
ELLINGTON, Justice.
Jennifer Rosenbaum appeals her convictions for felony murder
and numerous counts of aggravated assault, aggravated battery,
and cruelty to children in connection with the death of her two-yearold foster child, Laila Daniel, and the physical abuse of then fouryear-old M. P., Laila’s biological sister who was also Rosenbaum’s
foster child. 1 Rosenbaum contends that her trial counsel provided
1 The crimes occurred in October and November of 2015, and Laila died
on November 17, 2015. Rosenbaum and her husband Joseph were originally
indicted on September 15, 2016. The Henry County District Attorney’s office
voluntarily recused itself from the case on January 30, 2017, and the Georgia
Attorney General assigned the case to both the Cobb County and DeKalb
County district attorney’s offices. See State v. Rosenbaum (“Rosenbaum I”), 305
Ga. 442, 443 n.2 (826 SE2d 18) (2019). Rosenbaum and Joseph were reindicted
on August 3, 2017, by a Henry County grand jury. On November 30, 2017, they
were again reindicted on a total of 49 counts. Rosenbaum alone was charged
with malice murder, three counts of felony murder, six counts of aggravated
assault, one count of aggravated battery, and six counts of cruelty to children
ineffective assistance by failing to request a jury instruction on the
in the first degree. Both Rosenbaum and Joseph were jointly charged with nine
counts of aggravated assault, five counts of aggravated battery, fourteen
counts of cruelty to children in the first degree, and two counts of cruelty to
children in the second degree. Joseph alone was charged with murder in the
second degree and cruelty to children in the second degree. On February 27,
2018, the trial court granted Rosenbaum’s and Joseph’s motion to suppress
evidence recovered from electronic devices, the State properly filed a notice of
appeal, and this Court affirmed the trial court’s order on March 11, 2019. See
Rosenbaum I, 305 Ga. 442.
After a jury trial that lasted three and a half weeks and ended on August
1, 2019, Rosenbaum was found guilty on all counts with which she was charged
except malice murder and two counts of felony murder. (Joseph was found
guilty on all counts with which he was charged except two counts of aggravated
assault, three counts of aggravated battery, and five counts of cruelty to
children in the first degree.) On that same day, Rosenbaum was sentenced to
serve life in prison for felony murder predicated on aggravated battery; thirtythree prison terms of twenty years each, to run concurrently with each other
but consecutively to the life sentence, for thirteen counts of aggravated assault, three counts of aggravated battery, and seventeen counts of cruelty to children
in the first degree; five prison terms of twenty years each, to run concurrently
with each other but consecutively to one of the aforementioned aggravated
assault sentences, for two counts of aggravated assault, one count of
aggravated battery, and two counts of cruelty to children in the first degree;
and two concurrent prison terms of ten years each for cruelty to children in the
second degree, for a total sentence of life plus forty years in prison. The
remaining counts with which Rosenbaum was charged, aggravated assault,
aggravated battery, and cruelty to children in the first degree, were merged
into the felony murder conviction. (Joseph was sentenced to serve a total of
sixty years in prison. )
Rosenbaum filed a timely motion for new trial, which she amended
through new counsel four times. After a hearing on February 28, 2022, and
April 5, 2022, the trial court denied the motion for new trial, as amended, on
December 13, 2022. Rosenbaum filed a timely notice of appeal, and the case
was docketed in this Court to the April 2024 term and orally argued on April
18, 2024. (Joseph also appealed to this Court at the same time, see Case No.
S24A0449, but we transferred his case to the Court of Appeals on December
28, 2023.)
2
law of justification and by laboring under an unwaivable, actual
conflict of interest. For the reasons explained below, we affirm.
The State presented evidence at trial showing that while Laila
and M. P. were in the sole care of Rosenbaum on November 17, 2015,
Laila sustained fatal blunt force trauma to her torso that lacerated
her liver and transected her pancreas, causing internal bleeding.
Rosenbaum told detectives and medical staff that she noticed Laila
choking on a piece of chicken and she tried unsuccessfully to give
emergency care. The evidence showed, however, that neither
asphyxiation nor improper resuscitation methods caused Laila’s
death. There was also extensive evidence that both girls had
numerous prior injuries and bruising that were not consistent with
Rosenbaum’s and her husband Joseph’s explanations of accidental
trauma.
