Opinion
Nos. 92-00059, 92-00121, 92-00231
November 30, 1999
MEMORANDUM OF DECISION UPON DEFENDANT'S MOTION FOR NEW TRIAL
PRIOR PROCEEDINGS
Indictments were returned against defendant on January 17, 1992 (#92-00059 — masked armed robbery, firearms offenses, burglary, larceny, assault with intent to murder and assault with a dangerous weapon), on February 13, 1992 (#92-00121 — armed robbery, conspiracy and firearms offenses), and on April 13, 1992 (#92-00231 — masked armed robbery, armed robbery, malicious destruction, burglary and larceny). Jury trial was had on each set of indictments (Hely, Travers and Saris, JJ., respectively, presiding) and defendant was found guilty on each. He was sentenced to State Prison for, variously, terms of years and life.
On November 17, 1998, defendant offered a motion for new trial on all matters encompassed by the three indictments. Because the trial justices were no longer available to consider the motion, the Regional Administrative Justice assigned the motion to the undersigned Justice for determination.
Saris and Travers, JJ. are no longer justices of the Superior Court. Hely, J. remains a member of the Superior Court, but, because he has previously denied a Rule 30 motion on those portions of #92-00059 upon which he sat (see paper #35, August 8, 1994), all that remain of defendant's Rule 30 challenges are those portions that attack the doings of Saris and Travers, JJ., in the three indictments. The referral of the motion to the present Justice because of their unavailability is, accordingly, appropriate.
The motion was heard on several dates between January 1, 1999 and April 1, 1999. Defendant's discharge of his then counsel, his election to proceed pro se, and the conflicting schedule of witnesses and the court occasioned that somewhat lengthy hearing process. After the hearing terminated, the Court afforded the parties an opportunity to file closing memoranda. The filings were accomplished on or about June 1, 1999.
On June 29, 1999, the Court was informed by the Commonwealth that it and defendant's appellate counsel had agreed to a stay of all activity upon the motion for new trial pending their discussions with respect to a mutually agreeable resolution of all matters, trial and appellate, to which defendant was a party. The Court acceded and halted its work on the instant motion until October 15, 1999 when the Court was advised that negotiations were unsuccessful and that a ruling ought be made on the motion at bar.
THE MOTION FOR NEW TRIAL
The motion for new trial asserts that, because defendant was represented, at the initial stages of the prosecution in the Uxbridge District Court, by counsel who was simultaneously representing, before the Worcester County Grand Jury, one Doreen Arseneau ("Arseneau") who was cooperating with the Commonwealth to its advantage in the case against defendant. Defendant characterizes counsel's multiple representations as an "actual conflict of interest" and suggests that counsel's divided loyalties resulted in counsel's failure to pursue on his behalf, in the district court, a drug ingestion test, a bail hearing, a probable cause hearing, a vindication of his "ten day speedy trial rights" and other unspecified defense activities.
This Court will accept defendant's contention that, if his counsel labored for him while burdened with a genuine conflict of interest stemming from loyalty to another client, defendant is entitled to remedy whether or not he is able to demonstrate prejudice or disadvantage resulting from the conflict of interest. In essence, then, defendant will prevail, irrespective of prejudice, upon a demonstration that counsel's interests were genuinely in conflict. Commonwealth v. Shraiar, 397 Mass. 16, 20 (1986). On the other hand, if defendant is only able to show potential conflict, he may still prevail if he demonstrates resulting material prejudice. Commonwealth v. Epsom, 399 Mass. 254, 262-263 (1987). For the reasons stated infra, this Court concludes that defendant has not made either demonstration.
While this Court acknowledges the compelling nature of the memorandum of decision by Garsh, J. upon the motion for summary judgment in the civil suit brought by defendant against counsel and is most respectful of that justice's findings and analyses on the evidence before her, this author is controlled by the evidence presented on the instant motion in the matter at bar. Differences in evidence may require differences in result.
