New York Law Review

Tag: Sixth Amendment

  • People v. Prosser, 309 N.Y.2d 634 (1974): Balancing Factors in Speedy Trial Determinations

    People v. Prosser, 309 N.Y.2d 634 (1974)

    The determination of whether a defendant’s right to a speedy trial has been violated requires a balancing of factors, including the length of the delay, the reasons for the delay, the extent of pretrial confinement, and any prejudice to the defendant.

    Summary

    Prosser was convicted of second-degree manslaughter after confessing to a killing. He appealed, arguing that the 27-month delay between his indictment and trial violated his right to a speedy trial. The delay was largely attributed to the key prosecution witness’s physical incapacity and the prosecutor’s focus on other pressing cases. The New York Court of Appeals affirmed the conviction, holding that while the delay was significant, considering all factors, including Prosser’s limited pretrial confinement, the justifications for the delay, and the lack of demonstrated prejudice to his defense, his speedy trial right was not violated. The court emphasized the need to balance competing interests and priorities in the criminal justice system.

    Facts

    Prosser fatally shot Allison in August 1968. Initially, a grand jury did not indict him after he claimed self-defense. In 1970, Prosser confessed to the killing to a fellow police officer, Cofield, who, under pretense, recorded Prosser repeating the confession and admitting to other crimes. Prosser was then indicted for murder in December 1970. He was free on bail for most of the time between indictment and trial.

    Procedural History

    Prosser was convicted of second-degree manslaughter after a jury trial. The Appellate Division affirmed the conviction. Prosser then appealed to the New York Court of Appeals, arguing a violation of his right to a speedy trial.

    Issue(s)

    Whether the 27-month delay between indictment and trial violated Prosser’s constitutional right to a speedy trial, considering the reasons for the delay and the circumstances of the case.

    Holding

    No, because considering the length of the delay, the justifications for the delay (witness incapacity and prosecutorial priorities), the limited pretrial confinement, and the lack of demonstrated prejudice to Prosser’s defense, his right to a speedy trial was not violated.

    Court’s Reasoning

    The Court of Appeals applied a balancing test, considering several factors to determine if Prosser’s right to a speedy trial was violated. These factors included the length of the delay, the reasons for the delay, the extent of pretrial confinement, and the existence of prejudice to the defendant’s ability to defend himself. Approximately 11 months of the delay were attributed to the defense, and 10 months were due to the key witness’s (Officer Cofield) physical incapacity. Another five months were due to the prosecutor’s involvement in other high-profile cases. The court noted that while a 27-month delay was significant, Prosser was on bail for most of that time, reducing the burden on him. The court distinguished this case from People v. Johnson, where the defendant was continuously jailed and asserted a plausible self-defense. Here, the court found no prejudice to Prosser’s defense. The critical issue was the authenticity of his confessions, which was not affected by the delay. The court acknowledged the importance of prioritizing jail cases and cases involving serious crimes of public significance. The court found the cross-examination of Prosser regarding other crimes was justified, given his admissions to Cofield. The court stated, “Whether one is deprived of a speedy trial depends on a number of related factors: The length of the delay, the excuses or justifications for the delay, the burden and extent of pretrial confinement, and, of course, even if not an essential factor, the existence of prejudice to defendant’s opportunity to defend. Influencing the application of the delay factor is, within tolerable limits, the temporary or permanent burdens on the prosecution in moving cases to trial.” The court concluded that the circumstances justified the delay and affirmed the conviction.

  • People v. McLaurin, 38 N.Y.2d 587 (1976): Duty to Secure Defendant for Speedy Trial After Notice of Incarceration

    People v. McLaurin, 38 N.Y.2d 587 (1976)

    When the state knows of a defendant’s incarceration in another jurisdiction and fails to take diligent action to secure the defendant’s presence for trial, the defendant’s right to a speedy trial is violated.

    Summary

    McLaurin was indicted in New York in 1968 but was subsequently incarcerated in New Jersey. New York authorities were notified of his incarceration in 1969 and were asked whether they would extradite him. No action was taken until 1972 when he was returned to New York. The Court of Appeals held that McLaurin’s right to a speedy trial was violated because the New York authorities knew of his whereabouts and availability for over three years but failed to act diligently to secure his presence for trial. The Court reversed the Appellate Division order and dismissed the indictment.

