Com. v. Cobb

• Decision Date: 09 January 1980
• Citation: 379 Mass. 456,405 N.E.2d 97
• Parties: COMMONWEALTH v. David A. COBB et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 97

405 N.E.2d 97

379 Mass. 456

COMMONWEALTH v. David A. COBB et al.

Supreme Judicial Court of Massachusetts, Barnstable.

Argued Oct. 3, 1979.

Decided Jan. 9, 1980.

Frederick C. Mycock, Barnstable, for John Kevin Hurley.

Gary A. Nickerson, and W. James O'Neill, Asst. Dist. Attys., for the Commonwealth.

John Cavicchi, Boston, for David A. Cobb, submitted a brief.

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

HENNESSEY, Chief Justice.

A Superior Court jury returned guilty verdicts against the defendants, David A. Cobb and John Kevin Hurley on indictments charging them with murder in the first degree of Vincent Wines. The defendants appeal, claiming several assignments of error, and also seek a reduction of the verdict or a new trial under G.L. c. 278, § 33E. We affirm the conviction of Cobb and reverse the conviction of Hurley, holding that he is entitled to a new trial because his trial counsel was inhibited in conducting Hurley's defense by a genuine conflict of interest.

The facts may be summarized briefly as follows. On January 10, 1976, a party was held at 14 Echo Road, West Yarmouth, Massachusetts, the home of Gerald and Elizabeth Kerr. Among those present were the decedent, Vincent Wines, and Michael Amano, both members of the Trampers Motorcycle Club, as well as the defendants, Cobb and Hurley, who were members of a rival motorcycle club called The Reapers. At some time during the party Amano, who was intoxicated, stumbled into Cobb, who reacted by pushing Amano and exchanging heated words with him. Wines interceded in Amano's behalf by drawing a pistol from his vest and pointing it at Cobb's face. The Kerrs quelled the disturbance and Wines put the gun away and apologized. Thereafter, Cobb and Hurley remained at the party conversing with Wines in an amiable fashion.

About midnight Cobb and Hurley, along with Hurley's girlfriend, Sally Leddy, returned to their home at 13 Gay Road, Yarmouth. The defendants then telephoned Robert Andrews, the president of The Reapers. According to Hurley's testimony, the defendants placed this telephone call in order to obtain Andrews' permission to use club funds to buy drugs from Wines.

Cobb and Hurley then returned to 14 Echo Road armed with a rifle and a shotgun. On entering the house, Hurley went into the living room to awaken Kerr, while Cobb entered the kitchen where Wines was sitting. According to Cobb's testimony he stepped into the kitchen and Wines started to reach for his gun. Cobb demanded that Wines put his gun down, and when Wines failed to comply, Cobb fired a warning shot. Cobb then relocated the rifle and walked around the table next to Wines, repeating his demand that Wines put down his gun. Wines jumped up and seized the barrel of Cobb's rifle, precipitating a struggle for possession of the weapon. During this scuffle the rifle again discharged. Wines then gained control of the rifle and struck Cobb on the head with it. Cobb called out to Hurley for help and Wines struck him again with the rifle, knocking him to the floor. Hurley, who had been standing in the doorway, testified that he picked up his shotgun as Wines turned toward him with the rifle. In response to a verbal threat from Wines, Hurley fired his shotgun into Wines' side at close range, killing him instantly. Cobb next drew his knife and stabbed Wines in the back.

1. The defendant Hurley contends that a new trial is required because he was denied his right to effective assistance of counsel under the Sixth and Fourteenth Amendments to the United States Constitution. ¹ Hurley alleges that a conflict of interest existed because his attorney in this trial, Mr. Henry E. Quarles, J., also represented Robert Andrews in matters unrelated to Hurley's case prior to his appointment to represent Hurley, as well as during the trial, and after Hurley's conviction. We agree.

"Once a genuine conflict is shown, there is no additional requirement that prejudice be proved. Moreover, if a more tenuous conflict appears, we might still reverse the judgment on a showing of material prejudice" (citations omitted). Commonwealth v. Soffen, --- Mass. ---, --- ^a, 386 N.E.2d 1030 (1979). See Commonwealth v. Leslie, --- Mass. ---, --- ^b, 382 N.E.2d 1072 (1978); Commonwealth v. Bolduc, --- Mass. ---, --- - --- ^c, 378 N.E.2d 661 (1978); Commonwealth v. ADAMS, MASS. 722, --- , 375 N.E.2D 681 (1978)^D; Holloway v. Arkansas, 435 U.S. 475, 489, 98 S.Ct. 1173, 1181, 55 L.Ed.2d 426 (1978). The case at bar is clearly one of genuine conflict necessitating a reversal of Hurley's conviction on constitutional grounds without any showing of prejudice.