At 5:41 p.m. on November 17, 2015, Rosenbaum called 911 and
reported that Laila was choking on a piece of chicken and stopped
breathing. Emergency personnel arrived at 5:53, but Laila was
unresponsive, and despite efforts to locate and clear an airway
3
obstruction, she never vomited or ejected food. At the time, Laila
was covered in bruises around her diaper, on all extremities, and
down her neck and back, and her left arm appeared to be broken.
Rosenbaum told a police officer that she had tried the Heimlich
maneuver because Laila was choking on a piece of chicken.
A few minutes after Laila arrived at the hospital, resuscitative
efforts were stopped, and she was pronounced dead. When
Rosenbaum and Joseph were told, they were “kind of quiet” and
“didn’t really ask a lot of questions” at first. When she and Joseph
were asked if they had any questions, Rosenbaum reiterated her
explanation that she tried the Heimlich maneuver when Laila was
choking on chicken. The medical professionals and the coroner who
saw Laila at the hospital noticed substantial bruising that was all
over her body, that had occurred at different times, and that was
inconsistent with being caused by resuscitative measures. An x-ray
revealed an older fracture of the right tibia, as well as a fracture of
the left arm that was only one to three weeks old.
At the hospital, Rosenbaum told the coroner, a detective, and a
4
Department of Children and Family Services (“DFCS”) investigator
that her husband had gone to work at 4:30 p.m., that she was home
getting M. P. ready to leave the house when she found Laila choking
on some chicken from dinner, that Laila was “white in color” and
shaking and was kicking during the whole incident, and that
Rosenbaum attempted the Heimlich maneuver, tried to clear the
airway with her finger and a butter knife, and dropped Laila a short
distance to the floor and pinned her legs to the floor to keep her from
kicking while Rosenbaum tried to perform CPR. During that
conversation at the hospital, Rosenbaum “seemed pretty calm” and
kept saying that she did not know why she could not cry, but Joseph
was “crying” and “distraught.”
During a recorded police interview on November 23, 2015,
Rosenbaum said she was the girls’ primary caretaker, they did not
attend daycare, and she and her husband were with Laila
throughout the week prior to her death. After Rosenbaum returned
home “around” 4:00 p.m. from a final exam at law school on
November 17, Joseph left for work, and Rosenbaum prepared and
5
served a meal. As she later prepared to take Laila and M. P. out of
the house, she heard movement in the kitchen, noticed Laila with
her “head back” in the highchair, and ran over to her. Rosenbaum
described Laila as unable to breathe, “look[ing] like she was
choking,” with her arms “twitching” and her legs kicking.
Rosenbaum stood Laila on the ground, got behind her, quickly
tucked Laila’s arms under Rosenbaum’s arms, and “pushed against”
her stomach and lower chest area. Rosenbaum demonstrated her
attempts to perform the Heimlich maneuver, which lasted “less than
thirty seconds or so,” but she did not know how many attempts she
made because she was “panicking.” Rosenbaum said that no food
came out and that she did not think Laila was getting air because
she was not coughing. So Rosenbaum used her finger to try to clear
the airway, massaged Laila’s chest with her fist, took Laila to the
sink, and leaned her over the counter to “pat” and “thrust” on her
back. Then Rosenbaum sat Laila in the sink, held her tongue down
with a butter knife, and used a finger again, “trying anything and
everything” that came to her mind. Rosenbaum said that some
6
pieces came out but it “didn’t seem like the whole thing was out yet”
and she still could not hear a breath. Rosenbaum then laid Laila on
the floor and did “the thrust, I guess like CPR . . . probably
everywhere” on Laila. When Rosenbaum heard a “gasp,” she took
Laila back to the sink and used a sprayer hose to “flush out” her
mouth. Rosenbaum said that Laila was “back breathing” and
Rosenbaum took her to the living room, laid her on her side, called
911, and followed instructions, including directions for performing
CPR, until emergency medical personnel arrived and took over.
An expert in child abuse pediatrics testified that Laila had
tissue damage on her lower abdomen; a “tremendous amount” of
bruising all over her back consistent with being struck by a fist and
an object with an “edge to it”; bruises with a “90-degree angle” that
were likely caused by a “belt buckle”; and numerous other bruises,
none of which were consistent with resuscitative efforts.
The medical examiner testified that Laila sustained twentytwo injuries to her head and neck; chest injuries sustained maybe a
few hours before death and not as little as 30 minutes before death;
7
back injuries that were sustained at different times and were
inconsistent with back blows and CPR in a resuscitation event;
twelve injuries to her arms; and seventeen injuries to her legs. The
medical examiner also testified that Laila had numerous internal
injuries from blunt-force trauma to her abdomen, including
laceration of her liver, separation of her pancreas into two pieces,
and other internal injuries to the supporting tissues of the small and
large intestines, which together caused internal bleeding.