Furthermore, Judge Garsh's factual conclusions, with respect to, for example, the timing of McManus' appreciation of the conflict, are expressed in the context of summary judgment inquiry. That is, she found only that genuine issues of material fact exist upon those points and need to be addressed at trial. She did not, in the view of this Court, actually find facts in her memorandum of decision.
FINDINGS OF FACT
1. On or about December 14, 1991, the Committee for Public Counsel Services ("CPCS") assigned one of its staff attorneys, Paul McManus ("McManus"), to represent Susan Dumas ("Dumas") upon complaints pending against her in the Uxbridge District Court.
2. On or about December 16, 1991, CPCS assigned McManus to represent Arseneau upon complaints pending against her in the Uxbridge District Court.
3. On December 18, 1991, defendant was arraigned in the Uxbridge District Court upon most, if not all, of the matters encompassed by the instant indictments. He was represented by Attorney Paul Carlucci, a "bar advocate" whose appearance was entered for the limited purposes of arraignment and bail. Attorney Carlucci's role was essentially that of a "cover" attorney who would represent defendant until counsel was formally appointed and assigned by CPCS. Defendant was held for want of $200,000 cash bail and sought a bail review in the Worcester Superior Court, but withdrew his petition before Travers, J. The practice of the Worcester Superior Court at the time was to provide counsel both for those seeking bail review and for those who are inclined to withdraw their petitions.
4. On December 18, 1991, the Uxbridge District Court appointed CPCS to represent defendant, thus displacing Attorney Carlucci, and notified CPCS that the matter would be next before the court on December 24, 1991.
5. Sometime before December 20, 1991, CPCS received its appointment and scheduling notice from the Uxbridge District Court. CPCS then assigned McManus to represent defendant because its internal policies at that time generally allocated Uxbridge cases to McManus.
6. On December 20, 1991, a CPCS secretary mailed a form letter to the District Attorney's office seeking discovery. The issuance of the discovery demand was an automatic function triggered by the appointment of CPCS and was not the product of a purposeful direction from McManus.
7. On December 24, 1991, McManus was present, as was his custom on each Tuesday, at the Uxbridge District Court. McManus was unaware, however, that CPCS had assigned him to represent defendant; accordingly he had no communication with defendant on that day. The matter was continued until January 7, 1992; it is unclear who, if anyone, appeared for defendant or what, other than the continuance, was accomplished on December 24, 1991.
8. Sometime after December 24, 1991, McManus learned that CPCS had assigned him to represent defendant. Between December 18, 1991 (when CPCS was initially appointed to defendant's cases) and January 7, 1992, however, McManus:
a) did not speak to defendant;
b) received no discovery from the Commonwealth;
c) did not speak with Commonwealth investigators;
d) was unaware that defendant was desirous, if he was, of an examination to determine whether he was a drug dependent person; and
e) was unaware that defendant was desirous, if he was, of engaging in plea negotiations with the Commonwealth.
McManus' relative inactivity was occasioned by his impending leave of absence which was to commence in February, 1992, and would necessitate his imminent disappearance from cases such as defendant's.
9. On January 7, 1992, the next scheduled court date for defendant after McManus became aware of his assignment to defendant's case, McManus met with defendant at the Uxbridge District Court. At that meeting, McManus:
a) apprised defendant of the general nature of the charges (eg, "robbery") but did not engage in any substantive exchanges with defendant;
b) informed defendant that he would not be able to represent defendant because of his leave of absence;
c) advised defendant to waive his statutory right to a continuance date within ten days;
McManus' advice to defendant to waive his right to a speedy probable cause hearing was based upon McManus' strategic belief that, generally, an accused is better served by awaiting, for a reasonable time, the receipt of discovery before proceeding to such a hearing.
d) advised defendant not to discuss his case with anyone except successor counsel;
e) did not discuss with defendant a probable cause hearing or a bail review; and
f) was unaware of a conflict of interest in his representation of defendant; he had been aware, from his mid-December discussion with Arseneau, that a "Moore" was involved in her case, but he did not connect that "Moore" to defendant; accordingly, he did not apprise defendant of a conflict on January 7.
The defendant's case was continued to January 28, 1992 for further conference.
10. On January 14, 1992, McManus appeared in Uxbridge District Court to represent Arseneau and Dumas. He was told by the prosecutor that Arseneau and Dumas were co-accused, but received no discovery and was not informed that defendant was connected to Arseneau and Dumas or that Arseneau was expected to testify before the Grand Jury.
11. On January 16, 1992, McManus was in the Worcester Superior Court to cover for a colleague who was not available to provide his or her assigned criminal defense services. There, McManus learned that Arseneau was scheduled for a Grand Jury appearance that day. He had been called, by public address, to report to the Grand Jury room where he encountered a prosecutor who informed him that Arseneau would offer testimony pertinent to defendant's involvement in the matter then before the Uxbridge District Court. McManus conferred with Arseneau and represented her before the Grand Jury.
12. Having thus learned of the divergent interests of defendant and Arseneau, McManus, on January 16, 1992, informed his CPCS colleague, Robert Fontana (who was soon to follow the departing McManus as CPCS attorney "resident" in Uxbridge District Court), of the likely conflict in representing both defendant and Arseneau. McManus had concluded, based upon his discussion with Arseneau, that CPCS could no longer represent defendant. He delivered his Arseneau and Moore files (both files contained the notice of appointment, a running sheet memorializing events and miscellaneous notes; neither file contained any discovery materials) to Fontana and dictated a letter of disappearance as defendant's counsel to be mailed to the Uxbridge District Court.
McManus had earlier disassociated himself from the Dumas case because he had learned of a conflict between Dumas and Arseneau.
13. On January 17, 1992, Indictment No. 92-00059 was returned.
14. On January 21, 1992, McManus' letter to the Uxbridge District Court was mailed. It referenced a potential conflict between defendant and Arseneau, alluded to the January 28, 1992, "status" date, and suggested the appointment of interim counsel for defendant. The letter was accompanied by a motion by CPCS to withdraw as defendant's counsel. The motion was signed by Fontana, McManus' successor as CPCS attorney for Uxbridge. The letter and motion were received in Uxbridge on January 23, 1992.
15. On January 24, 1992, McManus departed on his leave of absence (to participate in a law-oriented program in Washington, DC) which had been granted him by CPCS in October or November, 1991. He had received no discovery prior to his departure. McManus did not notify defendant of CPCS' disappearance by reason of conflict because he had already, on January 7, 1992, informed defendant of his proposed disappearance by reason of leave of absence, and he expected defendant to be apprised, by successor counsel, of the conflict at the January 28, 1992, status hearing.
16. On January 28, 1992, the scheduled "status" date for defendant's cases, the CPCS motion to disappear was allowed by Teshoian, J. effective February 4, 1992, and the matters were continued until February 5, 1992.
17. On February 4, 1992, defendant was arraigned in the Worcester Superior Court on Indictment #92-00059 and Attorney Michael Corbin ("Corbin"), having been retained by defendant, entered his appearance. Corbin did not pursue a probable cause hearing or guilty pleas in the District Court because the indictment obviated such moves. Additionally, Corbin was unaware of defendant's alleged drug dependency or interest in a pre-trial drug examination until the indictment was tried.
Defendant's arraignment on the other indictments to which the instant motion also pertains (viz, #92-00121 and #92-00231) occurred on, respectively, February 25, 1992 and April 16, 1992. Attorney Corbin served as defendant's counsel upon those matters also.
18. On February 5, 1992, the complaints were dismissed by the Uxbridge District Court because of indictments returned by the Grand Jury.
19. CPCS maintained its representation of Arseneau through her indictments and, on May 23, 1995, Arseneau entered pleas of guilty before Butler, J. on Worcester Superior Court Nos. 92-00054, 92-00113 and 92-00226.
