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recognizing that, once confronted with information that defense counsel had concerns about his ability to provide zealous representation in light of his "adversarial feelings" toward his client, "the trial court should have inquired further of [the attorney] as to whether a conflict actually existed and what the basis for that alleged conflict was"
Summary of this case from Avras v. StateOpinion
Court of Appeals No. A-12176 No. 6875
06-03-2020
JEFFREY HENRY, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Michael L. Barber, Barber Legal Services, Boston, Massachusetts, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Timothy W. Terrell, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law, although it may be cited for whatever persuasive value it may have. See McCoy v . State , 80 P.3d 757, 764 (Alaska App. 2002). Trial Court No. 2KB-13-00679 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Second Judicial District, Kotzebue, Paul A. Roetman, Judge. Appearances: Michael L. Barber, Barber Legal Services, Boston, Massachusetts, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Timothy W. Terrell, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges. Judge ALLARD.
Jeffrey Henry was convicted, following a jury trial, of six counts of third-degree fear assault and one count of second-degree weapons misconduct in connection with a prolonged standoff with the police at his home. On appeal, Henry argues that his constitutional right to conflict-free counsel was violated. He also argues that the trial court erred in refusing to allow him to hire substitute counsel. Finally, Henry argues that the superior court erred in failing to order the State to disclose certain police policies and training records. For the reasons explained below, we reject these arguments and affirm Henry's convictions.
AS 11.41.220(a)(1)(A) and AS 11.61.195(a)(3)(B), respectively.
Litigation of conflict and substitute counsel claims
Prior to trial, in May 2014, Henry filed a bar grievance against his appointed attorney, Matthew Tallerico. Tallerico brought the filing of the grievance to the attention of the superior court at a July 18, 2014 representation hearing. At that hearing, Henry indicated that he had filed the grievance to get his attorney's attention and he asserted that he no longer wanted to pursue the grievance. Henry apologized to Tallerico for filing the grievance and affirmed that he wanted Tallerico to remain as his counsel.
Following the hearing, Tallerico filed a motion to withdraw as counsel. In the affidavit supporting the motion to withdraw, Tallerico asserted that he had devoted four days to responding to the bar grievance and that it had been "very stressful." Tallerico stated that, although the grievance had since been dismissed, he "harbor[ed] adversarial feeling toward Mr. Henry" that could be "a limiting factor in providing zealous representation." According to Tallerico, he had consulted with bar counsel who had apparently advised him that the filing of the grievance created a conflict of interest under the professional rules, but that the conflict could be waived in writing under Alaska Rule of Professional Conduct 1.7(b). Tallerico indicated that he was filing the motion to withdraw because he had sent the written waiver to Henry but had not yet received it back.
Alaska Rule of Professional Conduct 1.7(b) provides, in pertinent part:
Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
. . . and
(4) each affected client gives informed consent, confirmed in writing.
The motion to withdraw was discussed at the next hearing, which was held on July 28. At that hearing, the court agreed with Tallerico that a written waiver was needed. During the hearing, the court went off record so that Tallerico could discuss the motion to withdraw with Henry and determine what Henry wanted to do. When the hearing resumed, Henry made clear that he was "willing to waive the stated conflict" and that he "really would like Mr. Tallerico to be [his] attorney." Based on this representation, the court denied the motion to withdraw. Later that same day, a written waiver signed by Henry on July 18 was filed with the court.
Six weeks later, shortly before trial was scheduled to begin, Tallerico requested another representation hearing. The representation hearing was held the next day, which was four days before the scheduled trial. At this hearing, Henry asserted that he was no longer happy with Tallerico's representation, and he wanted to withdraw his previous conflict waiver. Specifically, Henry asserted that Tallerico was not available "every time [he] called" and that, overall, Tallerico had "not done enough in [Henry's] case."
In response, Tallerico asserted that they had sufficient contact such that he was prepared for trial and capable of representing Henry. Based on Henry's stated reasons for wanting to withdraw his waiver — which related to Henry's dissatisfaction with Tallerico's representation rather than any purported conflict of interest — and Tallerico's indication that he could adequately represent Henry, the court concluded that there was no basis to remove Tallerico as counsel.
