Singley v. U.S., 84-863.

• Decision Date: 12 October 1988
• Docket Number: No. 84-864.,No. 84-863.,84-863.,84-864.
• Parties: Francis SINGLEY, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 780

548 A.2d 780

Francis SINGLEY, Appellant, v. UNITED STATES, Appellee.

No. 84-863.

No. 84-864.

District of Columbia Court of Appeals.

Argued June 1, 1988.

Decided October 12, 1988.

Michael L. Spekter, Washington, D.C., appointed by the court, for appellant.

Roy W. McLeese III, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., at the time the brief was filed, and Michael W. Farrell and Elizabeth Trosman, Asst U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before NEWMAN, BELSON and STEADMAN, Associate Judges.

BELSON, Associate Judge:

In these consolidated appeals, appellant challenges two unrelated convictions of armed robbery, D.C.Code §§ 22-2901, -3202 (1981 & 1987 Supp.) returned at two separate trials. We reject as unsubstantiated all but one of appellant's several assignments of error. With respect to the trial resulting in the first conviction, however, we conclude that after the trial court was apprised of the possibility of a conflict of interest on the part of defense counsel, it treated the matter as an actual conflict and in a manner that adversely affected appellant's representation. Accordingly, appellant must be afforded a new trial with respect to his first conviction. We affirm the judgment of conviction returned at the second trial.

I

Appellant stood trial on one charge of armed robbery in April 1984, and on a second unrelated charge of armed robbery in June 1984. During appellant's first trial (resulting in Appeal No. 84-863), the complainant, Marcelle Erwin, testified that a group of men including appellant confronted him in March 1983, threatened him regarding a criminal charge he had made against their friend and demanded Erwin's money, and that appellant pulled out a gun and stuck it in Erwin's back. Following a trial that was unremarkable but for the emergence of a conflict of interest issue, the jury convicted appellant of armed robbery. During appellant's second trial (resulting in Appeal No. 84-864), the complainant, Alicia Lowrey, testified that a group of men including appellant approached her and demanded her purse, and that in the course of the robbery appellant pointed a gun in her face. The jury found appellant guilty of armed robbery.

On the second day of the first trial the prosecutor, Amy S. Berman, raised a preliminary matter concerning appellant's trial counsel, Eugene M. Bond. The following exchange occurred:

THE COURT: Ms. Berman, what is your problem?

MS. BERMAN: Your Honor, I believe yesterday counsel for Mr. Singley came very close to, if not actually violated the canon of professional ethics in the court-room. And what I would like to point to is his questioning, his cross-examination yesterday, which the Court might remember, of Marcelle Erwin. He concluded that questioning with a line of questions which were quite effective, in which he said to Mr. Erwin, "Didn't your lawyer tell you that you should do anything you could to help yourself?" And he said, "Yes." And there were a number of questions about the advice given by his lawyer.¹

Your Honor, Mr. Bond was that lawyer, and Mr. Bond had to withdraw from Mr. Erwin's case because of the conflict between Mr. Erwin and Mr. Singley. And Mr. Bond was relying on conversations which he only knew about by virtue of his prior representation of Mr. Erwin from which he withdrew due to a conflict. . . .

THE COURT: Mr. Bond.

MR. BOND: May I address that?

First of all, I do not recognize having represented Mr. Erwin, but if I had, I think I have an obligation to withdraw from the case altogether.

. . . . .

If I represented him at any time I have an obligation, I think, to withdraw from this case completely. I did not recognize him.

The prosecutor proffered a court jacket from Erwin's pending case, noted that Bond's name was crossed out on the jacket, and offered Erwin for voir dire by the trial court. Bond examined the trial jacket, agreed that it indicated that he had at one time represented Erwin, and stated that "[s]omeone should have brought that to my attention earlier if they knew." At that point the prosecutor replied as follows:

MS. BERMAN: Your Honor, how would we have known? Mr. Bond is the person who should have known. Mr. Erwin was not in a position to bring it to the Court's attention. He came upstairs and he said, "You know, Ms. Berman, those questions made me mad." I said, "Why?" He said, "Because Mr. Bond was my lawyer, and that's how he knew about that."

