Commonwealth v. Teti

• Citation: 801 NE 2d 279,60 Mass. App. Ct. 279
• Decision Date: 06 January 2004
• Docket Number: No. 01-P-1181.,01-P-1181.
• Parties: COMMONWEALTH v. JOSEPH TETI.
• Court: Appeals Court of Massachusetts

60 Mass. App. Ct. 279

801 NE 2d 279

COMMONWEALTH v. JOSEPH TETI.

No. 01-P-1181.

Appeals Court of Massachusetts, Suffolk.

September 10, 2003.

January 6, 2004.

Present: RAPOZA, GRASSO, & KANTROWITZ, JJ.

Rosemary Curran Scapicchio for the defendant.

Dean A. Mazzone, Assistant Attorney General, for the Commonwealth.

KANTROWITZ, J.

The defendant, Joseph Teti, appeals from his convictions of two indictments charging trafficking in cocaine.¹ He claims that (1) his Federal and State rights to counsel were violated due to the existence of a conflict of interest in one or both of his trial attorneys; and (2) he received ineffective assistance of counsel. We affirm.

The evidence. The record, murky in some areas, supports the following recitation. Matthew Deignan, a special agent for the United States Drug Enforcement Administration, was led to the defendant by an informant named Leo Lobello. Lobello had been a friend of the defendant, and used this relationship to facilitate drug transactions between the defendant and Deignan. On five separate occasions between May, 1996, and May, 1997, the defendant sold cocaine to Deignan. Two of these sales (the subjects of the present indictments), as well as some of the conversations leading to the sales, were recorded on video and audio tape.

The defendant, substantially relying on a defense of entrapment, testified on his own behalf to the effect that he had a substance abuse problem, which he was addressing. He further indicated that he was called and contacted repeatedly by Deignan, who pressured him to sell cocaine.

The defendant also called his former friend, Lobello, who was serving a sentence in Federal prison on narcotics convictions. Lobello, who was treated as a hostile witness, was called for two reasons. First, it was hoped that Lobello would bolster the defense claim that the defendant was not predisposed to sell cocaine. Secondly, Lobello was painted as the instigator of the drug transactions, as well as a reprobate and liar, testifying to curry favor with the Federal authorities.²

Facts underpinning the alleged conflict. At different points in time, Attorney Bradford Keene represented both Lobello and the defendant. Keene came to represent Lobello first when, in or about April of 1998,³ Lobello's mother, Marie, paid him $2,000 to attempt to have Lobello transferred from a Federal prison in South Carolina to one closer to his family in Massachusetts. Keene never met, or spoke, with Lobello. The sum total of his work consisted of making a few telephone calls to the prison authorities in South Carolina, who never responded to his inquiries.⁴

Approximately one month later, in May, 1998, after the defendant had been arrested, charged, and arraigned on the matter at hand, Keene was privately retained to represent him. Keene worked on the case for a relatively short period of time when, in January, 1999, he received a call from Attorney John McBride. The crux of the call was that the defendant had terminated Keene and hired McBride. After sending the file to McBride's office, Keene did nothing. Although it was anticipated that Keene would withdraw his appearance as attorney for the defendant,⁵ he never did.⁶

On the morning of the third day of trial, the assistant attorney general who was prosecuting the case informed the judge that she had just learned (erroneously, as it turns out) that Keene had been retained by Lobello's family to file a "Rule 35 motion for relief from sentencing." In fact, Keene had been retained to attempt to have Lobello transferred from a Federal prison in South Carolina to one closer to his family in Massachusetts.

Needless to say, the trial ground to a halt. The trial judge thoroughly aired the issue. Keene, perhaps indicative of the limited nature of his role, was not present in court at the time, arriving midway through the hearing. McBride repeatedly informed the judge that Keene had never told him of his relationship with Lobello and that he was shocked at the revelation.⁷ Keene, upon his late arrival, told the court that about one year prior to trial, he was asked by the Lobello family if it would be possible for Lobello to be transferred to a correctional facility closer to his family. Keene stated he made several telephone calls to a prison official at the South Carolina facility where Lobello was being held. Apparently, Keene never actually spoke with the prison official, and his messages went unanswered. According to Keene, "that was the extent of my relationship. . . . I have never spoken to Leo Lobello, I don't know the man; and that's the extent of my relationship." Keene stated that at the time of his activity on Lobello's behalf, he was representing the defendant. He was, however, unaware that Lobello had been an informant against the defendant, as "there was no disclosure to me at that point in time nor at any time during my tenure as official counsel to the defendant." When pressed by the judge as to when he had learned of Lobello's status as an informant against the defendant, Keene stated it had been only "about a week" before trial. As for the failure to disclose his having represented Lobello, Keene again emphasized his limited involvement with Lobello: "the extent of my relationship with Leo Lobello was to see if I could get him moved. It had no bearing on anything but that. The family came to me . . . . I made several attempts to get him moved, but that was the extent of my relationship. . . . I have never talked to Leo Lobello, I have never met the man. That was it."

