Brown v. State
| Citation | 269 A.2d 96,10 Md.App. 215 |
| Decision Date | 16 September 1970 |
| Docket Number | No. 358,358 |
| Parties | Delone Emerson BROWN v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Jack R. Turner and William W. Grant, Oakland, for appellant.
Thomas N. Biddison, Jr., Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., T Argued Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.
Bryan McIntire, State's Atty., for Carroll County; Fred A. Thayer, State's Atty., for Garrett County on brief for appellee.
Delone Emerson Brown, the appellant, was convicted of second degree murder in the Circuit Court for Carroll County, in a court trial; a sentence of fifteen years was imposed. Brown had been convicted of the same crime in a previous trial, but the judgment was reversed by this Court in Brown v. State, 6 Md.App. 564, 252 A.2d 272.
On this appeal, Brown contends: (1) the conviction should be reversed due to a conflict of interest in counsels' representation of appellant and a co-indictee, an alleged accessory after the fact; and that the trial court improperly: (2) refused to admit the confession of another to the murder, (3) admitted a statement made by the appellant, and (4) refused a motion for judgment of acquittal. For the reasons set out below, we reverse and remand.
On February 18, 1968, William Everett Paugh was stabbed to death in Bob and Madelyn's Tavern near Deer Park in Garrett County, Maryland. The stabbing occurred after a scuffle and argument between the appellant, the decedent, and Ruth Malcomb, the woman with whom the appellant was living, and who was indicted as an accessory after the fact. Although there were about 25 people in the tavern at the time, no witness admitted actually seeing the stabbing. The State called only two of those present to testify as to what occurred: Alexander Snyder and Ricky Malcomb, son of Ruth Malcomb.
Snyder testified he was a patron in the tavern on the evening in question. Noting that the tavern was dimly lit and noisy, Snyder said he saw the appellant and Ruth Malcomb sitting in a booth together. He also heard an argument between the deceased and Mrs. Malcomb at the booth. After the argument, a scuffle broke out during which the deceased swung at the appellant and the appellant Ricky Malcomb, who was ten years old at the time of the crime, testified he lived with his mother, two sisters, and the appellant at his mother's house at that time. On the evening of February 18, 1968, he went to the tavern with Albert Paugh, the brother of the decedent, and Mrs. Paugh. At the tavern he sat with Mr. and Mrs. Paugh, his mother, and the appellant. In the tavern, he saw the deceased, whom he had previously known because he had lived with Ricky's mother. Ricky testified a fight erupted between the deceased and the appellant after some name-calling and shouting; during the fight the booth in which they were sitting was knocked over. After the fight, Ricky was taken home by his mother and the appellant. In the house, while he was in the other room, Ricky overheard a conversation between his mother and the appellant during which the appellant said 'You don't have to worry anymore, I killed the son of a bitch.' Ricky also observed the appellant burn a knife sheath. He testified he had seen the knife which belonged with the sheath earlier that evening at the tavern. He identified a knife shown to him by the prosecution as belonging to the appellant and said that he had seen the appellant with it at the tavern. On cross-examination, it was brought out that Ricky had not testified concerning the conversation in the first trial.
held his hands in front of his face seeming to defend himself. The scuffle stopped and then started again about a half minute later, but Snyder was unable to see what happened because of the people surrounding the booth. After the scuffle stopped again, Snyder heard a thud and saw the deceased lying on the floor. Snyder did not see anyone with a knife; he did see Mrs. Malcomb hit the deceased; and he did not see the appellant leave his seated position next to the wall in the booth. Several times Snyder repeated he was not paying much attention and could not see the booth at the time of the homicide.
Virginia Lee Malcomb, the daughter of Ruth Malcomb, who was seventeen at the time of trial, stated that on the evening in question after her mother and appellant Trooper Robert Lashley testified about being called to the tavern after the stabbing, discovering the deceased lying on the floor, arresting Malcomb and the appellant, and recovering the knife, later identified as belonging to appellant.
returned to the house where Virginia was, she heard the appellant say 'I killed the son of a bitch, he won't bother you or no one else no more.' She also heard the appellant ask to be driven to Ohio but Mrs. Malcomb refused. Virginia contradicted Ricky as to where they were in the house when they overheard the appellant's conversation. Prior to the first trial, she had not revealed the conversation to joint counsel for appellant and her mother.
