Gee v. State

• Decision Date: 01 September 1991
• Docket Number: No. 1466,1466
• Citation: 611 A.2d 1081,93 Md.App. 240
• Parties: Michael GEE and Guy Coffey v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 240

93 Md.App. 240

611 A.2d 1081

Michael GEE and Guy Coffey v. STATE of Maryland.

No. 1466, Sept. Term, 1991.

Court of Special Appeals of Maryland.

Sept. 4, 1992.

David Pasti and James M. Peelman, Rockville, for appellant, coffey.

Bradford C. Peabody, Asst. Public Defender and Stephen E. Harris, Public Defender, on the brief, Baltimore, for appellant, Gee.

Ann N. Bosse, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. and Stuart O. Simms, State's Atty., for Baltimore City, on the brief), Baltimore, for appellee.

Argued before WILNER, C.J., and MOYLAN and HARRELL, JJ.

MOYLAN, Judge.

The appellants, Michael Gee and Guy Coffey, were charged in separate criminal informations with divers narcotics violations. At a joint trial, a Baltimore City jury convicted both Gee and Coffey of possession of heroin; Coffey was also convicted of battery and resisting arrest. The trial court sentenced Gee to four years imprisonment and Coffey to a total of 18 years imprisonment. Upon this joint appeal, each of the appellants raises the single contention:

That the trial court erred when it refused to allow defense counsel to terminate his representation of Michael Gee.

Our consideration of this issue does not require a detailed recitation of the facts of the crime. It is sufficient to note that on December 13, 1990, at approximately 8:45 a.m., two Baltimore City police officers--Daniel Brown and Kevin Sewell--were on routine patrol "when they saw defendant Guy Coffey receive money from Mr. Gee and give [Gee] a glassine bag with a white powdered substance." A brief chase ensued, which concluded with the apprehension and arrest of the two appellants. A search of Gee's person yielded a glassine bag containing a quantity of what was later identified as heroin, while Coffey was found to be in possession of $138 in cash. Gee was initially charged with possession of heroin and conspiracy to violate the narcotics laws. Coffey was charged with possession of heroin, battery and resisting arrest.

On July 11, 1991, a pretrial hearing was held in the Circuit Court for Baltimore City. At the hearing the appellants were represented by Gordon Tayback, a public defender. Tayback informed the court that he was representing both Gee and Coffey. He then called the court's attention to what he perceived to be a conflict of interest emanating from that joint representation. He advised the court:

"I have had discussions with the state's attorney today and based on a request made by the state's attorney as to a possible plea by Mr. Gee and possible acknowledgement by him of certain information there is a substantial potential conflict of interest."

Discussion among the court, defense counsel, and the prosecutor--Asa Shawan Rose--revealed that, as to Gee, the State was willing to recommend a sentence of seven months in the Baltimore City Jail. That recommendation, however, was contingent upon: 1) Gee's pleading guilty to both charges and 2) Gee's acknowledgment that the State's statement of facts--which specified that Coffey sold the heroin to Gee--was accurate. The critical part of the colloquy was:

"Defense: I have indicated to the state the possibility of working out a guilty plea as to possession of heroin. That's always been the situation ... The kicker, if you will, is the concern by the state that he acknowledge the offense report is true ...

* * * * * *

Defense: [I]f he wishes ... to proceed on the basis that is in accord with what the state is requesting, then I have a conflict.... I cannot advise [Gee] further because of the conflict between [Gee and Coffey].

* * * * * *

Defense: I haven't even gone further with the state on that. I can't really represent Mr. Gee effectively where he has a potential benefit if he cooperates against Mr. Coffey.

Court: You're telling me you can't effectively assist him, but I don't believe that's correct, Mr. Tayback. That's a defense position which the court rejects. Now, Mr. Rose, what is the offer to Mr. Coffey, first of all?

State: Okay, Your Honor ... The offer to Mr. Gee was 7 months to the Department of Correction.

Court: The offer is for the state for seven months or a guilty plea. The question is, do you want to accept or reject that [Mr. Gee]?

Defendant: I accept it.

Court: If you accept that, do you accept what Mr. Rose said as an accurate statement of the facts in this case?

Defendant: --like he said, though.

Court: Well, if you don't agree with those facts then I'm not going to put you in that position ...

* * * * * *

Court: Mr. Gee, the court will not accept any guilty plea under those circumstances ... and your request to a trial by jury will be granted.

* * * * * *

Defense: If there's a claim of conflict, Your Honor, the court [cannot]--in all good conscience allow poor Mr. Gee to go to trial in a situation where there is a conflict of interest in our--.

* * * * * *

Defense: [I]f [Mr. Gee] agreed to the statement of facts, which would indicate that the statement of facts was true and in essence, therefore, that Mr. Coffey distributed the controlled dangerous substance to him.

That's really where both my potential conflict if not actual conflict of interest comes up as well as the difficulty in going ahead with the plea on his behalf.

* * * * * *

Defense: [O]nce Mr. Rose says 'I want you as part of that plea agreement to also have him plead guilty to the second count,' then I'm placed in the position where I can represent Mr. Gee because its conspiracy of the two, or I can represent Mr. Coffey but I don't see how I can represent both because if I have Mr. Gee say, 'Yes, I did conspire with your other client, Mr. Coffey, to violate the law' then I'm not representing Mr. Coffey.

If I represent Mr. Coffey and sit and tell Mr. Gee, 'no you can't plead guilty to that,' then I'm being unfair to Mr. Gee because he has the potential, I think--well, I know the state did file a subsequent offender status of his past record so he has the potential to get eight years instead of seven months.

That's what I think is the difficulty that I'm indicating to the court.

* * * * * *

Defense: I can't advise Mr. Gee to do so or not to do so because that is in conflict with Mr. Coffey's position, where I would want him to be a witness for Mr. Coffey. But that's a very beneficial plea to Mr. Gee. If I were representing Mr. Gee alone I would indicate to him, 'Don't testify for anybody. Take the plea.' So there's a problem.

Court: I think I'm in the position where I must say there is no conflict because a guilty plea is not a matter of right, Mr. Tayback...."

The trial court determined that defense counsel's representation of Gee and Coffey did not give rise to a conflict of interest. Having so concluded, the court directed Tayback to represent both appellants for the duration of the trial. After the pretrial hearing was concluded, the appellants were tried jointly. The appellants now contend that because their attorney was laboring under a conflict of interest, they were denied effective assistance of counsel. We agree.

"The guarantees of the Bill of Rights are the protecting bulwarks against the reach of arbitrary power. Among those guarantees is the right granted by the Sixth Amendment to an accused in a criminal case 'to have the assistance of counsel for his defense.' " Glasser v. United States, 315 U.S. 60, 69, 62 S.Ct. 457, 464, 86 L.Ed. 680 (1942). That guarantee encompasses "more than a minimum level of professional competence; even otherwise competent trial lawyers may sometimes find themselves in a position in which they are unable to render effective assistance of counsel." United States v. Alvarez, 580 F.2d 1251, 1254 (5th Cir.1978). Hence, where defense counsel in a criminal trial represents "one of several clients with conflicting interests, his effectiveness as a vigorous advocate for a particular defendant may be impaired by his commitment to other defendants." Id.

The law is well settled, however, that "[r]equiring or permitting a single attorney to represent codefendants, often referred to as joint representation, is not a per se violation of constitutional guarantees of effective assistance of counsel." Holloway v. Arkansas, 435 U.S. 475, 482, 98 S.Ct. 1173, 1177, 55 L.Ed.2d 426, 433 (1978). See Austin v. State, 327 Md. 375, 609 A.2d 728 (1989); Brown v. State, 10 Md.App. 215, 221, 269 A.2d 96 (1970) ("[M]ere joint representation without more, of two or more defendants by one attorney is not a conflict of interest."); Bauckman v. State, 9 Md.App. 612, 623, 267 A.2d 309 (1970); Pressley v. State, 220 Md. 558, 562, 155 A.2d 494 (1959) ("[T]hat the same lawyer represented the two defendants is not of itself error.").

It is equally beyond dispute that the Sixth Amendment right to counsel is breached and "effective representation is lacking ... if counsel, unknown to the accused and without his knowledgeable assent, is in a duplicitous position where his full talents--as a vigorous advocate having the single aim of acquittal by all means fair and honorable--are hobbled or fettered or restrained by commitment to others." Alvarez, 580 F.2d at 1254. "[T]he Sixth Amendment right to counsel includes the right to effective assistance free of conflicts of interest, and in the case of a single attorney representing multiple defendants, free from conflicting interests among each of the defendants." Hoffman v. Leeke, 903 F.2d 280, 285 (4th Cir.1990). See State v. Hunt, 26 Md.App. 417, 421-423, 338 A.2d 95 (1975); Caddie v. Warden, 3 Md.App. 192, 194, 238 A.2d 129 (1968).

There is, concededly, "no precise test as to when the possible conflict of interest inherent in dual or multiple representation will become an actual conflict of interest." Austin, 327 Md. at 386, 609 A.2d 728. Despite the Supreme Court's admonition in Glasser v. United States, 315 U.S. at 76, 62 S.Ct. at 467, "against 'nice calculations as to the amount of prejudice,' many courts have continued to use ...