In the medical examiner’s opinion, Laila’s abdominal trauma
likely occurred about 40 minutes to one hour before the onset of
seizures and symptoms such as her arms and legs moving, her head
falling back, her eyes rolling back, and choking and difficulty
breathing. The medical examiner confirmed that Rosenbaum’s
description of Laila’s choking was not at all consistent with an
airway obstruction by a “foreign body,” but instead was consistent
with a terminal seizure due to shock from blood loss. There was no
evidence of any food or vomit in Laila’s trachea or anywhere in her
airway, and her stomach contained only “very well digested
8
material,” not any food particles that could be identified and that
would indicate she ate chicken shortly before her death. The medical
examiner concluded that Laila’s injuries were not consistent with
any resuscitative methods and that the manner of death was
homicide caused by multiple blunt-force injuries to the torso.
Neither Rosenbaum nor Joseph testified. But the defense
presented a number of witnesses, including Dr. Kris Sperry, a
forensic pathologist. Dr. Sperry testified that Laila’s multiple
injuries, including those to her liver and pancreas, were
“inadvertently” caused when Rosenbaum believed that Laila was
choking on food and made “panicked, frenzied,” “chaotic,” and
“intense efforts” to save her life. Dr. Sperry also testified that the
bruises and injuries on Laila’s body and on M. P. could have been
caused by accidental mishaps and that there was no evidence that
they were intentionally caused by a belt or amounted to “inflicted
injuries.” In Dr. Sperry’s opinion, a conclusion that Laila’s death
was “undetermined” or “more probably than not an accident” would
be reasonable.
9
1. Rosenbaum first contends that her trial counsel provided
constitutionally ineffective assistance by failing to request a jury
instruction on justification, which Rosenbaum argues was her sole
defense to the counts that alleged criminal conduct occurring on the
day of Laila’s death – specifically, felony murder, five counts of
aggravated assault, and five counts of cruelty to children in the first
degree – which charged her with unjustifiably harming Laila during
what Rosenbaum claimed was her frantic providing of emergency
medical assistance. But justification was not Rosenbaum’s sole
defense. Instead, trial counsel sought and received an accident
instruction, and she made that the focus of the defense. It was not
constitutionally deficient to take that course instead.
To prevail on a claim of ineffective assistance, a defendant
must prove both that the performance of her lawyer was deficient
and that she was prejudiced by counsel’s deficient performance. See
Strickland v. Washington, 466 U.S. 668, 687 (III) (104 SCt 2052, 80
LE2d 674) (1984). To satisfy the deficiency prong of the Strickland
test, the defendant “must show that [her] attorney performed at trial
10
in an objectively unreasonable way considering all the
circumstances and in light of prevailing professional norms.” Lofton
v. State, 309 Ga. 349, 360 (6) (846 SE2d 57) (2020). “This requires a
defendant to overcome the strong presumption that counsel’s
performance fell within a wide range of reasonable professional
conduct, and that counsel’s decisions were made in the exercise of
reasonable professional judgment.” Scott v. State, 306 Ga. 417, 419-420 (2) (831 SE2d 813) (2019) (citation and punctuation omitted).
“Decisions regarding trial tactics and strategy may form the basis
for an ineffectiveness claim only if they were so patently
unreasonable that no competent attorney would have followed such
a course.” Thomas v. State, 311 Ga. 706, 714 (2) (a) (859 SE2d 14)
(2021) (citation and punctuation omitted). The defendant must also
show that the deficient performance prejudiced the defense, which
requires showing that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694 (III) (B). If an
appellant fails to show either deficiency or prejudice, this Court need
11
not examine the other prong of the Strickland test. See DeLoach v.
State, 308 Ga. 283, 288 (2) (840 SE2d 396) (2020).
Trial counsel did request, and the trial court gave, the pattern
jury instruction on accident. See Suggested Pattern Jury
Instructions, Vol. II: Criminal Cases, § 1.41.30 (4th ed. 2007,
updated Aug. 2020). During her closing argument, counsel relied on
Dr. Sperry’s testimony and argued that Laila’s death resulted from
“the Heimlich maneuver gone bad,” that Rosenbaum did not know
how to perform the Heimlich or CPR, that she damaged Laila’s
internal organs by “improper CPR” and “improper Heimlich” with
too much force for a child, and that Rosenbaum was trying to save
her during a “chaotic, frenzied scene.”
