Opinion
10-P-874
11-08-2011
COMMONWEALTH v. BERNARDO NADAL-GINARD.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This case returns to us after remand to the Superior Court for an evidentiary hearing on the defendant's claim that he is entitled to a new trial because his defense counsel, since-disbarred attorney Morris Goldings, was laboring under a conflict of interest. See Commonwealth v. Nadal-Ginard, 70 Mass. App. Ct. 1110 (2007) (memorandum and order pursuant to our rule 1:28). Specifically, the defendant claims that, while Goldings was representing him in this matter, Goldings misappropriated legal fees paid by the defendant to Goldings's firm, Mahoney, Hawkes & Goldings, and therefore had a pecuniary, actual conflict of interest that impaired his loyalty to the defendant's case.
Relevant background appears in that decision as well as in the decision of this court affirming the defendant's convictions. See Commonwealth v. Nadal-Ginard, 42 Mass. App. Ct. 1 (1997). We need not repeat it here.
As directed by this court, the motion judge, who was the trial judge, conducted a thorough evidentiary hearing, after which she issued comprehensive findings and rulings. We now affirm her resulting order denying the defendant's motion for a new trial.
We note that only the actual conflict of interest question was argued in the original appeal from the motion's denial, and only that question is argued to us now in this appeal. No other issues are before us.
We review the judge's ruling under familiar standards. 'A judge may grant a motion for a new trial if it appears that justice may not have been done. Such motion is addressed to the sound discretion of the judge. On appellate review, the judge's findings of fact after an evidentiary hearing on a motion for a new trial will be accepted if supported by the record. We shall examine the motion judge's conclusion[s] only to determine whether there has been a significant error of law or other abuse of discretion.' Commonwealth v. Perkins, 450 Mass. 834, 845 (2008) (internal quotations and citations omitted).
Where a defendant seeks a new trial on the ground that his trial counsel had a conflict of interest, it is the defendant's burden to present 'demonstrative proof detailing both the existence and the precise character of this alleged conflict of interest.' Commonwealth v. Miller, 435 Mass. 274, 282 (2001), quoting from Commonwealth v. Shraiar, 397 Mass. 16, 20 (1986). In this case, the judge committed no significant error of law or abuse of discretion in concluding that the defendant did not carry that burden.
The essential premise of the defendant's claim is that certain checks delivered by the defendant to Goldings, and made payable to Mahoney, Hawkes & Goldings, were never credited to the defendant's account and must have been diverted by Goldings to his own use. The judge found otherwise, and was warranted in doing so on the evidence presented.
Contrary to the defendant's contention, it is evident that the judge considered the argument made in the defendant's posthearing submission regarding the significance of a handwritten file number notation appearing on the face of some, but not all of his checks. She specifically commented upon three of the checks that lacked the notation and used them as examples to support her finding that the defendant's outstanding balance with the firm had been credited commensurately with his payments. In other words, the trial judge considered the defendant's argument, but concluded that he had failed to show that checks without the notation were not credited to his account.
Photographs of the faces of these checks were admitted in evidence, but there were no photographs of their backs, and no indication as to how they had been endorsed. In general, documentary evidence of the defendant's transactions with Goldings and his firm was spotty. Because of the passage of time, the defendant's bank had purged its records of the defendant's account in the ordinary course. Records of Mahoney, Hawkes & Goldings were destroyed after its bankruptcy and dissolution. The defendant testified that records involving the defendant's joint bank account with his former wife were destroyed by her, and that although he had stored other records of his dealings with the firm, those records had been moved around and he was unsure of their whereabouts.
The judge also was warranted in rejecting other evidence relied upon by the defendant in support of his misappropriation hypothesis. The judge properly could conclude that Goldings's involvement in the defendant's related civil case was part of a coordinated attempt to protect the defendant's interests in these two overlapping matters, and that, far from being indicative of malfeasance, Goldings's efforts to assist in the resolution of the civil case were designed to benefit the criminal case. The judge also properly could conclude that Goldings's guilty pleas to Federal charges arising from the conversion of other clients' trust funds and funds belonging to Mahoney, Hawkes & Goldings did not mean that he had converted any of the legal fees paid by the defendant. Additionally, the judge was warranted in rejecting the defendant's self-serving, uncorroborated testimony that Goldings failed to follow the defendant's instructions to negotiate a plea bargain (on the defendant's theory, because Goldings wished to prolong the case and his opportunity to divert fees). As her decision makes clear, the judge did not believe that the defendant had made any such request. Similarly, she did not Commonwealth v. Iguabita, 69 Mass. App. Ct. 295, 304 (2007).
The failure of the defendant to prove the underlying premise of misappropriation makes it unnecessary for us to consider whether the circumstances he hypothesizes indeed would have created an actual conflict of interest. We also note that the issue of a potential conflict of interest is not before us. See note 2, supra.
In short, our review satisfies us that the judge fully complied with the remand order and appropriately exercised her discretion in denying the defendant's motion.
Order denying motion for new trial affirmed.
By the Court (Berry, Cohen & Sikora, JJ.),