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IN THE SUPREME COURT OF IOWA
No. 112 / 05-0692 Filed June 8, 2007 STATE OF IOWA, Appellee, vs. JOEL BRADFORD SMITHERMAN, Appellant. ________________________________________________________________________ Appeal from the Iowa District Court for Hardin County, Jon Scoles, Judge.

Appeal AFFIRMED.

from

jury

verdict

for

murder

in

the

first

degree.

Mark C. Smith, State Appellate Defender, and James G. Tomka, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Martha E. Boesen, Scott Brown, and Douglas Hammerand, Assistant Attorneys General, and Richard N. Dunn, County Attorney, for appellee.

2 CADY, Justice. In this case we must determine if the defendant's constitutional rights to conflict-free counsel were violated. In addition, we must

determine whether there was sufficient evidence to convict the defendant of first-degree murder. Finding no constitutional violation or problem

pertaining to the sufficiency of the evidence, we affirm the defendant's conviction. I. Background Facts and Proceedings. In 1990 law enforcement officers found Richard Tasler's skeletal remains buried on Joel Smitherman's property. As a result, and after a long investigation, the State finally charged Smitherman with Tasler's murder on May 13, 2004. The court appointed the Marshalltown Public Defender's Office (MPDO) to represent Smitherman on May 13, 2004. On May 17 MPDO attorneys Melissa Anderson and Ray Reel filed their appearances on behalf of Smitherman. On May 18, 2004, a prison inmate--Jason Williamson--came forward with information related to the prosecution of Smitherman. Williamson was in jail on felony and serious misdemeanor charges. Reel represented Williamson on his serious misdemeanor charges, and a private attorney represented Williamson on his felony charges.

Williamson was interviewed by law enforcement officials on May 19, 2004. The next day the State informed the MPDO that Williamson would likely be added to the trial information as a witness for the prosecution. On May 21, 2004, Anderson and Reel discussed the addition of Williamson as a witness. Anderson told Reel she did not want to know anything about the potential witness or the pending cases against him. Anderson even indicated she was not sure of Williamson's name. As a

3 result of their conversation, Reel immediately made the decision to withdraw from representing Williamson and was relieved of that duty by May 25. 1 Reel additionally withdrew from representing Smitherman on May 27. 2 At this time, Reel was replaced by Shannon Leighty, who also

worked for the MPDO. Thereafter, Leighty represented Smitherman as "second chair" to Anderson. 3 At all times in the present proceeding The MPDO

Anderson remained as primary counsel to Smitherman.

represented Smitherman continually from the day he was charged--May 13, 2004--until the day he was sentenced--April 8, 2005. Specifically, Reel represented Smitherman from May 17 to May 27, and Reel represented Williamson until May 25. Thus, Reel simultaneously

represented Williamson and Smitherman from May 17 to May 25, although he was not informed that Williamson would be a potential witness against Smitherman until May 20, and by May 21 he had made the decision to withdraw from Reel's case. The MPDO, of course,

simultaneously represented Smitherman and Williamson from May 13
1The record does not exactly disclose when Reel withdrew from representing Williamson, although a search performed on Iowa Courts Online indicates the court relieved the MPDO of further responsibility in Williamson's case on May 25. Anderson testified that "[u]pon hearing that [Williamson would be a potential witness], I informed Ray [Reel] that he needed to withdraw immediately from that case. I don't know for certainty if that was filed on the 21st of May or if it was the early part of the following week." Anderson also testified that "[Reel] withdrew from Williamson within 24 hours [of hearing that Williamson might be a potential witness]." Thus, it appears from these statements that Reel made the decision to withdraw on May 21, but did not file his withdrawal or receive permission to withdraw until May 25.

"Amended and Substituted Appearance" was mailed on May 25, 2004, but was not filed with the Hardin County district court clerk until May 27, 2004. was eventually replaced by Rebecca Hanson, also an attorney for the MPDO. This replacement took place on February 11, 2005, and was the result of Leighty transferring offices.
3Leighty

2The

4 (when the court appointed the MPDO to represent Smitherman) until May 25 (when the court in Williamson's matter relieved the MPDO of further responsibility in Williamson's case). Because of our decision in State v. Watson, 620 N.W.2d 233 (Iowa 2000), and the circumstances facing the parties, the State made an application for a "Watson hearing" on June 11, 2004. In its application the State set forth the facts above, acknowledged that Reel had been replaced by Leighty, and stated "[t]he State has also been assured that Ray Reel will be separated from the current case so that no actual conflict arises." The district court held a hearing on the matter on June 28, 2004. At the hearing the state prosecutor, Scott Brown, testified for the State and said: Judge, we filed this application for [a] Watson hearing to raise this issue. I don't want the court to read into that we're wishing the Public Defender's Office in Marshalltown to have to be removed from this case. That's not our intention in filing it. We think we are required to do it whenever there is a potential conflict of interest so all this is laid out on the record and Mr. Smitherman is aware of the relationship between his attorney and a potential prosecution witness. Likewise, the attorneys for the MPDO argued its representation did not violate our holding in Watson, and that a "Chinese Wall," or an office procedure to insulate Reel from the case, had been put into place. At the hearing, the court specifically addressed Smitherman as follows: THE COURT: Mr. Smitherman, have you had a chance to discuss these issues with your attorney Ms. Anderson? THE DEFENDANT: Yes, I have. THE COURT: Do you have any concerns about Ms. Anderson continuing in your defense in this case? THE DEFENDANT: No. I'm just disappointed in the loss of Mr. Reel. . . .

5 THE COURT: So you understand, however, that because of Mr. Reel's representation of [Williamson], he is prohibited from proceeding in this case? THE DEFENDANT: Yes, sir. THE COURT: And even though there was a short period of time, about maybe a week or so, where Mr. Reel represented both you and [Williamson], you're comfortable with the Marshalltown Public Defender's Office proceeding in this case? THE DEFENDANT: Yes, I am. As a result of the hearing the district court entered an order on June 30, 2004 concluding "there is no actual or potential conflict of interest," and "that the representation of the defendant by Ms. Anderson and Ms. Leighty is not precluded by the court's holding in Watson." The case

proceeded to trial and the jury found Smitherman guilty of first-degree murder. On April 8, 2005 Smitherman was sentenced to life in prison without parole. II. Issues and Standard of Review. On appeal, Smitherman makes two arguments: (1) his state and federal constitutional rights were violated because of an impermissible conflict of interest that was created by the MPDO's simultaneous representation of the prosecution's witness and himself, and (2) there was insufficient evidence to convict him of first-degree murder. Our

review is de novo when the defendant alleges a conflict of interest implicating the right to counsel. See State v. Powell, 684 N.W.2d 235, 238 (Iowa 2004); Pippins v. State, 661 N.W.2d 544, 548 (Iowa 2003). Our review is for errors at law when the defendant challenges his or her conviction based on the sufficiency of the evidence. See State v. Speicher, 625 N.W.2d 738, 740 (Iowa 2001). "[A] jury verdict is binding on us

when supported by substantial evidence," and "evidence is substantial if it could convince a rational jury of a defendant's guilt beyond a

6 reasonable doubt." Id. at 740

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