Com. v. Walter

• Decision Date: 16 January 1986
• Citation: 487 N.E.2d 513,396 Mass. 549
• Parties: COMMONWEALTH v. Leroy WALTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 513

487 N.E.2d 513

396 Mass. 549

COMMONWEALTH v. Leroy WALTER.

Supreme Judicial Court of Massachusetts Berkshire.

Argued Oct. 8, 1985.

Decided Jan. 16, 1986.

Wendy Sibbison and William C. Newman, Northampton, for defendant.

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

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

LYNCH, Justice.

On March 31, 1981, a jury convicted the defendant, Leroy Walter, of unarmed robbery. The Appeals Court summarily affirmed the conviction, 14 Mass.App. 1303 (1982), and we denied further appellate review. In October of 1982, the defendant, pro se, filed a motion for a new trial and counsel was appointed to represent him. That motion was denied and the Appeals Court affirmed, Commonwealth v. Walter, 19 Mass.App. 82, 471 N.E.2d 762 (1984). We granted the defendant's petition for further appellate review, 393 Mass. 1106, 474 N.E.2d 182. The defendant claims that his motion for a new trial was improperly denied because his trial attorney's (Andrew T. Campoli's) concurrent representation of a potential defense witness (Duane Carter) created a genuine conflict of interest which denied the defendant effective assistance of counsel. ¹ The defendant further contends that trial counsel's withdrawal as Carter's counsel on the second day of the defendant's trial did not suffice to cure the conflict and that he was materially prejudiced by Mr. Campoli's failure to call Carter as a defense witness. We conclude that the defendant has not demonstrated the existence of either a genuine conflict of interest or material prejudice. Our reasoning differs somewhat from that of the Appeals Court although we reach the same result, and accordingly we affirm the denial of the motion for new trial. ²

The relevant facts are as follows. A little before 1 A.M., on June 8, 1981, the victim, George Johnson, arrived at a bar in Pittsfield known as The Market. Walter, Carlos Swanson, and Duane Carter were also present in the bar. Johnson knew Walter because during the past year he had been a frequent and regular customer of the small variety store Johnson owned. Johnson left the bar at about 1:50 A.M. After he had walked several blocks towards his nearby home, he was attacked and robbed. Johnson testified that, although he could not see his assailant, he knew the voice was Walter's.

Swanson and Carter had spent the day together on January 7, 1981, walking about Pittsfield. They spent the evening at a bar from about 8 P.M. until 11:30 P.M. At about 1 A.M. on January 8, 1981, they were interrupted by a Pittsfield police officer while Swanson was inside an automobile attempting to "pop" the ignition and Carter was standing alongside the automobile. They were not then taken into custody, however, and Swanson and Carter proceeded to The Market, which was nearby. This was the same morning Johnson was robbed.

Swanson testified that while he and Carter were at The Market on the morning of January 8, Walter told him that Johnson had some money with him and that he was going to "take him off and otherwise rob him." Swanson further testified that he saw Walter talk with Johnson. Johnson left the bar at about 1:40 A.M., Walter left five minutes later, and Swanson saw Walter following Johnson down the street with a club. After he was arrested on January 10 for the attempted automobile theft, Swanson gave the police a written statement concerning the Johnson incident in which he said that Carter was with him when he left The Market and saw Walter following Johnson.

On February 5, 1981, Mr. Campoli of the Massachusetts Defenders Committee was appointed to represent the defendant on several charges, including the January 8 unarmed robbery of Johnson. On the same day, he was also appointed to represent Carter on several unrelated charges, including the January 8 attempted automobile theft.

The following week the Commonwealth gave Mr. Campoli copies of Swanson's January 10 statement and his grand jury testimony as part of pretrial discovery in Walter's robbery case. Mr. Campoli was also provided with the Pittsfield police department's report and summary regarding the Johnson robbery which included a statement attributed to Swanson that he told police that he was with Carter and that they saw Walter follow Johnson. Before Walter's trial, Mr. Campoli also received a transcript of Swanson's testimony at Walter's District Court probable cause hearing. Carter's name did not appear on the Commonwealth's list of potential witnesses. No statement by Carter was included in those documents the Commonwealth provided Mr. Campoli. Discovery from the Commonwealth on the charges pending against Carter included the police report concerning Carter and Swanson's attempted car theft on January 8.

