Fitzgerald v. U.S., 85-393.

• Decision Date: 24 August 1987
• Docket Number: No. 85-393.,No. 85-1332.,85-393.,85-1332.
• Citation: 530 A.2d 1129
• Parties: Betty S. FITZGERALD, Appellant, v. UNITED STATES, Appellee. Renee S. FITZGERALD, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 1129

530 A.2d 1129

Betty S. FITZGERALD, Appellant, v. UNITED STATES, Appellee.

Renee S. FITZGERALD, Appellant, v. UNITED STATES, Appellee.

No. 85-393.

No. 85-1332.

District of Columbia Court of Appeals.

Argued May 12, 1987.

Decided August 24, 1987.

COPYRIGHT MATERIAL OMITTED

Paul F. Kemp, Rockville, Md., for appellants.

Michael D. Brittin, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., and Michael W. Farrell and Roxanne N. Sokolove, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before NEWMAN, TERRY and STEADMAN, Associate Judges.

NEWMAN, Associate Judge.

After joint trial by jury, Betty and Renee Fitzgerald were each convicted on one count of possession with intent to distribute heroin, six counts of possession of an unregistered firearm, and four counts of unlawful possession of ammunition. Having both been represented at trial by the same attorney, their principal contention on appeal is that they were deprived of their right to effective assistance of counsel because (a) they did not knowingly and intelligently waive their right to representation free from conflicts of interest, and (b) their joint attorney's performance at trial was adversely affected by an actual conflict of interest.

At issue in particular is the extent to which a trial court is required, under Super.Ct.Crim R. 44(b) and our prior holding in Douglas v. United States, 488 A.2d 121 (D.C. 1985), to explain to jointly represented defendants their right to separate counsel, in order that their waiver of that right may be deemed to be "intelligent and competent." Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). We hold that Betty and Renee Fitzgerald were not adequately informed by the trial court of their right to separate counsel. We also conclude that their representation at trial was adversely affected by an actual conflict of interest. Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980). Accordingly, we reverse.¹

I

Evidence adduced by the government at trial showed that on September 15, 1983, Sergeant Larry Brillhart led a team of officers of the Metropolitan Police Narcotics Task Force to an apartment located on W Street, Northwest, to execute a search pursuant to a warrant obtained earlier that day. Brillhart knocked on the door and announced his presence. He heard shuffling noises coming from inside the apartment, but nobody answered the door. He ordered the door broken in.

The door opened directly into the living room. Upon entering, the police found Betty Fitzgerald standing two or three feet from a couch. No one else was in the apartment. After Brillhart advised her that he had a search warrant, the officers commenced their search. During the course of the search Renee Fitzgerald arrived with a male companion. Betty identified Renee as her sister. Both women stated that they lived in that apartment.

The apartment consisted of three bedrooms, a kitchen and a living room. In the living room, police found two bundles of heroin on the floor behind the couch near which Betty Fitzgerald had stood when the police entered. The bundles contained a total of eleven packets of heroin, packaged for distribution rather than for personal use. These bundles were not in plain view. At no time was Betty Fitzgerald seen crouching down or even looking behind the couch.

In the closet and dresser of one bedroom, designated bedroom no. 1 at trial, police found a loaded .22 caliber pistol, nine rounds of .32 caliber ammunition, a holster, and currency amounting to $983.² Also seized were papers belonging to both Betty and Renee Fitzgerald. In bedroom no. 3, police found five handguns with ammunition and a woman's clothes in a closet, cosmetics and perfume, and papers and a voter registration card bearing Renee Fitzgerald's name in a dresser drawer. A drawer in bedroom no. 2 contained assorted ammunition, and thirty-three rounds of ammunition were found in a kitchen cabinet.

The two sisters were arrested and "processed" by different officers. Betty Fitzgerald was processed by Officer Campagne, to whom she gave as her address the W Street apartment. Renee Fitzgerald was processed by Officer Sheely, who testified that she likewise gave the W Street address and telephone number as her own.

Teddie Harris, an employee of the Department of Human Services (DHS), testified for the government that Renee Fitzgerald had applied for welfare in January, 1983; her application indicated that she lived at the W Street apartment. Harris also testified that welfare recipients are required to notify DHS of a change of address, and that DHS records did not contain a notification of change of address respecting Renee Fitzgerald, nor did they indicate any problems in the delivery of checks to her.

