State v. Burke

• Decision Date: 17 December 2002
• Docket Number: No. 2000-229-C.A.,2000-229-C.A.
• Citation: 811 A.2d 1158
• Parties: STATE v. Keith BURKE.
• Court: Rhode Island Supreme Court

811 A.2d 1158

STATE v. Keith BURKE.

No. 2000-229-C.A.

Supreme Court of Rhode Island.

December 17, 2002.

Present: WILLIAMS, C.J., LEDERBERG, FLANDERS and GOLDBERG JJ., and SHEA, J. (Ret.).

Lauren Sandler Zurier, Aaron L. Weisman, Providence, for Plaintiff.

Janice M. Weisfeld, Paula Rosin, Providence, for Defendant.

OPINION

SHEA, Justice (Ret.).

The defendant, Keith Burke, was convicted by a jury of one count of felony witness intimidation in violation of G.L. 1956 § 11-32-5. He was sentenced to serve a five-year term of imprisonment for intimidating his wife, Deborah Burke (Deborah), and an additional fifteen-year enhanced penalty as an habitual offender. For the reasons set forth below, we affirm the judgment of the Superior Court.

Facts/Procedural History

In June 1996, defendant was arrested and charged with assault and battery and malicious damage after assaulting Deborah in front of their seven-year-old daughter and smashing a glass vase on the floor. He recently had been released from prison for unrelated convictions and was then on probation. Consequently, in addition to the assault charges, the state notified the defendant that it would seek to have the Superior Court declare him to be a probation violator. A probation violation hearing was scheduled for September 6, 1996.Also scheduled that day was defense counsel's motion to withdraw. The motion was denied and the probation violation hearing was to commence after a recess.¹

During the recess, Deborah and the defendant went outside to smoke. While they were outside, a disinterested witness, Kathleen O'Brien, overheard defendant yelling in Deborah's face "that if the state didn't have any witnesses that they couldn't go forward with the case" and that if "you don't drop the charges I am going to beat the f * * * out of you and they will find you half dead." Ms. O'Brien immediately reported to the authorities what she had overheard and she identified defendant as the person who had made the threats.

Thereafter, on September 24, 1996, defendant was charged by criminal complaint with felony witness intimidation in violation of § 11-32-5 (b)² and was arraigned in the District Court. A criminal information later was filed in the Superior Court. The day after defendant was arraigned, the state filed notice that it would seek the imposition of an additional sentence for defendant as an habitual offender, pursuant to G.L. 1956 § 12-19-21, as amended by P.L. 1988, ch. 402 § 1. As grounds therefore, the state cited two previous convictions that defendant had received. The first was for breaking and entering a dwelling without consent. The second, was for committing larceny over the value of $500.

The case then languished for almost two and one-half years, during which time defendant was represented by a succession of attorneys: an assistant public defender, an appointed counsel and a private counsel. The private counsel entered her appearance on February 15, 1999.³ On May 24, 1999, the day before the trial was scheduled to begin,several pretrial motions were filed by the parties. The rulings on those motions form the basis of this appeal.

At the conclusion of the jury trial, defendant was found guilty. The trial justice sentenced him to serve a five-year term of imprisonment on the underlying charge of witness intimidation, coupled with a fifteen-year term of imprisonment as an habitual offender.

Additional facts that are pertinent to this appeal will be provided as needed.

A. The Motion to Withdraw

The day before the trial was to commence, defendant's private counsel made an oral motion to withdraw from the case, citing that she and defendant had differences of opinion concerning trial strategy. She said that she had refused to file various motions defendant had requested because, in her opinion, they had no legal merit. Also, defendant had refused to accept her plea recommendations because he believed that they were not favorable enough for him. Based upon these differences, defense counsel maintained that her representation of defendant was not in his best interest because he no longer felt "comfortable" with her actions.

After ascertaining that defense counsel still was prepared to represent defendant at trial, the trial justice denied the motion. The defendant then asserted that defense counsel had a conflict of interest because she had been romantically involved with his wife's former divorce attorney. In addition, he asserted that there was a breakdown in communication between them because she was not following his instructions and that she had not discussed the case with him. After detailed discussion on the record, the trial justice rejected defendant's arguments and advised defendant that although he was free to fire his attorney, the court would neither discharge her from the case nor permit any delay of the trial. He warned defendant that "[t]he risk is that the trial goes on." The defendant expressly rejected the idea of proceeding pro se. The defendant maintains that by denying the motion to withdraw, the trial justice violated his sixth amendment right to counsel.