DISCUSSION
Massachusetts law treats ineffectiveness by reason of conflict in two distinct ways. First, if defendant establishes that his counsel was afflicted with a genuine conflict of interest at a critical stage of the proceedings, defendant will be entitled to relief without regard to whether or not prejudice resulted from the conflict. Commonwealth v. Martinez, 425 Mass. 382, 387-394 (1997); Commonwealth v. Fogarty, 419 Mass. 456, 459 (1995). Second, if the defendant is able to establish no more than a potential conflict, defendant will obtain cure only if he can also prove that the conflict produced material prejudice to his cause. Commonwealth v. Shraiar, 397 Mass. 16, 24 (1986). At bar, neither of the forms of remediable conflict have been shown by defendant.
Because defendant's claims under the United States Constitution are significantly harder for him to maintain, see Commonwealth v. Fogarty, 419 Mass. 456, 459 (1995) (observing that relief is available under federal law only on a showing of an "actual" conflict and a consequent prejudice to defendant), this Court will focus its analysis under the more defendant-friendly state law.
A. Actual Conflict of Interest
That McManus may have concurrently represented defendant and Arseneau does not require the conclusion that counsel was encumbered by an actual conflict of interest. Cuyler v. Sullivan, 446 U.S. 335 (1980); Commonwealth v. Duest, 26 Mass. App. Ct. 137, 149 (1988). More is required. Defendant is tasked with the obligation of demonstrating that the joint representation either occasioned an impairment of McManus' "independent professional judgment," Commonwealth v. Shraiar, 397 Mass. 16, 20 (1986), or positioned him so that he could not "exonerate [defendant] for fear of implicating [Arseneau]." Commonwealth v. Griffin, 404 Mass. 372, 375 (1989). See also Commonwealth v. Filippidakis, 29 Mass. App. Ct. 679, 682 (1991). Defendant has not satisfied that obligation in either of its manifestations.
Critical to the analysis of McManus' alleged conflict-generated impairment is a determination of when McManus became aware that his concurrent representation of defendant and Arseneau might compel him to sacrifice the fate of the former in order to advantage the latter. For it was not until McManus became aware that his clients' concerns forked that he could be said to have been at risk of declining "to exonerate" one "for fear of implicating" the other. See Griffin, supra, 404 Mass. at 375. So too, if McManus' "independent professional judgment" were abridged by divided loyalties, that impairment could not have occurred until he comprehended the incompatibility of his clients' respective positions. See Shraiar, supra, at 20. Thus, the onset of McManus' scienter is the start point of the conflict calculations.
McManus' enlightenment occurred on January 16, 1992 when, at the Worcester County Courthouse, he first learned that his client, Arseneau, was in possession of, and willing to share with the Grand Jury, information harmful to his client, defendant. McManus then promptly terminated his representational relationship with defendant. The immediacy of his uncoupling from defendant after he learned of the divergent interests of defendant and Arseneau gave McManus no opportunity to exercise an encumbered judgment, no occasion to surrender defendant to aid Arseneau.
There is no indication, on this record, that McManus' representation of Arseneau in the Grand Jury proceedings in any way added to the sum of information already possessed by the prosecution relative to defendant.
In sum, while McManus did concurrently represent Arseneau and defendant from either December 18, 1991 (when CPCS was appointed) or sometime after December 24, 1991 (when McManus learned of his assignment) to January 16, 1992 (when McManus began the process of formal disappearance), he was not impaired by divided loyalty because he did not know that his clients' interests diverged until January 16, 1992. One's judgment cannot be said to be impeded by that which one does not know. One cannot be said to have delivered up a client for the purpose of assisting another client if one does not know that the assistance will cause the delivery. We are left, then, with joint representation only, and, without impaired judgment or client sacrifice, joint representation alone does not constitute a genuine conflict of interest. Commonwealth v. Duest, supra, at 149. McManus' concurrent representation of defendant and Arseneau was not a genuine conflict of interest and defendant, if he is to prevail upon the instant motion, must demonstrate some prejudice flowing from McManus' representations.