Trial counsel, who was retained to represent both Rosenbaum
and Joseph, testified at the hearing on their motions for new trial
that she and her clients developed accident, not justification, as
their theory of defense because of Rosenbaum’s repeated
statements, supported by Dr. Sperry’s testimony, that Laila’s death
was an accident caused by poor performance of the Heimlich
12
maneuver and CPR during a choking incident. Counsel believed
that a justification defense did not “fit” the evidence at trial because
her clients did not claim that Rosenbaum intended to commit any
act that would be a crime in the absence of justification, but instead
claimed that she accidentally caused Laila’s death when she
“punched too strongly” during resuscitation efforts, and because a
justification defense would have insulted the jurors and made them
believe more strongly that it was “outrageous and ridiculous” to put
up a defense for this crime.
In its order denying Rosenbaum’s motion for new trial, the trial
court ruled that “justification was not an appropriate charge to give”
and alternatively that, even assuming justification was an
appropriate charge to give, it was not Rosenbaum’s “sole affirmative
defense, since the evidence also allows for a charge of accident.”
Rosenbaum argues that the only defense warranted by the
evidence was the type of justification set forth in OCGA § 16-3-20 (5)
(“The defense of justification can be claimed . . . [w]hen the person’s
13
conduct is justified . . . as provided in Code Section 51-1-29[.]”).2
Even assuming this could have been a viable justification theory,
counsel made a strategic decision to focus on an accident defense.
There was evidence supporting the jury charge on accident that the
trial court gave in this case. “A person shall not be found guilty of
any crime committed by misfortune or accident where it
satisfactorily appears there was no criminal scheme or undertaking,
intention, or criminal negligence.” OCGA § 16-2-2. “When
successful, an accident defense ‘negates the defendant’s criminal
intent, whatever that intent element is for the crime at issue.’” Jones
v. State, 314 Ga. 400, 406 (2) (877 SE2d 232) (2022) (citation
omitted). An instruction on accident was warranted because there
was some evidence showing that, while rendering emergency care to
2 In relevant part, OCGA § 51-1-29 provides as follows:
Any person . . . who in good faith renders emergency care at the
scene of an accident or emergency to the victims thereof without
making any charge therefor shall not be liable for any civil
damages as a result of any act or omission by such person in
rendering emergency care or as a result of any act or failure to act
to provide or arrange for further medical treatment or care for the
injured person.
OCGA § 51-1-29 (a).
14
Laila, Rosenbaum committed acts that injured Laila but that were
performed without either criminal intent or criminal negligence. See
Folson v. State, 278 Ga. 690, 693 (4) (606 SE2d 262) (2004) (If the
jury believed the defendant’s testimony that he struck his two-yearold stepson “on the back to clear his airway and pressed the child’s
abdomen in an effort to perform CPR . . . , it could have found that
the child’s injuries were inflicted by accident, and that no crime was
committed.”). See also McClure v. State, 306 Ga. 856, 861 (1) (834
SE2d 96) (2019) (In the context of a claim of self-defense in a case
involving a shooting death, “[b]y asserting the defense of accident,
on the other hand, the defendant does not admit intentionally firing
the gun at the victim; rather he accepts for the sake of argument
only that he caused the victim’s fatal gunshot injuries and asks the
jury to conclude that he did so accidentally.” (punctuation omitted)).
To the extent that Rosenbaum could have raised a defense of
justification, that did not prevent her trial counsel from making an
objectively reasonable strategic decision to pursue the defense of
accident instead. See Jackson v. State, 318 Ga. 393, 397-398 (1) (a)
15
(897 SE2d 785) (2024) (“Trial counsel’s decision about which defense
to present is a matter of trial strategy[.]” (citation and punctuation
omitted)). As discussed above, the evidence supported an instruction
on the defense of accident, and “[a]n attorney’s decision to pursue a
particular defense is generally reasonable if it is supported by
evidence in the case.” Hendrix v. State, 298 Ga. 60, 63 (2) (a) (779
SE2d 322) (2015). Counsel fulfilled her duty to consult with her
client on the trial strategy of what particular defense or defenses to
pursue. Cf. id. at 63-64 (2) (a) (explaining that “attorneys do have an
affirmative duty to consult with their clients on such matters,” but
that counsel’s failure to consult was not prejudicial to the defense in
that case). It was not objectively unreasonable for counsel to believe
that an accident defense (requiring a simple lack of criminal intent
or criminal negligence) fit the evidence at trial. See Folson, 278 Ga.
