Com. v. Leslie

• Decision Date: 16 November 1978
• Parties: COMMONWEALTH v. Richard E. LESLIE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1072

382 N.E.2d 1072

376 Mass. 647

COMMONWEALTH v. Richard E. LESLIE.

Supreme Judicial Court of Massachusetts, Essex.

Argued Sept. 12, 1978.

Decided Nov. 16, 1978.

Stephen Hrones, Boston, for defendant.

John C. Doherty, Asst. Dist. Atty., for the Com.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN and LIACOS, JJ.

KAPLAN, Justice.

Tried on indictments charging assault with intent to murder (G.L. c. 265, § 15), assault with intent to commit rape (G.L. c. 265, § 24), burglary in the nighttime with assault (G.L. c. 266, § 14), and assault and battery (G.L. c. 265, § 13A), the defendant Richard E. Leslie on June 23, 1975, was acquitted by a jury of the first two charges, and convicted of the others; the assault and battery conviction, however, was dismissed by the trial judge as "duplicitous." ¹ The defendant appeals from the conviction of burglary pursuant to G.L. c. 278, §§ 33A-33G; error is claimed in the judge's charge defining the crime. About two years after the conviction the defendant moved for a new trial on a claim that he was denied his right to effective counsel because of a conflict of interest on the part of the trial attorney he retained. The motion was denied after a hearing at which evidence was received, and an appeal is taken from the order, also pursuant to G.L. c. 278, §§ 33A-33G. We took the case on both its phases for direct appellate review.

We indicate briefly the nature of the criminal event; then deal with the alleged conflict of interest; and examine finally the question of the charge to the jury.

About midnight, June 16, 1974, two police officers found the defendant, a twenty-five year old man, in the Lawrence home of Mrs. Claire Carney, fifty-one years old, wife of Joseph L. Carney, a local police officer. The defendant was stooped over Mrs. Carney. She was in night attire, dishevelled, bruised, crying hysterically. Mrs. Carney testified she had never seen the defendant before the night of the assault, that he had entered the house through a closed door, asked her for money, punched her repeatedly, and, shortly before the police arrived, thrown her on a bed and started to undo his pants. The defendant's version of the incident was that he was known to Mrs. Carney in her job as a welfare worker; that she had encountered him in a supermarket that afternoon, and, observing that he was distressed at the time, had invited him to come to her house at 10:30 or 11 P.M. for a talk; that he arrived late and walked through a door partly open; and that Mrs. Carney's bruises came when he pushed her in attempting to escape from the police. There were problems for the trial lawyers on either side, as not much telling evidence could be found besides the asseverations of the accused and the victim.

Now we recount what was brought out at the new trial hearing about counsel's representation of the defendant (the presiding judge was not the one who had tried the case). The defendant's girl friend retained Mr. Harvey Brower shortly after the arrest in June. Mr. Brower was a single practitioner with a busy criminal practice. Since 1972 or 1973 he had shared office space with Mr. Ignatius Piscitello, a friend and fellow lawyer, at 11 Lawrence Street in the city of Lawrence. To some extent the two shared the services of secretaries, and they freely used each other's reference books. For a time they shared a telephone number. They had independent practices but on occasion they stood in for each other at minor appearances in court ² or gave other mutual assistance, and sometimes one might refer a client to the other. They did not share fees or (except as indicated) expenses of practice. They were not partners. It was shown that in 1975 the Lawyers Diary had bracketed their names, but Mr. Piscitello testified that he wrote the editors to correct this erroneous suggestion of a partnership.

When Mr. Piscitello learned that Mr. Brower had accepted or was about to accept a retainer from the defendant, he spoke to Mr. Brower and urged him to stay out of the case. He said this was a notorious crime involving a policeman's wife and a sexual assault; he believed the defendant was guilty; Mr. Brower would be hurt in public estimation by appearing for the defense, and, by indirection, Mr. Piscitello would also be hurt. Mr. Piscitello added (what Mr. Brower had not known) that Mrs. Piscitello was a good friend of the victim Mrs. Carney from the time, many years since, when their families had been close neighbors. (Mr. Piscitello knew Mrs. Carney, but not through his wife: he had represented some of Mrs. Carney's welfare clients. Mr. Brower had not known Mrs. Carney at all. ³ Mr. Brower's reaction to the admonition about offending the community was, "So what," and as to discomfiting Mr. or Mrs. Piscitello ⁴ he said it was none of Mr. Piscitello's concern whom he chose to represent.

