State v. Cyrs

• Decision Date: 22 July 1987
• Docket Number: No. 86-382,86-382
• Citation: 129 N.H. 497,529 A.2d 947
• Parties: The STATE of New Hampshire v. Michael D. CYRS. Michael CYRS v. Michael CUNNINGHAM, Warden, the New Hampshire State Prison.
• Court: New Hampshire Supreme Court

Page 947

529 A.2d 947

129 N.H. 497

The STATE of New Hampshire v. Michael D. CYRS.

Michael CYRS v. Michael CUNNINGHAM, Warden, the New Hampshire State Prison.

No. 86-382.

Supreme Court of New Hampshire.

July 22, 1987.

Stephen E. Merrill, Atty. Gen. (Bradford W. Kuster, Asst. Atty. Gen., on the brief and orally), for the State.

James E. Duggan, Appellate Defender, Concord, by brief and orally, for defendant-petitioner.

BROCK, Chief Justice.

This is a consolidated appeal from not only the two convictions of the defendant-petitioner (defendant) for the sale of cocaine, RSA 318-B:2, and his one conviction for possession of marijuana, second offense, RSA 318-B:2, but also the denial of the defendant's petition for a writ of habeas corpus on the ground that he was denied the effective assistance of trial counsel. N.H. CONST. pt. I, art. 15; U.S. CONST. amends. VI, XIV. We reverse the denial of the petition.

The facts pertaining to the defendant's assertion that he was denied the effective assistance of counsel involve a triangular web weaving together the defendant; his attorney, Wayne W. Presby; and the informant against the defendant, Robert Girard. Prior to being retained by the defendant, the defendant's attorney was involved in an altercation with Girard, who eventually turned out to be the primary informant against the defendant in a drug investigation. The attorney filed a misdemeanor complaint against Girard because Girard had damaged the attorney's car in the course of the scuffle; a nolle prosequi was later entered on that charge. In the course of filing the complaint, the attorney agreed to be a witness against Girard, whom he observed driving, apparently after having been adjudicated an habitual offender under RSA chapter 262. The State used the habitual offender charge to induce Girard to be an informant in its drug investigation.

After having agreed to represent the defendant on the drug charges, the attorney became aware that he had also been a target of the investigation which had netted his client. Discovery proceeded for a period of time, and on the day of trial, the defendant requested appointment of new counsel based on his counsel's alleged conflict of interest. The defendant did not cite either his attorney's involvement in the drug investigation or the potential that Presby might be called as a witness against Girard on an operation by a habitual offender charge as grounds for his request. Instead, he stated that the attorney had not done sufficient work on the case and that the attorney was not operating entirely in the defendant's interest. The Trial Judge (Johnson, J.) questioned the defendant and determined that the attorney could continue to represent him. Thereafter, the defendant was convicted on three of the charges against him, and no timely appeal was taken. We subsequently permitted him to file a late appeal to this court from the substantive trial.

In the interim, the defendant also filed a pro se petition for a writ of habeas corpus alleging ineffective assistance of counsel. The Superior Court (Manias, J.), denied the defendant's petition, applying the ineffective assistance of counsel standard enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

The defendant raises two issues on appeal. The first concerns whether his convictions must be reversed because of the conflict of interest existing between himself and his attorney. He raises several points on this issue. First, the defendant argues that because of the conflict existing between himself and his attorney, the attorney did not attempt to negotiate a plea bargain with the State because he feared that the defendant might provide incriminating information against the attorney in return for a lesser penalty on the drug charges. Second, the defendant argues, the attorney's alleged involvement as a target of the investigation requires a per se rule of reversal. Third, while he concedes that the issue was not raised at the hearing on the habeas petition, the defendant asserts that reversal is required under Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), because the trial judge failed to hold a hearing both to determine whether the attorney might be required to testify against Girard on the habitual offender charge and on the attorney-as-target issue. Finally, the defendant argues that this court should exercise its power of general supervision over the trial courts of the State pursuant to RSA 490:4, and order reversal of the convictions because of the egregious nature of Presby's conduct.

The second issue raised by the defendant concerns the jury instructions given by the trial judge at the close of the trial. Because we dispose of this case on the conflict of interest issue, we do not reach this second issue. We therefore proceed to consider the claimed conflict of interest between the defendant and his attorney.

The first issue we address is procedural in nature. Citing State v. Westover, 127 N.H. 130, 497 A.2d 1218 (1985), the State maintains that the defendant should be precluded from arguing that Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), and Abbott v. Potter, 125 N.H. 257, 480 A.2d 118 (1984), are applicable to the facts of his case, rather than the more stringent test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), because he did not argue their applicability below. To the contrary, we note that the issue of ineffective assistance of counsel based on a conflict of interest under the State and Federal Constitutions was in fact presented to the superior court in the habeas hearing. Westover supra is therefore inapposite because in that case, the State constitutional argument was never presented to the trial court. We therefore will proceed to consider the substantive issue in the case at bar.

We have held that the Federal and State Constitutions provide defendants with equal levels of protection in ineffective assistance cases, see Hopps v. State Board of Parole, 127 N.H. 133, 135, 500 A.2d 355, 356 (1985); therefore, we do not consider the State and federal issues sequentially as would normally be required under State v. Ball, 124 N.H. 226, 471 A.2d 347 (1983).

On the conflict of interest issue, the first question is which standard, that of Strickland v. Washington supra or Cuyler v. Sullivan supra should be applied to the ineffective assistance of counsel claim in this case, namely, ineffective assistance based on a conflict of interest unrelated to multiple representation. The basis for the assertion of ineffective assistance of counsel in Strickland v. Washington supra was certain omissions by Strickland's attorney in preparing for a sentencing proceeding. The United States Supreme Court held that in such a case the defendant must satisfy a two-pronged test in order to obtain relief:

"[f]irst, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable."

Strickland, supra 466 U.S. at 687, 104 S.Ct. at 2064; see also State v. Dennehy, 127 N.H. 425, 428, 503 A.2d 769, 771 (1985) (applying Strickland test under the State Constitution).

In Cuyler v. Sullivan supra, the Court enunciated a less stringent standard applicable to multiple representation cases:

"In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance.... [A] defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief.... But until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional...