376 Mass. 777 (1978), Commonwealth v. Davis

Citation:376 Mass. 777, 384 N.E.2d 181
Case Date:December 11, 1978
Court:Supreme Judicial Court of Massachusetts

Page 777

376 Mass. 777 (1978)

384 N.E.2d 181



Tally DAVIS.

Supreme Judicial Court of Massachusetts, Suffolk.

December 11, 1978

Argued Oct. 4, 1978.

[384 N.E.2d 184] Steven J. Rappaport, Boston, for defendant.

Michael J. Traft, Asst. Dist. Atty., for the Commonwealth.


Page 778

HENNESSEY, Chief Justice.

The defendant, Tally Davis, was indicted for unlawful possession of cocaine with intent to distribute, possession of a revolver without a firearm identification card, possession of heroin, unlawful possession of methadone with intent to distribute, and receiving stolen goods not exceeding $100. Verdicts of guilty were returned by the jury on all five indictments, and the trial judge imposed a jail sentence and a fine. Davis now appeals pursuant to G.L. c. 278, §§ 33A-33G, claiming that he was denied effective assistance of counsel due to a conflict of interest, that the judge made erroneous evidentiary rulings, and that the defendant's bail and cash seized pursuant to a search warrant were improperly confiscated.

We affirm the judgments of conviction. In so ruling, however, we establish procedural guidelines for trial courts confronted with joint representation of codefendants by a single attorney.

The following is a summary of the facts. On January 15, 1976, at 6.15A.M., Detective Thomas Maher (Maher) of the Boston police drug control unit, acting pursuant to a search warrant, led seven State and Federal officers to the apartment of Pearl Tubbs in Roxbury. The door was broken open, and Davis was discovered there with a woman, Marjorie Waddel. 1 Found in the room occupied by Davis and Waddel were a fully loaded firearm and a large brown box containing the following items: a pouch with

Page 779

ten grams of a white substance later analyzed to be cocaine; six tin foils enclosing cocaine; a small vial and nose dropper containing a liquid identified as methadone; seventy-four small manila envelopes; $2,969 in cash; twenty American Express checks; a five dollar bill containing traces of cocaine; several spoons having a cocaine residue on them; a notebook; nine Western Union money order receipts. A manila envelope containing heroin was found adjacent to Davis's bed, and in the kitchen, at [384 N.E.2d 185] the other end of the apartment, the officers discovered eleven bottles subsequently found to contain a methadone residue.

Davis and Waddel were tried together in the Superior Court in Suffolk County along with Tubbs, in whose apartment the search had occurred. Davis and Waddel were represented by the same attorney, whom they retained shortly after their arrests. Tubbs was represented by separate counsel.

At the trial, Maher, an experienced narcotics officer, was the chief prosecution witness. He identified the seized narcotics and testified that the value of the drugs was $600 for the six tin foils, $900 to $1,000 for the cocaine found in the pouch, and $200 for the dropper bottle of methadone. Maher also explained that the spoons found were used to measure cocaine and that the probable use for the seventy-four manila envelopes was to "bag" heroin. William Yout, an agent of the Drug Enforcement Administration, further testified that the defendant had stated to him that he did not use drugs.

Davis testified and admitted to periodic use of narcotics, but denied any involvement in their sale or distribution. He admitted that he purchased the seized methadone and tin foils of cocaine for his personal use at a total cost of $60, and he explained that the ten gram pouch of white substance was not cocaine, but lactose, a narcotic dilutant which he used because his nose was sensitive. In addition, he testified that the Western Union money order receipts found in the box represented gambling proceeds, rather than profits from drug sales, as the prosecution had suggested.

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Waddel corroborated Davis's story. While denying any involvement in drug related activity on her own part, she testified that Davis was merely an occasional drug user, not a drug dealer. She stated that she was with Davis when he had purchased the seized methadone and cocaine, and she confirmed the amounts purchased and prices paid by him. Likewise, Waddel substantiated Davis's assertion that the white substance found inside the pouch was lactose and was used by the defendant in order to prevent irritation to his nose.