Henry then asked the court if he could hire a new attorney before trial began on Monday. The State objected, pointing out that this would require a continuance and arguing that this was just a delay tactic. The court ruled that it would only evaluate Henry's request if it was "actually a reality" — i.e., after Henry found a private attorney who was willing to take the case.
The morning of trial, Tallerico stated that he had met with Henry the previous night and that Henry had told him that he had hired a private attorney, Robert Campbell. Campbell appeared telephonically and explained that he had not, in fact, been hired. Instead, Campbell stated that he had told Henry that he would not take the case until he had approval from the court. The State again strongly opposed the proposed substitution of counsel. Ultimately, the court declined Henry's request to substitute counsel, noting that six victims had already traveled to Kotzebue for the trial and that a substitution of counsel, which would have required a continuance, would be highly prejudicial to the State.
The trial proceeded with Tallerico as Henry's attorney. Henry was subsequently convicted of all seven counts charged.
Henry's argument that his right to conflict-free counsel was violated
On appeal, Henry argues that he was denied his constitutional right to conflict-free counsel and his convictions should be reversed on that basis. According to Henry, the trial court erred when it accepted his written waiver of the alleged conflict of interest because the written waiver was executed prior to the discussion of the motion to withdraw at the July 28 hearing. Henry also argues that, even assuming the initial waiver was valid, the trial court erred when it refused to accept his revocation of that waiver shortly before trial was to begin in September. Having reviewed the record and the briefing, we reject both of Henry's claims.
See U.S. Const. amend. VI; Alaska Const. art. I, § 7; see also Daniels v. State, 17 P.3d 75, 81 (Alaska App. 2001).
To prove that his convictions should be reversed based on a violation of his constitutional right to conflict-free counsel, Henry is required to show (1) that Tallerico suffered from an active conflicting loyalty, and (2) that this conflicting loyalty detrimentally impacted Tallerico's representation of Henry. In his briefing, Henry relies almost exclusively on the professional rules, which govern an attorney's ethical obligations, and fails to frame the issues correctly using this legal test.
Newby v. State, 967 P.2d 1008, 1014 (Alaska App. 1998) (explaining that it is "the defendant's burden on appeal to prove (1) that the alleged conflict of interest really existed, and (2) that this conflicting interest actually affected the defense attorney's representation of the defendant" (citing LaPierre v. State, 734 P.2d 997, 1003-04 (Alaska App. 1987))); see also Strickland v. Washington, 466 U.S. 668, 692 (1984) ("Prejudice is presumed only if the defendant demonstrates that counsel 'actively represented conflicting interests' and that 'an actual conflict of interest adversely affected his lawyer's performance.'" (quoting Cuyler v. Sullivan, 446 U.S. 335, 350 (1980))).
As an initial matter, we note that the precise basis for the alleged conflict is not clear from the record. It is well settled that the filing of a bar grievance does not, standing alone, create a conflict of interest. Thus, to the extent that the trial court relied on the filing of the bar complaint to support its initial finding of a conflict of interest, that finding was erroneous.
P.M. v. Dep't. of Health & Soc. Servs., 42 P.3d 1127, 1133 n.19 (Alaska 2002) ("Filing a bar grievance against an attorney does not by itself destroy the attorney-client relationship or require the attorney to withdraw from representation."); May v. State, 856 P.2d 793, 795 (Alaska App. 1993) (explaining that the "mere fact" that a defendant files a bar grievance before trial does not establish ineffective assistance of counsel because, otherwise, defendants could "freely discharge their counsel and obtain new counsel without showing a good cause for such a charge").
We recognize, however, that it is possible that the trial court's initial finding of a conflict of interest may have been based on more than just the filing of the bar complaint. Although the filing of a bar grievance does not create a per se conflict of interest, the filing of a bar grievance can lead to (or be evidence of) a conflict or a breakdown in attorney-client relationship for which withdrawal may be appropriate.
