Opinion
14-P-1739
06-25-2015
COMMONWEALTH v. STEVEN MONTEZ BROWN.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In 2006, after being indicted for the first-degree murder of Eric Zeiba, the defendant pleaded guilty to second-degree murder. In 2013, the defendant moved to withdraw his guilty plea based on his attorney's alleged conflict of interest at the time of the plea proceeding. The defendant appeals the denial of that motion. We affirm.
The defendant claims that the attorney who represented him at the guilty plea proceedings had an actual or genuine conflict of interest due to his simultaneous representation of the defendant's father. Specifically, the defendant claimed the attorney's representation of his father in an unrelated narcotics case created a conflict of interest because his attorney would be "duty bound" to overlook the abusive father-son relationship in his representation of the defendant. After conducting an evidentiary hearing, the motion judge (who was also the judge who accepted the defendant's guilty plea) concluded that the defendant failed to establish a conflict. We agree.
As the defendant concedes, he cannot establish prejudice, which would be required to establish a potential conflict of interest. Instead, he was required to prove a genuine conflict of interest where prejudice is presumed. See Commonwealth v. Perkins, 450 Mass. 834, 852-853 (2008). In other words, it was the defendant's burden to demonstrate an actual conflict of interest in which "prejudice is 'inherent in the situation,' such that no impartial observer could reasonably conclude that the attorney is able to serve the defendant with undivided loyalty." Commonwealth v. Stote, 456 Mass. 213, 218 (2010), quoting from Commonwealth v. Mosher, 455 Mass. 811, 819-820 (2010). This, he failed to do.
The defendant merely established a dual representation, from which a genuine conflict will not automatically be inferred. See Commonwealth v. Walter, 396 Mass. 549, 554 (1986). See also Commonwealth v. Boateng, 438 Mass. 498, 509-512 (2003) (no genuine conflict of interest where counsel for murder defendant also represented medical examiner in civil case); Commonwealth v. Mosher, supra at 818-822 (no genuine conflict where defense counsel represented a material prosecution witness more than one month earlier). As the motion judge held, the defendant failed to establish a genuine conflict in his case as his attorney would not have been duty bound to the defendant's father to hide evidence of abuse in the defendant's case. Indeed, the defendant's family history was discussed at length in the psychological report that was prepared before the attorney at issue appeared in the case, and the prosecutor had a copy of it.
At bottom, all the defendant presented to the motion judge was speculation and conjecture, from which a conflict cannot be inferred. See Commonwealth v. Shraiar, 397 Mass. 16, 20 (1986). The defendant brutally murdered the victim, and he failed to establish that justice was not done. The motion judge did not abuse her discretion by denying the motion to withdraw the defendant's guilty plea.
Order denying motion to withdraw guilty plea affirmed.
By the Court (Cypher, Meade & Massing, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: June 25, 2015.