Witherspoon v. U.S.

• Decision Date: 12 April 1989
• Docket Number: No. 84-71.,84-71.
• Parties: James D. WITHERSPOON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

557 A.2d 587

James D. WITHERSPOON, Appellant, v. UNITED STATES, Appellee.

No. 84-71.

District of Columbia Court of Appeals.

Submitted October 11, 1988.

Decided April 12, 1989.

Stacy J. Canan, appointed by the court, for appellant.

Kathryn A. Myerscough, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty. at the time the brief was filed, Michael W. Farrell, and Elizabeth Trosman, Asst. U.S. Attys., were on the brief, for appellee.

Before ROGERS, Chief Judge,^* and FERREN and SCHWELB, Associate Judges.

ROGERS, Chief Judge:

Appellant James D. Witherspoon appeals his conviction of a single count of possession of heroin, D.C.Code § 33-541(a)(1) (1988 Repl.), on the grounds that he was denied his Sixth Amendment right to counsel where the trial judge failed to conduct inquiries into whether defense counsel had an actual conflict of interest with appellant and had adequately prepared appellant's case.

In Singley v. United States, 548 A.2d 780 (D.C. 1988), the court stated that when the trial judge fails to conduct an inquiry after being apprised of the possibility of a conflict of interest on the part of defense counsel, this court ordinarily will remand for a hearing in order to determine whether an actual conflict did in fact exist. Id. at 786. We must do so here. Defense counsel moved to withdraw from the case after apprising the trial judge that Deputy Bar Counsel had recommended withdrawal on the basis of defense counsel's ethical concerns about his ability adequately to represent appellant. Since the trial judge did not conduct an inquiry to determine if counsel's conflict would adversely affect his ability to represent appellant a remand is required so that such an inquiry can be made. Appellant's other Sixth Amendment contention, that the trial judge failed to conduct the necessary inquiry to determine whether counsel had adequately prepared appellant's case, is meritless.

I.

On November 16, 1983, appellant's case was the oldest case on the trial judge's Calendar and was scheduled to go to trial. Defense counsel advised the judge that appellant wanted a continuance because there were witnesses appellant thought defense counsel should know about who had not been subpoenaed. Defense counsel informed the judge that appellant was unhappy with his representation and wanted either to retain counsel or to have another attorney appointed to represent him. Defense counsel admitted that he did not know who the witnesses were or how to contact them. The judge asked appellant whether or not he had been aware of these witnesses on September 15, 1983, when his counsel had announced that he was ready for trial. Appellant responded that he had been aware of the witnesses on September 15, but claimed that when he had told his counsel about them counsel had simply given him a business card and told him to get in touch. Appellant further claimed that his daily efforts to telephone counsel proved unavailing and he had not spoken with counsel until the day before trial. Defense counsel informed the judge that he had an answering service and had not received any message from appellant. Appellant then told the judge that Melvin Burton, Esquire, was going to handle his case. The judge observed that everyone involved had had a long time to inform the court about appellant's dissatisfaction and the change in representation, and that he was not going to grant a continuance since the case was ready to go to trial.

When court reconvened in the afternoon, defense counsel renewed his motion for a continuance on the ground that appellant wanted to retain Mr. Burton and Mr. Burton had confirmed that he wanted to enter his appearance. Mr. Burton appeared to explain that appellant was familiar with his thoroughness of investigation and preparation for trial, and wished him to represent him.¹ The judge denied the continuance. The judge also rejected defense counsel's suggestion that the hearing on appellant's motion to suppress proceed but the trial be continued because he had a calendar to run and he would not "let people play games with that."

