Com. v. Wright

• Decision Date: 01 December 1978
• Citation: 376 Mass. 725,383 N.E.2d 507
• Parties: COMMONWEALTH v. Lewis WRIGHT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 507

383 N.E.2d 507

376 Mass. 725

COMMONWEALTH v. Lewis WRIGHT.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 3, 1968.

Decided Dec. 1, 1978.

Clyde D. Bergstresser, Boston, for defendant.

Kevin Connolly, Sp. Legal Asst. to the Dist. Atty. (Michael J. Traft, Sp. Asst. Dist. Atty., with him), for the Com.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, WILKINS and ABRAMS, JJ.

QUIRICO, Justice.

This is an appeal from a conviction of murder in the second degree, in which the defendant argues essentially one issue. He claims that the conflict created by his lawyer's pretrial representation of a codefendant who ultimately became a principal trial witness for the Commonwealth denied him the effective assistance of counsel. He also asks us to direct a verdict of guilty of manslaughter in the exercise of our powers under G.L. c. 278, § 33E. We hold that there was no violation of the defendant's constitutional right to effective assistance of counsel, and conclude that there is no occasion to grant any relief under § 33E. We affirm the judgment.

On the morning of March 15, 1976, Renee Tillery's apartment at 9 Warwick Street in Roxbury was damaged by fire. That evening about 8 P.M., the defendant Wright who had been living with Renee, Renee's sister Tijuanna, and William H. Kimbrough, Jr., a relative, were helping Renee to move some clothes from the burned apartment to her mother's house when they met Freddie Santos, Jr., Renee's fourteen year old half brother, on the street. Renee accused Freddie (hereinafter referred to by his nickname, Flicky, to distinguish him from his father, Fred Santos, Sr., the victim) of setting the fire. According to her, Flicky replied, "You know I have to do what my father tells me to do."

The whole group then went to the home of a neighbor of Renee's, who had seen someone go in the window of Renee's apartment prior to the time of the fire. While Wright, Tijuanna, and Kimbrough waited downstairs, Renee took Flicky up to this neighbor's apartment. The neighbor identified Flicky as the person who started the fire.

Renee, Tijuanna, Flicky, Wright, and Kimbrough then went to 601 Shawmut Avenue, Boston, where Flicky lived with his father Fred Santos, Sr., who was also the father of Renee. Santos opened the door to his apartment and all five went in. Renee accused her father of involvement with the fire, and they began to quarrel, the others joining in. Shortly thereafter, Wright stabbed Santos several times with a knife, wounding him on the arm, the leg, and chest. A stab wound to the chest was the cause of death.

Wright, who testified at the trial, did not deny that he had delivered the fatal wound, but claimed that he had acted in self-defense after Santos attacked him with a kitchen knife. Flicky, Renee, and Tijuanna testified that Santos was unarmed and seated on a couch throughout the incident. Kimbrough was also indicted and tried for the same offense. He testified that he came out of the bathroom and saw Wright and Santos struggling, but that he did not see the victim with a knife. He did not corroborate Wright's claim of self-defense. ¹

After the stabbing, Renee, Tijuanna, Kimbrough, and Wright went to Renee's mother's house. Kimbrough testified he saw Wright washing blood off a knife while there. The Commonwealth attempted to introduce in evidence a knife Kimbrough had previously identified to the police as the murder weapon, but, because Kimbrough could not identify it from the witness stand, it was excluded.

1. Defendant's Claim of Counsel's Conflict of Interest.

Wright first communicated with his lawyer, Henry E. Quarles, Jr., sometime between the March 15 date of the homicide and March 30, 1976, when, with Mr. Quarles's assistance, he surrendered to the police. Mr. Quarles represented Wright from then on through his arraignment, trial, conviction, and sentence, after which new counsel was obtained for purposes of appeal.

Renee also asked Mr. Quarles for assistance in surrendering to the police, after she learned on March 30 that Wright was about to surrender. Mr. Quarles told her that he was already representing Wright, and that, because of the possible conflict of interest, she would have to get another lawyer. He then suggested to her the name of another attorney. However, Mr. Quarles did agree to make the arrangements for Renee to turn herself in, and to that end he met with her at her mother's house on the morning of March 31. At that time, he informed her of the content of the statement Wright had given the police the previous day, and he then accompanied her to the police station where she turned herself in. In Mr. Quarles's presence, Renee gave a statement to the police substantially corroborating Wright's statement that Santos had attacked Wright with a knife. This statement was completely inconsistent with Renee's eventual testimony at trial.

