Englehart v. Com.

• Decision Date: 01 February 1968
• Citation: 353 Mass. 561,233 N.E.2d 737
• Parties: William F. ENGLEHART, Petitioner, v. COMMONWEALTH, Defendant.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 737

233 N.E.2d 737

353 Mass. 561

William F. ENGLEHART, Petitioner, v. COMMONWEALTH, Defendant.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 2, 1968.

Decided Feb. 1, 1968.

Edward F. Myers, Needham, for petitioner.

Willie J. Davis, Asst. Atty. Gen., for the Commonwealth.

Before WILKINS, C.J., and SPALDING, CUTTER and KIRK, JJ.

WILKINS, Chief Justice.

In this petition for a writ of error, see G.L. c. 250, §§ 1, 11, it appears that the petitioner and another were convicted in the Superior Court, Plymouth County, on an indictment charging armed robbery. The case was heard on a statement of agreed facts by a single justice, who ordered the petition dismissed. The petitioner excepted.

The petitioner and his codefendant were represented by the same public defender. At no time either before or at the trial did the petitioner make any objection to this joint representation. At the arguments the petitioner's counsel informed us that he made no contention that there was any conflict of interest or any inconsistent defences. If we take counsel's statement on its face, the contention goes to the full extent of claiming a right in each individual defendant to separate court appointed counsel in any criminal case where there is more than one defendant, and an assertion that the absence thereof amounts to a assistance of counsel in contravention of assistance of counsel in contravention of the Sixth and Fourteenth Amendments to the Constitution of the United States. This allegation goes far beyond any decision of the Supreme Court of the United States which has hitherto come to our attention. We cannot subscribe to it.

The petitioner suggests that his position is sustained by implication by Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. We do not so read that case.

In the absence of a conflict of interest between the defendants, it was not error to appoint one attorney for their defence. United States v. Dardi, 330 F.2d 316, 335 (2d Cir.); Lugo v. United States, 350 F.2d 858, 859 (9th Cir.); State v. Robinson, 271 Minn. 477, 480, 136 N.E.2d 401. The defendant must show some conflict of interest between himself and the other defendant represented by the same attorney before he can successfully claim he was deprived of his right to counsel by the joint representation. United States v. Bentvena, 319 F.2d 916, 937 (2d Cir.); People v. Rogers, 207 Cal.App.2d 261, 270, 24 Cal.Rptr. 341; People v. Dolgin, 415 Ill. 434, 448, 114 N.E.2d 389. The fact that the case against one defendant may have been stronger would not make their positions at trial inconsistent. Holloway v. State, 32 Wis.2d 559, 569, 146 N.E.2d 441.

The petitioner makes the further contention that the trial judge erred in not granting him a separate trial. This lacks merit. The agreed facts do not show that such a motion was presented at any time to the trial judge, an omission which might be conclusive. See Pummill v. United States, 297 F.2d 34 (8th Cir.). Moreover, the petitioner and his codefendant were indicted for joint participation in a single robbery. The issues of fact were identical. No valid reason appears why both defendants should not have been tried together for their part in a crime involving a single chain of circumstances. COMMONWEALTH V. SMITH, MASS. , 232 N.E.2D 917.^A See Commonwealth v. Iannello, 344 Mass. 723, 727, 184...