State v. Hunt, 716

• Decision Date: 29 May 1975
• Docket Number: No. 716,716
• Parties: STATE of Maryland v. Houston A. HUNT.
• Court: Court of Special Appeals of Maryland

Page 417

26 Md.App. 417

338 A.2d 95

STATE of Maryland v. Houston A. HUNT.

No. 716.

Court of Special Appeals of Maryland.

May 29, 1975.

Certiorari Denied Sept. 8, 1975.

Gary Melick, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Warren D. Duckett, Jr., State's Atty. for Anne Arundel County, William E. Brannan, State's Atty. for Baltimore County and John A. Austin, Asst. State's Atty. for Baltimore County, on the brief, for appellant.

Lurther C. West, Baltimore, for appellee.

Argued before GILBERT, MENCHINE and DAVIDSON, JJ.

GILBERT, Judge.

Houston A. Hunt, appellee, was convicted by a jury in the Circuit Court for Anne Arundel County of two kidnapping counts, an assault charge and one other charge. On appeal to this Court, Hunt v. State, 12 Md.App. 286, 278 A.2d 637 (1971), cert. denied 263 Md. 715 (1971), we affirmed as to one kidnapping and the assault charges only.

In November, 1972, Hunt filed a petition for Post Conviction Relief under the provisions of Md.Ann.Code art. 27, § 645A. Hunt's assigned reason why he should be afforded a new trial was that he, along with six others who were acquitted, were all represented by the same trial counsel. ¹ This fact, Hunt reasoned, denied him his Sixth Amendment right to counsel and the effective assistance of counsel.

Because of the entrance of appearance and subsequent withdrawal of counsel, as well as the amendments to the petition for relief, the matter did not go to hearing in the Circuit Court for Anne Arundel County until May 2, 1974. At the conclusion of the case, Judge Matthew S. Evans determined that Hunt had indeed been the victim of a conflict of interest on the part of his trial attorney. Accordingly, Judge Evans ordered a new trial for Hunt. The State sought leave to appeal to this Court. We granted such leave and placed the matter on the regular appeal docket.

The State contends that Judge Evans erred in his ruling because:

1. 'Appellee knowingly waived the contention that he was denied effective assistance of counsel.'

2. 'The appellee was not denied his Sixth Amendment right to effective representation by counsel.'

It is here argued by the State that under the provisions of the Post Conviction Procedure Act, Md.Ann.Code art. 27, § 645A(c), any allegation that could have been made on direct appeal is deemed to have been 'intelligently and knowingly' waived 'unless the failure to make such allegation shall be excused because of special circumstances.' The State correctly notes that the burden of proving such 'special circumstances' that would excuse the application of the waiver rule rests upon the appellee. Advancing from that position the State then asserts that appellee did not raise in his direct appeal, see Hunt v. State, supra, any contention, whatsoever, relative to a denial of the effective assistance of counsel. Hence, as the State sees it, the appellee has waived his right to come forward with such an argument, and we should so dispose of the case.

Hunt testified that he recognized during the course of the trial the possibility of conflict existed when the then attorney allegedly refused to cross-examine a State witness. This being so, the State reasons, Hunt should have interposed an objection, or at the very least have challenged the matter on appeal. The fallacy in the State's approach is that Hunt used the term 'possibility of conflict,' thus indicating something that may or may not have been true. Furthermore, it is highly unlikely that the attorney who allegedly had a conflict of interest would have made the conflict an issue on appeal, even if the attorney had recognized that a conflict existed. We desire to make it unmistakable that we do not imply that the then counsel for Hunt was aware of a conflict. Consequently, if counsel were unaware of a conflict, and did not call it to the attention of the trial court or the appellate Court, it would stretch even credulity to hold that Hunt was bound by his counsel's failure to recognize a conflict, or having recognized it, ignoring it.

Notwithstanding the testimony of Hunt's erstwhile counsel that he saw no conflict, Judge Evans found that a conflict actually existed. The judge based his holding on Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942) and Brown v. State, 10 Md.App. 215, 269 A.2d 96 (1970). In Glasser an Assistant United States Attorney was charged with conspiracy to defraud the United States. The District Court Judge ordered an attorney to represent two different accuseds because of a last minute withdrawal by a counsel. Glasser stated that he preferred to have his counsel represent him, Glasser, alone, but Glasser did not object to the court's directive that the same attorney represent both accuseds. Mr. Justice Murphy, for the majority, ² wrote with respect to a claim that Glasser had waived his objection to his attorney's also representing the accused:

'. . . (W)e indulge every reasonable presumption against the waiver of fundamental rights. . . . We are told that, since Glasser was an experienced attorney, he tacitly acquiesced in . . . (the appointment of his attorney to represent the other accused) because he failed to renew vigorously his objection at the instant the appointment was made. The fact that Glasser is an attorney is, of course, immaterial to a consideration of his right to the protection of the Sixth Amendment. . .