    Facts

    McLaurin was indicted in New York on September 30, 1968, and pleaded not guilty. He was released on bail but was subsequently arrested and convicted in New Jersey. On June 20, 1969, New York authorities were informed that McLaurin was being held in a New Jersey State prison. New Jersey specifically requested, via three communications dated June 18, 1969, that New York advise whether it would extradite McLaurin. McLaurin remained incarcerated in New Jersey until June 25, 1972, when he was returned to New York.

    Procedural History

    McLaurin appealed to the Appellate Division, arguing that he was denied a speedy trial. The Appellate Division rejected his claim. The Court of Appeals initially withheld determination of the appeal and remitted the case to the Supreme Court, Bronx County, for evidence regarding New York authorities’ knowledge of McLaurin’s New Jersey incarceration and their efforts to secure his presence in New York. After a hearing, the Court of Appeals reversed the Appellate Division’s order and dismissed the indictment.

    Issue(s)

    Whether McLaurin’s right to a speedy trial was violated when New York authorities knew of his incarceration in New Jersey for over three years but failed to take diligent action to secure his presence for trial.

    Holding

    Yes, because New York knew of McLaurin’s whereabouts and availability for over three years, the failure to act violated his right to a speedy trial.

    Court’s Reasoning

    The Court of Appeals relied on its prior decisions in People v. Briggs, People v. McLaurin, and People v. Winfrey, which established that the state has a duty to make diligent efforts to bring a defendant to trial, especially when the defendant is incarcerated in another jurisdiction and the state is aware of it. The Court emphasized that New York authorities were not only aware of McLaurin’s incarceration but were also specifically asked by New Jersey whether they intended to extradite him.

    “In these circumstances where New York knew of defendant’s whereabouts and availability for over three years, we are required to hold that defendant’s right to a speedy trial was violated”. The Court found the delay unreasonable and prejudicial, thus warranting dismissal of the indictment. The decision underscores the importance of prosecutorial diligence in pursuing cases, even when defendants are incarcerated elsewhere.

  • People v. Taranovich, 37 N.Y.2d 442 (1975): Balancing Test for Sixth Amendment Speedy Trial Claims

    People v. Taranovich, 37 N.Y.2d 442 (1975)

    A determination of whether a defendant’s Sixth Amendment right to a speedy trial has been violated requires a balancing of the conduct of the prosecution and the defendant, with particular attention to events toward the end of the relevant time period.

    Summary

    The New York Court of Appeals affirmed the Appellate Division’s orders, holding that despite 22- and 29-month delays between arrest and trial, the defendant’s Sixth Amendment right to a speedy trial was not violated. The court emphasized that much of the delay was attributable to the defendant’s own actions, including his dissatisfaction with assigned counsel and defense-instigated delays on the eve of trial. Furthermore, the defendant did not object to earlier delays caused by the prosecution and court. The court applied a balancing test, weighing the conduct of both the prosecution and the defendant to determine if the delay prejudiced the defendant’s rights.

    Facts

    The defendant was subject to two indictments that experienced significant delays between arrest and trial: 22 months for one, and 29 months for the other. During the period leading up to the trial, the defendant expressed dissatisfaction with several assigned counsel, requiring their replacement. On the eve of trial, defense counsel indicated that the defendant was largely responsible for the delays.

    Procedural History

    The case originated with two indictments against the defendant. After delays in bringing the case to trial, the case reached the Appellate Division, whose orders were affirmed by the New York Court of Appeals.

    Issue(s)

    Whether the delays of 22 and 29 months between the defendant’s arrest and trial constituted a violation of the defendant’s Sixth Amendment right to a speedy trial, thereby warranting dismissal of the indictments.

    Holding

    No, because the delays were significantly attributable to the defendant’s actions, and the defendant failed to object to earlier delays caused by the prosecution and the court. The totality of the circumstances did not demonstrate a violation of the defendant’s Sixth Amendment rights.

    Court’s Reasoning

    The court reasoned that delay alone does not automatically constitute a violation of a defendant’s constitutional right to a speedy trial. Rather, a balancing test must be applied, weighing the conduct of both the prosecution and the defendant. Citing People v. Blakley, 34 N.Y.2d 311, the court emphasized that courts should especially review events occurring toward the end of the relevant time period. The Court also pointed to People v. Prosser, 309 N.Y. 353, 359, 360 to emphasize the importance of contemporaneous objections. In this case, the court found that significant delays were instigated by the defense, and earlier delays were either justified or not objected to by the defendant. As a result, the defendant had no grounds for complaint. The court stated, “Delay alone does not automatically breach the defendant’s constitutional and statutory rights. Each such case must be determined on balance, i.e., the conduct of the prosecution and that of the defendant are weighed.”