at 693 (4). And the defense of justification was not obviously stronger
than the defense of accident. See Wilson v. State, 313 Ga. 319, 324-325 (2) (b) (869 SE2d 384) (2022) (“Because some evidence supported
the defense theory, and there was no other obviously stronger
16
defense theory available, Appellant has not shown trial counsel’s
decision to be patently unreasonable.”). See also LeCroy v. United
States, 739 F.3d 1297, 1313 (II) (11th Cir. 2014) (“Crucially,
Strickland permits attorneys to choose between viable avenues of
defense, and attorneys are not ineffective for making a reasonable
choice to take one avenue to the exclusion of another, or for selecting
a reasonable course without considering some other, equally
reasonable course. If a defense lawyer pursued course A, it is
immaterial that some other reasonable courses of defense (that the
lawyer did not think of at all) existed and that the lawyer’s pursuit
of course A was not a deliberate choice between course A, course B,
and so on. The lawyer’s strategy was course A. And, our inquiry is
limited to whether that strategy, that is, course A, might have been
a reasonable one.”) (citation and punctuation omitted)); Jackson,
318 Ga. at 398 (1) (a) (“[T]he fact that the chosen strategy failed
while another reasonable strategy remained unemployed does not
render trial counsel deficient.” (citation and punctuation omitted)).
Accordingly, counsel’s choice to rely solely on the defense of
17
accident, and not to request a jury charge on justification, was not
so patently unreasonable that no competent attorney would have
made that choice. See Jackson, 318 Ga. at 398 (1) (a) (“Unless the
choice of strategy [about which defense to present] is objectively
unreasonable, such that no competent trial counsel would have
pursued such a course, we will not second-guess counsel’s decisions
in this regard.” (citation and punctuation omitted)). Rosenbaum has
not shown that her trial counsel’s failure to request a jury charge on
justification amounted to deficient performance, and this claim of
ineffective assistance therefore fails. See Thomas, 311 Ga. at 714 (2)
(a) (holding that the appellant did not show that his trial counsel’s
performance was deficient where counsel’s decision not to request a
jury instruction on impeachment was “consistent with an objectively
reasonable defense strategy”).
2. Rosenbaum also contends that trial counsel’s joint
representation of both her and Joseph gave rise to an unwaivable,
actual conflict of interest that made it impossible under the Sixth
Amendment and applicable ethics rules for counsel to represent both
18
co-defendants at trial, and that counsel was constitutionally
ineffective due to the alleged unwaivable conflict of interest.
However, the trial court did not abuse its discretion in denying
Rosenbaum’s motion for new trial on this ground. Any potential
conflict of interest was waivable, and the evidence shows that
Rosenbaum did waive her right to conflict-free counsel and that her
waiver met the applicable constitutional requirements. For these
reasons, we need not address whether counsel developed an actual
conflict of interest at trial.
The right to counsel in criminal prosecutions, under “the Sixth
Amendment to the United States Constitution and Article I, Section
I, Paragraph XIV of the Georgia Constitution of 1983, is the right of
a defendant who does not require appointed counsel to choose who
will represent him.” Registe v. State, 287 Ga. 542, 544 (2) (697 SE2d
804) (2010). This right to select counsel of one’s choice is the “root
meaning” of the Sixth Amendment guarantee. United States v.
Gonzalez-Lopez, 548 U.S. 140, 147-148 (II) (126 SCt 2557, 165 LE2d
409) (2006). Indeed, “erroneous deprivation of the right to counsel of
19
choice, with consequences that are necessarily unquantifiable and
indeterminate, unquestionably qualifies as structural error.” Id. at
150 (III) (citation and punctuation omitted). This right “is not
unqualified, however.” Registe, 287 Ga. at 544 (2). For example, with
respect to “multiple representation” of co-defendants, “[d]efense
counsel ha[s] an ethical obligation to avoid conflicting
representations[.]” Cuyler v. Sullivan, 446 U.S. 335, 346 (IV) (A)
(100 SCt 1708, 64 LE2d 333) (1980).
