Com. v. Walter

• Decision Date: 30 January 1985
• Citation: 471 N.E.2d 762,19 Mass.App.Ct. 82
• Parties: COMMONWEALTH v. Leroy WALTER.
• Court: Appeals Court of Massachusetts

Page 762

471 N.E.2d 762

19 Mass.App.Ct. 82

COMMONWEALTH v. Leroy WALTER.

Appeals Court of Massachusetts,

Berkshire.

Argued Oct. 4, 1984.

Decided Dec. 5, 1984.

Further Appellate Review Granted Jan. 30, 1985.

Wendy Sibbison, Northampton (William C. Newman, Northampton, with her), for defendant.

Lee Diane Flournoy, Asst. Dist. Atty., for the Commonwealth.

Before GRANT, KAPLAN and FINE, JJ.

FINE, Justice.

In March of 1981, Leroy Walter was convicted of unarmed robbery. We affirmed the conviction in Commonwealth v. Walter, 14 Mass.App. 1303 (1982). ¹ In October of 1982, Walter, pro se, filed a motion for a new trial. Counsel was appointed to represent him, and a hearing on the motion was held before the judge who had presided over the trial. The motion was denied in December of 1982 and Walter appeals from that ruling. We affirm.

Walter contends that his trial counsel, Mr. Andrew Campoli of the Massachusetts Defenders Committee, had a genuine conflict of interest because he also represented one Duane Carter on unrelated charges pending at the time of Walter's trial. Carter's connection to Walter's case is spelled out in the discussion which follows. Although Mr. Campoli withdrew as Carter's attorney on the second day of Walter's trial, Walter contends that this withdrawal came too late to cure the violation of his constitutional right to be represented by an attorney without a conflict of interest.

At the jury trial, George Johnson gave the following account of the crime. At about 2:00 A.M., on January 8, 1981, shortly after he left The Market, a bar in Pittsfield, someone jumped him from behind. The assailant beat Johnson about the face and stole his wallet, which contained seventy dollars. During the struggle, the assailant told Johnson to "give up the bag." Although he was not able to see the assailant, Johnson identified him as Walter by his voice. Walter had been a regular customer at a variety store owned by Johnson, who said he was familiar with Walter's voice. The two had spoken briefly in The Market shortly before Johnson left the bar and was assaulted.

At about 1:00 on the same morning, Carlos Swanson and Carter had been apprehended by the police in Pittsfield while attempting to steal a car. The two were not arrested immediately, however, and they proceeded to The Market. Two days later, on January 10, after the police arrested Swanson for the attempted car theft, they questioned him about the Johnson robbery. Swanson told the police that on the night of January 7-8 he was at The Market in the company of Carter, that he spoke with Walter there, and that Walter said he was planning to "take off" Johnson. Swanson also said that later, when he and Carter went outside the bar, he saw Walter with a club in his hand following Johnson down the street. On January 12, the police arrested Walter.

Swanson affirmed his statement before the grand jury which indicted Walter for unarmed robbery and assault and battery. He gave similar testimony at Walter's District Court probable cause hearing, except that he added the fact that outside the bar, when Walter said he was going to "take off" Johnson, Swanson was standing only inches from Walter, and Carter was "standing right there."

On February 5, 1981, the court appointed Mr. Campoli to represent Walter. ² On the same day, Mr. Campoli was appointed to represent Carter on eight charges, including the January 7th attempted car theft. The other offenses, including breaking and entering, attempted breaking and entering, larceny, receiving stolen property, and trespassing allegedly occurred between December 17, 1980, and January 21, 1981.

On February 11, the Commonwealth provided Mr. Campoli, in his capacity as Walter's attorney, with copies of Swanson's statement of January 10 and his grand jury testimony. Also before trial Mr. Campoli had been given a copy of the transcript of the District Court probable cause hearing. On February 13, the Commonwealth sent Mr. Campoli, in his capacity as Carter's attorney, eighteen pages of police reports and witness statements relating to the various charges against Carter. At least one of those reports referred to the arrest of Carter and Swanson for crimes committed on the night of January 7-8.

