Com. v. Pires

• Decision Date: 12 July 1983
• Citation: 451 N.E.2d 1155,389 Mass. 657
• Parties: COMMONWEALTH v. Brian P. PIRES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1155

451 N.E.2d 1155

389 Mass. 657

COMMONWEALTH v. Brian P. PIRES.

Supreme Judicial Court of Massachusetts Plymouth.

Argued April 6, 1983.

Decided July 12, 1983.

David A. McLaughlin & Mary Alice S. McLaughlin, New Bedford, for defendant.

Robert S. Sinsheimer, Asst. Dist. Atty. (John P. Corbett, Asst. Dist. Atty., with him), for the Commonwealth.

Before HENNESSEY, C.J., and WILKINS, ABRAMS, NOLAN and O'CONNOR, JJ.

NOLAN, Justice.

The defendant was indicted for the murder of John J. Silva. He was found guilty of murder in the second degree. The defendant raises the following issues: (1) the ineffective assistance of counsel because of trial counsel's conflict of interest at a probable cause hearing; (2) the reliance on polygraph examination results; (3) the ineffective assistance of counsel in the conduct of the trial; (4) erroneous jury instructions on circumstantial evidence and on reasonable doubt; and (5) error in the denial of his motion for a new trial. We allowed his application for direct appellate review. ¹ There was no error. We affirm the judgment of conviction.

The jury could have found the following facts surrounding the death of John Silva. Before midnight on August 8, 1980, the defendant, his brother Patrick Pires, his cousin Mark Pires, and a friend went to the White Cliffs Lounge, in Plymouth. The defendant and the victim quarreled, and at closing time, 1 A.M., they left the lounge together. The victim had placed a wrestling hold on the defendant's neck as they were walking from the lounge to the parking lot. Near the edge of the parking lot, the defendant plunged a knife into the victim's chest. There was evidence from which the jury could infer that Patrick was near the defendant at the moment of the attack. The victim staggered, regained his footing, but fell again. The defendant moved quickly to his automobile and entered on the driver's side. His brother Patrick and their cousin Mark got into the car. A small crowd gathered around the victim, who was gasping for air. Some spectators saw the defendant leaving the parking lot and tried to stop him, but he accelerated his car and left the area. The victim died from the stab wound. A police broadcast of the description of the defendant's car led to the eventual arrests of the defendant, Patrick, and Mark.

The defendant's family retained Mr. Walter Stone, a member of the Rhode Island bar, to consult with the defendant and Patrick and later to represent both of them at a probable cause hearing in the District Court. Mark Pires was represented by another attorney. Probable cause was found only in the case against the defendant, who was subsequently indicted for the murder. Mr. Stone continued to represent the defendant throughout his trial, which began on January 20, 1981, and ended with the verdict on January 26, 1981. On May 7, 1981, the defendant, then represented by his present attorney, filed a motion for a new trial, predicated, in the main, on allegations of ineffective assistance of counsel by reason of Mr. Stone's divided allegiance at the probable cause hearing and the allegedly resultant cover-up of Patrick's guilt as the one who stabbed the victim. After a hearing which lasted several days, the judge denied the motion in an order which contained specific findings and conclusions.

1. Ineffective assistance of counsel and conflict of interest. The defendant invokes the Sixth and Fourteenth Amendments to the United States Constitution as well as art. 12 of the Massachusetts Declaration of Rights in arguing the denial of effective assistance of counsel caused by Mr. Stone's alleged divided loyalties in representing Patrick and the defendant at the probable cause hearing. We have spoken to this problem of diluted advocacy in a number of cases within the last five years. See, e.g., Commonwealth v. Hodge, 386 Mass. 165, 168-170, 434 N.E.2d 1246 (1982); Commonwealth v. Michel, 381 Mass. 447, 451-457, 409 N.E.2d 1293 (1980); Commonwealth v. Cobb, 379 Mass. 456, 459-462, 405 N.E.2d 97, vacated sub nom. Massachusetts v. Hurley, 449 U.S. 809, 101 S.Ct. 56, 66 L.Ed.2d 12 (1980), appeal dismissed, 382 Mass. 690, 414 N.E.2d 1006 (1981); Commonwealth v. Soffen, 377 Mass. 433, 436-438, 386 N.E.2d 1030 (1979); Commonwealth v. Davis, 376 Mass. 777, 780-787, 384 N.E.2d 181 (1978); Commonwealth v. Leslie, 376 Mass. 647, 651-656, 382 N.E.2d 1072 (1978), cert. denied, 441 U.S. 910, 99 S.Ct. 2006, 60 L.Ed.2d 381 (1979); Commonwealth v. Bolduc, 375 Mass. 530, 540-543, 378 N.E.2d 661 (1978); Commonwealth v. Adams, 374 Mass. 722, 730-731, 375 N.E.2d 681 (1978). The United States Supreme Court spoke to this problem in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). The most recent case to come to our attention is Wilson v. Morris, 699 F.2d 926 (7th Cir.1983). The conflict of interest issue is also the subject matter of a disciplinary rule of this court. S.J.C. Rule 3:07, DR 5-105, --- Mass. --- (1981). See ABA Code of Professional Responsibility, Canon 6 (1978).

