Com. v. Soffen

• Citation: 377 Mass. 433,386 N.E.2d 1030
• Parties: COMMONWEALTH v. Francis F. SOFFEN.
• Decision Date: 06 March 1979
• Court: United States State Supreme Judicial Court of Massachusetts

Page 1030

386 N.E.2d 1030

377 Mass. 433

COMMONWEALTH v. Francis F. SOFFEN.

Supreme Judicial Court of Massachusetts, Hampden.

Argued Dec. 6, 1978.

Decided March 6, 1979.

Bernard M. Grossberg, Boston, for defendant.

Dianne M. Dillon, Asst. Dist. Atty., for the Commonwealth.

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

HENNESSEY, Chief Justice.

The defendant, Francis F. Soffen, was indicted on three counts of armed robbery while masked and two counts of murder in the first degree. At his arraignments on all these charges, the defendant pleaded not guilty. On March 6, 1973, the date set for trial on one of the murder indictments, the defendant retracted his earlier pleas and offered pleas of guilty to the armed robberies while masked and to so much of the murder indictments as charged murder in the second degree. A Superior Court judge accepted the pleas and sentenced the defendant to two terms of life imprisonment for the murders and three terms of eighteen to twenty years for the armed robberies. The sentences were to be served concurrently.

In May of 1976, the defendant filed a motion to withdraw his guilty pleas or, in the alternative, for a new trial, arguing: (1) that he was denied effective assistance of counsel because of conflicts of interest on the part of his attorneys; and (2) that his pleas to the murder charges were involuntary in that he had not been apprised of the elements constituting murder in the second degree. After a hearing, a Superior Court judge denied the defendant's motion. This court granted the defendant's application for direct appellate review. We discern no error in the proceedings below and, accordingly, affirm.

We include the facts in our discussion of the defendant's contentions on appeal.

1. Conflicts of interest. Soffen was charged with the three armed robberies in March of 1972. Among his codefendants were Gary Dube, Steven Perrot, Robert Neilson, Louis Sweenor, and Edward Uschman. In September of 1972, Soffen was indicted for the murders of Dube and Perrot. ¹ The Commonwealth maintains that these murders were both retaliatory and preventive, as Dube had testified against Soffen before the grand jury, and Perrot had, at some time, also expressed his willingness to talk.

Soffen retained Mr. Efrem Gordon to represent him on all the charged offenses. Mr. Gordon, however, asked to be disqualified from the Dube murder case, due to a potential conflict of interest (discussed Infra ). The court granted Mr. Gordon's request and appointed Mr. John Donahue to represent the defendant.

The following conflicts of interest are alleged: (1) Mr. Gordon at one time represented Dube in a bank robbery case; it is unclear from the record whether the defendant participated in this particular bank robbery; (2) Mr. Murray Shulman, an attorney employed by Mr. Gordon, also represented Dube on various criminal charges, unrelated to the cases now before us; (3) Mr. Gordon represented Neilson and Sweenor, Soffen's codefendants, at their probable cause hearings; and (4) Mr. Elio Bellucci, who was a law partner of Mr. Donahue's, ² represented Edward Sabbato, a material witness in the Perrot murder case; Mr. Bellucci's representation of Sabbato included advising him in his capacity as a grand jury witness against the defendant. ³ We have examined the record with the attention to detail that its complexity necessitates. However, we conclude that there existed no constitutional infirmity in the defendant's guilty pleas by reason of conflict of interest on the part of his attorneys. Our reasoning is as follows.

The Sixth and Fourteenth Amendments to the Constitution of the United States and art. 12 of our Declaration of Rights guarantee a criminal defendant the assistance of an attorney who is unimpaired and unrestrained by commitments to others. Commonwealth v. Davis,--- Mass. ---, --- ^A, 384 N.E.2d 181 (1978). Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). It is well settled that this right attaches to that stage of the criminal process during which the defendant is deciding how to plead. See Commonwealth v. Bolduc,--- Mass. ---, --- ^B, 378 N.E.2d 661 (1978); Boyd v. Dutton, 405 U.S. 1, 92 S.Ct. 759, 30 L.Ed.2d 755 (1972); White v. Maryland, 373 U.S. 59, 60, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963); Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948) (plurality opinion). However, although undivided allegiance and faithful service to a client are crucial to the integrity of the whole forensic process, see Commonwealth v. Leslie,--- Mass. ---, --- ^C, 382 N.E.2d 1072 (1978), the burden lies with the defendant to prove both the existence and precise character of an alleged conflict of interest if he wishes to vitiate the results of prior proceedings. This can be done either by referring to the record, or by introducing evidence extrinsic to court proceedings. See Commonwealth v. Geraway, 364 Mass. 168, 301 N.E.2d 814 (1973); Glasser v. United States, supra, 315 U.S. at 67-69, 62 S.Ct. 457. Once a genuine conflict is shown, there is no additional requirement that prejudice be proved. Commonwealth v. Davis, supra, --- Mass. at --- ^D, 384 N.E.2d 181; Commonwealth v. Wright,--- Mass. ---, --- ^E, 383 N.E.2d 507 (1978); Commonwealth v. Leslie, supra, --- Mass. at --- ^F, 382 N.E.2d 1072; Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). Moreover, if a more tenuous conflict appears, we might still reverse the judgment on a showing of material prejudice. See Commonwealth v. Leslie, supra, --- Mass. at --- - --- ^G, 382 N.E.2d 1072; Miller v. United States, 564 F.2d 103, 106-107 (1st Cir. 1977), cert. denied, 435 U.S. 931, 98 S.Ct. 1504, 55 L.Ed.2d 528 (1978). With these principles in mind, we now turn to the defendant's contentions.

