Com. v. Wooldridge

• Decision Date: 30 January 1985
• Citation: 19 Mass.App.Ct. 162,472 N.E.2d 970
• Parties: COMMONWEALTH v. Thomas E. WOOLDRIDGE.
• Court: Appeals Court of Massachusetts

Page 970

472 N.E.2d 970

19 Mass.App.Ct. 162

COMMONWEALTH v. Thomas E. WOOLDRIDGE.

Appeals Court of Massachusetts,

Worcester.

Argued Oct. 11, 1984.

Decided Jan. 3, 1985.

Further Appellate Review Denied Jan. 30, 1985.

Ned C. Lofton, Boston, for defendant.

Harry D. Quick, III, Asst. Dist. Atty., for the Commonwealth.

Before BROWN, ROSE and KASS, JJ.

KASS, Judge.

To his considerable credit, the prosecutor anticipated, and attempted to avoid, the lawyer conflict of interest predicament which now bedevils this case.

Wooldridge, the defendant, was an Auburn police officer when he was indicted under G.L. c. 268A, § 2, for offering a bribe to a fellow police officer. He turned for legal assistance to Mr. Edward P. Reardon, whose law firm, Reardon and Reardon, had a contract with the Massachusetts Police Association Legal Defense Fund (Association) to provide legal services without cost to individual members. Within two weeks another member of the Auburn police force and the Association, William Stone, availed himself of the services of Reardon and Reardon in connection with disciplinary proceedings arising from the same underlying matter which had spawned Wooldridge's difficulties.

That matter involved a rape of which Francis Sumner, who enjoyed cordial business relations and friendships with many members of the Auburn police, stood accused. ¹ Among the police officers with whom Sumner had become chummy were Stone and Wooldridge. The charge against Wooldridge was that on January 5, 1982, he had approached James Guittar, another Auburn police officer, in the station locker room with a proposition that Guittar could earn $5,000 if he would write an "alibi ticket" to Sumner as of the time of the rape. Guittar responded that "any cop stupid enough to try to pull that trick would be hung out to dry" and that "Sumner would own that cop as long as he was around." The conversation ended with a suggestion by Guittar that Wooldridge look up the perjury statute. As soon as Wooldridge departed the police station, Guittar reported the conversation to Sergeant Brennan, the watch commander. ²

In late October or early November, 1981, Officer Stone had been approached directly by Sumner to give him, for a price, a blank traffic citation. Stone did not report the incident and as the Sumner case unravelled, that failure, as well as the receipt by Stone from Sumner of $50 either (depending on whose testimony was believed) in return for arresting someone or in connection with a car transaction, became the subject of inquiry by State and local officials. Upon investigation, State authorities decided that Stone had committed no violation of law; the police chief of Auburn suspended him from duty for five days for, among other things, conduct unbecoming an officer. Except for ministerial matters, Reardon and Reardon had concluded with Stone's case by the first week of August, 1982. The trial of Wooldridge took place two months later, on October 5, 1982. He was found guilty by a jury.

As the trial date neared, the assistant district attorney assigned to the case cautioned Mr. Reardon to take heed of the then recent decision in Commonwealth v. Hodge, 386 Mass. 165, 434 N.E.2d 1246 (1982). There the court had decided that concurrent representation of a prosecution witness by a partner of defense counsel in an unrelated matter deprived the defendant of the effective assistance of counsel to which he was entitled under art. 12 of the Massachusetts Declaration of Rights. Ibid. On the afternoon before trial, Wooldridge signed a one-page document prepared by Mr. Reardon which acknowledged that Mr. Reardon

"as the attorney for the Auburn Police Department, discussed my case with Chief Robert Johnson, Sgt. James Brennan, Sgt. Thomas Mancuso, Patrolman Dennis Johnson, Patrolman Robert Robinson, and Patrolman William Stone ... and that Edward P. Reardon has represented some, if not all the above-named officers and he ... is under contract with the Auburn Police Department regarding legal difficulties of any and all officers who were brought before any [b]oard or [t]ribunal for any alleged offenses committed while on duty.

"Notwithstanding the foregoing, I hereby waive any claim to any independent attorney and herewith indicate my election to proceed with Edward P. Reardon as my legal representative in the above-entitled matter."

Immediately before trial, counsel engaged in a lobby conference with the judge, largely to discuss what was to be said to the jury about the Sumner rape case and how it would be said. The following exchange appears in the middle of the lobby conference:

MR. REARDON: "I was talking to Mr. Aloise [the prosecutor] about this waiver, judge."