Upon the trial judge rests the duty of seeing that the trial is conducted with solicitude for the essential rights of the accused. . . .

No such concern on the part of the trial court for the basic rights of Glasser is disclosed by the record before us. The possibility of the inconsistent interests of Glasser and . . . (the other defendant) was brought home to the court, but instead of jealousy guarding Glasser's rights, the court may fairly be said to be responsible for creating a situation which resulted in the impairment of those rights. . . .' 315 U.S. at 70-71, 62 S.Ct. at 465.

The Court concluded that trial counsel was placed in the difficult position of having to serve two masters. To determine the precise degree or quantity of prejudice sustained by Glasser, the Court stated, was 'at once difficult and unnecessary' inasmuch as the right to counsel 'is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.' 315 U.S. at 76, 62 S.Ct. at 467.

We observe that the appellee in the matter now before us, while literate, had completed five grades of school. If Glasser, a lawyer and presumably experienced prosecutor, could not be said by the Supreme Court to have waived his right to the effective assistance of counsel by his failure to object, we believe it indubitable that Hunt's similar failure does not constitute a waiver.

This Court in Brown, supra, speaking through Judge Thompson, set out 10 Md.App. at 220-21, 269 A.2d 96, 100 three key questions, the use of which will resolve most conflict of interest cases. The three cornerstone interrogatories are:

'I. Is an actual or imminent conflict of interest present?

II. Given an actual or imminent conflict of interest in existence,

a. What quantum of prejudice must exist before there is reversible error?

b. Does that amount of prejudice exist in the present case?

III. What responsibility, if any, is on the trial court to raise the conflict of interest sua sponte?'

Judge Thompson then discussed in detail each of the three critical questions, after stating that in this State:

'. . . (A) conflict of interest begins with a consideration of the requirement that either an actual conflict of interest exists or that a conflict of interest be 'imminently potential' Pressley v. State, 220 Md. 558, 155 A.2d 494 ((1959)). . . . (T)he more complex a case becomes, either legally or factually, the more opportunity exists for a conflict of interest. . . .' (Emphasis supplied).

One of the contentions made in the instant case is that Hunt's trial counsel also represented six other defendants, which severely impaired the effectiveness of his cross-examination. Hunt argues that his former attorney, by representing other defendants, was placed in the position of figuratively having to tread upon eggshells because his questions to adverse witnesses had to be so framed, in Hunt's view, as to avoid harm to the greatest number, and thus it was Hunt who suffered from counsel's timidity in cross-examining. Brown, supra, points out 10 Md.App. at 222, 269 A.2d at 101 that, 'the effectiveness of cross-examination is significantly diminished as a result of actual or imminent conflict of interest.'

The Supreme Court, in Glasser, observed that inability of counsel to cross-examine effectively amounted to an actual conflict of interest. Similar holdings are found in United States v. Gougis, 374 F.2d 758 (7th Cir. 1967); Craig v. United States, 217 F.3d 355 (6th Cir. 1954); Application of Buffalo Chief, 297 F.Supp. 687 (S.D.S.D.1969); People v. Fuller, 268 Cal.App.2d 844, 74 Cal.Rptr. 488 (1969); People v. Bopp, 279 Ill. 184, 116 N.E.679 (1917); Com. ex rel. Whitling v. Russell, 406 Pa. 45, 176 A.2d 641 (1962); Commonwealth v. Jones, 215 Pa.Super. 41, 257 A.2d 367 (1969).

In Brown we took a firm stand, 'in line with both Pressley and Glasser' that with respect to prejudice to the party asserting the presence of a conflict that 'the prejudice need only be slight before relief is granted.' We noted that '(W)hile Pressley requires a showing of prejudice, Glasser is written in terms too specific to require more than a slight prejudice.' 10 Md.App. at 227, 269 A.2d at 103.

'Ineffective assistance (of counsel) has been found (to exist where) . . . co-defendants . . . have disparate criminal records.' J. Cook, Constitutional Rights of the Accused: Trial Rights, § 46 (1974).

See, e.g., Case v. N. C., 315 F.2d 743 (4th Cir. 1963); United States ex rel. Michelotti v. Price, 230 F.Supp. 505 (W.D.Pa.1964)...