Graves v. State

• Citation: 94 Md.App. 649,619 A.2d 123
• Decision Date: 01 September 1991
• Docket Number: No. 1747,1747
• Parties: Michael GRAVES v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 649

94 Md.App. 649

619 A.2d 123

Michael GRAVES v. STATE of Maryland.

No. 1747, Sept. Term, 1991.

Court of Special Appeals of Maryland.

Jan. 27, 1993.

Diane E. Horvath, Assigned Public Defender, Columbia (Stephen E. Harris, Public Defender on the brief, Baltimore), for appellant.

Diane E. Keller, 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 MOYLAN, BISHOP and FISCHER, JJ.

BISHOP, Judge.

For the first time we are confronted with the issue of whether, for conflict of interest purposes, the Public Defenders's Office is to be held to the same standards as a private law firm.

Appellant, Michael Graves (Graves), was charged with assaulting Derek Jones (Derek), assaulting David Jones (David), and attempted robbery with a dangerous and deadly weapon. Graves pleaded not guilty and prayed a jury trial in the Circuit Court for Baltimore City. The jury was sworn on October 15, 1991, and on October 16th the trial court denied Graves's motion to suppress and motion for mistrial. The jury convicted Graves of both assault charges and acquitted him of attempted robbery. On November 22, 1991, Graves was sentenced to ten years, all suspended, for assaulting Derek; ten years consecutive, all except five years suspended, for assaulting David; and five years probation.

Issues

Graves presents six issues, which we restate as follows:

I. Did the trial court err by denying Appellant's motion to strike the appearance of the Office of the Public Defender due to a conflict of interest?

II. Did the trial court err by instructing the jury that unanimity was required in order to find Appellant not guilty?

III. Did the trial court err by not instructing the jury that Appellant could be found not guilty?

IV. Did the trial court err by allowing Officer Reynolds' oral and written hearsay testimony?

V. Did the trial court err by denying Appellant's motion to suppress the extrajudicial identification of Appellant by photographic array?

VI. Was the evidence sufficient to sustain Appellant's convictions?

Facts

On May 28, 1991, Derek left his house at 6:15 a.m. to go to work. Derek noticed two men walk past him as he sat waiting for a bus. About two minutes later, the men returned and stood in front of him. One of the men, whom Derek later identified as Graves, pulled out a gun and said, "Don't move." At that moment, Derek saw his father, David, crossing the street. David testified that, upon seeing his son and sensing that something was not right, he crossed the street toward Derek and "asked what the trouble was." When the man holding the gun looked at David, Derek pushed the gun and ran down the street.

The police arrived at Derek's house three to five minutes later, and drove Derek through the neighborhood looking for the suspects. Derek told the police that one man wore light blue shorts, and the man with the gun wore red shorts and a white shirt. Later that morning the police arrested Kenneth Trusty (Trusty), who told the police that Graves was his accomplice. Derek identified Trusty as one of the men. From a photo array displayed to him by the police, Derek identified Graves's photo as that of the gunman. At trial, Derek and David identified Graves as the gunman.

Discussion

I. Conflict of Interest

In the case sub judice, Graves contends that he was denied his constitutional right of effective assistance of counsel because of a conflict of interest. Specifically, he argues that the trial court erred when it refused to grant his motion for mistrial and refused to strike the appearance of the Office of the Public Defender. The conflict of interest arose, according to Graves, when he was represented by an assistant public defender at the same time another assistant public defender represented co-defendant Trusty. The record is incomplete with regard to Trusty's case.

The right to counsel, under the Sixth Amendment of the United States Constitution and Article 21 of the Maryland Declaration of Rights, includes the right to be represented by counsel who is free from conflicts of interest. Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 1103, 67 L.Ed.2d 220 (1981); Austin v. State, 327 Md. 375, 609 A.2d 728 (1992); Pressley v. State, 220 Md. 558, 155 A.2d 494 (1959); Kent v. State, 11 Md.App. 293, 273 A.2d 819 (1971); see also State v. Tichnell, 306 Md. 428, 440, 509 A.2d 1179, cert. denied, 479 U.S. 995, 107 S.Ct. 598, 93 L.Ed.2d 598 (1986) (no distinction between right guaranteed under federal constitution and the right to counsel ensured by Article 21).

