Lord v. District of Columbia, 4297.
| Citation | 235 A.2d 322 |
| Decision Date | 27 November 1967 |
| Docket Number | No. 4297.,4297. |
| Parties | Milbourne E. LORD, Jr., Appellant, v. DISTRICT OF COLUMBIA, Appellee. |
| Court | Court of Appeals of Columbia District |
Richard W. Barton, Asst. Corp. Counsel, with whom Charles T. Duncan, Corp. Counsel, Hubert B. Pair and John R. Hess, Asst. Corp. Counsel, were on the brief, for appellee.
Before HOOD, Chief Judge, and MY-ERS and KELLY, Associate Judges.
Appellant, together with a co-defendant who is not a party to this appeal, pleaded guilty to publicly committing a lewd, obscene and indecent act in the District of Columbia in violation of 22 D.C.Code § 1112(a) (1961 ed.) and paid an imposed fine. Three months later, through his present attorney, appellant moved to vacate the judgment upon the guilty plea and to have a trial on the merits, apparently upon the theory that, because the court appointed the same counsel to represent both defendants manifest injustice occurred which was subject to correction under Criminal Rule 20(d) of the trial court. From denial of this motion, this appeal followed.
Because it appears that appellant is employed in a position of trust which may be jeopardized by his conviction, we pass the Government's contention that, by payment of the fine, appellant's appeal was rendered moot and address ourselves to appellant's charge of error.
Whether an attorney for co-defendants is retained or court appointed, the trial judge has the responsibility to inquire if counsel has evaluated the potential conflicts involved in such joint representation and has apprised his clients of any risks. The trial judge must make an affirmative, on-the-record determination that the several defendants are aware of the probable dangers and have intelligently elected to assume the risks of joint representation. Campbell v. United States, 122 U.S.App. D.C. 143, 144, 352 F.2d 359, 360 (1965). In the instant case, we do not know if the trial judge ever addressed himself to this question. Where the record does not show that counsel has made an appraisal and has advised co-defendants of the risks of joint representation, we will not assume that a defendant has waived his right to demand separate counsel. However, a silent record standing alone is not reason enough to reverse an otherwise valid conviction. It must also be shown that the defense was hampered by the joint representation. The precise degree of prejudice need not be measured. Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 86 L. Ed. 680 (1942). But "some prejudice, some conflict of interest, resulting from the joint representation must exist before one can be said to have been denied effective assistance of counsel." Lollar v. United States, D.C. Cir., 376 F.2d 243, 246 (1967).1
Assessing the record in the light of these criteria, we are convinced beyond a reasonable doubt2 that it discloses no hint of prejudice to appellant arising out of the joint representation. There was nothing to prevent the attorney assigned to represent appellant and his co-defendant from requesting separate trials under Criminal Rule 7(e) of the trial court. No showing was made that the attorney was forced to...
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Welch v. United States
...dangers and elected to assume the risks involved. See Robertson v. United States, 252 A.2d 518, 520 (D.C.1969); Lord v. District of Columbia, 235 A.2d 322, 323 (D.C.1967). Appellant's waiver was effective and he cannot now, in his own words, "use [the claim of ineffective assistance] on App......
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Pierce v. United States
...309 A.2d 321, 321-22 (1973), his desire to be represented by counsel who also represents a codefendant, Lord v. District of Columbia, D.C.App., 235 A.2d 322, 323 (1967), and we have approved of such a procedure with respect to the defendant's waiver of a double jeopardy defense. Mason v. Un......
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District of Columbia v. Walters
...in adopting a construction upholding the statute's constitutionality. Compare Riley v. United States, supra. See Lord v. District of Columbia, D.C.App., 235 A.2d 322 (1967) (no mention what acts were committed); Reed v. District of Columbia, D.C.App., 226 A. 2d 581 (1967) ("touching" a plai......
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People v. Caruso
...as to whether counsel himself has perceived the conflict and apprised his client of the risks involved. (See Lord v. District of Columbia, 235 A.2d 322, 323 (D.C.App.).) * * * What is required is that when two or more defendants are represented by the same attorney, the trial court ascertai......