At the commencement of Walter's trial for the Johnson robbery, Mr. Campoli placed Carter's name on a list of potential defense witnesses to be read to the venire. On the first day of trial, Johnson took the stand and the testimony already discussed was elicited from him. Swanson then testified as stated earlier, that Carter was with him at The Market but that he was alone when he left the bar and witnessed Walter with a club in his hand. On cross-examination, Mr. Campoli probed the automobile theft incident more thoroughly and Carter's presence during the attempt was established. ³ Mr. Campoli led Swanson through a detailed account of Swanson's and Carter's activities during the day of January 7 and their arrival at The Market on the morning of January 8. He also explored the amount of alcoholic beverages the two consumed. The first day of trial ended in the midst of Mr. Campoli's cross-examination of Swanson.

The next morning the judge suspended the trial for a day to allow the Commonwealth to comply with Mr. Campoli's request that he be provided with a copy of the police report concerning the Swanson-Carter attempted automobile theft. The assistant district attorney objected that Mr. Campoli already had the document in his possession by virtue of his representation of Carter, but Mr. Campoli protested that, "I can't be held to discovery in other cases." In response to the prosecutor's remark that Mr. Campoli was going to call Carter as a witness, Mr. Campoli had replied, "I don't know that I am."

On the second day of testimony, Mr. Campoli moved to withdraw as Carter's counsel, noting that Carter's name was "mentioned throughout the police report." He stated that it "may develop that Mr. Duane Carter could be called as a witness in [Walter's] case. It would be an absolutely untenable position for me to attempt to represent Mr. Walter[ ] on the one hand and Mr. Carter on the other." No colloquy with Walter was conducted before the judge, but Mr. Campoli represented that he had explained the situation to Walter and Carter and that each understood what had happened. ⁴ The motion to withdraw was allowed and new counsel was appointed for Carter.

Mr. Campoli then resumed his cross-examination of Swanson which was both lengthy and thorough. As the Appeals Court stated, the examination was vigorous "and seriously impeached his credibility by eliciting numerous contradictions in his testimony." Commonwealth v. Walter, 19 Mass.App. 82, 85, 471 N.E.2d 762 (1984). Carter was never called as a witness.

In denying Walter's motion for a new trial, the judge ruled that there was no genuine conflict of interest. ⁵ While we will not disturb a judge's subsidiary findings which are warranted by the evidence, "ultimate findings and conclusions of law, particularly those of constitutional dimensions, are open for our independent review." Commonwealth v. Mahnke, 368 Mass. 662, 667, 335 N.E.2d 660 (1975), cert. denied, 425 U.S. 959, 96 S.Ct. 1740, 48 L.Ed.2d 204 (1976). Commonwealth v. Jackson, 377 Mass. 319, 325, 386 N.E.2d 15 (1979).

We reiterate the cardinal principle that "[a] defendant is entitled to the untrammeled and unimpaired assistance of counsel free of any conflict of interest and unrestrained by commitments to others." Commonwealth v. Hodge, 386 Mass. 165, 167, 434 N.E.2d 1246 (1982), quoting Commonwealth v. Michel, 381 Mass. 447, 453, 409 N.E.2d 1293 (1980). Under art. 12 of the Massachusetts Declaration of Rights, once a genuine conflict is shown, there is no additional requirement that prejudice be proved. Commonwealth v. Hodge, supra, 386 Mass. at 168, 434 N.E.2d 1246, and cases cited. It is, however, equally well-settled that a genuine conflict will not be automatically inferred from dual representation. ⁶ The "defendant's conviction will be reversed on this basis only when the alleged conflict is supported by adequate evidence of its existence.... [T]he defendant, on appeal, is obliged to show demonstrative proof detailing the precise character of the alleged conflict" (citations omitted). Commonwealth v. Davis, 376 Mass. 777, 781, 384 N.E.2d 181 (1978). The burden lies with the defendant to prove, without relying on mere conjecture or speculation, that a genuine conflict existed. See id.; Commonwealth v. Bolduc, 375 Mass. 530, 541, 378 N.E.2d 661 (1978). The defendant has not met this burden.

This case differs from those situations in which courts have most typically found that a conflict existed, e.g., where an attorney represents codefendants with inconsistent or contradictory lines of defense; where an attorney or an associate maintains an attorney-client or direct and close personal relationship with a material prosecution witness; or where an attorney has business reasons for preferring a verdict unfavorable to the defendant he or she represents. See Commonwealth v. Leslie, 376 Mass. 647, 653 & nn. 11, 12, 13, 382 N.E.2d 1072 (1978), cert. denied, 441 U.S. 910, 99 S.Ct. 2006, 60 L.Ed.2d 381 (1979), and cases cited. See also Commonwealth v. Hodge, supra. We nevertheless agree that where an attorney simultaneously represents both a criminal defendant and a possible defense witness, the...