Both Keene and McBride told the judge they had not discussed any aspect of Keene's representation of Lobello. After reviewing Keene's copy of Lobello's case file, the judge decided to "take Mr. Keene at his word that he . . . didn't know Mr. Lobello's name before last week."

The judge also inquired of the defendant, who stated that he had initially been represented by Keene, but that McBride had taken over the case several months before. The defendant informed the judge that he was "quite satisfied" with McBride's representation, his connection to Keene notwithstanding.⁸

Actual conflict of interest. "An actual or genuine conflict of interest arises where the independent professional judgment of trial counsel is impaired, either by his own interests, or by the interests of another client. An actual conflict requires reversal of a defendant's conviction under art. 12 of the Massachusetts Declaration of Rights without the necessity of showing that the conflict resulted in any prejudice." Commonwealth v. Croken, 432 Mass. 266, 272 (2000), S.C., 59 Mass. App. Ct. 921, 921-922 (2003) (citation and quotations omitted). See Mass.R.Prof.C. 1.9(a), 426 Mass. 1342 (1998) (Conflict of Interest: Former Client). The burden is on the defendant to establish the existence of a genuine or actual conflict of interest. See Commonwealth v. Shraiar, 397 Mass. 16, 20 (1986); Commonwealth v. Fogarty, 419 Mass. 456, 459 (1995).

If the defendant meets his burden, reversal is mandated, without a showing of actual prejudice or "that the conflict had an adverse effect on his counsel's performance," ibid., unless the defendant consents "to continued representation by his attorney 'so long as his consent is voluntarily, knowingly, and intelligently made.'" Commonwealth v. Croken, supra at 272 n.2, quoting from Commonwealth v. Martinez, 425 Mass. 382, 392 (1997). See Commonwealth v. Hodge, 386 Mass. 165, 170 (1982) ("having established a genuine conflict of interest, the defendant was required to prove neither actual prejudice nor adverse effect on his trial counsel's performance to entitle him to a new trial under art. 12").

Here, the defendant has failed to establish such a conflict. The timeline, while not completely determinative, establishes that Keene's activities on behalf of Lobello occurred approximately one year prior to trial. We will assume that Keene was in fact engaged in the representation of Lobello, although there were never any conversations or direct contact between the two, at the time he was making telephone calls to the South Carolina prison at the behest of Lobello's family.⁹ After several of these calls proved fruitless, Keene apparently did nothing further, and still never spoke with Lobello. His representation ended at that point. The record reflects that Keene repeatedly insisted that his several telephone calls were the extent of his activities on Lobello's behalf, and that Lobello was represented by different counsel in his motion pursuant to Fed.R.Crim.P. 35.¹⁰

In these circumstances, with Keene's representation of Lobello having ended long before trial, and long before learning of Lobello's status as an informant against the defendant, the defendant has not met his burden of establishing an actual conflict.¹¹ See Commonwealth v. Patterson, 432 Mass. 767, 775 n.9 (2000), quoting from Commonwealth v. Martinez, 425 Mass. at 388-389 ("When there has been some form of dual representation that would have posed a conflict, termination of the conflicting representation prior to the time of the defendant's trial will ordinarily `obviate the risk of simultaneous representation'").¹²

It is true that Keene represented the defendant after the defendant's arrest, prior to the defendant's hiring of McBride several months before trial. This fact establishes that there could have been a period where Keene represented both Lobello and the defendant. But this could not have given rise to a conflict, because, as the judge found, Keene was not aware of Lobello's status as an informant against the defendant until one week before trial — a point by which his activities on Lobello's behalf had long since ended. Since a conflict occurs when the "`independent professional judgment' of trial counsel is impaired . . . by the interests of another client," Commonwealth v. Shraiar, 397 Mass. at 20, quoting from S.J.C. Rule 3:07, Canon 5, as appearing in 382 Mass....