B. Potential Conflict of Interest
Assuming, arguendo, that a potentiality for divided loyalties lay in McManus' concurrent representation of defendant and Arseneau, there is no evidence that defendant was prejudiced thereby. And, as we know from inter alia, Commonwealth v. Epsom, 399 Mass. 254, 262-263 (1987), one seeking relief from an inchoate conflict must demonstrate that he or she was disadvantaged as a consequence of that conflict. Such a demonstration has not, at bar, been made.
Although many tangential claims of prejudice have been proffered throughout the somewhat tortured procedural history of this matter, four principal claims may be gleaned from the thicket:
Among those representing defendant in his post conviction efforts in the trial court were present appellate counsel, an attorney associated with him and, ultimately defendant pro se after he discharged, in mid-hearing, his motion counsel. Tangled assertions of prejudice have, not unexpectedly, resulted.
1. McManus' omission to obtain a probable cause hearing prejudiced defendant by depriving him of the opportunity to obtain discovery, impeachment evidence and dismissal for, presumably, lack of evidence;
2. McManus' omission to seek an evaluation of defendant in order to demonstrate his non-use of cocaine, and thus to rebut the Commonwealth's assertion of a motive for the offenses charged, was harmful to defendant's cause;
3. McManus' omission to pursue plea negotiations with the prosecution in advance of both Arseneau's cooperation and the return of indictments against defendant diminished defendant's bargaining position; and
4. McManus' and CPCS' continued representation of Arseneau after their disappearance from defendant's case enabled them to persuade Arseneau to testify against defendant, their former client.
We shall treat each assertion of prejudice in turn.
1. The Lost Probable Cause Hearing
Defendant faults McManus' suggestion that he waive his entitlement to a "ten day speedy hearing" at which, defendant assumes, he would have been able to obtain evidence helpful to his cause. There is no merit to defendant's assertion because G.L.c. 276, § 35, as then in effect, only entitled one to an "adjournment" for no more than ten days. The statute did not, contrary to defendant's view, obligate the Commonwealth to proceed to a probable cause hearing within ten days. Had defendant refused to enter the waiver urged upon him by McManus, he would most certainly have been returned to court on the tenth day following and then had his case postponed again until both the parties were, in the eyes of the court, adequately prepared for a probable cause hearing. No evidence of the likely imminence of a probable cause hearing appears on the instant record. Thus, McManus' advocacy of defendant's waiver of his § 35 rights cannot be said to have cost defendant an earlier probable cause hearing.
It is true that, because of the January 17, 1992 indictment, defendant never had a probable cause hearing (and the evidentiary gold defendant expected there to mine), but McManus' omission to round the turn ahead of the Grand Jury was born of a sound strategy. He needed discovery before engaging in the probable cause hearing which defendant now maintains was crucial to his chances at trial.
Furthermore, defendant's expectations of obtaining, at a probable cause hearing, evidentiary capital to be used to his advantage at trial is wholly speculative. And, although defendant assumes that a probable cause hearing would have revealed the Commonwealth's motive evidence (viz, defendant's need to fund his cocaine habit) and permit defendant to press for an exculpatory examination, defendant's assumption is only conjecture because, motive not being an element of the charged offenses, evidence of motive may well not have been adduced at a probable cause hearing.
2. The Lost Drug Test
Defendant assails McManus' omission to seek an evaluation of him to determine whether he was, as Arseneau had claimed, a user of cocaine. Because, however, defendant was not "charged with a drug offense," he was not entitled to the examination provided in G.L.c. 111E, § 10. And, because McManus was not made aware either of the Commonwealth's theory of motive or of anyone's suggestion that controlled substances were a factor in the circumstances underlying the complaint, it is impossible to comprehend how McManus' omission to press for that of which he had no knowledge can now be said either to have prejudiced defendant or to have sprung from McManus' potential divided loyalty.