Although defendant made neither a motion to substitute counsel nor a motion for a continuance, we will consider the case as if such motions had been made because it is clear from the trial justice's ruling that such motions would have been denied.

"[A]n accused's right to select his or her own attorney to defend against criminal charges has a central role in our adversary system of justice." State v. Moran, 699 A.2d 20, 25 (R.I.1997). Although that right "is not absolute, it does command a presumption in favor of its being honored." Id. "A trial justice's decision on a motion for a continuance will not be disturbed on appeal absent an abuse of discretion." State v. Calenda, 787 A.2d 1195, 1201 (R.I.2002) (per curiam). "A sustainable exercise of discretion in this context requires the trial justice to balance carefully the presumption in favor of the defendant's right to trial counsel of choice and the public's interest in the prompt, effective, and efficient administration of justice." Moran, 699 A.2d at 25. "Given these countervailing considerations, it follows * * * that each case must turn on its own circumstances." Id.

"Some of the factors to be weighed in the balance include the promptness of the continuance motion and the length of time requested; the age and intricacy of the case; the inconvenience to the parties, witnesses, jurors, counsel, and the court; whether the request appears to be legitimate or merely contrived foot dragging; whether the defendant contributed to the circumstances giving rise to the request; whether the defendant in fact has other competent and prepared trial counsel ready to pinch-hit; whether there are multiple codefendants, making calendar control more difficult than usual; and any other relevant factor made manifest by the record." Id. at 26 (citing United States v. Mendoza-Salgado, 964 F.2d 993, 1015 (10th Cir.1992)).

Thus, "in order to work a delay by a last minute discharge of counsel, there must exist exceptional circumstances[.]" State v. Monteiro, 108 R.I. 569, 575, 277 A.2d 739, 742 (1971) (citing United States v. Grow, 394 F.2d 182, 209 (4th Cir.1968)).

In the case before us, no such exceptional circumstances were shown. The record reveals that defense counsel entered her appearance on February 15, 1999, and that the motion to withdraw was filed on May 24, 1999, the day before the trial.⁴ She was defendant's third attorney in this matter. The purported reason for the motion was that defense counsel and defendant disagreed over her trial strategy. That disagreement concerned only "certain matters that we had discussed and certain motions that he requested that I file that I did not agree with and told him under the law I would not file those." Defense counsel informed the court that she had been an attorney for seven years, previously had represented accused felons before a jury, had taken all of the appropriate legal steps in this case up to the time of the hearing, and was fully prepared to represent defendant. In addition, the state and the court were prepared to go forward and the state had flown Deborah into Rhode Island from Minnesota at state expense to testify in the matter. In light of all that was before the trial justice at that time, we cannot say that he abused his discretion in denying the motion to withdraw.

When the trial justice denied the motion to withdraw, defendant immediately alleged that defense counsel had a conflict of interest stemming from her romantic relationship with his wife's former divorce attorney. He maintained that this relationship would interfere with her ability to be neutral and negatively would affect her representationof him. Defense counsel said she did not believe that there was a conflict and that she had no unfavorable bias toward defendant. In detailed discussion about her former relationship, she told the trial justice that she and the attorney in question merely were friends now, that she had never associated with him in a professional capacity and that they never had shared an office or any clients. She also said that about two months before the trial, when she became aware that there might be a conflict, she discussed the issue with defendant, who expressed his desire for her to continue her representation.

This "Court utilizes a different framework for determining a violation of the Sixth Amendment's guarantee to effective assistance of counsel" where the "attorney is alleged to have had a `conflict of interest[.]'" Simpson v. State, 769 A.2d 1257, 1266 (R.I.2001) (citing Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333, 346-47 (1980)). "When a defendant makes a timely objection at trial, alleging a conflict of interest based upon multiple representation, the Supreme Court has held that a state trial court must investigate whether the...