Dr. Benedict Skitarelic, the medical examiner, testified as to the results of his examination of the decedent, including the stab wound in the left chest which was the cause of death. There were also two cuts on the right arm and right side of the chest. Blood alcohol content was .22, indicating the deceased was drunk at the time of death. Upon being called as a defense witness, Dr. Skitarelic testified that someone in a seated position against the wall in the booth described in the tavern could not inflict a wound like the one that caused death.
The defense called nine patrons in the tavern at the time of the stabbing as witnesses. Most of them did not observe any significant facts; however, two of them, the proprietor and a waitress, observed a fight between Mrs. Malcomb and the deceased, immediately after which the deceased fell to the floor and died. Several witnesses did testify to seeing the appellant remain seated in the corner of the booth against the wall. Such other facts as are necessary will be presented with the various contentions.
Appellant contends there is a conflict of interest since the same counsel represented him as represented Ruth Malcomb, who had been indicted as an accessory after the fact. After the crime, Malcomb confessed to the killing, describing in great detail how she took a knife from appellant Although there have been numerous conflict of interest issue cases, the issue has been by no means resolved. Most logically, it can be handled by answering a series of questions:
carried it with her into the tavern, and stabbed the decedent. She later recanted this confession. After the first trial, Malcomb was told by a probation and parole officer that she 'had nothing to lose' and could freely discuss the case; whereupon, she directed all guilt to the appellant. In [269 A.2d 100] the interim between the first and second trials, appellant's cousnel indicated that Mr. Malcomb would not speak or co-operate with counsel, but she did co-operate with the State by discussing the case without counsel present with the State's Attorney on several occasions. Also, neither of the Malcomb children revealed the alleged admission of guilt made by the appellant in Malcomb's home prior to or at the first trial although both did testify about it at the instant trial. The evening before the trial, appellant's counsel discovered that Mrs. Malcomb was to be a prosecution witness; however, she ultimately did not testify. Several times during the course of the trial, the problem of a conflict of interest was presented to the trial court, although it was presented in the context of a conflict of interest if Mrs. Malcomb testified, which she did not. Counsel did indicate that he felt hampered in his cross-examination due to the special knowledge that had come to him as a result of being Malcomb's attorney and expressed uncertainty about how to remedy what he felt was a clear conflict of interest. 1
I. Is an actual or imminent conflict of interest present?
II. Given an actual or imminent conflict of interest in existence,
a. What quantum of prejudice must exist before there is reversible error?
b. Does that amount of prejudice exist in the present case?
III. What responsibility, if any, is on the trial court to raise the conflict of interest sua sponte?
I Existence of an Actual Conflict of Interest
In Maryland, a conflict of interest begins with a consideration of the requirement that either an actual conflict of interest exists or that a conflict of interest be 'imminently potential', Pressley v. State, 220 Md. 558, 155 A.2d 494. Previous Maryland opinions give general guidance in how to determine whether this requirement has been fulfilled. Within the facts of an individual case, it is proper to consider the complexity of both the law and the facts since the more complex a case becomes, either legally or factually, the more opportunity exists for a conflict of interest. Conversely, if the law is simple and the evidence of guilt strong, the opportunity for conflict of interest may be lessened. Pressley v. State, supra. Of course, the contention may still be found to be an unsupported allegation, Pressley v. State, supra, or to have been waived at trial, Plater v. Warden, 211 Md. 629, 126 A.2d 574.
In addition to these general considerations, certain specific guidance is provided by Maryland precedent. This Court reaffirms its holding that mere joint representation, without more, of two or more defendants by one attorney is not a conflict of interest. Davenport v. State, 7 Md.App. 89, 253 A.2d 768, 772. It would be unusual to find a conflict of interest when, as in Davenport, supra, each of the co-defendants presents an alibi which maintains his own innocence and coincidentally the innocence of his co-defendant, albeit the stories are conflicting. The mere fact that the stories...
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