And I checked the records and found that was correct, and there was no one who had a duty to bring that to the Court's attention except for Mr. Bond.

And Mr. Erwin told me that Mr. Bond withdrew from his case and told him he was withdrawing from the case because of his representation of Francis Singley. Then he turned around and used it against Mr. Erwin in court. I will proffer this to the Court.

The prosecutor again asked if the trial court wished to hear from Mr. Erwin, and Bond stated his belief that "[i]f I represented him I have a duty to withdraw from this case. And I, in good faith to this Court, did not recognize Mr. Erwin as being a client." The matter concluded, significantly, with the court addressing Bond as follows:

THE COURT: I think the records speak for themselves. You were counsel. I thought that the line of questioning itself was certainly right on the brink, even if you hadn't been the lawyer that represented him at the time.

. . . I will instruct the jury to disregard all those, and you will not be allowed to argue it.

MR. BOND: I think I should withdraw from the case.

THE COURT: Not in the midst of trial. You have gone this far, and I think I can take care of the rest of it. But you will not be able to argue that. All right.

(Emphasis supplied.) After consideration of another preliminary matter, Bond again objected to continuing, stating for the record that he thought he should withdraw. The jury was not present during any of the preceding discussion. The record does not disclose whether appellant himself was present or not during the discussion. It is clear, however, that the trial court never addressed appellant.

Before sending the jury out to deliberate, the court instructed it, inter alia, as follows:

You are hereby instructed that the questions posed to Mr. Marcelle Erwin yesterday regarding his conversations with his lawyer, and the advice his lawyer gave, and the answers given by the witness have been stricken from the record. You are to disregard both the questions and those answers.

Thus, the trial court directed the jury to ignore the effort on the part of defense counsel to impeach the complaining witness. Counsel had suggested that, by his testimony against appellant, Erwin might be helping himself in a pending criminal case in which Erwin was charged with assault on an elderly person. In addition, consistent with the trial court's ruling, defense counsel did not advance such a theory in closing argument.

II

On appeal, appellant's principal challenge is to the trial court's handling of the possible conflict of interest on the part of defense counsel that the prosecutor brought to the attention of the court.² By way of response, the government advances a two-part argument: (1) that the fact that appellant's trial counsel once represented Erwin did not necessitate a factual inquiry; and (2) that, even if the trial court erred in failing to conduct an inquiry, the error would not justify reversal because no actual conflict of interest existed. We are not persuaded by the government's arguments. First, we conclude on the facts before us that the trial court's failure to conduct an inquiry constituted an error. Second, it is not necessary for this court, or for the trial court on remand, to inquire further in order to determine whether an actual conflict did exist.³ The record discloses that the trial court treated counsel's prior representation of the government witness as an actual conflict and, to appellant's disadvantage, struck a portion of Erwin's testimony. This necessitates reversal, with remand for a new trial.

The sixth amendment to the Constitution guarantees that "Mil all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." The right to counsel is essential to a fair trial. Argersinger v. Hamlin, 407 U.S. 25, 32, 92 S.Ct. 2006, 2010, 32 L.Ed.2d 530 (1972); United States v. Morrison, 449 U.S. 361, 364, 101 S.Ct. 665, 667, 66 L.Ed.2d 564 (1981). Furthermore, "the right to counsel is the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970). "Upon the trial judge rests the duty of seeing that the trial is conducted with solicitude for the essential rights of the accused. . . . The trial court should protect the right of an accused to have the assistance of counsel." Glasser v. United States, 315 U.S. 60, 71, 62 S.Ct. 457, 465, 86 L.Ed. 680 (1942).

The Supreme Court has stated that "[w]here a constitutional right to counsel exists, our Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest." Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 1103, 67 L.Ed.2d 220 citing Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); and Holloway v. Arkansas, 435 U.S. 475, 481, 98 S.Ct. 1173, 1177, 55 L.Ed.2d 426 (1978). Thus, where an actual conflict of interest is found, "counsel breaches the duty of loyalty, perhaps the most basic of counsel's duties." Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1983).

In keeping with Supreme Court precedent, this court has acknowledged that

the importance of ensuring that defense counsel is not subject to any conflict of interest which might dilute loyalty to the accused has been long and consistently recognized: "[t]he right to counsel guaranteed by the...