Com. v. Shraiar

• Decision Date: 06 March 1986
• Citation: 489 N.E.2d 689,397 Mass. 16
• Parties: COMMONWEALTH v. Steven A. SHRAIAR.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 689

489 N.E.2d 689

397 Mass. 16

COMMONWEALTH v. Steven A. SHRAIAR.

Supreme Judicial Court of Massachusetts Essex.

Argued Dec. 3, 1985.

Decided March 6, 1986.

Harry C. Mezer, Boston, for defendant.

Kenneth T. Bowden, II, Asst. Atty. Gen., for Com.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and NOLAN, JJ.

HENNESSEY, Chief Justice.

Following a jury trial in the Superior Court, the defendant, Steven A. Shraiar, was convicted on four counts of larceny over $100. Shraiar was sentenced to four concurrent one-year terms in a house of correction. These sentences were stayed, and an appeal filed. Shraiar retained new defense counsel for the purpose of appeal. Prior to briefing or argument, Shraiar moved to remand the case to the Superior Court for consideration of a motion for new trial. A single justice of the Appeals Court allowed this motion. After a hearing, the trial judge denied Shraiar's motion for a new trial. Shraiar appealed the denial of this motion, which appeal was consolidated with his appeal from the convictions. We transferred the case here on our own motion.

On appeal, Shraiar claims that he was denied the right to effective assistance of counsel under the Sixth Amendment to the United States Constitution, and art. 12 of the Massachusetts Declaration of Rights, due to his trial attorney's conflict of interest. Shraiar also contends that the trial judge erred in admitting evidence of subsequent, uncharged larcenies. We affirm the convictions and the denial of Shraiar's motion for new trial.

The facts were as follows. Shraiar purchased the Newburyport Manor Nursing Home on December 1, 1980. Soon thereafter, Shraiar began experiencing difficulties meeting the expenses of the home. As a result of these difficulties, Shraiar withdrew funds from the patients' personal needs allowance (PNA) account. The PNA account contains the monthly personal allowances of the home's Medicaid recipients, which in this case were held in trust by the home for the benefit of these residents. ¹ Between December 19, 1980, and June 16, 1981, Shraiar made four withdrawals from the PNA account, totalling approximately $15,000. In each instance, Shraiar either cashed the check or deposited the money in the operating or payroll account of the home.

These withdrawals are the subject of the indictment against Shraiar for four counts of larceny over $100. Shraiar's defense to these charges has consistently been that he intended to repay these "borrowed" funds, and that he therefore lacked the requisite intent for the crime of larceny.

Attorney Richard H. Gens entered his appearance on behalf of Shraiar on December 23, 1981, soon after the indictments were returned against the defendant. Mr. Gens had previously represented Shraiar in numerous matters regarding Shraiar's ownership of a pharmacy, and had also represented Shraiar in his purchase of the nursing home. Mr. Gens served as lead defense counsel throughout Shraiar's trial. Mr. Gens' daughter and law partner, Sara Gens Birenbaum, assisted him in the preparation of Shraiar's defense.

On February 9, 1982, the prosecution provided defense counsel with a list of Commonwealth witnesses. Mr. Gens' name appeared on this list. Mr. Gens telephoned the assistant attorney general in charge of the case to inquire about the subject matter and relevance of his testimony. The Commonwealth informed Mr. Gens that it was interested in certain checks drawn on the nursing home's account, payable to Mr. Gens, subsequent to Shraiar's initial withdrawal from the PNA account.

According to Mr. Gens, the parties agreed to avoid the problem of defense counsel's serving as a Commonwealth witness by stipulating to certain facts. The parties thus entered into a stipulation to the effect that Mr. Gens had received a total of $20,385 from the nursing home during the period between January 30, 1981, and July 10, 1981. This sum represented $14,400 in repayment of a personal loan from Mr. Gens to Shraiar, and $5,985 in legal fees for prior representation.

Prior to entering into this stipulation, Mr. Gens informed Shraiar of the purpose and necessity of the agreement. Shraiar agreed to the stipulation. The stipulation was signed by the prosecutor, and by Mr. Gens on behalf of Shraiar. The stipulation was read to the jury during trial. The judge, prior to admitting this stipulation, did not discuss with Shraiar the possibility of a conflict of interest, or question the defendant regarding his knowing consent to Mr. Gens' representation.

During closing argument, the Commonwealth relied on the stipulation as a basis for arguing that Shraiar intended to permanently deprive the PNA account of the withdrawn funds. Specifically, the Commonwealth argued that Shraiar's payment of $20,385 to his lawyer during the period that the PNA account remained outstanding, as well as other self-serving actions by Shraiar during this period, ² belied the defendant's stated intention to repay the account.

