Austin v. State

• Citation: 609 A.2d 728,327 Md. 375
• Decision Date: 01 September 1989
• Docket Number: No. 155,155
• Parties: Leroy AUSTIN v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 375

327 Md. 375

609 A.2d 728

Leroy AUSTIN v. STATE of Maryland.

No. 155, Sept. Term, 1989.

Court of Appeals of Maryland.

July 27, 1992.

Victoria S. Keating, Asst. Public Defender (Alan H. Murrell, Public Defender, both on brief), Baltimore, for petitioner.

Richard B. Rosenblatt, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for respondent.

Argued before MURPHY, C.J., ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, JJ., and MARVIN H. SMITH, Associate Judge of the Court of Appeals (retired), Specially Assigned.

ELDRIDGE, Judge.

We granted a petition for a writ of certiorari in this criminal case to review the petitioner's contention that his trial counsel labored under an actual conflict of interest which requires a reversal of the convictions. The asserted conflict of interest arose when law partners continued to represent codefendants in a criminal trial after one of the codefendants elected to testify against the other.

I.

The pertinent facts are as follows. The petitioner, Leroy Jerry Austin, was one of seven initial codefendants, all charged with particular violations of the laws regulating controlled dangerous substances. Mr. Austin was represented by John Denholm. Christine Wise, a codefendant, was represented by Mr. Denholm's law partner, James Salkin. All seven codefendants were scheduled for trial in the Circuit Court for Baltimore City, but were instructed to report to Judge Edward Angeletti, the designated administrative judge in charge of the criminal division, for a postponement.

When the defendants and their counsel were before Judge Angeletti, the prosecutor, Steven May, indicated that several of the defendants might be willing to plead guilty and to assist in the prosecution of the other defendants. Mr. May indicated that the codefendants would only testify if they could be assured of their safety. In response Judge Angeletti cleared the courtroom of all defendants, their counsel, visitors, and family members, so that he could explore the possibility of a plea arrangement with each defendant and his or her attorney, without the presence of other defendants, attorneys, etc.

During the ensuing proceedings the prosecuting attorney proffered that "Ms. Wise ... is aware of and can relate the defendant Tony Leroy Austin with the drug dealing conspiracy which her husband, primarily Henry Newkirk and the other individual Tony Austin and Newkirk, were involved. We believe that she does have detailed knowledge of drug dealings involving those individuals and can provide testimony to the State linking all of these individuals, particularly Tony Austin, with the drug dealing conspiracy." Ms. Wise agreed to plead guilty in exchange for a six year suspended sentence, with a five year probation period, on the condition that she cooperate with and testify for the prosecution. At this point, stating that "a conflict situation, very clearly," existed if Ms. Wise testified against Mr. Austin and both were represented by partners in the same law firm, Judge Angeletti ordered Mr. Salkin not to discuss the case in any way with Mr. Denholm, not even to disclose that Ms. Wise would be testifying against Mr. Austin. Mr. Salkin requested that Judge Angeletti permit him to tell Mr. Denholm that Ms. Wise would be testifying against Mr. Austin. Judge Angeletti refused, and instructed Mr. Salkin to "say nothing to Mr. Denholm about what is going on in this case."

The petitioner Austin and the State failed to reach a plea bargain agreement. Consequently, Judge Angeletti ordered that Mr. Austin be tried in a joint trial with Marshall Queen, another codefendant who did not plead guilty, with the trial to begin the next day before Judge Martin Greenfeld.

The next day, before Judge Greenfeld, Mr. Denholm and Brian Murphy, Mr. Queen's counsel, objected to the procedure utilized by Judge Angeletti the day before. They also moved for a continuance, stating that they desired to obtain and review additional materials consisting of a transcript of the proceedings before Judge Angeletti, a new list of witnesses whom the State would be calling, the various plea arrangements, and any statements made by codefendants testifying in response to the plea arrangements. Mr. Murphy also made a motion to sever the proceedings.

Judge Greenfeld granted the motion to sever, and the State elected to proceed against Mr. Queen first. Judge Greenfeld, therefore, sent Mr. Austin and Mr. Denholm back to Judge Angeletti for a trial assignment. Later that day Mr. Queen agreed to plead guilty. Thereafter, Judge Angeletti rescheduled Mr. Austin's trial for July 18, 1988, before Judge Greenfeld.