Not all of the cases cited address the problem of joint representation by one lawyer of two or more defendants in a single trial. None of them presents the precise issue of the instant case--joint representation by one attorney of two defendants at a probable cause hearing from which, after indictment, one of them emerges as a defendant who is represented by the same attorney at trial. However, from these cases can be culled certain principles which are instructive and helpful in their application to this case.

As might be expected, we discourage joint representation because of the potential problems that lurk therein, see Commonwealth v. Adams, supra 374 Mass. at 731, 375 N.E.2d 681, but this is not to say that a conflict of interest arises "solely because there is joint representation." Commonwealth v. Michel, supra 381 Mass. at 451, 409 N.E.2d 1293. Nor is it sufficient to show merely a possible conflict of interest. It is the defendant's burden to demonstrate, without relying on speculation, that joint representation resulted in an actual conflict of interest. Commonwealth v. Soffen, supra 377 Mass. at 438, 386 N.E.2d 1030. If he proves that there is a genuine conflict, he is not required to shoulder the additional burden of proving actual prejudice or adverse effect on his counsel's performance under art. 12, see Commonwealth v. Hodge, supra 386 Mass. at 169, 434 N.E.2d 1246, although he probably does carry the burden of demonstrating that the actual conflict adversely affected his lawyer's performance if he claims a violation of his Sixth Amendment rights, see Cuyler v. Sullivan, supra 446 U.S. at 350, 100 S.Ct. at 1719. An actual conflict exists when the lawyer is actively representing conflicting interests, id., or when there is tension between the interests of one client of the attorney and the interests of another client of the same attorney. Commonwealth v. Michel, supra. It has been recognized that if an attorney cannot use his best efforts to exonerate one defendant for fear of implicating another defendant (assuming joint representation), he is face to face with an actual conflict of interest. United States v. Unger, 665 F.2d 251, 255 (8th Cir.1981). The other side of the same coin is the actual conflict that arises "whenever one defendant stands to gain significantly by counsel adducing probative evidence or advancing plausible arguments that are damaging to the cause of a codefendant whom counsel is also representing." Foxworth v. Wainwright, 516 F.2d 1072, 1076 (5th Cir.1975), quoted with approval in Turnquest v. Wainwright, 651 F.2d 331, 333 (5th Cir.1981).

We now apply these principles to the instant case. The defendant argues that there existed a "per se conflict of interest" when Stone represented both Patrick and the defendant at the probable cause hearing. We have already pointed out that there is no "per se" or automatic conflict solely because of joint representation. Commonwealth v. Michel, supra 381 Mass. at 451, 409 N.E.2d 1293. The defendant argues that an actual conflict of interest existed at the probable cause hearing. The record does not carry the day for the defendant on this issue. The Commonwealth called eight witnesses at the probable cause hearing. Mr. Stone cross-examined six of these witnesses. He did not cross-examine Joseph Silva, a cousin of the victim, but his testimony was largely duplicative of the testimony of the other eyewitnesses. Mr. Stone did not cross-examine the arresting officer but this failure appears entirely harmless. Mr. Stone conducted himself at the probable cause hearing in a manner consistent with at least one of the purposes of such hearing, i.e., discovery of the Commonwealth's case against his clients. See Myers v. Commonwealth, 363 Mass. 843, 847-848, 298 N.E.2d 819 (1973). The Commonwealth's evidence against the defendant was strong. There was no evidence introduced against Patrick nor does the record reflect that Mr. Stone was privy to any evidence against Patrick at this time. Mr. Stone's argument to the judge at the conclusion of the hearing simply pointed out the absence of any evidence against Patrick. The defendant has failed to meet his burden of proving either a possible conflict or an actual conflict by Mr. Stone's joint representation of the defendant and Patrick at the probable cause hearing.

At the time of the trial, Mr. Stone no longer represented Patrick and the record is bare of any suggestion that he was aware of Patrick's alleged guilt at this time or that he had been given confidential information that might inhibit his advocacy of the defendant's defense. See Commonwealth v. Smith, 362 Mass. 782, 783-784, 291 N.E.2d 607 (1973). Alleged admissions of guilt by Patrick did not surface until after the trial and the judge found specifically that Patrick did not admit his guilt to Mr. Stone. Patrick did not testify nor even appear at the trial. There is nothing in the...