The instant case presents a more egregious situation than Commonwealth v. Geraway, 364 Mass. 168, 301 N.E.2d 814 (1973), where a borderline conflict of interest was found sufficient to warrant a discretionary reversal of a conviction under G.L. c. 278, § 33E, although a majority of the court doubted whether a constitutional violation could be made out. ² In Geraway, of the six witnesses who testified to admissions by the defendant, four had been or were currently clients of the firm representing the defendant, although their matters were not related to that defense. Three of the four had been counseled by a partner about giving information to an investigating officer before trial. One of the four was himself under suspicion of having committed the murder. The partner who tried the Geraway case evidently was not conscious of the facts held to create the conflict. Like Geraway, in the instant case there was a dual representation of the defendant Hurley and the prosecution witness Andrews (who was also a potential suspect as an accessory to the crime). However, in this case, the conflict is more palpable because the dual representation was undertaken not by a single firm but by one individual, so that there is no question of imputing knowledge of conflicting interests vicariously from one member of a firm to the other members.

An examination of both the nature of the relationship between Mr. Quarles and Andrews and the circumstances of this case demonstrate that a "genuine conflict" clearly existed. Andrews was a personal friend as well as a client of Mr. Quarles. In fact, it was through Andrews that Mr. Quarles was procured as counsel for Hurley; and it was Mr. Quarles who induced Andrews to come into court to be introduced by the prosecution as a witness in this case, obviating the necessity for a summons. Andrews was making periodic payments to Mr. Quarles of fees owed from prior and current legal representations. ³ Also, Andrews was a potential suspect as an accessory to the homicide with which Hurley was charged, as well as a suspect in illegal drug traffic related to the homicide. The potential conflict of Mr. Quarles' loyalties between Hurley and Andrews is apparent. Mr. Quarles was potentially inhibited from cross-examining Andrews in a way that would embarrass or offend him, see Commonwealth v. Geraway, 364 Mass. 168, 179, 301 N.E.2d 814 (1973) (Tauro, C. J., and Braucher, J., dissenting), and especially in a way that could incriminate him. Further, it was reasonably foreseeable before the trial commenced that Andrews might be called to testify by the prosecution, and that his testimony would relate to substantial rather than incidental or trivial aspects of the case.

Because we conclude that, in the circumstances shown here, this simultaneous representation of a defendant and a prosecution witness by a single attorney gives rise to a genuine conflict, the issue of prejudice drops out. Thus it is not material that the record does not show that Mr. Quarles' relationship with Andrews occasioned any actual inadequacy in his representation of Hurley. The testimony of Andrews was identical to that of Hurley. In effect, Andrews bolstered the defense's theory of the case by testifying that he gave permission to Hurley to buy drugs from Wines. Nor is this a case where Mr. Quarles was given any confidential information by Andrews that might restrict his cross-examination of Andrews. Mr. Quarles did not appear to hold back on his questioning. He even went to the point of implicating Andrews in a possible conspiracy to violate the drug laws.

Nevertheless, the logic of the rule we invoke in a case of genuine conflict is clear, viz.: the defendant is not to be put to the burden, perhaps insuperable, of probing the resolve and the possible mental conflict of counsel. Both the potential for prejudice and the difficulty of proving it are apparent, particularly as to things that may have been left not said or not done by counsel.

In summary, we have identified a genuine conflict in this case where defense counsel was attorney for a person in ongoing and substantial legal matters, whose testimony could potentially incriminate him, and who foreseeably would be produced, and was produced, as a significant prosecution witness.

Clearly the responsibility here lay with defense counsel. Although the type of conflict shown here is not precisely described in rules of the court dealing with the defense function, see S.J.C. Rule 3:22A, Standards Relating to the Defense Function DF 6, --- Mass. --- (1979) (mentioning only the rules for representation of joint defendants) there was ample notice in the cautionary language of Geraway, supra, as well as subsequent opinions of this court. See cases cited, supra n. 3. The reversal here fairly may be said to be the result of error of counsel, rather than judicial error. Cf. Commonwealth v. Earltop, 372 Mass. 199, 204, 361 N.E.2d 220 (1977) (Hennessey, C. J., concurring).

We turn now to the additional assignments of error argued by Hurley, since they may arise again at a new trial. We also discuss Cobb's contentions, in order to demonstrate that there was no error as to him, and that the judgments against him are to be affirmed.

2. An assignment of error argued by both Cobb and Hurley relates to the...