Baker v. Commonwealth, Record No. 2611-07-3 (Va. App. 2/17/2009)
| Decision Date | 17 February 2009 |
| Docket Number | Record No. 2611-07-3. |
| Court | Virginia Court of Appeals |
| Parties | WESLEY EUGENE BAKER, II, v. COMMONWEALTH OF VIRGINIA. |
Appeal from the Circuit Court of the City of Lynchburg, Mosby G. Perrow, III, Judge.
Keith Orgera, Assistant Public Defender (Office of the Public Defender, on briefs), for appellant.
Susan M. Harris, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Present: Judges Frank, McClanahan and Petty.
The trial court convicted Wesley Eugene Baker, II, of four counts of forgery in violation of Code § 18.2-172, and one count of obtaining money by false pretense in violation of Code § 18.2-178. Baker appeals these convictions, arguing that the trial court erred by (1) denying his request to remove his attorney due to a conflict of interest, and (2) admitting evidence over his objection. For the reasons explained below, we disagree with Baker and affirm his convictions.
Because the parties are fully conversant with the record in this case and this memorandum opinion carries no precedential value, we recite only those facts and incidents of the proceedings as are necessary to the parties' understanding of the disposition of this appeal. Upon familiar principles, we view those facts and incidents on appeal in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. See Bailey v. Commonwealth, 38 Va. App. 794, 797, 568 S.E.2d 440, 442 (2002).
First, Baker argues that the trial court erred in denying his request to remove his attorney because of a conflict of interest. We review the trial court's determination to inquire into an asserted conflict of interest for abuse of discretion. See Johnson v. Commonwealth, 50 Va. App. 600, 606, 652 S.E.2d 156, 159 (2007). Baker contends that the trial court had a duty to determine whether an actual conflict of interest existed when he informed the court that he had written a letter to the Virgnia Bar Association complaining about his attorney. We hold that the trial court had no duty to conduct an inquiry into the asserted conflict of interest on these facts.
Immediately prior to trial, the court denied Baker's motions to suppress evidence and exclude evidence by a handwriting analysis expert from the state forensic laboratory. Baker then asked the trial court to continue his case so he could be tried by a jury, but the court denied that motion noting that Baker had signed a written jury trial waiver some six months earlier.1 During the pretrial colloquy, Baker stated that he was not satisfied with his lawyer's services. He explained he was so dissatisfied with his lawyer's services that he had written a letter to the "Virginia B Association"2 (the VBA letter) two weeks prior to trial. When the trial court asked why Baker was dissatisfied with his attorney, Baker stated that he had not met with counsel in person before trial. Baker also felt that he had not had time to prepare for trial because he received copies of motions only a week before trial. The trial court asked Baker "[w]hat preparation was needed other than what's been done . . . ?" Baker replied that he felt the pretrial motions were not filed in a timely manner because he did not "even [get] a chance to look at the discovery stuff a week before trial[.]"
The trial court then asked Baker's attorney, Colin Drabert, whether he had opportunity to confer with Baker. Drabert explained that Baker had been held "near Charlottesville" and that they had discussed his case over the telephone. Drabert stated he had received a letter from Baker requesting that he make certain pretrial motions and that he had responded to the letter approximately two weeks before trial "with all the information that [Baker] requested." Drabert also stated that he had been to the Commonwealth Attorney's office twice to review Baker's file under the Commonwealth's open file policy. In his answer to the trial court's inquiry, Drabert also stated that he was ready to proceed with the trial, explaining, "if Mr. Baker is unhappy with me . . . he has a right to be so, Your Honor, but I believe I could try the case today." Drabert also indicated that he had not recieved a copy of the VBA letter.
Based on this discussion, the trial court determined that Drabert was competent, had "ably represented" Baker, had "presented motions . . . above and beyond the call of duty," and had adequately prepared for trial. The trial court declined to replace Drabert or continue the case.