  • People v. Bennett, 29 N.Y.2d 462 (1972): Standard for Ineffective Assistance of Counsel

    People v. Bennett, 29 N.Y.2d 462 (1972)

    The right to counsel means more than just having a person with a law degree nominally represent a defendant; it requires counsel to conduct appropriate investigations, both factual and legal, to determine if matters of defense can be developed, and to allow themselves time for reflection and preparation for trial.

    Summary

    Bennett was convicted of manslaughter. Prior to and during the trial, Bennett requested a new lawyer, arguing that his assigned counsel was unprepared, did not understand him, and was providing inadequate representation. The trial judge denied these requests but intervened significantly during the trial, questioning witnesses and providing curative instructions due to counsel’s deficiencies. The New York Court of Appeals reversed Bennett’s conviction, holding that his counsel’s representation was so inadequate that it rendered the trial a “farce and a mockery of justice,” violating his Sixth Amendment rights. The court emphasized the need for counsel to conduct investigations and prepare adequately for trial.

    Facts

    Bennett was indicted for murder for allegedly shooting Clifford Van Putten in the presence of Amos Grant.

    Before and during the trial, Bennett requested the trial judge to replace his assigned counsel because he felt the lawyer was unprepared, did not understand him, and was not properly representing him.

    Defense counsel’s opening statement presented an accidental shooting defense but argued self-defense in summation, unsupported by evidence.

    The trial judge had to prompt defense counsel to review witness statements and actively cross-examine witnesses himself to elicit favorable information for the defense.

    Defense counsel failed to appear at Bennett’s sentencing, where Bennett received the maximum sentence.

    Procedural History

    Bennett was convicted of manslaughter in the first degree.

    He appealed, arguing ineffective assistance of counsel.

    The New York Court of Appeals reversed the conviction.

    Issue(s)

    Whether Bennett was denied his Sixth Amendment right to effective assistance of counsel due to his assigned lawyer’s inadequate preparation and representation at trial.

    Holding

    Yes, because the record revealed a complete lack of investigation and preparation, and defense counsel rendered the trial a “farce and a mockery of justice.”

    Court’s Reasoning

    The court found that defense counsel’s performance was so deficient that it deprived Bennett of a fair trial. The court emphasized that the right to counsel requires more than nominal representation; it requires counsel to conduct appropriate investigations, both factual and legal, to determine if matters of defense can be developed, and to allow themselves time for reflection and preparation for trial. “[I]t is impossible to define with any precision what constitutes ‘inadequate’ or ‘ineffective’ legal representation or to formulate standards which will apply to all cases. But, at the very least, the right of a defendant to be represented by an attorney means more than just having a person with a law degree nominally represent him upon a trial and ask questions.”

    The court noted the trial judge’s extensive efforts to ensure a fair trial, including prompting defense counsel and questioning witnesses. However, it held that the judge’s intervention could not substitute for effective representation by counsel. The court determined that the errors were not harmless and that the failure to present the accused’s cause in any fundamental respect required reversal.

    The Court distinguished between requiring “errorless counsel” and requiring assistance that is “susceptible of being deemed of an assistive nature.” The Court found the latter lacking in this case.

  • People v. Blakley, 34 N.Y.2d 311 (1974): Plea Bargaining and Waiver of Speedy Trial Rights

    People v. Blakley, 34 N.Y.2d 311 (1974)

    A prosecutor cannot condition a plea bargain on the defendant’s waiver of their right to a speedy trial, as this is inherently coercive, and an unreasonable delay in bringing a defendant to trial violates their right to a speedy trial under the Sixth Amendment and relevant state statutes.

    Summary

    George Blakley was indicted for assault and firearm possession in 1966, but his trial did not begin until 1969. During the trial, the prosecutor offered a reduced plea deal on the condition that Blakley withdraw his motion to dismiss the indictment for lack of speedy trial. Blakley accepted, but appealed, arguing his right to a speedy trial was violated. The New York Court of Appeals held that conditioning a plea bargain on waiving speedy trial rights is inherently coercive and violates public policy. Furthermore, the Court found Blakley’s right to a speedy trial was indeed violated due to the significant delay and lack of good cause shown by the prosecution.