On July 18, 1988, in front of Judge Greenfeld, Mr. Denholm complained that the requested transcripts had still not been supplied to him, and he objected to the gag order which Judge Angeletti had placed upon his partner, Mr. Salkin. These objections were made in a "Motion to Rescind the Gag Order and Other Appropriate Relief." The status of the motion was left unresolved that day.

On July 19, 1988, the prosecutor, Mr. May, responded orally in court to Mr. Denholm's motion. He stated that the gag order was required because Mr. Salkin and Mr. Denholm were partners and Judge Angeletti believed that there was a conflict of interest. The prosecuting attorney also informed Judge Greenfeld that no hearing was ever held on the issue of the conflict of interest. Mr. May concluded that, "[t]herefore, I think there is no question about that if Mr. Salkin continues to represent Ms. [Wise] there is definitely a conflict here."

Mr. Denholm speculated that Judge Angeletti had not found a conflict, as Judge Angeletti would not have allowed Mr. Salkin to continue to represent Ms. Wise during the plea negotiations if he had believed that a conflict existed. Mr. Denholm asserted that Judge Angeletti's allowing Mr Salkin to represent Ms. Wise during the negotiations was inconsistent with the existence of a conflict, and that, therefore, there was no need for the gag order.

Judge Greenfeld referred the parties to Judge Angeletti in order to allow Judge Angeletti to rule on the motion and to review the gag order. Judge Angeletti refused to rule on the motion before the State had responded in writing. The judge did, however, address the issue of the gag order, telling Mr. Denholm that only Mr. Salkin was under the order and that Mr. Denholm was free to talk to anyone in the case other than Mr. Salkin. Mr. Denholm argued that if Mr. Salkin were not his partner he would be able to talk to him, as Mr. Salkin's client was to testify against his client. Judge Angeletti refused to lift his gag order and ultimately scheduled Mr. Austin's trial to begin August 10, 1988.

Mr. Austin's trial took place on August 10, 1988, before a jury and Judge Elsbeth Bothe. At the trial, Ms. Wise was called as a witness for the prosecution, and she made several statements which incriminated Mr. Austin. She testified that Mr. Austin and Henry Newkirk, who was Wise's husband, ran a drug operation at the premises where Wise and Newkirk lived, that large quantities of illegal drugs were delivered to and distributed from those premises on an ongoing basis, that Mr. Austin arrived daily to collect the money, and that Mr. Austin was the "supplier" with all of the others working for him. The petitioner Austin was convicted of conspiracy to distribute heroin and distribution of heroin.

At Mr. Austin's sentencing hearing, Mr. Denholm, referring to the period before Ms. Wise had agreed to plead guilty, stated that he had discussed the events with her at least a half a dozen times. During those conversations she was initially represented by only Mr. Denholm and then later by both partners because the defenses of the two defendants were then consistent. Mr. Denholm stated that Ms. Wise had told him that she had never seen Mr. Austin with either drugs or money.

Mr. Austin was sentenced to twelve years on each conviction, the sentences to run consecutively, and the Court of Special Appeals affirmed in an unreported opinion. This Court then granted Mr. Austin's petition for a writ of certiorari which presented the question of whether defense counsel labored under such a conflict of interest that the defendant's constitutional right to the assistance of counsel was violated.

II.

A.

The constitutional right to counsel, under the Sixth Amendment and Article 21 of the Maryland Declaration of Rights, includes the right to have counsel's representation free from conflicts of interest. Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 1103, 67 L.Ed.2d 220, 230 (1981). See Pressley v. State, 220 Md. 558, 155 A.2d 494 (1959). To establish a violation of the constitutional right, a defendant "must establish that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 1719, 64 L.Ed.2d 333, 348 (1980). To the same effect, see Pressley v. State, supra, 220 Md. at 562, 155 A.2d at 496.

The Supreme Court has pointed out, however, that it "is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests" and that "it is reasonable for the criminal justice system to maintain a fairly rigid rule of presumed prejudice for conflicts of interest." Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674, 696 (1984). ¹ therefore, a court, having found the existence of an actual conflict of interest, should refuse " 'to indulge in nice calculations as to the amount of prejudice' attributable to that conflict." Cuyler v. Sullivan, supra, 446 U.S. at 349, 100 S.Ct. at 1719, 64 L.Ed.2d at 347, quoting Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 467, 86 L.Ed. 680, 702 (1942).

B.

Among the criminal cases where it has been asserted that a potential or actual conflict of interest existed, probably a majority involve the situation where...