Commonwealth v. Delnegro, s. 16-P-339 & 16-P-340

• Citation: 75 N.E.3d 73
• Decision Date: 12 April 2017
• Docket Number: Nos. 16-P-339 & 16-P-340,s. 16-P-339 & 16-P-340
• Parties: COMMONWEALTH v. David DELNEGRO.
• Court: Appeals Court of Massachusetts

75 N.E.3d 73

COMMONWEALTH

v.David DELNEGRO.

Nos. 16-P-339 & 16-P-340

Appeals Court of Massachusetts, Hampden..

Argued January 6, 2017

Decided April 12, 2017

Kaily Hepburn for the defendant.

Bethany C. Lynch , Assistant District Attorney, for the Commonwealth.

Present: Kafker, C.J., Hanlon, & Agnes, JJ.

KAFKER, C.J.

The defendant, David Delnegro, seeks interlocutory review of orders disqualifying his attorney, Kaily Hepburn, from representing him in two criminal cases. Hepburn was the sole passenger in the defendant's vehicle when he was charged with operating a motor vehicle under the influence of alcohol and negligent operation. Hepburn was also present at a subsequent hearing on that matter in which the defendant got into an altercation with court officers and was charged with assault and battery on a public employee, disruption of court proceedings, and disorderly conduct. The defendant claims that Hepburn is not a necessary witness in the first case, and even though she is a necessary witness in the second case, that she can represent him in pretrial proceedings. He also argues that he has consented to any conflict of interest arising from the representations.

We dismiss the interlocutory appeals because the defendant did not petition a single justice of the Supreme Judicial Court for interlocutory review pursuant to G. L. c. 211, § 3, and the doctrine of present execution does not provide for interlocutory review of disqualification of counsel orders in criminal cases. We nonetheless consider the propriety of Hepburn's representation of the defendant, due to the important ethical considerations at stake, and conclude that she cannot represent him in either case at trial or any pretrial proceedings.

Background . The Commonwealth alleges the following facts. On February 4, 2014, at approximately 2:00 A.M. , the defendant was driving in an erratic manner through the streets of Springfield. Hepburn was the only passenger in the vehicle. A police officer stopped the vehicle and approached it. Based on the defendant's "glassy and bloodshot" eyes, flushed face, slurred speech, and the odor of alcohol on his breath, the officer asked him to get out of the car. He had difficulty doing so and, in the officer's opinion, performed poorly on field sobriety tests. The officer then placed him under arrest. At this point, according to the officer, Hepburn "ran out" of the vehicle and "demanded" that the officer release the defendant, because she was an attorney. Again, according to the officer, Hepburn was "extremely belligerent" and began "screaming obscenities" at him.

After the defendant's arraignment on the resulting criminal case, Hepburn sought to represent him. The Commonwealth moved to disqualify her, arguing that she had a conflict of interest because of her status as a percipient witness to the events underlying the charges. The motion judge agreed, noting that, because Hepburn was the only passenger in the vehicle, she was the "percipient witness," and the only person "who could possibly rebut the testimony of the police." The judge further explained: "[The officer's] report does not cast her in a particularly flattering light. Given this police report, I do not see how Attorney Hepburn can be loyal to the defendant and to herself. Any analysis by her regarding whether she is a necessary witness for the defendant would naturally be impacted by her self interest in not embarrassing herself by taking the witness stand and subjecting herself to cross examination. The conflict lies in her divided loyalties."¹

Thereafter, at a hearing on June 8, 2015, the Commonwealth alleges that the defendant, representing himself, became aggravated with the judge. Hepburn sat in the gallery of the courtroom behind the defendant. After the judge continued the defendant's case, according to court officers, the defendant refused to leave the courtroom and began shouting about unrelated matters. There was also apparently a struggle over a court document in the defendant's hands that Hepburn may have given him. Several court officers attempted to escort him from the courtroom, and a physical struggle ensued. Hepburn followed the officers as they removed the defendant from the courtroom, lobby, and courthouse, insisting that they release him and attempting to record the incident.² The defendant was eventually placed under arrest.

Initially, Hepburn sought to represent the defendant in the case arising from the second incident. The Commonwealth again moved to disqualify her, based on her presence at the hearing. The motion judge agreed and disqualified her from representing the defendant in the second case, finding that she "was not only a percipient witness but actively involved in the underlying events."

