State v. Goldsberry
| Decision Date | 26 April 2011 |
| Docket Number | 2008.,No. 141,Sept. Term,141 |
| Citation | 419 Md. 100,18 A.3d 836 |
| Parties | STATE of Marylandv.James Earl GOLDSBERRY, Jr. |
| Court | Maryland Court of Appeals |
OPINION TEXT STARTS HERE
Daniel J. Jawor, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for petitioner/cross-respondent.John L. Kopolow, Assigned Public Defender (Nancy S. Forster, Public Defender, Laurel, MD), on brief, for respondent/cross-petitioner.Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.BARBERA, J.
Respondent, James Earl Goldsberry, Jr., was tried before a jury in the Circuit Court for Prince George's County and convicted of second degree felony murder, conspiracy to commit second degree murder, attempted robbery with a dangerous weapon, and use of a handgun in the commission of a crime of violence. He appealed the judgments of conviction to the Court of Special Appeals, where he raised a number of claims. The Court of Special Appeals, finding merit in some of those claims, reversed the convictions. The court remanded the case for a new trial on the charges of attempted armed robbery and use of a handgun, but not the charges of second degree felony murder and conspiracy to commit second degree murder. Goldsberry v. State, 182 Md.App. 394, 957 A.2d 1110 (2008).
We granted the parties' respective petitions for certiorari to consider whether: (1) the trial court violated Goldsberry's right under the Sixth Amendment to representation by his counsel of choice, by disqualifying one of Goldsberry's three privately retained attorneys; (2) the trial court erred in its instruction to the jury regarding unanimity; and (3) the Court of Special Appeals erred in holding that Goldsberry was improperly convicted of the “nonexistent” crime of second degree felony murder predicated on attempted robbery with a dangerous weapon.
For the reasons that follow, we hold that the trial court violated Goldsberry's right to counsel of choice and the intermediate appellate court erred in its holding regarding the felony murder conviction. Because our disposition entitles Goldsberry to a new trial, we do not address the propriety of the court's unanimity instruction.
Goldsberry and his co-defendant, James Myers, Jr., were tried jointly on charges arising from the homicide of Vincent Chamberlain. As explained in more detail infra, the jury found that Goldsberry and Myers attempted to rob Chamberlain of his marijuana, and while doing so, Myers shot Chamberlain in the head, killing him.
Goldsberry hired attorneys Andrew Jezic, Joseph McKenzie, and John Giannetti, each of a different law firm, to represent him at trial. Before trial, Myers filed a motion to sever his trial from that of Goldsberry. At the hearing on that motion, Myers, through his counsel, Janet Hart, informed the court that attorney McKenzie had spoken previously to Myers regarding the facts of the case. Ms. Hart was not certain of the exact date on which the conversation took place, the purpose of the conversation, whether McKenzie by that time had entered his appearance on behalf of Goldsberry, and whether Myers was represented by counsel at the time. Hart nevertheless alleged that the conversation between her client and McKenzie posed possible violations of Maryland Rules of Professional Conduct 1.18 1 (pertaining to an attorney's duties to prospective clients) and 4.2 (concerning attorney communications with a person already represented by counsel).2 Hart further explained that McKenzie informed her that, after the conversation with Myers, he called the District Court and learned that there was no line of appearance filed on behalf of Myers. Hart noted, however, that the District Court computer system “very often” does not reflect accurately the correct date of the line of appearance.