That Messrs. Gordon and Shulman at one time represented Dube is insufficient to sustain a claim of conflict of interest. At the outset, we note that Mr. Gordon did not represent the defendant in the Dube murder case, although that fact is not crucial to our resolution of the issue. Rather, Mr. Gordon had himself disqualified from such representation specifically in order to assuage suspicions as to his loyalty to Soffen and to preclude any subconscious effect that his prior professional commitment might have had. Moreover, although again not crucial, Mr. Gordon testified, and the judge found as fact, that Mr. Gordon's office did not represent Dube in his capacity as a grand jury witness against the defendant. We discuss these factors only because they strengthen our ultimate conclusion that no genuine conflict of interest has been proved. They are not crucial because the constitutional guaranty is intended to prevent a defendant's attorney from being hampered by contemporaneous divided loyalties or by having acquired privileged information which inhibits him in his representation of the defendant. See Commonwealth v. Smith, 362 Mass. 782, 783-784, 291 N.E.2d 607 (1973). Thus the only factors crucial to this particular allegation vis-a-vis the defendant's lawyer, Mr. Gordon, are that Dube died in May of 1972 and that Mr. Gordon had not yet entered his appearances on the defendant's behalf. In fact, the connection between Mr. Gordon and Dube ceased months before Mr. Gordon's representation of the defendant began. He therefore owed no continuing duty of loyalty to Dube at the time of the defendant's guilty pleas, and the defendant's claim of conflict of interest must fail. See Commonwealth v. Wright, --- Mass. --- ^H, 383 N.E.2d 507 (1978); United States v. Donatelli, 484 F.2d 505 (1st Cir. 1973). ⁴

That Mr. Gordon represented Soffen's codefendants at their probable cause hearings similarly fails to demonstrate a conflict of interest. The existence of conflicting interests will not be inferred from the mere fact of joint representation. Rather, the burden lies with the defendant to prove, without relying on speculation, that a true conflict existed. Commonwealth v. Davis, supra, --- Mass. at --- ^I, 384 N.E.2d 181. Commonwealth v. Adams, --- Mass. ---, --- - --- ^J, 375 N.E.2d 681 (1978). Englehart v. Commonwealth, 353 Mass. 561, 562, 233 N.E.2d 737, cert. denied, 393 U.S. 886, 89 S.Ct. 199, 21 L.Ed.2d 163 (1968). Holloway v. Arkansas, supra, 435 U.S. at 482, 98 S.Ct. 1173. United States v. Foster, 469 F.2d 1, 4 (1st Cir. 1972).

The defendant has made no effort to describe exactly how the joint representation infused his attorney with conflicting loyalties. There is no evidence that either Neilson or Sweenor had interests at odds with those of the defendant at the time of the joint representation. Moreover, the judge below found that both the defendant and Neilson were informed of their right to have separate counsel and asked whether they wished to proceed with Mr. Gordon nonetheless. Each responded affirmatively. In fact, Mr. Gordon testified that he represented Neilson at the defendant's request, and the judge regarded his testimony as credible. It is not entirely clear from the record whether Mr. Gordon ever represented Sweenor. Mr. Gordon testified that it was possible, but that he could not remember having done so. In any event, the judge below found that, if Mr. Gordon did represent Sweenor at the probable cause hearing, he did so at the defendant's request. We have reviewed the record and conclude that the judge's findings are supported by the evidence. As such, they, coupled with the defendant's failure to explain the nature of the alleged conflict, render the defendant's assertions devoid of constitutional import.

We now turn to the defendant's allegations with respect to Mr. Donahue. Mr. Donahue was appointed on September 26, 1972, to represent the defendant in the Dube murder case. The defendant objected to Mr. Donahue's appointment at that time and at several points thereafter, ⁵ because Mr. Bellucci, referred to earlier, was representing a material witness in the...