To establish a violation of the constitutional right, "a defendant 'must establish that an actual conflict of interest adversely affected his lawyer's performance.' " Austin, 327 Md. at 381, 609 A.2d 728; (citing Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 1719, 64 L.Ed.2d 333 (1980)); Pressley, 220 Md. at 562, 155 A.2d 494. The Supreme Court determined in Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984), that "any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution." The Supreme Court stated that

[i]n certain Sixth Amendment contexts, prejudice is presumed. Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice. So are various kinds of state interference with counsel's assistance. Prejudice in these circumstances is so likely that case-by-case inquiry into prejudice is not worth the cost. Moreover, such circumstances involve impairments of the Sixth Amendment right that are easy to identify and, for that reason and because the prosecution is directly responsible, easy for the government to prevent.

One type of actual ineffectiveness claim warrants a similar, though more limited, presumption of prejudice. In Cuyler v. Sullivan, 446 U.S., at 345, 350, 100 S.Ct., at 1716-1719, the Court held that prejudice is presumed when counsel is burdened by an actual conflict of interest. In those circumstances, counsel breaches the duty of loyalty, perhaps the most basic of counsel's duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests. Given the obligation of counsel to avoid conflicts of interest and the ability of trial courts to make early inquiry in certain situations likely to give rise to conflicts, it is reasonable for the criminal justice system to maintain a fairly rigid rule of presumed prejudice for conflicts of interest. Even so, the rule is not quite the per se rule of prejudice that exists for the Sixth Amendment claims mentioned above. Prejudice is presumed only if the defendant demonstrates that counsel 'actively represented conflicting interests' and that 'an actual conflict of interest adversely affected his lawyer's performance.'

Conflict of interest claims aside, actual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice.

Id. at 692-93, 104 S.Ct. at 2067 (citations omitted) (emphasis added).

In Brown v. State, 10 Md.App. 215, 221, 269 A.2d 96 (1970), this Court set out general guidelines to determine whether an actual or imminent conflict of interest exists.

Within the facts of an individual case, it is proper to consider the complexity of both the law and the facts since the more complex a case becomes, either legally or factually, the more opportunity exists for a conflict of interest. Conversely, if the law is simple and the evidence of guilt strong, the opportunity for conflict of interest may be lessened. Of course, the contention may still be found to be an unsupported allegation ... or to have been waived at trial,....

(Citations omitted).

Representation of multiple defendants in a criminal case, by the same attorney or law partners, is not per se an actual conflict of interest. Austin, 327 Md. at 386, 609 A.2d 728 (citing Cuyler v. Sullivan, 446 U.S. at 348, 100 S.Ct. at 1718). The potential, however, for a conflict of interest is present. See Rules of Professional Conduct, 1.7-.10.

Generally, an actual conflict of interest exists when "an attorney, or law partners, represent in the same criminal case both the defendant and a codefendant (or other individual) who testifies adversely to the defendant." Austin, 327 Md. at 387, 609 A.2d 728; Kent, 11 Md.App. at 298, 273 A.2d 819 ("certain factual situations contain ingredients which inherently tend to create conflict of interest problems.... '[T]hose cases in which one attorney was simultaneously representing the defendant and a prosecution witness against the defendant, who was usually under indictment or awaiting sentence.' ").

The United States Court of Appeals for the Seventh Circuit explained in Ross v. Heyne, 638 F.2d 979 (7th Cir.1980), that

[a]n actual conflict would arise where defense counsel is unable to cross-examine a prosecution witness effectively because the attorney also represented the witness. The problem that arises when one attorney represents both the defendant and the prosecution witness is that the attorney may have privileged information obtained from the witness that is relevant to cross-examination, but which he refuses to use for fear of breaching his ethical obligation to maintain the confidences of his client. 'The more difficult problem which may arise is the danger that counsel may overcompensate and fail to cross-examine fully for fear of misusing his confidential information.'

A conflict of interest would also exist where one attorney represents co-defendants, and one defendant agrees to provide evidence against the other in return for an advantageous plea bargain.

638 F.2d at 983 (citations omitted) (quoting United States v. Jeffers, 520 F.2d 1256, 1265 (7th Cir.1975), cert....