Hart argued to the trial court that McKenzie's actions prejudiced her client in two ways. First, Myers would be assessing throughout trial whether to testify, and the possibility of McKenzie's cross-examining him would “affect [ ] [Myers's] ability to make a clear, unencumbered decision.” Second, if Myers testified and McKenzie cross-examined him, it would “look[ ] wrong” because McKenzie had already discussed the facts of the case with him.3
In response, attorney Jezic explained that McKenzie had not entered his appearance for Goldsberry when he spoke with Myers and McKenzie never represented to Myers that he was a “disinterested person.” Jezic also noted that the conversation took place before Myers's preliminary hearing date and, after McKenzie informed Jezic of the conversation with Myers, the two took several actions to mitigate any possible rule violations. First, McKenzie, upon learning that Myers was unrepresented, called the District Court and attempted to obtain counsel for Myers. And, second, Jezic and McKenzie never discussed “anything that Mr. Myers said.” McKenzie supplemented Jezic's representations, adding that, although he had discussed the facts of the case with Myers, at no time during the conversation did Myers make any admissions. McKenzie also confirmed Jezic's representation to the court that the conversation with Myers took place prior to the indictments of Goldsberry and Myers.4
After hearing from both parties on the issue, the trial court found as a fact that the conversation between Myers and McKenzie took place before Myers was indicted. And, based on Jezic's and McKenzie's representations, the court further found that “Mr. McKenzie did not convey to Mr. Jezic the sum and substance ... or any summary, for that matter, of any conversation [Mr. McKenzie] had with Mr. Myers.” The court stated: “It's clear that Mr. McKenzie did not know that anybody was representing Mr. Myers when he talked to him, and the reality is there's absolutely nothing wrong with an attorney, who may be representing a co-defendant, trying to communicate with the other defendant if that defendant is not represented.” The court denied the motion for severance and, instead, imposed restrictions on McKenzie's involvement in the trial. The court stated:
Very simply, Mr. Jezic, you represent [Goldsberry], and Mr. McKenzie is not representing him anymore. The reality is that there's been absolutely no prejudice to [Goldsberry], but the reality is that—you can and, Mr. McKenzie, you can step back from the trial table, but the reality is—and you can consult with Mr. Jezic during the course of the trial, but we're going to keep this trial going forward wherein there's no taint whatsoever.
Jezic objected. He argued that, because Goldsberry desired McKenzie's continued presence at the trial table, the restriction on McKenzie's involvement violated Goldsberry's Sixth Amendment right to counsel of his choice. The court then modified its ruling, explaining that McKenzie could remain at the trial table, but was not to reveal to Jezic anything related to his conversation with Myers.
At that point, the State brought to the trial court's attention a second potential conflict, one that involved McKenzie and Ms. Tawanna Davis, who was scheduled to testify as a State's witness. Ms. Davis, according to the State, had testified before the grand jury that she was “coached” by Goldsberry and McKenzie. The State advised the court that, if Davis “somehow chang[ed] her testimony from what she had told the grand jury,” “there might come a point in time where I'm going to ask her if she was coached by an attorney.” The court, on hearing that, ruled:
That's all the more reason [to disqualify McKenzie]. McKenzie put himself in the position of being a possible witness in this case. So with that in mind, the Court is even more comfortable now than it was two minutes ago with telling Mr. McKenzie that he can't participate in this trial. So we're not going to take any chances. Mr. McKenzie will not now be sitting at the trial table, not because [Goldsberry] does not want him to, but the reality is he could potentially be a witness in this case.
(Emphasis added.)
Jezic renewed his earlier objection, arguing once again that the restriction on McKenzie's ability to represent Goldsberry violated Goldsberry's Sixth Amendment right to choice of counsel. The court responded that it believed “there's an exception if [McKenzie is] going to be a witness.” 5
Trial commenced on January 31, 2007. It is unnecessary, for purposes of the issues we decide here, to recount all that occurred at trial. To set the factual context within which those issues arose, we shall rely on the summary of the underlying facts set forth in the Court of Special Appeals' opinion.6
Wendy Braxton, an acquaintance of both Goldsberry and the victim, Vincent Chamberlain, and the sole witness to the attempted robbery and shooting of Mr. Chamberlain, gave an uncontradicted account of the events at trial. Ms. Braxton testified that sometime in March 2006, while visiting Goldsberry, she received a call from Mr. Chamberlain inviting her and Goldsberry to come to Mr. Chamberlain's house to smoke marijuana.
On arriving at the house, Mr. Chamberlain handed Ms. Braxton some marijuana to roll and while doing so, she heard Goldsberry and Mr. Chamberlain discuss selling Mr. Chamberlain's marijuana. The three then proceeded to a field behind the house to smoke some of the marijuana. Ms. Braxton again observed Goldsberry and Mr. Chamberlain conversing as they returned from the field. Ms. Braxton then departed with Goldsberry and dropped him off at his apartment.
Ms. Braxton further testified that Goldsberry called her later that evening to ask questions about Mr. Chamberlain. He asked, in particular, “how long she knew Mr. Chamberlain” and if “he was cool and stuff.” Ms. Braxton subsequently received a call from Mr. Chamberlain asking if she wanted to play cards and requesting that she pick him up. On arriving at Mr. Chamberlain's home at approximately 10:00 p.m., Ms. Braxton testified that she saw Goldsberry and another...
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