The defendant Leslie testified on the motion that, on a few occasions, coming to the offices at 11 Lawrence Street to pay small instalments of Mr. Brower's fee, and finding Mr. Brower absent, he had handed the money to Mr. Piscitello or a secretary for Mr. Brower. ⁵ At one of those encounters Mr. Piscitello told the defendant that his wife was a friend of Mrs. Carney. Once the defendant, entering the lobby of 11 Lawrence Street, saw Mr. Piscitello talking to Mrs. Carney (her welfare office was in the same building). When the defendant mentioned these Piscitello associations to Mr. Brower, Mr. Brower emphasized that he, not Mr. Piscitello, was representing the defendant.

Mr. Brower appeared for the defendant at trial without assistance from Mr. Piscitello or any other lawyer. The transcript, made available on the new trial motion (and to this court), runs to 370 pages. The defendant made no complaint at the time about trial counsel's conduct of the case, but on the motion, in the attempt to show prejudice traceable to counsel's supposedly conflicted position, the defendant criticized the tactical decision not to cross-examine Mrs. Carney after her direct testimony (counsel did cross-examine her after she testified in rebuttal). The particular maneuver, according to Mr. Brower, was adopted after analysis of the testimony of Mrs. Carney at a probable cause hearing which indicated that cross-examination after the direct would not diminish and might further impress the prosecutor's case in the minds of the jury. The defendant pointed also to counsel's omitting any exception to the judge's charge and to laxities on counsel's part at the stage of appeal. ⁶ Here connection with the alleged conflict of interest becomes quite attenuated. (The legal point about the charge, such as it is, is dealt with later in this opinion.)

Upon subsidiary findings not subject to serious dispute summarizing the testimony on the motion, the judge made inferential or conclusory findings which were negative as to conflict of interest and also regarding the question of prejudice, i. e. whether counsel was affected in his defense by any conflict. Instead, the judge concluded that there was no evidence that Mr. Brower was consciously affected by his knowledge of Mrs. Piscitello's relationship to Mrs. Carney, nor any evidence that the defense was inadequate or ineffective.

Reviewing the motion judge's decision, we accept that if a genuine conflict of interest could be shown, the defendant would have a constitutional right under the Sixth and Fourteenth Amendments or art. 12 of our Declaration of Rights to avoid the judgment of conviction, and this without having to demonstrate actual prejudice. See Commonwealth v. Bolduc,--- Mass. ---, --- - --- ^A, and 378 N.E.2d 661 (1978), and authorities cited; Holloway v. Arkansas, 435 U.S. 475, 487-491, 98 S.Ct. 1173, 1180-1182, 55 L.Ed.2d 426 (1978); ⁷ Glasser v. United States,315 U.S. 60, 96, 62 S.Ct. 457, 86 L.Ed. 680 (1942). ⁸ We are also prepared to assume that if a more remote conflict appeared, there might still be ground for overthrowing the judgment upon a showing of material prejudice. See Miller v. United States, 564 F.2d 103, 106-107 (1st Cir. 1977), cert. denied, 435 U.S. 931, 55 L.Ed.2d 528 (1978); Foxworth v. Wainwright, 516 F.2d 1072, 1077 n.7 (5th Cir. 1975).

It is of course crucial to the integrity of the whole forensic process that counsel's loyalty to his client should be full and undivided, ⁹ but this principle, like others, becomes stultifying if not applied with common sense. Mr. Brower's willingness to risk popular displeasure in defending a person accused of atrocious crime was commendable rather than otherwise; ¹⁰ he is criticised for undertaking the case because the victim, though unknown to him, turned out to be a friend of the wife of a fellow lawyer with whom he had a loose professional association. The imputation is that, having accepted a retainer despite a possibly negative public reaction, he would then go soft in dealing with the victim as an adverse witness because of a relationship with her twice removed.

This was not a situation of conflict which called for abstention on Mr. Brower's part; to hold that it was, indeed, would put peculiar obstacles in the way of the practice of criminal law, particularly in smaller communities where local lawyers know most of the citizenry. The situations that give rise to per se disqualifications in criminal matters are typically quite different: A lawyer represents codefendants whose lines of defense are perceived to be inconsistent or contradictory. ¹¹ Or has a business reason for preferring a verdict unfavorable to the defendant he represents. ¹² Or sustains an attorney-client or direct and close personal relationship with a material prosecution witness. ¹³

The defendant seeks to bring his case within Commonwealth v. Geraway, 364 Mass. 168, 301 N.E.2d 814 (1973), where a conflict of interest was found sufficient to vitiate a conviction although there was admittedly slight if any evidence of actual prejudice in the conduct...