Com. v. LaFleur

• Decision Date: 25 May 1973
• Citation: 296 N.E.2d 517,1 Mass.App.Ct. 327
• Parties: COMMONWEALTH v. David P. LaFLEUR.
• Court: Appeals Court of Massachusetts

Page 517

296 N.E.2d 517

1 Mass.App.Ct. 327

COMMONWEALTH v. David P. LaFLEUR.

Appeals Court of Massachusetts, Suffolk.

Argued March 20, 1973.

Decided May 25, 1973.

Alexander Whiteside, II, Boston, for defendant.

Thomas J. Mundy, Jr., Asst. Dist. Atty., for the Commonwealth.

ARMSTRONG, Justice.

This is an appeal under the provisions of G.L. c. 278, §§ 33A--33G. The appellant, David P. LaFleur, was charged with kidnapping a young woman and raping her in his automobile. A companion of the appellant, Andrew Guretin, was also charged with kidnapping the complaining witness. They both were represented at trial by the same attorney, from the office of the Massachusetts Defenders Committee. A jury found both men not guilty of the kidnapping charges, but found LaFleur guilty of rape. LaFleur argues error by the trial court in denying a request for a continuance based on his counsel's lack of time to prepare, and in denying his counsel's request for a continuance so that separate representation could be aranged because of a possible conflict between the cases of the two defendants. He argues that as a result of these rulings he was denied effective assistance of counsel.

The crime for which LaFleur was convicted took place on the evening of March 2, 1971. The grand jury returned an indictment on April 14, 1971. Sometime later in April the Massachusetts Defenders Committee was assigned the case, and one of its attorneys, a Mr. Murphy, was designated to handle the case. The case was originally scheduled for trial on May 24; it was thereafter continued until early June, at which time, although Mr. Murphy appears to have been prepared, the Commonwealth was not. The case was next scheduled for trial on June 21, but because the defendant Guretin was late in appearing at court a new trial date of September 21, was given. On that day it was LaFleur who arrived at 2 P.M., forcing a one-day postponement. The trial did begin on September 22, 1971, in the afternoon. That morning LaFleur had been examined by the court psychiatrist and was brought by him to be competent to stand trial.

Approximately a week and a half prior to the September trial date Mr. Murphy was taken off the case because of other trial commitments of the Defenders' Committee and Mr. Carroll took over the case. He had one interview with each client prior to trial: with LaFleur on the 16th of September and with Guretin on the afternoon of the 21st. In asking for the continuance Mr. Carroll contended that he did not feel prepared to represent the defendants at that time. He personally had a heavy caseload. There was investigative work that he wanted to do. He needed time to explore the possibilities of attacking the victim's general character. Mr. Carroll also requested a continuance because in his judgment time was needed to appoint separate counsel for one of the defendants due to the possibility of a conflict of interest.

LaFleur himself requested that someone other than the Massachusetts Defenders Committee represent him. He mentioned a private attorney who he thought would be willing to represent him for a sum that he could raise. The trial judge contacted this attorney and personally spoke to him. He stated that he would not be available to represent LaFleur.

The court denied the request for a continuance. The trial judge was mindful of the fact that the complaining witness had subsequently moved to New York and had had to travel to Boston specially for these court proceedings more than once already. He mentioned that Mr. Carroll's office had had the case for five months and that ought to have been enough time to prepare; that if Mr. Murphy had been prepared to go forward in June, Mr. Carroll ought to be prepared to go forward in September; and that all Mr. Murphy's notes and preparations were available to Mr. Carroll. The judge also implied that he felt that much of the delay and lack of preparedness was the fault of the defendants themselves.

"Whether a motion for continuance should be granted lies within the sound discretion of the judge, whose action will not be disturbed unless there is patent abuse of that discretion, which is to be determined in the circumstances of each case." COMMONWEALTH V. BETTENCOURT, MASS., 281 N.E.2D 220.^A That determination is to be made giving full consideration to the right of a person accused of a crime to have counsel, and the right of counsel to have reasonable time in which to prepare a defense. Lindsey v. Commonwealth, 331 Mass. 1, 116 N.E.2d 691. Commonwealth v. Brant, 346 Mass. 202, 204, 190 N.E.2d 900. We are of the opinion that there was no abuse of discretion in denying the continuance in this case. Furtheremore, study of the transcript convinces us that LaFleur was in fact capably represented.

We next consider the question whether, because of the representation of possible conflict of interest, separate counsel ought to have been appointed.

In denying the request for separate counsel, the court said, '(A)nd let the record indicate that in the open court you indicated a conflict you thought was serious. And I interrogated in the lobby, without prejudice, as to what the nature of the conflict was. You disclosed it to me. It does not strike me as being a conflict of sufficient dimension or weight to require the appointment of separate counsel.' Mr. Carroll was, himself, less than specific about not only the nature but also the substantiality of the possible conflict. '(T)here may be a conflict . . .. There might be a conflict of interest. . . . (I)t could ultimately be serious.' Neither defendant took the stand. There is nothing...