Discussion . 1. Notices of appeal and the doctrine of present execution . The defendant's notices of appeal for both disqualification orders cited Mass.R.Crim.P. 15, an inapplicable rule related to motions to suppress. See Mass.R.Crim.P. 15(a)(2), as appearing in 422 Mass. 1501 (1996) (defendant may apply to single justice of Supreme Judicial Court for leave to appeal order determining motion to suppress evidence). The defendant also did not petition a single justice of the Supreme Judicial Court for interlocutory review pursuant to G. L. c. 211, § 3, which would have been the appropriate means to immediately seek review of the disqualification orders.³ Rather, at a subsequent hearing and in later filings, the defendant relied on the doctrine of present execution to justify the interlocutory appeals. We conclude that interlocutory review of such orders may only be permitted pursuant to G. L. c. 211, § 3, because the doctrine of present execution does not apply to disqualification orders in criminal matters, for the reasons explained by the United States Supreme Court in Flanagan v. United States , 465 U.S. 259, 264, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984). We therefore dismiss the appeals.

Generally, "a judgment must be final to be appealable." Commonwealth v. Bruneau , 472 Mass. 510, 515, 36 N.E.3d 3 (2015). This rule is "crucial to the efficient administration of justice," and serves the important interests of not burdening the parties and clogging the courts with costly, time-consuming piecemeal appeals. Flanagan , supra . In criminal cases, the reasons for the final judgment rule are "especially compelling" for both the defense and the Commonwealth. Ibid ., quoting from Cobbledick v. United States , 309 U.S. 323, 324, 60 S.Ct. 540, 84 L.Ed. 783 (1940). The Sixth Amendment to the United States Constitution and art. 11 of the Massachusetts Declaration of Rights provide criminal defendants with the right to a speedy trial. See Mass.R.Crim.P. 36(b), 378 Mass. 909 (1979). As for the Commonwealth, "[a]s time passes, the prosecution's ability to meet its burden of proof may greatly diminish: evidence and witnesses may disappear, and testimony becomes more easily impeachable as the events recounted become more remote." Flanagan , supra .

Therefore, in criminal cases, the "[Supreme] Court has allowed a departure [from the final judgment rule] only for the limited category of cases falling within the ‘collateral order’ exception." Id . at 265, 104 S.Ct. 1051, citing Cohen v. Beneficial Industrial Loan Corp ., 337 U.S. 541, 545–547, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). To fall within this "narrow exception," Firestone Tire & Rubber Co . v. Risjord , 449 U.S. 368, 374, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981), a trial court order must, at a minimum, meet three conditions. First, it must "conclusively determine the disputed question"; second, it must "resolve an important issue completely separate from the merits of the action"; and third, it must be "effectively unreviewable on appeal from a final judgment." Id . at 375, 101 S.Ct. 669, quoting from Coopers & Lybrand v. Livesay , 437 U.S. 463, 468, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978).

The Supreme Court has concluded that a motion to disqualify counsel in a criminal case does not satisfy the third prong of this rule because it is not "effectively unreviewable on appeal from a final judgment." Flanagan , supra at 266, 104 S.Ct. 1051. The reason is that a defendant who demonstrates on appeal that his or her chosen counsel was improperly disqualified has an effective remedy: the defendant is entitled to a new trial without a showing of prejudice. See id . at 268, 104 S.Ct. 1051. "No showing of prejudice need be made to obtain reversal [of an erroneous disqualification order] because prejudice to the defense is presumed." Ibid . This presumption "reflects [the] constitutional protection of the defendant's free choice," independent of the "objective fairness" of the proceedings. Ibid . See United States v. Gonzalez–Lopez , 548 U.S. 140, 150, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006), quoting from Sullivan v. Louisiana , 508 U.S. 275, 282, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) ("erroneous deprivation of right to counsel of choice ‘unquestionably qualifies as structural error’ ").

In the present case, to support his contention that the motion to disqualify counsel is immediately appealable, the defendant relies on a line of Massachusetts civil cases applying the doctrine of present execution to disqualification motions. See, e.g., Maddocks v. Ricker , 403 Mass. 592, 598, 531 N.E.2d 583 (1988). Pursuant to the present execution doctrine, an order is "immediately appealable if it concerns an issue that is collateral to the basic controversy ... and the ruling will interfere with rights in a way that cannot be remedied on appeal from the final judgment." Rodriguez v. Somerville , 472 Mass. 1008, 1009, 33 N.E.3d 1240 (2015), quoting from Shapiro v. Worcester , 464 Mass. 261, 264, 982 N.E.2d 516 (2013).

The defendant is correct that disqualification orders in civil cases are immediately appealable under the doctrine of present execution.⁴ See Maddocks , supra . See also Smaland Beach Assn., Inc . v. Genova , 461...