Detective Johnnie St. Valentine Brown testified for the government as an expert on narcotics trafficking, among other things. He explained that drug distribution often involved a "safe house", a place in which drugs are housed or packaged before sale and in which the proceeds of sales may also be kept. The occupants of a safe house are charged with the security of the stored drugs and/or money, and for this purpose, guns are often kept on the premises.

Betty Fitzgerald testified in her own defense that she lived at the W Street apartment on the date of the search, along with her mother, her sister Renee's one-year-old son, and Derrick Johnson, to whom she was later married. She occupied bedroom no. 1 (wherein one gun and ammunition were found by police). Her mother, who was frequently away from home visiting her sick father in Virginia, occupied bedroom no. 2 when she was home. Her sister Renee had occupied bedroom no. 3 (wherein five guns and ammunition were found), but Renee had moved to her other sister Annette's apartment on Taylor Street, N.E. by the time of the search. Renee Fitzgerald continued to visit the W Street apartment regularly, occasionally staying in her old bedroom.

Betty Fitzgerald testified that the night before the search, Abraham Aston, Derrick Johnson's friend (and Renee Fitzgerald's boyfriend), had stayed at the apartment (without Renee). He had arrived at night carrying a brown bag, had slept in bedroom no. 3, and had left in the morning. Betty Fitzgerald suggested that "[h]e could have [brought the guns into the apartment]. He had a bag in his hand. I assume they were clothing."

On the day of the search, Betty Fitzgerald was home alone, washing the dishes, when she heard banging on the door. She ran to the living room, and found the police already inside the apartment. She denied any knowledge about the drugs, guns or ammunition found in the apartment.

Renee Fitzgerald testified that she had lived in the W Street apartment for nine years until June, 1983 (three months before the search), when she moved in with her sister Annette Fitzgerald on Taylor Street. She stated that she had a key to the W Street apartment, and visited there "on a day-to-day basis." She still had some clothes, personal papers and cosmetics in bedroom no. 3, and had access to the full apartment. She had not been there, however, for several days prior to the day of the search.

On the day of the search, Renee Fitzgerald received a phone call at home, and took a cab to the W Street apartment. Upon her arrival there, she was escorted in, arrested, and searched. At trial, she denied any knowledge of the heroin, guns, or ammunition. She also denied having told the police after her arrest that she lived at the W Street apartment.

Peggy Fitzgerald, Betty's and Renee's mother, and Annette Fitzgerald, their sister, corroborated appellants' testimony that Renee had moved to Taylor Street during the summer of 1983.

II

The Fitzgeralds' primary contention on appeal is that they did not receive effective assistance of counsel because they were denied their right to be represented by separate attorneys. They assert that although the trial court conducted some pretrial discussion into this matter, they did not during this discussion knowingly and voluntarily waive their right to representation free from conflicts of interest. Moreover, they argue that their joint attorney's performance was, in fact, adversely affected by conflicts of interest which arose at trial.

Encompassed within the Sixth Amendment's guarantee of effective assistance of counsel³ is the right to representation by counsel whose loyalty is undiluted by conflicts of interest. Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 1103, 67 L.Ed.2d 220 (1981); Holloway v. Arkansas, 435 U.S. 475, 481, 98 S.Ct. 1173, 1177, 55 L.Ed.2d 426 (1978); Douglas, supra, 488 A.2d at 136. Threats to this right most commonly occur when a single attorney represents multiple defendants with conflicting interests. In such cases, an attorney may forego efforts he would ordinarily undertake on behalf of one client, in order that the other client may not thereby be harmed. For example, an attorney may refrain from challenging the admission of evidence prejudicial to one client but favorable to another, or from emphasizing the culpability of one client in order to exculpate another, or from allowing one defendant to testify against another, or from presenting a defense that helps one client but harms another, or from entering a plea agreement for one client conditioned upon his testimony for the prosecution against another client. See Holloway, supra, 435 U.S. at 490, 98 S.Ct. at 1181; United States v. Curcio, 680 F.2d 881, 887 (2d Cir. 1982); Campbell v. United States, 122 U.S.App D.C. 143, 145 n. 3, 352 F.2d 359, 361 n. 3 (1965).

The right to conflict-free representation, like other constitutional rights, may be waived by a defendant who wishes to be represented by a particular attorney, though that attorney is burdened by a conflict of interest. Holloway, supra, 435 U.S. at 483 n. 5, 98 S.Ct. at 1178 n. 5; Douglas, supra, 488...