On the first day of Walter's trial, Mr. Campoli listed Carter as a possible defense witness. The trial proceeded and, after Johnson made a voice identification of Walter as his assailant, Swanson took the stand and inculpated Walter. He contradicted his pretrial statements by saying that he was alone, and not with Carter, when he saw Walter with the club outside The Market. The first day of trial ended with Mr. Campoli in the midst of cross-examining Swanson. The cross-examination that day, among other things, included questioning about Swanson's activities with Carter on the night of January 7-8. On the following morning, Mr. Campoli requested a recess in order to obtain a police report concerning the attempted car theft. The prosecutor informed the judge at the side bar that Mr. Campoli had already received the report as discovery in the Carter case. Mr. Campoli responded that he could not be bound in one case by discovery he had been given in another case. When the prosecutor remarked that Mr. Campoli planned to call Carter as a witness, Mr. Campoli answered, "I don't know that I am." The judge granted the request for a recess.

Before trial recommenced following the recess, Mr. Campoli moved to withdraw as Carter's counsel. He said that Carter's name was mentioned throughout the police report and that "[i]t may develop Mr. Duane Carter would be called as a witness in this case. It would be an absolutely untenable position for me to attempt to represent Mr. Walters [sic] on the one hand and Mr. Carter on the other." Mr. Campoli said he explained the situation to Walter, but no colloquy with the defendant was conducted before the judge. ³ The judge allowed Mr. Campoli's motion to withdraw as Carter's attorney. ⁴

Mr. Campoli continued to cross-examine Swanson vigorously and seriously impeached his credibility by eliciting numerous contradictions in his testimony. He did not call Carter as a defense witness.

In denying Walter's motion for a new trial, the judge ruled that there was no genuine conflict of interest. His stated reasons were: (1) that there was nothing which might have indicated to Mr. Campoli that Carter would be a material witness with substantial rather than incidental or trivial testimony to offer; (2) that the defendant was not in any way prejudiced by Mr. Campoli's initial representation of both Carter and Walter or by Mr. Campoli's decision not to call Carter as a witness; and (3) that there was nothing to indicate that any real attorney-client relationship existed between Carter and Mr. Campoli or that Mr. Campoli was given any confidential information by Carter.

The defendant urges us to apply a broad standard of review and to scrutinize carefully the judge's ultimate findings and conclusions, arguing that the record on the motion is entirely documentary and that this appeal presents constitutional issues. The Commonwealth, on the other hand, urges that we defer somewhat to the trial judge whose knowledge of the case derives from his having presided over it at all relevant stages. We need not reach this question because our independent review of the record leads us to conclude that the ruling of the judge was correct.

"We begin our consideration by reviewing the cardinal principles underlying analysis of conflict of interest claims in criminal cases. First of these is the defendant's constitutional right under the Sixth and Fourteenth Amendments to the United States Constitution or art. 12 of our Declaration of Rights to an attorney unhampered or unfettered in his professional responsibility to the accused.... A defendant is entitled to the untrammeled and unimpaired assistance of counsel free of any conflict of interest and unrestrained by commitments to others.... Despite the dimension of this right, we have held that a defendant's conviction will be reversed on this basis only when the alleged conflict is supported by adequate evidence of its existence. Commonwealth v. Smith, 362 Mass. 782, 784, 291 N.E.2d 607 (1973). 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). By this we mean that the defendant, on appeal, is obliged to show demonstrative proof detailing the precise character of the alleged conflict of interest. We will not infer a conflict of interest from simply the existence of joint representation, see Commonwealth v. Adams, 374 Mass. 722, 731, 375 N.E.2d 681 (1978); Holloway v. Arkansas, 435 U.S. 475, 487-489, 98 S.Ct. 1173, 1180-1181, 55 L.Ed.2d 426 (1978), or out of mere conjecture or speculation as to what might have been shown at trial, United States v. Alvarez, 580 F.2d 1251, 1255 (5th Cir.1978); Lugo v. United States, 350 F.2d 858, 859 (9th Cir.1965)." Commonwealth v. Davis, 376 Mass. 777, 780-781, 384 N.E.2d 181 (1978). "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." Commonwealth v. Soffen, 377 Mass. 433, 437, 386 N.E.2d 1030 (1979). See also Commonwealth v. Davis, supra, 376 Mass., at 783, 384 N.E.2d 181 (even where there is no genuine conflict, a conviction may be overturned where there is a "potential conflict coupled with a showing of material prejudice").

The parties agree that, although in this case the attorney represented simultaneously a defendant and a potential defense witness who was not called upon to testify, material prejudice has not been shown. ⁵ The issue, therefore, is whether before the second day of trial, it was reasonably foreseeable that there would be such tension between the interests of one client of...