“Single representation of multiple defendants raises no per se
presumption of conflict of interest or prejudice.” Hamilton v. State,
255 Ga. 468, 470 (2) (339 SE2d 707) (1986). “[I]ndeed, in some cases,
certain advantages might accrue from joint representation. . . . Joint
representation is a means of insuring against reciprocal
recrimination. A common defense often gives strength against a
common attack.” Holloway v. Arkansas, 435 U.S. 475, 482-483 (II)
(98 SCt 1173, 55 LE2d 426) (1978) (citation and punctuation
omitted). Rather than presuming that joint representation violates
the Sixth Amendment, trial courts “must recognize a presumption
20
in favor of [a criminal defendant’s] counsel of choice.” Wheat v.
United States, 486 U.S. 153, 164 (II) (108 SCt 1692, 100 LE2d 140)
(1988). It is true that this “presumption may be overcome not only
by a demonstration of actual conflict but by a showing of a serious
potential for conflict.” Id. However, where, as here, “a co-defendant
fails to object to multiple representation until after trial, a conflict
of interest will not be presumed.” Griggs v. State, 262 Ga. 766, 768
(4) (b) (425 SE2d 644) (1993).
Trial counsel represented both Rosenbaum and Joseph from
the beginning. At the hearing on their motions for new trial, counsel
testified that “in order that they both be represented [in] the best
way possible, it seemed that they had to be joined,” that separate
attorneys “might pressure one or the other to testify against one or
the other,” and that the “will to get a plea and move on” might
supplant the “will of the client.” Counsel explained that both clients
wanted to present a “unified front” and were “adamant about not
testifying against each other” and that Rosenbaum herself initially
came up with the idea of joint representation. Rosenbaum – a third21
year law student whom counsel considered to be “very, very
intelligent” – was “very involved” and would research and
“constantly” discuss all of the issues with counsel as part of a
collaborative process. Joseph also was involved in preparation of the
defense. Counsel frequently discussed potential conflicts of interest
with her clients together and with each separately. Counsel would
often pause and consider whether there was a potential conflict such
as antagonistic defenses. And she concluded that their defenses
were not antagonistic.
In June 2017, the State filed a motion to disqualify trial counsel
from joint representation. At the hearing on that motion, counsel
presented written, signed waivers of any conflict from both clients
and stated in her place that each client had consulted with
independent counsel and were ready to be questioned by the trial
court if the court so desired. In her written waiver, Rosenbaum
swore that she was “aware that a conflict of interest may possibly
arise” from the joint representation; that she “realize[d] the
potential hazards to [her] defense by continuing with such counsel
22
under the onus of a possible conflict”; that she was “aware of [her]
right to obtain other counsel”; and that, while she did “not concede
the current existence of a conflict,” she “waive[d] any conflict that
may arise and [her] right to hire or have appointed conflict-free
counsel.”3 The potentially different levels of culpability, as reflected
in the indictment, were discussed at the hearing. Trial counsel
stated that extension of a plea offer to only one co-defendant could
create a potential division of loyalties, but the prosecution did not
extend any such offer prior to trial, and both Rosenbaum and Joseph
“did not wish to pursue any type of plea offer” and advised counsel
not to seek a plea offer. About that issue, because Rosenbaum was a
“law student” and Joseph was “a correctional officer,” counsel stated
that “[t]hey cannot,” and “do not wish to[,] take a plea.”4 The trial
3 Joseph’s written waiver was substantively identical.
4 Rosenbaum’s position on plea negotiations never changed, and Joseph’s
position briefly changed only when the jury was actively deliberating on
August 1, 2019. Trial counsel and the co-defendants were nervous about the
length of deliberations, counsel checked whether either client wanted to
discuss a last-minute plea, and Rosenbaum refused, but Joseph wanted to
inquire about misdemeanor treatment. Prosecutors made a felony offer that
would require Joseph’s testimony against Rosenbaum, he would not accept,
and the jury returned its verdict that same day.
23
court denied the State’s motion to disqualify.
Soon after the hearing and order on the motion to disqualify,
counsel sent Rosenbaum and Joseph a letter, at the trial court’s
suggestion, that reviewed the relevant ethics rule and its
requirements regarding waivers of conflicts of interest. At the
hearing on the motions for new trial, Rosenbaum’s expert on the
ethical and practice requirements of the Rules of Professional
Conduct testified that in signed responses to the letters, each client
acknowledged that he or she actually sought guidance from
independent counsel about any potential conflicts, that each of them
wished to waive the conflicts and pursue a joint defense despite the
risks, that both parties were innocent of the charges and wished to
present a united front, and that neither of them had any information
that could be potentially useful or incriminating against the other.