    Facts

    George Blakley, Jr. was arrested on November 15, 1965, and indicted on January 11, 1966, for assault and possession of a loaded firearm. The charges stemmed from an incident on November 14, 1965, where Blakley allegedly shot and wounded two individuals. The case experienced significant delays and did not proceed to trial until February 4, 1969, over three years after the indictment. During the trial, after the testimony of the victims, Blakley offered to plead guilty to two counts of assault in the second degree.

    Procedural History

    Blakley was indicted in January 1966. In February 1968, Blakley moved to dismiss the indictment for failure to prosecute. The County Court denied the motion. Blakley then pleaded guilty during trial after a plea bargain conditioned on withdrawing the speedy trial motion. He appealed the judgment of conviction, arguing his speedy trial rights were violated. The New York Court of Appeals reversed the order and dismissed the indictment.

    Issue(s)

    1. Whether a prosecutor may condition a plea offer on the defendant withdrawing a speedy trial claim.
    2. Whether the delay between indictment and trial violated the defendant’s right to a speedy trial.

    Holding

    1. No, because conditioning a plea bargain on waiving a speedy trial claim is inherently coercive and against public policy.
    2. Yes, because the prosecution failed to show good cause for the significant delay in bringing the defendant to trial.

    Court’s Reasoning

    The Court reasoned that the right to a speedy trial is not solely for the defendant’s benefit, but also serves a societal interest. Conditioning a plea bargain on waiving this right allows prosecutors to submerge speedy trial challenges, potentially leading innocent defendants to plead guilty to avoid an unfair, delayed trial. The Court emphasized that “the criminal justice system should scrupulously avoid the possibility that a plea of guilty may be tainted by unfairness.” The Court also found the purported waiver of the speedy trial claim ineffectual due to the coercive nature of the plea bargain.

    Regarding the speedy trial claim, the Court applied Section 668 of the Code of Criminal Procedure, which required the prosecution to show “good cause” for delays. The Court also considered the factors outlined in Barker v. Wingo: the length of the delay, the reasons for the delay, the defendant’s assertion of the right, and the prejudice to the defendant. The Court found the 34-month delay between indictment and the defendant’s change of attorney was excessive. While calendar congestion and a missing witness were cited as reasons for the delay, the Court found them insufficient. The Court noted the witness (Young) was available for a significant period and the District Attorney’s office did not diligently attempt to secure his presence. Ultimately, the Court concluded that the length of the delay and the defendant’s assertion of his right outweighed the reasons offered by the prosecution, thus violating Blakley’s right to a speedy trial.

  • People v. Anthony, 24 N.Y.2d 696 (1969): Co-Defendant Confessions and the Right to Confrontation

    People v. Anthony, 24 N.Y.2d 696 (1969)

    The admission of a co-defendant’s confession that implicates another defendant at a joint trial violates the implicated defendant’s Sixth Amendment right to confrontation if the co-defendant does not testify and is not subject to cross-examination.

    Summary

    Defendants Anthony and Batten were convicted of murder. Anthony confessed to the crime, implicating Batten. Batten also gave a statement. At their joint trial, Anthony did not testify. The court instructed the jury that Anthony’s confession was only admissible against Anthony. The New York Court of Appeals affirmed Anthony’s conviction but reversed Batten’s conviction, holding that the admission of Anthony’s confession violated Batten’s Sixth Amendment right to confront witnesses against him, as Anthony did not testify and was not subject to cross-examination. The court emphasized that the prosecutor’s summation exacerbated the prejudice.

    Facts

    Three butchers were murdered at the Spring Valley Meat Market. Carl Gilbert, an employee, told police that Anthony, a co-employee, had fired a gun in the market’s rear yard a month prior. Anthony initially admitted owning a .32 caliber gun and firing it but later claimed he sold it. Ballistics tests linked bullets from the victims and a shell casing from the yard to Anthony’s gun. Anthony confessed to the murders, later implicating Batten in the planning and execution. Batten initially denied involvement but later admitted Anthony told him about a planned robbery at the market and showed him money afterwards.

