Opinion
14-P-1173
12-03-2015
COMMONWEALTH v. LUIS RIVERA.
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
The defendant was convicted of open and gross lewdness, G. L. c. 272, § 16, after a jury-waived trial. On appeal, he argues (1) that his rights under the Sixth Amendment to the United States Constitution were violated because the judge did not, sua sponte, conduct a colloquy with him regarding defense counsel's alleged conflict of interest, and (2) that there was insufficient evidence to support his conviction. We affirm.
1. Conflict colloquy. On the morning of trial, defense counsel became aware of the fact that he had represented one of the Commonwealth's witnesses, Lieutenant Kevin McCarthy, in an unrelated "real estate deal . . . a while ago." Defense counsel immediately brought this to the attention of the trial judge, who inquired, through counsel, whether the defendant was willing to waive the potential conflict. Defense counsel, who had evidently discussed the issue with the defendant, responded that the defendant had "no problem with" his continued representation. The defendant does not argue that his attorney's performance fell short in any way, either in terms of disclosing the potential conflict, discussing it with the defendant, or informing the judge of the defendant's waiver. Instead, he argues that the trial judge was required sua sponte to conduct a separate "conflict colloquy" directly with the defendant so as to assure herself of the defendant's knowing and voluntary waiver.
Our case law recognizes two types of conflict of interest: actual and potential. See Commonwealth v. Mosher, 455 Mass. 811, 818-823 (2010). We are not here concerned with an actual conflict, nor does the defendant contend that we are. Instead, this case involves a potential conflict, one in which "a more tenuous conflict appears." Commonwealth v. Soffen, 377 Mass. 433, 437 (1979). Although defendants have the burden to prove either type of conflict, see Commonwealth v. Mello, 11 Mass. App. Ct. 70, 71 (1980), they have a "special burden" in the cases of potential conflict "to prove, without mere conjecture or speculation, both the existence and the precise character of the alleged conflict of interest." Mosher, supra at 823, quoting from Commonwealth v. Allison, 434 Mass. 670, 694 (2001). Moreover, in cases in which there are actual conflicts, where a defendant "need not demonstrate that the conflict adversely affected his lawyer's performance[,]. . .[a] defendant claiming ineffective assistance of counsel due to a potential conflict of interest will be entitled to a new trial only if he can establish 'material prejudice' to his defense resulting from the alleged conflict." Id. at 819, 823 (citation omitted).
An actual conflict of interest is "one 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." Id. at 819-820.
A trial judge is not required to conduct a colloquy of a defendant -- let alone sua sponte -- in cases involving merely a potential conflict of interest. Unless a special circumstance (not present here) requires otherwise, a trial judge's colloquy with counsel "constitutes the best practice for ensuring a client's consent to his attorney's conflict of interest and for helping to shield convictions from subsequent claims of ineffective assistance of counsel." Commonwealth v. Perkins, 450 Mass. 834, 856 (2008). The judge followed that best practice here: she conducted a colloquy with counsel immediately upon being informed of the possible conflict. Nothing more was required.
Indeed, even in cases of actual conflict, a trial judge is only required to conduct such a colloquy where the defendant may otherwise be unaware of important aspects of the conflict and of his waiver. Compare Commonwealth v. Perkins, 450 Mass. 834, 855-857 (2008) (no colloquy with defendant required where defense counsel "fully explained" actual conflict to defendant, sufficient evidence existed to show defendant waived conflict despite lack of colloquy, and no evidence to suggest defendant suffered prejudice from conflict), with Commonwealth v. Martinez, 425 Mass. 382, 393-394 (1997) (colloquy with defendant required in "special context" where no indication defendant was apprised of actual conflict consisting of defendant telling "one client, a key prosecution witness whom he would cross-examine at trial, that he disbelieved his other client, the defendant on trial for murder").
But even if it were, the defendant has shown no material prejudice. We are left to speculate how trial counsel's prior representation of the witness in an unrelated real estate transaction "a while ago" affected the defendant's right to effective counsel. The defendant has not shown or suggested that counsel's cross-examination of the witness was constrained, hampered, or impeded in any way. Nor has the defendant suggested or shown that an additional colloquy would have revealed anything bearing on his waiver.
2. Sufficiency of the evidence. The defendant also argues that there was insufficient evidence to prove beyond a reasonable doubt that the victim was in fact shocked and alarmed by his conduct. See Commonwealth v. Ora, 451 Mass. 125, 127 (2008) (victim's actual shock and alarm is element of crime of open and gross lewdness). We review to determine whether any rational trier of fact, viewing the evidence in the light most favorable to the Commonwealth, could have found the essential elements of the crime beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979).
Here, the victim testified that the defendant's exposure of his penis and act of masturbation while standing in front of her made her feel "shocked and stunned." Buttressing this testimony, the victim's supervisor testified that the victim had been shaking and almost crying when she discussed the incident. This evidence sufficed. See Commonwealth v. Periera, 82 Mass. App. Ct. 344, 347-348 (2010) (sufficient evidence of alarm or shock where observer, a Boston police officer, testified to feeling "angry [and] a little bit disgusted" upon witnessing defendant masturbating in his parked car). Moreover, discrepancies between the two incident reports, the fact that the victim was a correction officer, and a supposed "power imbalance" favoring the victim, were factors going to the weight, not the sufficiency, of the evidence and were for the trial judge to evaluate.
Judgment affirmed.
By the Court (Cohen, Grainger & Wolohojian, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: December 3, 2015.