At trial, Renee testified as follows in response to questions put by the assistant district attorney: "Q. Now, were you represented by counsel when you went into the police station that time? A. Yes. Q. Who was your lawyer? A. Mr. Quarles." However, Mr. Quarles was never her attorney of record. Another attorney represented her after her indictment for murder in the first degree in May, 1976, and assisted her in obtaining a promise of probation in exchange for her testimony at trial.

Before the jury were empanelled, the defendants Wright and Kimbrough and their counsel were present at a conference at the bench. Among other matters, the judge raised the issue of any possible conflict which might result from Mr. Quarles's prior relationship to Renee and his representation of Wright. In remarks "address(ed) directly to the Defendant Wright," the judge discussed the matter as follows: "There is one matter that was brought to the Court's attention concerning the Defendant Wright's case, and these remarks I address directly to the Defendant Wright. Mr. Quarles indicated that he had discussed this matter with you, and it concerns the prospective witness and co-defendant, Renee Tillery. Mr. Quarles indicated that Renee Tillery had given statements that were inconsistent statements both favorable to the case of the Commonwealth and favorable to the Defendant's case. But, in particular, there was a statement given by Renee Tillery to Mr. Quarles. It was given to him at about and I assume it was just prior to her actually surrendering herself to the authorities, or at the time she surrendered herself to the authorities. ² That he told Renee Tillery that he was not acting as her lawyer, could not act as her lawyer, and that the reason was that he was the lawyer for Lewis Wright. And in the course of that statement, she said things which he reasonably anticipated he would use in the course of this trial if she testified as a witness, because there were statements that were inconsistent with what she said on other occasions. But the point that I want to bring to your attention, and which he says he discussed with you, is that of course he was one of the persons, or was the person that was engaged in this conversation with her, so that as this is brought out, he will naturally be making reference to the fact that one of the persons who was talking to her was himself. Now, it is conceivable that this could in some way restrict his ability to cross-examine and he tells me that he has discussed this matter with you and that you understand that. Is that so, Mr. Wright?" The witness: "Yes." The judge: "And knowing that, and knowing that it may place some limitations upon him, he indicates that you are agreeable that he should represent you at this trial." The witness: "Yes." The judge: "Now, is that right?" The witness: "Yes." The judge: "So that if there is anything about that, whether we can fully foresee it at this time or not, are you agreeable that he should act as your lawyer in this case?" The witness: "Yes, I do." The judge: "All right."

With this as background, we turn to analysis of Wright's claim that he was denied effective assistance of counsel. We start from the premise, recently reaffirmed in Commonwealth v. Leslie, --- Mass. ---, --- - --- ^A, 382 N.E.2d 1072 (1978), that "if a genuine conflict of interest could be shown, the defendant would have a constitutional right under the Sixth and Fourteenth Amendments or art. 12 of our Declaration of Rights to avoid the judgment of conviction, and this without having to demonstrate actual prejudice. See Commonwealth v. Bolduc, --- Mass. ---, --- - --- ^B, 378 N.E.2d 661 (1978), and authorities cited; Holloway v. Arkansas, 435 U.S. 475, 487-491, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978)."

Viewing this record with scrupulous regard for the defendant's important right to an attorney who is loyal solely to him, we conclude that there was no conflict here. Mr. Quarles's representation of Renee, if any, ³ was only undertaken with the explicit proviso that his first loyalty was to Wright. Mr. Quarles never, so far as this record reveals, actively promoted Renee's interests nor counseled her about what she should do. The minimal contact he did have with her was completely consistent with his client Wright's interests since she gave the police a statement corroborating Wright's version of the homicide and his claim of self-defense. By the time Renee changed her story, Mr. Quarles no longer had any contact with her.

This then is not a case where an attorney or his firm Simultaneously represented a defendant and a witness for the Commonwealth, so that loyalties would naturally be divided. Commonwealth v. Geraway, 364 Mass. 168, 173, 301 N.E.2d 814 (1973). The facts here are somewhat closer to those in Commonwealth v. Smith, 362 Mass. 782, 291 N.E.2d 607 (1973), where no conflict of interest was found from the fact that the defendant's attorney had earlier represented a Commonwealth witness at his trial on a different charge. The potential for conflict in the instant...