  1. Joint Representation of Codefendants.

    On appeal, Davis maintains that his Sixth Amendment right to effective assistance of counsel was gravely impaired by a conflict of interest inhering in the joint representation of himself and the codefendant Waddel. See Commonwealth v. Geraway, 364 Mass. 168, 301 N.E.2d 814 (1973); Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). This conflict was manifest, he asserts, by trial counsel's failure to develop the possibility that the codefendant Waddel possessed the contents of the seized box, 2 and by counsel's statement, made in arguing motions for directed verdicts for the codefendant, that the narcotics belonged to Davis. On the basis of this conduct by trial counsel, the defendant claims entitlement to a new trial. 3

    We begin our consideration by reviewing the cardinal principles underlying analysis of conflict of interest claims in criminal cases. First of these is the defendant's constitutional right under the Sixth and Fourteenth Amendments or art. 12 of our Declaration of Rights to an attorney unhampered or unfettered in his professional responsibility to the accused. See Glasser v. United States, supra at 76, 62 S.Ct. 457. A defendant is entitled to the untrammeled and unimpaired assistance

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    of counsel free of any conflict of interest and unrestrained by commitments to others. Id.

    Despite the dimension of this right, we have held that a defendant's conviction will be reversed on this basis only when the alleged conflict is supported by adequate evidence of its existence. Commonwealth v. Smith, 362 Mass. 782, 784, 291 N.E.2d 607 [384 N.E.2d 186] (1973). Englehart v. Commonwealth, 353 Mass. 561, 562, 233 N.E.2d 737, cert. denied, 393 U.S. 886, 89 S.Ct. 199, 21 L.Ed.2d 163 (1968). By this we mean that the defendant, on appeal, is obliged to show demonstrative proof detailing the precise character of the alleged conflict of interest. We will not infer a conflict of interest from simply the existence of joint representation, see Commonwealth v. Adams, --- Mass. ---, --- A, 375 N.E.2d 681 (1978); Holloway v. Arkansas, 435 U.S. 475, 487-490, 98 S.Ct. 1173, 1180-1182, 55 L.Ed.2d 426 (1978), or out of mere conjecture or speculation as to what might have been shown at trial, United States v. Alvarez, 580 F.2d 1251, 1255 (5th Cir. 1978); Lugo v. United States, 350 F.2d 858, 859 (9th Cir. 1965).

    A genuine conflict of interest, however, may be shown in two ways: by reference to the trial record, or by evidence extrinsic to court proceedings. Stated otherwise, we are cognizant that some genuine conflicts may be manifest in judicial proceedings, see Glasser v. United States, supra at 67-69, 62 S.Ct. 457, while others may be obscured from the court before and during trial, see Commonwealth v. Geraway, supra. Since what counsel or a witness refrains from saying in court because of economic or personal constraints generated from outside may be as damaging to a defendant as anything reported in the trial transcript, either kind of proof is appropriate to show a conflict.

    Regardless of the source from which the conflict is derived, to establish a violation of one's right to counsel a defendant need only demonstrate the existence of a conflict. Once a conflict is shown, there is no requirement that resulting prejudice be proved. See Commonwealth v. Wright, --- Mass. ---, --- B, 383 N.E.2d 507 (1978); Commonwealth v. Leslie, --- Mass. ---, --- C, 382 N.E.2d 1072 (1978); Commonwealth v. Bolduc, --- Mass. ---, --- D, 378 N.E.2d 661 (1978); Holloway v. Arkansas, supra, 435 U.S. at

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    487-490, 98 S.Ct. at 1180-1182. Moreover, we do not preclude the possibility that allegations of conflict, too remote in themselves to establish that counsel's loyalty was divided, might well provide a basis for a new trial when accompanied by a showing of material prejudice. Commonwealth v. Leslie, supra at --- - --- E, 382 N.E.2d 1072. See Miller v. United States, 564 F.2d 103, 106-107 (1st Cir. 1977), cert. denied, 435 U.S. 931, 98 S.Ct. 1504, 55 L.Ed.2d 528 (1978).

    In light of the above, we examine the merits of the defendant's claim of conflict of interest. Reviewing all the material before us, we are compelled to conclude that trial counsel's performance in the instant case bears no mark of being shackled or impaired by commitments to persons other than the defendant. Indeed, an examination of the record here fails to find any visible sign of conflicting interests between the defendants Davis and Waddel. Neither the defendants, nor trial counsel, ever alerted the court to a conflict or requested the severance of counsel's relationship with one of the two defendants. Compare Holloway v. Arkansas, supra at 477-480 4, 98 S.Ct. at 1175-1177. Significantly, both codefendants in this case testified, and their testimony was consistent in virtually every respect. United States v. Foster, 469 F.2d 1, 4 (1st Cir. 1972). 5 Cf. United States v. Martorano, 457 F.Supp. 803, 809 (D.Mass.1978). Each stated that Davis never sold narcotics and [384 N.E.2d 187] that Davis's purchase of the seized drugs was for his personal use only. Indeed, Waddel's testimony concerning Davis was no more incriminating of him than the in-court admissions made by Davis himself. Moreover, we are unable to find sufficient evidence of conflict in...

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