The next day, following the motion hearing, defense counsel advised the judge at the bench that he wanted to withdraw from the case. Counsel explained cryptically that, as a result of an incident with prospective witnesses in the witness room, he had conferred with the Deputy Bar Counsel who had advised him to ask for leave to withdraw. Counsel apprised the judge that Deputy Bar Counsel told him to base his motion principally on Disciplinary Rule 2 — 110(C)(1)(d), which provides for permissive withdrawal where the client's "conduct renders it unreasonably difficult for the lawyer to carry out his employment effectively." CODE OF PROFESSIONAL RESPONSIBILITY DR 2-110(C)(1)(d) (1979). Counsel also informed the judge that Deputy Bar Counsel told him to rely on Disciplinary Rule 2-110(C)(1)(c), which provides for permissive withdrawal where the client "[i]nsists that the lawyer pursue a course of conduct that is prohibited under the Disciplinary Rules." Id. DR 2-110(C)(1)(c). Counsel stated: "I can't tell the Court what it was that happened out there but I sure don't want to go forward with this case in its present posture." The judge acknowledged that counsel was in a "tough spot," but denied the motion, stating that "[counsel had] done the right thing . . . [b]ut I'm not going to let Mr. Witherspoon out of this court, just not going to do it." Defense counsel advised the judge that he was not in a position to call witnesses appellant would want him to call and that without those witnesses appellant's testimony "may be rendered silly almost." The judge repeated that appellant was not going to run the court, and said he did not think a continuance was an "absolute necessity."

II.

The Sixth Amendment guarantee of assistance of counsel for an accused's defense requires "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 (1981) (citing Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Holloway v. Arkansas, 435 U.S. 475, 481, 98 S.Ct. 1173, 1177, 55 L.Ed.2d 426 (1978)); see also Singley, supra, 548 A.2d at 783. To protect the defendant's right to counsel that is free of conflicts of interest, "the trial court has an affirmative `duty to inquire' into the effectiveness of counsel whenever the possibility of a conflict' becomes apparent before or during trial." Douglas v. United States, 488 A.2d 121, 136 (D.C. 1985) (quoting Wood, supra, 450 U.S. at 272, 101 S.Ct. at 1104 (emphasis in original)). An appellant who "`shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief.'" Singley, supra, 548 A.2d at 786 (quoting Cuyler, supra, 446 U.S. at 349-50, 100 S.Ct. at 1718-19).

Appellant's objection to the absence of any meaningful inquiry is well taken in light of our recent decision in Singley, supra. In Singley, the prosecutor informed the trial judge on the second day of trial that the defense counsel had previously represented a government witness in a civil action against the defendant arising out of the same incident for which the defendant was on trial. Id. at 781-82. The prosecutor stated that when counsel impeached the witness during cross-examination he relied on information that he had obtained from his prior representation of the witness. The trial judge examined the court jacket from the witness' pending civil case against the defendant and found that counsel had at one time represented the witness. Counsel stated that he did not recognize the witness, implying that his questioning of the witness was not the result of information obtained in the prior attorney-client relationship, but conceded that if he had represented the witness he should withdraw from the case. The trial judge would not allow counsel to withdraw, however, in the middle of the trial. This court held that the trial judge erred in failing to inquire into the possible conflict of interest:

[I]t is clear that the trial court was apprised of differing versions of the relationship between [the witness] and [defense counsel] but did not test either party's recollection in an effort to reconcile the statements and determine the facts in order to gauge whether an actual conflict of interest existed at the time of appellant's trial and, if so, whether it had any potential for prejudice to appellant.

Id. at 784. However, because the record disclosed that the judge treated counsel's prior representation of the government witness as an actual conflict of interest and, to the defendant's disadvantage, instructed the jury to ignore counsel's impeachment of the witness, the court concluded that no further inquiry was required and the conviction must be reversed and the case remanded for a new trial. Id. at 786.

The circumstances in the instant case differ from Singley since the potential conflict stems from appellant's demand that certain witnesses be called in his defense. The trial judge might have suspected, under all the circumstances, that appellant sought to manufacture a conflict for the purpose of obtaining a further continuance of his trial. After both appellant and his counsel had been ready for trial two months earlier, appellant claimed for the first time on the November 16, 1983, trial date that he needed a continuance because his counsel had not interviewed or subpoenaed his witnesses. When the trial judge inquired, appellant and defense counsel gave irreconcilable accounts. Appellant stated that he had called his counsel "daily," apparently for two months, to provide him with the names and addresses of his witnesses. Defense counsel reported that he had received no messages on his answering service. The judge was in a position to observe the demeanor of the two men, and to recognize that defense counsel spoke as an officer...