Counsel testified that she did not draft her clients’ responses to her
letter. The trial judge directed trial counsel to let him know as soon
as any conflict developed, and as the trial drew near, counsel
updated the court on whether there was any potential for
24
antagonistic defenses. Counsel testified that no conflict developed
between the June 2017 denial of the motion to disqualify and the
2019 trial, and neither Rosenbaum nor Joseph ever indicated any
concern about a conflict even though counsel consulted them
frequently and separately about the issue throughout the case.
In its order denying Rosenbaum’s motion for new trial, the trial
court found that, “prior to trial, [Rosenbaum] and Joseph each
executed a waiver of the conflict of interest as to joint
representation, which comported with the standards of Rule 1.7 of
the Georgia Rules of Professional Conduct” found in Bar Rule 4-102
(d). The trial court also found that neither co-defendant objected to
trial counsel’s joint representation until after the trial concluded
and that Rosenbaum failed to demonstrate that an actual conflict of
interest adversely affected her lawyer’s performance.
(a) Rosenbaum argues that her trial counsel’s conflict of
interest was unwaivable under Rule 1.7 (c) of the Georgia Rules of
Professional Conduct. A potential conflict is not waivable under Rule
1.7 (c) (1)-(3) if the representation “is prohibited by law or these
25
rules,” “includes the assertion of a claim by one client against
another client represented by the lawyer in the same or
substantially related proceeding,” or “involves circumstances
rendering it reasonably unlikely that the lawyer will be able to
provide adequate representation to one or more of the affected
clients.” See Registe, 287 Ga. at 547 (3) (b). We have already
established that joint representation of criminal co-defendants is not
prohibited in all cases. See Wheat, 486 U.S. at 161 (II); Hamilton,
255 Ga. at 470 (2). And neither co-defendant in this case has
asserted a claim against the other. The only question is whether the
circumstances made it reasonably unlikely that Rosenbaum’s trial
counsel would be able to provide adequate representation. The
evidence showed that, prior to trial, both counsel and her clients
consistently desired and planned a “unified front” that included a
determination that neither co-defendant would or even could give
testimony against the other; their anticipated defenses based on the
co-defendants’ representations to counsel were not antagonistic; and
there were no plea offers, and both co-defendants rejected plea
26
negotiations. While one of the co-defendants could possibly have
changed his or her mind or story before or during trial, neither one
did, and it cannot be said that adequate representation by a single
attorney was reasonably unlikely. Accordingly, any potential
conflict of interest on the part of trial counsel was not unwaivable.
(b) Having determined that any conflict of interest was
waivable, we turn to Rosenbaum’s arguments that she did not waive
the conflict here. Rosenbaum first argues that, assuming arguendo
that her trial counsel’s conflict of interest was waivable, the trial
court was required to hold an on-the-record colloquy to establish
that Rosenbaum’s waiver was knowing, voluntary, and intelligent.
However, Rosenbaum has brought to our attention nothing in Sixth
Amendment precedent or in state law that required the trial court
to question Rosenbaum personally on the record about her waiver.
Under the Sixth Amendment, “a waiver can be valid if obtained
during a state trial court proceeding even if the state court does not
conduct an on-the-record inquiry, provided that the waiver is
knowing, voluntary, and intelligent.” Henderson v. Smith, 903 F2d
27
534, 537 (II) (8th Cir. 1990). Cf. Fed. R. Crim. P. 44 (c) (2) (“The
[federal] court must promptly inquire about the propriety of joint
representation and must personally advise each defendant of the
right to the effective assistance of counsel, including separate
representation.”); Woods v. State, 275 Ga. 844, 851 (573 SE2d 394)
(2002) (Fletcher, C. J., dissenting) (recognizing “that a trial court is
not constitutionally required to conduct a hearing on the validity of
a waiver whenever defendants are jointly represented,” but
dissenting to the majority’s analysis of the effect of the conflict of
interest on counsel’s performance at trial).
(c) Rosenbaum also argues that her waiver of any conflict of
interest was not knowing, voluntary, and intelligent. “The
determination of whether there has been an intelligent waiver of
right to counsel must depend, in each case, upon the particular facts
and circumstances surrounding the case, including the background,
experience, and conduct of the accused.” United States v. Rodriguez,
982 F2d 474, 477 (11th Cir. 1993) (citation and punctuation
omitted). A defendant’s waiver of her attorney’s conflict of interest
28
“must be established by clear, unequivocal, and unambiguous
language,” and “[t]he record should show, in some way, that the
defendant was aware of the conflict of interest; realized the conflict
could affect the defense; and knew of the right to obtain other
counsel.” Id. (citation and punctuation omitted). See also Fleming v.