    Procedural History

    Both defendants challenged the voluntariness of their statements at a Huntley hearing. The trial court found the statements voluntary. They were tried jointly. The jury found both guilty of first-degree murder. The Appellate Division affirmed the convictions. Anthony and Batten appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether Anthony’s confession was admissible given his claim that it was involuntary.
    2. Whether Anthony was prejudiced by being tried jointly with Batten due to Batten’s statements implicating Anthony.
    3. Whether Batten’s Sixth Amendment right to confrontation was violated by the admission of Anthony’s confession implicating him, when Anthony did not testify.

    Holding

    1. No, because there was sufficient evidence to support the finding that Anthony’s statements were voluntarily made.
    2. No, because Batten testified and was subject to cross-examination, providing Anthony with the opportunity to exercise his Sixth Amendment right to confrontation.
    3. Yes, because Anthony’s confession, which implicated Batten, was admitted at their joint trial, and Anthony did not testify, depriving Batten of his Sixth Amendment right to confront the witness against him.

    Court’s Reasoning

    Regarding Anthony’s confession, the Court of Appeals found sufficient evidence to support the lower courts’ findings that the confession was voluntary. The court stated that the findings of the trial court and jury, affirmed by the Appellate Division, cannot be disturbed unless they are “incredible as a matter of law or unless the inferences drawn from conflicting testimony are not supported by sufficient evidence in the record.” The court also rejected Anthony’s Bruton claim, noting that because Batten testified and was subject to cross-examination, Anthony had the opportunity to confront him.

    However, regarding Batten, the court held that the admission of Anthony’s confession, which singled out Batten as the instigator and active participant, violated Batten’s Sixth Amendment right to confrontation under Bruton v. United States. The court quoted the prosecutor’s summation, which stated that Anthony’s confession was so intertwined that Batten could not be removed from it, highlighting the prejudice. The court stated: “Bruton v. United States (supra) mandates a reversal as to him since he was deprived of the precise Sixth Amendment right to confrontation which Bruton was deprived of when his codefendant Evans’ statement was admitted at their joint trial and Evans did not take the stand.” This prejudice, intensified by the prosecutor’s summation, required reversal of Batten’s conviction and a new trial.

  • People v. De Lucia, 20 N.Y.2d 275 (1967): Admissibility of Juror Statements Regarding Unauthorized Site Visits

    People v. De Lucia, 20 N.Y.2d 275 (1967)

    Juror statements regarding unauthorized visits to the crime scene are admissible to demonstrate prejudice to the defendant, as such outside influences violate the defendant’s Sixth Amendment right to confront witnesses.

    Summary

    Defendants De Lucia and Montella were convicted of attempted burglary and possession of burglar’s instruments. After the initial conviction was upheld, the U.S. Supreme Court decided Parker v. Gladden, prompting reconsideration. The key issue was whether juror statements about an unauthorized visit to the crime scene were admissible to challenge the verdict. The New York Court of Appeals held that such statements were admissible, as unauthorized visits constitute inherently prejudicial “outside influences” violating the defendant’s Sixth Amendment rights. The court balanced the policy against juror harassment with the defendant’s right to a fair trial. The case was remitted for a hearing to substantiate the allegations.

    Facts

    De Lucia and Montella were convicted of attempted burglary and possession of burglar’s instruments. After the verdict, information surfaced suggesting that several jurors had visited the scene of the alleged crime without authorization and even re-enacted the crime.

    Procedural History

    The Appellate Division affirmed the initial conviction. The New York Court of Appeals initially upheld the conviction. The U.S. Supreme Court denied certiorari. Subsequently, after the Parker v. Gladden decision, the Second Circuit vacated the District Court’s dismissal of a habeas corpus petition and remanded the case to the New York courts for reconsideration in light of Parker v. Gladden.

    Issue(s)

    Whether juror statements concerning an unauthorized visit to the scene of the crime are admissible to impeach their verdict and demonstrate prejudice to the defendant.

    Holding

    Yes, because in cases involving inherently prejudicial “outside influences” on a jury, such as an unauthorized visit to the crime scene, the violation of the defendant’s Sixth Amendment rights outweighs the policy reasons for the rule against jurors impeaching their own verdicts.