When "the possibility of a conflict of interest is apparent, a trial court has a duty to conduct further inquiry to determine if an actual conflict exists." Dowell v. Commonwealth, 3 Va. App. 555, 559, 351 S.E.2d 915, 917 (1987); see also Wood v. Georgia, 450 U.S. 261, 272 (1981). However, "[t]he mere possibility of a conflict of interest, which is not apparent or to which no objection is made, prompts no need for a trial court to conduct further inquiry." Dowell, 3 Va. App. at 559, 351 S.E.2d at 917.
We have previously addressed what types of situations create apparent conflicts of interest. Apparent conflicts of interest typically arise in the context of multiple representations. See, e.g., id. at 555, 351 S.E.2d at 915 (); accord Johnson, 50 Va. App. 600, 652 S.E.2d 156 (). However, apparent conflicts of interest can also arise in other situations in which a "defendant shows that his counsel actively represented actual conflicting interests that adversely affected his counsel's performance . . . ." Carter v. Commonwealth, 11 Va. App. 569, 574, 400 S.E.2d 540, 543 (1991) (citations omitted) (vacating conviction and remanding when trial court failed to "conduct an inquiry to determine the extent and effect of an alleged conflict of interest raised in defense counsel's motion to withdraw" when the Commonwealth accused the defense of unethical behavior).
These facts in this case stand in sharp contrast with those in Carter, 11 Va. App. at 569, 400 S.E.2d at 540. In Carter, we vacated and remanded for a new trial because of an uninvestigated apparent conflict of interest. Id. We concluded that an apparent conflict of interest existed in Carter because the trial court denied the defense attorneys' motion to withdraw after the Commonwealth threatened to file a Bar complaint against them for alleged witness tampering in a criminal trial. Id. at 571-72, 400 S.E.2d at 541-42. We concluded that an apparent conflict of interest existed based on the following facts:
[The defense attorneys] were required to conduct an effective defense of the accused in an atmosphere where a potential defense witness possibly had been compromised, where the prosecutor had made allegations of misconduct and still held open the possibility of bringing ethical charges, and where the trial judge declared in open court that the prosecutor had the discretion to bring those charges.
Id. at 574, 400 S.E.2d at 543. The situation we described in Carter obviously would have affected the attorneys' ability to zealously represent their client.
Here, Baker merely notified the trial court that he wanted a new lawyer and that he was unsatisfied with his lawyer's performance. To illustrate the level of his frustration with his attorney, he stated he had written a letter about his lawyer to the Virginia Bar Association. Based on Baker's assertions, the trial court inquired into defense counsel's communication with Baker and preparation for the case. After making its inquiries, the trial court noted that Drabert had adequately conferred with Baker and had appropriately prepared for trial by reviewing the Commonwealth's file and filing appropriate pretrial motions. Further, the trial court gave Baker's attorney an opportunity to make the court aware of any difficulties he had in representing Baker. The record also shows that Drabert had not received a copy of Baker's letter to the Virginia Bar Association, and there is nothing in the record revealing the contents of the letter or whether the Virginia Bar Association took any action on it. Drabert acknowledged Baker's frustration, but assured the court that he was "ready to try the case." At no time did Baker or his attorney suggest that any conflict of interest existed.
The facts before us do not rise to the level of an apparent and obvious conflict of interest. Moreover, in light of all the circumstances of the case, including the immediately preceding motions to continue the case on other grounds and defense counsel's assurances to the trial court, the trial court could have reasonably concluded that Baker's complaints were aimed at obtaining a new lawyer in order to delay his trial. See, e.g., Johnson v. Commonwealth, 51 Va. App. 369, 657 S.E.2d 812 (2008) ().
We reject Baker's argument that the mere allegation that a criminal defendant's writing a letter to the Virginia Bar Association creates an apparent conflict of interest. Instead, in the absence of specific facts indicating an apparent and obvious conflict of interest, we rely upon the trial court's "instinct and judgment based on experience in making its decision." Wheat v. United States, 486 U.S. 153, 163 (1988). Accordingly, we conclude that the trial court did not abuse its discretion when it refused to conduct further inquiry into defense counsel's alleged conflict of interest.
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