3. The Lost Plea Negotiations
When we factor the seriousness of the offenses charged against defendant with any prosecutor's general reluctance to engage in negotiations shortly after the complaint has been lodged and before a rational valuation of the case has been reached, defendant's claim that an early disposition by plea might have resulted had McManus not been favoring the Arseneau side of his conflict is pure fantasy. We must recall that McManus never spoke with defendant before January 7, 1992, never received discovery from the Commonwealth, and never discussed with defendant the substance of the alleged offenses (other than to recite the formal accusations) because of his impending leave of absence. To maintain that the potential conflict, of which McManus was unaware until January 16, 1992, resulted in his eschewing to incept plea negotiations which might likely have been successful before the January 17, 1992 return of the indictment is to ignore the facts at bar and the realties of prosecution-defense interaction.
4. The Continued Representation of Arseneau
Defendant advances, as his final assertion of prejudice, the continued representation of Arseneau by CPCS after its disappearance from defendant's case. Defendant's theory is that, by representing Arseneau, who testified against defendant at his trials, CPCS "switched sides" and "participated in his prosecution." While facile, defendant's theory of prejudice is unavailing.
The motion for new trial, the affidavit of defendant, the affidavit of motion counsel and motion counsel's memorandum all focus upon a conflict between McManus' representation of defendant and McManus' simultaneous representation of Arseneau up to and including her January 16, 1992, Grand Jury appearance. There is no assertion, in any of the papers that defined the parameters of the hearing on the motion, that defendant sought also to assail the fairness of his trials by reason of CPCS's continued representation of Arseneau after her Grand Jury appearance. Concededly, in his pro se post-hearing memorandum, defendant did indeed allege that, by "shifting sides," CPCS had infected defendant's trials, but such a tardy allegation is of no moment in today's treatment of the motion. The very belatedness of the claim has deprived the Commonwealth of an adequate opportunity to respond and the Court of an adequate opportunity to focus the hearings on the new claim. For those reasons, this Court views defendant's claim of post-Grand Jury, conflict-fueled prejudice to have been waived by his failure to offer it in a timely fashion. Mass. R. Crim P. 30(c)(2); Commonwealth v. LaFave, 430 Mass. 169, 172-173 (1999).
Even if waiver is not an appropriate conclusion on this point, this Court finds nothing in the evidence to suggest that post-McManus counsel for Arseneau employed any information, obtained during the pre-Corbin representation of defendant, to the detriment of defendant. Indeed, the paucity of information developed by defendant's pre-Corbin counsel suggests that, even if Arseneau's counsel were desirous of wounding defendant, there was no ammunition to do so.
CONCLUSION
McManus did not labor under a genuine conflict of interest as a result of his serendipitous representation of defendant and Arseneau. Assuming, arguendo, that McManus was subject to a potential conflict of interest from his simultaneous representation of the two, there is nothing in the record at bar to suggest credibly that defendant was prejudiced by the potential conflict. Finally, the issue of CPCS' continued representation of Arseneau through defendant's four trials has been waived by defendant's failure to raise the issue at any time prior to his post-hearing memorandum and, in any event, the record is barren of evidence that CPCS' representation of Arseneau redounded to defendant's disadvantage.
The sine qua non of Rule 30 relief is a demonstration that "justice may not have been done." Mass.R.Crim.P. 30(b). This Court is persuaded that the de minimus involvement of McManus in the representation of defendant, his prompt disassociation from defendant's case when he learned of the clash between defendant's prospects and Arseneau's chosen course of alignment with the prosecution, and the vigorous, unrestrained defense waged by Corbin, with the active assistance of defendant, combine to compel the conclusion that defendant's convictions were wholly consonant with justice. His motion for new trial is, therefore, DENIED.
_____________________________ Daniel F. Toomey Justice of the Superior Court
DATED: November, 1999