    Court’s Reasoning

    The Court of Appeals acknowledged the traditional rule against jurors impeaching their own verdicts, which aims to prevent post-trial harassment of jurors and maintain the integrity of jury deliberations. However, the court also recognized the defendant’s fundamental right to a fair trial by an impartial jury. Citing Parker v. Gladden, the court emphasized that a defendant has the right to confront witnesses against them. The court distinguished between statements regarding juryroom deliberations, which are generally inadmissible, and statements concerning “outside influences,” which are more susceptible to proof and less likely to undermine the jury system. The court reasoned that the unauthorized visit transformed the jurors into unsworn witnesses against the defendants, violating their Sixth Amendment rights. As the court stated, “in the case of such inherently prejudicial ‘outside influences’ on a jury as were here present, the violation of the defendants’ Sixth Amendment rights outweighs the policy reasons for the rule.” The court held that proof of the unauthorized visit is sufficient to warrant a new trial without demonstrating how the visit influenced individual jurors. The court remitted the case for a hearing to determine if the allegations were substantiated, and if so, to vacate the convictions and order a new trial.

  • People v. Flynn, 10 N.Y.2d 289 (1961): Right to Counsel When Conflicts of Interest Arise

    People v. Flynn, 10 N.Y.2d 289 (1961)

    When a conflict of interest between co-defendants arises during trial, particularly due to surprise testimony, failure to declare a mistrial and provide adequate separate counsel violates the defendant’s Sixth Amendment right to effective assistance of counsel.

    Summary

    Police officers Flynn and Byrne were convicted of attempted extortion. During the trial, a witness testified that Flynn planned to exclude Byrne from the extorted money, creating a conflict of interest. The original attorney, representing both defendants, withdrew, and new counsel was appointed for Flynn. Both the original attorney and new counsel moved for a mistrial, arguing Flynn could not be adequately represented at that stage. The court denied the motions. The New York Court of Appeals reversed the convictions, holding that the conflict of interest deprived Flynn of his right to effective counsel and that the surprise nature of the evidence prejudiced both defendants, warranting a new trial.

    Facts

    Defendants Flynn and Byrne, both police officers, were accused of attempting to extort $500 from Ralph Cozzino by threatening him with arrest and prosecution. Cozzino had a prior felony and misdemeanor conviction and a history of mental health issues. During the trial, Officer McPhillips testified that Flynn had stated he intended to split the extorted money with McPhillips, excluding Byrne.

    Procedural History

    The defendants were convicted in the Supreme Court, New York County. The Appellate Division, First Department, affirmed the convictions. The New York Court of Appeals granted permission to appeal.

    Issue(s)

    1. Whether the trial court erred in failing to declare a mistrial when a conflict of interest arose between the co-defendants, who were initially represented by the same counsel.
    2. Whether the newly appointed counsel for Flynn had sufficient time to prepare for trial, and whether Flynn’s Sixth Amendment right to counsel was violated when he lacked representation for four days during the trial.

    Holding

    1. Yes, because the conflict of interest arising from McPhillips’ testimony prejudiced Flynn’s defense, requiring separate and adequately prepared counsel.
    2. No, with qualification. The timing of the new counsel’s entry into the trial, after jury selection and several days of testimony, rendered effective representation impossible, violating Flynn’s Sixth Amendment rights. Consequently, a new trial should also be granted to Byrne, as the jury was led to believe the defendants’ interests were the same.

    Court’s Reasoning

    The Court of Appeals emphasized the significance of the conflict of interest arising from McPhillips’ unexpected testimony. The court noted that prior to this testimony, it was reasonable for a single attorney to represent both defendants, but the surprise evidence created divergent defense strategies. The court cited Glasser v. United States, where the Supreme Court held that the right to counsel is too fundamental to depend on calculations of prejudice. The court found that Flynn’s new counsel could not effectively cross-examine McPhillips without having experienced the initial days of the trial and understanding its atmosphere. The court directly quoted from the Legal Aid Society’s explanation for declining representation, stating that it was “too late in the game to have anyone from our Society to represent this man properly.” The court then reasoned that this was a sufficient basis for a mistrial. While the events were less damaging to Byrne, the court reasoned that the jury was initially led to believe that the two defendants should stand or fall together, making a new trial for both defendants appropriate. The court stated that “If his counsel had known of McPhillips’ testimony from the outset, the inference is that different trial tactics would have been adopted…in leading them to believe that the two defendants’ interests were hostile.”