Delacruz v. State

• Decision Date: 03 July 2019
• Docket Number: No. 4D17-2103,4D17-2103
• Parties: MELISSA DELACRUZ, Appellant, v. STATE OF FLORIDA, Appellee.
• Court: Florida District Court of Appeals

MELISSA DELACRUZ, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D17-2103

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

July 3, 2019

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; John S. Kastrenakes, Judge; L.T. Case No. 50-2015-CF-007496-AXXX-MB.

Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.

KLINGENSMITH, J.

The state charged appellant Melissa Delacruz with crimes arising from the theft of large sums of money from her employer. During her jury trial, and without warning, appellant's attorney informed the trial court he could no longer continue representation because he had been informed of the possibility that his fee was paid with funds appellant allegedly stole from a subsequent employer. Defense counsel requested leave to withdraw from his representation of appellant, but the trial court denied the motion. We hold that the denial of the motion was error and reverse.

Appellant was charged with several counts of grand theft; the state alleged that she used her employer's business credit card and business account funds for unauthorized personal expenses. During trial, defense counsel requested an ex parte hearing and asked to have the courtroom cleared. The trial court declined to clear the courtroom and instead offered to use the built-in "white noise machine," which blocks the ability for any persons other than those at the bench to hear the conversation, although the microphones at the bench record any such conversations. The trial court assured defense counsel "nobody can hear you except me." Thereafter, the trial court held multiple ex parte conferences at sidebar utilizing the white noise machine. Video footage of the trial provided in the supplemental record shows appellant was not present at the bench during these discussions. In the privacy of the sidebar conference, defense counsel explained that an attorney representing appellant's current employer called defense counsel's office, threatening to sue and file a bar complaint against him if he did not "wire the entire amount of funds" he received from appellant because she allegedly stole those funds from that employer.

Defense counsel asserted that he could not advocate as zealously for appellant as he would in any other situation. In support of this assertion, defense counsel stated he felt "victimized" by appellant, who put him in a situation where he was at risk of "being sued by the very actions of the person that I'm sentinel to defend." He disclosed that his ability to advocate for appellant was compromised because he had to argue to the jury that appellant did not do the things she was accused of when he knew in fact she had. He said the situation was "affecting [him] materially . . . not a financial materiality but the human effects." Due to this predicament, counsel filed a written motion to withdraw from the case and informed the trial court that he and his client had irreconcilable differences, that a conflict existed under the Florida Bar rules, and that the Florida Bar ethics counsel had confirmed to him that a conflict existed. Defense counsel also informed the court he had retained counsel to represent him regarding the demand he had received for return of the funds.

The trial court noted that the motion was based on allegations for which appellant was presumed innocent, and acknowledged defense counsel was representing appellant in a professional and effective manner, found that discharge was not warranted, and denied the motion to withdraw. In reaching this conclusion, the trial court compared the present case to that of an attorney continuing legal representation after a client fails to honor a fee agreement:

[T]he court has come to the conclusion that [what] this is really about here is money. And I can't tell you how many times attorneys have been promised to be paid and have failed to have gotten paid and the court would deny a motion to withdraw.

In this case, you were promised to be paid with valid money, and maybe it has turned out that you were paid with invalid money. And I don't know what's going to happen down the road with respect to the money that you have earned in this case. . . . But my firm belief without giving you legal advice is that's your money as long as you knew and had no reason to believe that it was fraudulently earned. But in any event, even if worst-case scenario you were forced to relinquish the money, what we basically have here is a case in which you are performing services for [Ms.] Delacruz pro bono.

The trial court also explained that it might have granted defense counsel's motion to withdraw if it had been filed two months before trial began but noted that the motion was filed during the middle of trial. After resuming open court, the trial court—in an attempt to ensure appellant's right to competent counsel—addressed appellant:

THE COURT: Ma'am, you know, lost in all of this hullabaloo yesterday and today about what's going on [in an unrelated matter involving appellant], and I'm not going to ask you any questions about that. I just want to make sure that you're happy with [defense counsel's] performance in representing you in this matter. Are you?

APPELLANT: Absolutely. Yes, sir.

At the end of the state's case, the trial court again asked appellant whether she understood "that [defense counsel] was a little concerned about his ability to advocate for you, right?" Appellant responded affirmatively. No further on-the-record discussions took place until appellant appeared for sentencing following conviction. At that time, defense counsel renewed his motion to withdraw and explained that his previous motion was never based on the possibility of not getting paid but rather was based on his own victimization by appellant. Defense counsel said that at trial he felt compelled to "make arguments that in my mind as I was arguing them I believed to be not accurate." Despite these arguments, the trial court again denied the motion. Appellant was adjudicated guilty and sentenced to twenty years' imprisonment on one count, fifteen years' imprisonment on another, and five years' imprisonment on a third, with all sentences to run concurrently. This appeal follows.

"The decision of a trial court to deny a motion to withdraw will not be disturbed absent a clear abuse of discretion." Sanborn v. State, 474 So. 2d 309, 314 (Fla. 3d DCA 1985).

That said, "[a] criminal defendant's Sixth Amendment right to effective assistance of counsel encompasses the right to counsel free of ethical conflicts." Toneatti v. State, 805 So. 2d 112, 114 (Fla. 4th DCA 2002). "An actual conflict of interest can impair the performance of a lawyer and ultimately result in a finding that the defendant did not receive the effective assistance of counsel." Rutledge v. State, 150 So. 3d 830, 835 (quoting Lee v. State, 690 So. 2d 664, 667 (Fla. 1st DCA 1997)). Courts have held that "[a] defense attorney 'is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of trial.'" G.B. v. State, 576 So. 2d 889, 890 (Fla. 1st DCA 1999) (quoting Holloway v. Arkansas, 435 U.S. 475, 485 (1978)).

Rule 4-1.7(a)(2) of the Rules Regulating the Florida Bar provides that "a lawyer must not represent a client if . . . there is a substantial risk that the representation of 1 or more clients will be materially limited . . . by a personal interest of the lawyer." There is an exception if "the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client," and the client gives informed consent in writing or stated clearly on the record at a hearing. See R. Regulating Fla. Bar 4-1.7(b). The comment to the rule elaborates on conflicts of interest:

Loyalty and independent judgment are essential elements in the lawyer's relationship to a client. Conflicts of interest can arise from the lawyer's responsibilities to another client, a former client or a third person, or from the lawyer's own interests. . . .

An impermissible conflict of interest may exist before representation is undertaken. . . . If such a conflict arises after representation has been undertaken, the lawyer should withdraw from the representation. . . .

. . . .

Loyalty to a client is also impaired when a lawyer cannot consider, recommend, or carry out an appropriate course of action for the client because of the lawyer's other responsibilities or interests. . . . A possible conflict does not itself preclude the representation. The critical questions are the likelihood that a conflict will eventuate and, if it does, whether it will materially interfere with the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.

Comment to R. Regulating Fla. Bar 4-1.7 (Loyalty to a client).

Although we have found no case directly on point, we are persuaded by the analysis in Williams v. State, 622 So. 2d 490 (Fla. 4th DCA 1993). In Williams, we decided that a public defender should have been allowed to withdraw where the state called the public defender's investigator as a witness, which compromised the public defender's ability to effectively cross-examine him. Id. at 491-92. To decide the case, we relied on rule 4-1.7 and its comments; specifically, the rule referencing a lawyer's responsibilities to a third person and the above-quoted portion of the comment that a lawyer's ability to carry out their duties may be impaired by other responsibilities or interests. Id. at 491. We agreed with the public defender that withdrawal was required where he believed that he could not adequately represent his client due to other...