1. Ineffective Assistance of Counsel.

Shraiar claims that he was denied the effective assistance of counsel due to his trial counsel's alleged role as a Commonwealth witness, and his participation in the transactions which formed the basis for the charges against Shraiar. This case presents a novel and rather complex question of conflict of interest. Most of our prior decisions in this area involve either the joint representation of codefendants with inconsistent lines of defense, or the dual representation of a defendant and an adverse witness. See Commonwealth v. Leslie, 376 Mass. 647, 653, 382 N.E.2d 1072 (1978), cert. denied, 441 U.S. 910, 99 S.Ct. 2006, 60 L.Ed.2d 381 (1979). In the present case, however, the alleged conflict of interest derives from defense counsel's personal involvement in the subject matter of the criminal prosecution. Nonetheless, our prior opinions provide us with guidance for the resolution of the issues in this case.

An element of the fundamental right to counsel under art. 12 of the Massachusetts Declaration of Rights is the defendant's right to the full and undivided loyalty of his attorney. A defendant is entitled to the untrammeled and unimpaired assistance of counsel free from any conflict of interest. Commonwealth v. Davis, 376 Mass. 777, 780, 384 N.E.2d 181 (1978). Where a genuine conflict of interest exists, the defendant's conviction must be reversed. Once a genuine conflict is shown, the defendant is not required under art. 12 to shoulder the additional burden of proving actual prejudice or an adverse effect on his counsel's performance. ³ Commonwealth v. Hodge, 386 Mass. 165, 169-170, 434 N.E.2d 1246 (1982). Commonwealth v. Soffen, 377 Mass. 433, 437, 386 N.E.2d 1030 (1979). However, where only a "potential" or "tenuous" conflict is demonstrated, the conviction will not be reversed except upon a showing of material prejudice. See Commonwealth v. Edgerly, 390 Mass. 103, 108, 453 N.E.2d 1211 (1983); Pisa v. Commonwealth, 378 Mass. 724, 729, 393 N.E.2d 386 (1979).

The burden lies with the defendant to prove that a genuine conflict of interest existed. Commonwealth v. Bolduc, 375 Mass. 530, 541, 378 N.E.2d 661 (1978). Commonwealth v. Walter, 396 Mass. 549, 554, 487 N.E.2d 513 (1986). The defendant is obliged to present demonstrative proof detailing both the existence and the precise character of this alleged conflict of interest; we will not infer a conflict based on mere conjecture or speculation. Davis, supra, 376 Mass. at 781, 487 N.E.2d 513; Commonwealth v. Adams, 374 Mass. 722, 731, 375 N.E.2d 681 (1978). An "actual" or "genuine" conflict of interest arises where the "independent professional judgment" of trial counsel is impaired, either by his own interests, or by the interests of another client. See Commonwealth v. Michel, 381 Mass. 447, 451, 409 N.E.2d 1293 (1980); S.J.C. Rule 3:07, Canon 5, as amended, 382 Mass. 779 (1981).

We now turn to Shraiar's contentions regarding the conduct of Mr. Gens. First, Shraiar argues that Mr. Gens in effect served as a Commonwealth witness against the defendant. Generally, the very nature of an attorney's duty of allegiance and undivided loyalty to his client forecloses him from simultaneously serving as both defense counsel and prosecution witness, where the attorney's testimony will prejudice the defendant. See United States v. Cortellesso, 663 F.2d 361 (1st Cir.1981); S.J.C. Rule 3:07, DR 5-102 (B), as amended, 382 Mass. 780 (1981). ⁴ A genuine conflict of interest arises whenever trial counsel is called upon to give testimony adverse to his client. The policy against trial counsel's simultaneously serving as a witness normally precludes an attorney even from testifying on behalf of his client, due to the incompatible roles of witness and advocate. See Commonwealth v. Rondeau, 378 Mass. 408, 415, 392 N.E.2d 1001 (1979) (appearing as witness would place trial counsel in unseemly position of arguing own credibility), citing S.J.C. Rule 3:07, DR 5-102 (A). ⁵ See also Black v. Black, 376 Mass. 929, 381 N.E.2d 1304 (1978).

No conflict of interest arose in the present case because Mr. Gens, although placed on the list of Commonwealth witnesses, was never actually called to testify. Cf. Commonwealth v. Walter, 396 Mass. 549, 557, 487 N.E.2d 513 (1986) (no conflict of interest where defense counsel represented scheduled witness who did not ultimately testify). Mr. Gens merely entered into a stipulation on behalf of his client as to facts within their joint knowledge. Trial counsel does not become a "witness" by entering into such a stipulation. Stipulations are a common and appropriate means of avoiding the conflict of interest problems inherent in the advocate-witness situation. See United States v. Cortellesso, 663 F.2d 361, 363 (1st Cir.1981) (suggesting that defense attorney could have avoided being disqualified due to his role as a prosecution witness by stipulating to fact at issue). Without this device, trial ...