Kent v. State, 104

• Decision Date: 18 February 1971
• Docket Number: No. 104,104
• Citation: 11 Md.App. 293,273 A.2d 819
• Parties: James Morris KENT a/k/a Maurice James Kent v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 293

11 Md.App. 293

273 A.2d 819

James Morris KENT a/k/a Maurice James Kent v. STATE of Maryland.

No. 104.

Court of Special Appeals of Maryland.

Feb. 18, 1971.

Bruce R. Harrison, Seat Pleasant, for appellant.

James L. Bundy, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Thomas A. Rymer, State's Atty., Calvert County, on brief, for appellee.

Argued before MURPHY, C. J., and MORTON and MOYLAN, JJ.

MORTON, Judge.

The appellant was convicted in a non-jury trial in the Circuit Court for Calvert County of attempted robbery with a deadly weapon and carrying a concealed weapon. Concurrent sentences of ten years and three years imprisonment, respectively, were imposed.

In this appeal it is first contended that appellant was denied his constitutional right to the effective assistance of counsel. It appears that appellant's co-defendant, Thomas Mackall, had been tried and convicted for the crimes charged to appellant but at the time of appellant's trial, Mackall had not been sentenced. When Mackall was called as a State's witness in appellant's trial, counsel for appellant, who was also counsel for Mackall from cessfully sought to prevent Mackall from testifying by advising him in open court that he could refuse to testify on the ground of self-incrimination. Mackall, nevertheless, elected to testify. It is argued that this created a conflict of interest for appellant's trial counsel since he could not effectively represent appellant at this point and at the same time adequately discharge his obligation to protect the interests of the co-defendant, Mackall.

In order to support a finding that a criminal defendant has been denied effective assistance of counsel because of a conflict of interest, the record must disclose that either an actual conflict of interest existed or that a conflict of interest was 'imminently potential.' Pressley v. State, 220 Md. 558, 155 A.2d 494. Given such a situation where an actual or imminent conflict of interest is shown to exist, there must be a further showing that some prejudice to the accused resulted, although such prejudice need only be slight and the requirement is satisfied if it is demonstrated 'that counsel was not as effective as he might have been had the conflict not existed.' Brown v. State, 10 Md.App. 215, 227, 269 A.2d 96, 104.

In the case at bar, Mrs. Priscilla Seidel testified that on the evening of March 20, 1968, she and her husband were sitting in their living room when the back door of their home opened and she saw a 'man standing there with a sawed-off double-barreled shotgun.' Her husband then 'got up and came over and said, I will give you the money and before he could make a move, the man shot.' The main part of the shotgun blast hit the base of a lamp in front of Mrs. Seidel but the remaining part hit her face and shoulder. She stated that the assailant then ran from the house without taking any money. Mrs. Seidel further testified that her assailant was not present in the courtroom and that she did not at any time see appellant in or around her home that evening.

Deputy Sheriff Oscar Lusby, Jr., testified that on the evening in question, he set up a roadblock on the 'only State Route' to or from the Seidel home as part of the investigation of the crime. According to the deputy, at approximately 10 p.m., a 1962 Mercury occupied by Thomas Mackall, but registered in appellant's name, stopped at the roadblock. The appellant was not in the car, however, and the deputy testified that he did not see appellant at any time that night.

Trooper First Class Roland H. Hayman testified that as a result of a statement made by Thomas Mackall after he was 'picked up' in connection with the incident at the Seidel home, appellant was arrested on April 3, 1968, and taken to the State Police barracks where he made a statement concerning his knowledge of the incident. After objection by trial counsel for appellant, evidence was presented on the voluntariness of the statement. Based on the evidence before him, the trial judge overruled appellant's objection and the written statement was introduced into evidence.

Russell M. Wilhelm, whose expertise in the field of firearms identification was uncontested, testified that he examined 25 shotgun pellets and a shotgun wad found at the scene of the crime to determine if they were fired from the sawed off shotgun appellant claimed that Mackall used in the attempted robbery. From his examination, the 'wad could have very well come from that particular shotgun inasmuch as both the wad and the shotgun were 12-gauge' but the witness testified that he had 'no way of determining that this shot is particularly related to this gun.'

Thomas Mackall, who had previously been convicted of perpetrating the crime at the Seidel home but who had not, as yet, been sentenced for that crime, testified as a State's witness against appellant. Before Mackall testified, however he was advised, but did not avail himself, of his constitutional right against self-incrimination by appellant's trial counsel, who had also represented Mackall at the earlier trial. Mackall testified that he and appellant discussed robbing the Seidels two days prior to the crime; that it was appellant's idea to commit the crime; that appellant told Mackall that the bag Mr. Seidel carried home from work contained money; and that for going into the house with appellant's shotgun and robbing the Seidels, Mackall was to get half of the money. Moreover, Mackall stated that because the area around the Seidel home was patrolled by a private watchman, appellant dropped him off about one hundred yards from the house, left in the car and then returned later to pick him up 'about twenty feet' from the house.

Appellant testified that on the day of the crime he and Mackall had worked on appellant's house trailer and that after dinner Mackall asked him if he would 'run him down between the Ranch Club and Drum Point.' According to appellant: 'Well beings he was helping me on the trailer that day, I just ran him on down there. He told me to pick him up in about an hours time and which I did and came back and watched television.' Appellant denied knowing anything about the robbery plan until Mackall told him what he had done when appellant picked him up an hour later. Appellant did state, however, that after Mackall took some old clothes from under the front seat and left the car, he checked under the seat and discovered that a shotgun that he had placed there a week and a half earlier was missing. Moreover, appellant stated that he had let Mackall out of the car on a main road 'a quarter of a mile' from the Seidel home and that after picking Mackall up an hour later, they drove to appellant's home and Mackall left on foot. With respect to his car being stopped at the roadblock, appellant stated that later that evening his brother borrowed the car to drive a friend home 'so I guess Mackall asked my brother beings he was going up the road could he take him home, so I guess that is what happened.'

Appellant's wife testified that on the night of the crime appellant and Mackall left the house about 7:30; that appellant returned home in 'about one hour' and watched television for 'about forty-five minutes or a little longer' before going out again; and that when appellant again entered the house, Mackall was not with him.

It is in this factual posture that we must determine whether appellant has been denied his Sixth Amendment right to effective assistance of counsel because of the conflict of interest facing his trial counsel as a result of representing both appellant and the co-defendant, Mackall.

I.

In Brown, supra, 10 Md.App. at 221, 269 A.2d at 100, Judge Thompson, speaking for 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...