THE COURT: (Reading same). "That may be filed. And I take it that Mr. Wooldridge is an educated person, [and] that you have no question about his ability to execute such a waiver?"

MR. REARDON: "No."

A bit later in the lobby conference, when counsel told the judge what witnesses they intended to call, Mr. Reardon named Officer Stone as one of two witnesses he proposed to interrogate. The assistant district attorney called to attention that Stone was on the prosecution's witness list.

With the acuity of second sight, we can detect from the mention of Stone in the waiver document, coupled with the reference to him as an anticipated prosecution witness, a warning of conflicting representation more direct than that held to be impermissible in Hodge. Here the very same lawyer represented the defendant and a prosecution witness. The trial judge may be forgiven for not seeing cause for alarm. The waiver document was general and did not mention that Mr. Reardon had represented Stone in a matter at least tangentially related to Wooldridge's problem and at a time when he was preparing for Wooldridge's trial. Indeed, the document does not say specifically that Mr. Reardon had represented Stone; just that he had discussed Wooldridge's case with him. It is understandable, therefore, that the judge made no inquiry of Wooldridge to assure that he was adequately informed of the risks and potential dangers which might be inherent in the multiple representation, as required since Commonwealth v. Davis, 376 Mass. 777, 784-786, 384 N.E.2d 181 (1978). ³ The subsequent history of the instant case stands as a monument to the wisdom of inquiry by the judge whenever there is a waiver offered of a Fifth or Sixth Amendment right.

Four months after his conviction, Wooldridge, represented by new counsel, moved for a new trial on the ground that trial counsel had conflicting interests in a material prosecution witness. The trial judge held an evidentiary hearing which stretched over four separate dates. It is fair to describe the testimony of Mr. Reardon and his associate, Mr. Rhieu, as generally to the effect that they had discussed with Wooldridge their representation of Stone, and Wooldridge's testimony to the effect that the conflict problem had never been touched upon until the waiver document was placed under his nose on the afternoon before trial.

The judge made detailed findings of fact, which included the following: (a) Stone's testimony for the prosecution was not "trivial." See Commonwealth v. Hodge, 386 Mass. at 168, 434 N.E.2d 1246. (b) Mr. Reardon had adopted a trial tactic of not attempting to destroy Stone's credibility but, rather, using his testimony to buttress the defense theory that Wooldridge's mentioning of Sumner's request for an alibi ticket was not an attempt to bribe, but just so much locker-room talk. (c) Nevertheless, Mr. Reardon's representation of the defendant and Stone on matters which arose out of substantially the same facts constituted a conflict of interest. (d) The defendant, at the time he signed the waiver, understood the concept of conflict of interest. (e) The defendant understood the terms of the waiver and knowingly and intelligently elected to retain Reardon with full knowledge of the conflict of interest.

Those findings go a long way toward resolution of two issues which the parties have contested on appeal: whether a conflict of interest existed and whether the waiver was voluntary and intelligent. The findings of the trial judge on questions concerning voluntary and intelligent waiver of a constitutional right are entitled to substantial deference, with the reservation, however, that an appellate court indulges every reasonable presumption against waiver of a fundamental constitutional right. See Commonwealth v. Gil, 393 Mass. 204, 214, 471 N.E.2d 30 (1984), and cases cited. ⁴

1. Whether There Was a Conflict of Interest.

The existence of a conflict of interest is, as the Commonwealth notes, a mixed question of fact and law. Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S.Ct. 1708, 1714, 64 L.Ed.2d 333 (1980). Commonwealth v. Stirk, 16 Mass.App. 280, 287, 450 N.E.2d 1110 (1983) (Dreben, J., dissenting in part), S.C., 392 Mass. 909, 467 N.E.2d 870 (1984). We have no difficulty accepting the judge's conclusion that the case presented an instance of conflict of interest in the representation of multiple defendants. The Commonwealth, noting that our cases on conflict treat simultaneous representation and threatened present or future conflict, ⁵ makes much of the fact that Mr. Reardon's office had concluded Stone's case by the time Wooldridge went to trial. It is probably correct that representation of a client does not forever quarantine a lawyer from encountering that former client in an adversary posture. Here, however, the multiple representation was in connection with a related matter and existed while Mr. Reardon's firm was preparing Wooldridge's defense. What Stone might have to say could be useful or damning to Wooldridge, and vice-versa. Mr. Reardon continued to owe professional loyalty to Stone as part of the Association constituency, and, finally, Stone was not entirely in the clear. The district attorney had taken no action against him,...