La Fleur v. Hall
| Decision Date | 16 October 1974 |
| Docket Number | No. 73-125.,73-125. |
| Citation | 383 F. Supp. 1188 |
| Parties | David P. La FLEUR v. Frank A. HALL et al. Misc. Civ. A. |
| Court | U.S. District Court — District of Massachusetts |
Mass. Defenders Committee Daniel F. Toomey, Boston, Mass., for petitioner.
Barbara A. H. Smith, Patricia M. Dinneen, Asst. Attys. Gen., Boston, Mass., for Hall et al.
Before the court is a petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 in which petitioner claims violations of his Sixth and Fourteenth Amendment rights to effective assistance of counsel.
Petitioner and his co-defendant were indicted for kidnapping. Petitioner was also indicted for rape. The Massachusetts Defenders Committee (MDC) was appointed to represent the petitioner and his co-defendant, both of whom were indigent. In April 1971, an MDC attorney was assigned the case. After three continuances, a trial date was set for September 22, 1971.
Approximately ten days before trial, the case was re-assigned to another MDC attorney. Immediately prior to the commencement of the trial, this MDC counsel informed the trial judge that he perceived a potential conflict of interest arising out of his representation of both defendants; that he had discovered the potential conflict the night before trial; and that he had need of a continuance1 to explore more fully the conflict with a view to requesting appropriate action by the court. In addition to seeking a continuance, he formally requested that separate counsel be appointed to represent the petitioner because Trial Transcript (TR) 13-14.
The court clinic psychiatrist and the court clinic psychiatric social worker examined the petitioner at the judge's request during a recess to determine petitioner's fitness to stand trial. Their conclusion was that the petitioner, although fit to stand trial, was without confidence in the appointed attorney he shared with his co-defendant, was unable to "relate" to the appointed attorney and would be able to cooperate more effectively in his defense if another counsel were provided.
The petitioner addressed the judge with a personal statement of "no faith" in appointed counsel, a condemnation of appointed counsel's alleged inactivity prior to trial, and a request that separate counsel be appointed. The petitioner further expressed a desire to hire a particular private counsel who had represented him in the past. The trial judge determined by telephone inquiry that the named private counsel would refuse employment by the petitioner and did not wish to be appointed by the court.
The judge requested MDC counsel to "get somebody from your office to sit in." Counsel replied that "if there is a conflict it is the policy of our office not to have another member of our office brought in on the case." (TR 21). The judge made no further attempts to provide separate counsel, and stated: "I will take my chances with either one of the defendants being prejudiced." (TR 21).
Afer an unrecorded lobby conference in which the judge interrogated the defense attorney as to the nature of the possible conflict, he denied the request for a continuance and the request for appointment of separate counsel stating: "It does not strike me as being a conflict of sufficient dimension or weight to require the appointment of separate counsel." (TR 38). The judge made no findings in support of his conclusion nor did he indicate, on the record, the nature of the alleged conflict of interest.2
At trial, the Commonwealth's case largely consisted of the testimony of the victim, the physician who examined her with respect to her allegation of intercourse, and the police officers who apprehended the petitioner and his co-defendant. The defense rested without presenting any evidence.
Petitioner was convicted by a jury on September 24, 1971, on the rape indictment. Both defendants were acquitted by the jury on the kidnapping indictment. The petitioner was sentenced on September 24, 1971, to serve a term of not less than four nor more than seven years at the Massachusetts Correctional Institution at Walpole, Massachusetts.
Petitioner appealed his conviction to the Massachusetts Appeals Court and claimed, inter alia, that his state and federal constitutional rights to effective assistance of counsel were violated by the trial judge's refusal to appoint separate counsel. On May 25, 1973, the Massachusetts Appeals Court affirmed the conviction. Commonwealth v. LaFleur, 1973 Mass.App.Ct.Adv.Sh. 377, 296 N.E.2d 517. An Application for Further Appellate Review was denied by the Supreme Judicial Court on June 26, 1973. On December 21, 1973, petitioner was paroled to the custody and supervision of the respondent. The precise issue in question in these proceedings was presented to the state courts in those prior proceedings. Accordingly, this court finds that petitioner has exhausted his available state remedies as required by 28 U.S.C. § 2254.
For over three decades, courts have viewed Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), as the litmus against which all questions as to the constitutional propriety of joint representation must be tested. In that case, the Supreme Court established that "the `Assistance of Counsel' guaranteed by the Sixth Amendment contemplates that such assistance be untrammeled and unimpaired by a court order requiring that one lawyer shall simultaneously represent conflicting interests." Id. at 70, 62 S.Ct. at 465.
In United States v. Foster, 469 F.2d 1 (1st Cir. 1972), the Court of Appeals expressed its understanding of the Glasser holding with respect to the matter of dual representation.3
This court is "peculiarly sensitive to a showing of conflict of interest, if such can be suggested," ... in the sense that the accused need not delineate the precise manner in which he was prejudiced. . . . Ordinarily, prejudice would be assumed from the existence of a conflict, but a conflict will not be inferred from the fact of joint representation.
The threshold issue for determination, therefore, is whether in this case the record indicates a conflict, or merely a "fact of joint representation."
In asserting the existence of a conflict, the petitioner relies solely4 on the following italicized comments of the trial judge.
I denied your request for a continuuance and denied your request to appoint separate counsel and let the record indicate that in the open court you indicated a conflict you thought was serious. And I interrogated in the lobby, without prejudice, as to what the nature of the conflict was. You disclosed it to me. It does not strike me as being a conflict of sufficient dimension or weight to require the appointment of separate counsel. (TR 38).
Petitioner's theory is that the italicized statement by the judge constitutes a finding of some conflict and that faced with a finding of conflict, he had no alternative but to appoint separate counsel. The Massachusetts Appeals Court, focusing on this very issue, interpreted the quoted language as being a finding of no conflict.
We interpret the trial judge's statement ("It does not strike me as being a conflict of sufficient dimension or weight to require the appointment of separate counsel.") to reflect precisely the same thought as that stated in the Smith, Bernier and Lugo cases.
Commonwealth v. LaFleur, 1973 Mass. App.Ct.Adv.Sh. 377, 381, 296 N.E.2d 517, 520.
The cases cited by the Appeals Court, Commonwealth v. Smith, 1973 Mass.Adv. Sh. 63, 291 N.E.2d 607; Commonwealth v. Bernier, 359 Mass. 13, 267 N.E.2d 636 (1971); Lugo v. United States, 350 F.2d 858 (9th Cir. 1965), all contained findings of no conflict.
This means that the pivotal language relied upon by petitioner has already been interpreted by the Commonwealth's highest courts in a manner contrary to his position. The meaning of such language is a matter of state and not federal law. The Appeals Court has rendered its interpretation of the subject language and this court is bound by that interpretation. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).5
That a trial judge's extemporaneous finding of no conflict might have been phrased differently or with more precision had he left the bench and written it out is not a matter of constitutional dimension.
This court is bound by the Appeals Court construction of the questioned language as representing a finding of no conflict. Petitioner has not directed this court's attention to any other part...
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