State, 246 Ga. 90, 91 (1) (270 SE2d 185) (1980) (relying on federal
authority that “the trial court must be satisfied that the defendant
is aware of the possibility of conflicts and the dangerous
consequences which may result.”). For many reasons, 5 trial courts
5 The considerations expressed in Wheat include the potential “whipsawing” of trial courts and the necessity of addressing waiver only in the pretrial context:
[T]rial courts confronted with multiple representations face the
prospect of being “whip-sawed” by assertions of error no matter
which way they rule. If a district court agrees to the multiple
representation, and the advocacy of counsel is thereafter impaired
as a result, the defendant may well claim that he did not receive
effective assistance. On the other hand, a district court’s refusal to
accede to the multiple representation may result in a challenge
such as petitioner’s in this case.
Wheat, 486 U. S. at 161 (II) (citation omitted).
Unfortunately for all concerned, a district court must pass on the
issue whether or not to allow a waiver of a conflict of interest by a
criminal defendant not with the wisdom of hindsight after the trial
has taken place, but in the murkier pre-trial context when
relationships between parties are seen through a glass, darkly.
The likelihood and dimensions of nascent conflicts of interest are
29
“must be allowed substantial latitude in refusing waivers of conflicts
of interest” or allowing joint representation with appropriate
waivers. Wheat, 486 U. S. at 163 (II); see also id. at 164 (II) (holding
that the district court’s decision was “within its discretion” and
recognizing that “[o]ther district courts might have reached differing
or opposite conclusions with equal justification, but that does not
mean that one conclusion was ‘right’ and the other ‘wrong’”); Registe,
287 at 544 (2) (“The trial court’s decision on whether an ethical
requirement bars a lawyer from representing a defendant is
reviewed on appeal for abuse of discretion.”). “A determination that
defendants have waived the right to conflict-free counsel disposes of
the need to evaluate the actual or potential ineffectiveness of counsel
caused by the alleged conflicts of interest.” Rodriguez, 982 F2d at
477.
The evidence before the trial court on the State’s motion to
disqualify counsel showed that Rosenbaum, who had received more
notoriously hard to predict, even for those thoroughly familiar with
criminal trials.
Wheat, 486 U. S. at 162-163 (II).
30
than two years of legal training, was highly motivated not to seek a
plea offer and could understand the legal issues in the case,
including the advantages and potential disadvantages of a common
defense. Along with Joseph – who also was involved in preparation
of the defense – Rosenbaum executed a written waiver in which she
swore that she was aware of a possible conflict of interest as a result
of the joint representation, realized its potential harmful
consequences for her defense, and was aware of her right to obtain
other counsel; and in which she waived any conflict that may arise
and her right to conflict-free counsel. Trial counsel explained that
each co-defendant had consulted with independent counsel.6
Moreover, the relevant surrounding circumstances include not only
6 In this regard, Rosenbaum argues that when she sought the advice of
independent counsel, her trial counsel threatened to withdraw from the
representation, thereby deterring her from seeking such advice. The evidence
of counsel’s threat to withdraw, however, did not relate to the co-defendants’
consultation with independent counsel about potential conflicts of interest. To
the contrary, the threat related to Rosenbaum’s much later pre-trial
consultation with another attorney about the transcripts and materials needed
to preserve for a potential appeal the issue of the trial court’s denial of an ex
parte motion for supplemental funds. Accordingly, trial counsel’s threat to
withdraw did not deter Rosenbaum from fully consulting with independent
counsel about potential conflicts of interest.
31
Rosenbaum’s background and experience, but also counsel’s
continuing efforts, as directed by the trial court, to monitor the case
for the development of any conflicts and to continue consultations
with her clients regarding that issue. The evidence showed that
Rosenbaum’s waiver of her right to conflict-free counsel was
knowing, voluntary, and intelligent. Considering all of the
circumstances, we conclude that the trial court did not abuse its
discretion in denying Rosenbaum’s motion for new trial on this
ground. And because Rosenbaum waived her right to conflict-free
counsel, we need not reach Rosenbaum’s contention that trial
counsel developed an actual conflict of interest that adversely
affected her representation of Rosenbaum. See Rodriguez, 982 F2d
at 477.
Judgment affirmed. All the Justices concur, except Colvin, J.,
disqualified.
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