Henry argues that Tallerico's affidavit shows that he was incapable of providing "zealous" representation to Henry and the trial court should have granted Tallerico's motion to withdraw on that basis. We acknowledge that Tallerico's affidavit suggests that Tallerico may have had concerns about his ability to provide "zealous" representation given the "adversarial feelings" he harbored against Henry for filing the bar grievance. Confronted with the information in Tallerico's affidavit, the trial court should have inquired further of Tallerico as to whether a conflict actually existed and what the basis for that alleged conflict was.
But Tallerico's subsequent actions demonstrate that, while Tallerico may have had concerns about the effect of his "adversarial feelings," he still believed that he was capable of competently and zealously representing Henry. In fact, Tallerico sought a waiver of the purported conflict under Alaska Rule of Professional Conduct 1.7(b). Such a waiver is only permitted if the lawyer "reasonably believes that [he] will be able to provide competent and diligent representation" to the client. Indeed, the written waiver that Tallerico drafted specifically stated that Tallerico was "still able to provide competent and diligent representation" to Henry, notwithstanding the concerns alleged in his affidavit.
The record also shows that Tallerico and Henry were able to repair whatever problems may have existed in their attorney-client relationship. At the July 18 hearing, Henry and Tallerico spoke off the record about the bar grievance, and Henry stated that they had taken care of the "issues." Henry further asserted that he wanted to "squash" the grievance, and he apologized to Tallerico for filing it in the first place. (We note that the grievance was dismissed a few days after this hearing.) Henry also signed the written waiver on July 18, the same day as the hearing.
In addition, at the continued July 28 hearing, the superior court gave Henry and Tallerico additional time to talk off record. Again, Henry was adamant that he wanted Tallerico as his attorney, and Tallerico made clear that he saw no further obstacle to his continuing as Henry's lawyer. In other words, the record shows that by the end of July, any potential conflict resulting from the bar grievance had been resolved and there was no longer any conflict to be waived. Indeed, the trial court explicitly recognized this fact in September when it found that there was no longer any conflict that needed to be waived.
Accordingly, we reject Henry's claim on appeal that he never properly waived the purported conflict. Because the potential conflict had dissipated, no waiver was actually required — written or otherwise. Furthermore, as we noted above, to obtain reversal of his convictions based on a violation of his right to conflict-free counsel, Henry would generally be required to demonstrate that the purported conflict detrimentally impacted Tallerico's representation of Henry in some way. Henry has completely failed to brief this issue. For all these reasons, we reject Henry's claim that he suffered a violation of his constitutional right to conflict-free counsel.
We note that Henry repeatedly focuses on the fact that the professional rules require a written waiver. But a violation of a professional rule does not, standing alone, constitute a violation of the Sixth Amendment right to counsel. Henry is therefore mistaken in assuming that a conflict waiver must be in writing to be valid for constitutional purposes. See, e.g., Roe v. Flores-Ortega, 528 U.S. 470, 479 (2000) (explaining that the prevailing norms and practices as reflected in professional conduct rules are "only guides" and that violations of them do not, as a federal constitutional matter, constitute per se ineffective assistance of counsel); People v. Grimes, 115 N.E.3d 587, 601 (N.Y. 2018) (holding that "rules of professional conduct cannot be applied as if they were controlling statutory authority or decisional law, and not every violation of an ethical rule will constitute ineffective assistance of counsel" (internal citations and quotations omitted)).
Newby v. State, 967 P.2d 1008, 1014 (Alaska App. 1998).
Henry's argument that the superior court erred when it refused to continue the trial so that another attorney could represent Henry
Henry argues that the superior court violated his right to counsel when it refused to allow him to hire substitute counsel the morning trial was set to begin.
A trial court's refusal to permit substitution of counsel when the substitution would require a continuance of trial is reviewed for abuse of discretion. Here, the record shows, and the trial court found, that granting Henry's request would have required a continuance that would have substantially prejudiced the State. Given these circumstances, we conclude that the superior court did not abuse its discretion when it denied Henry's request for substitution of counsel.
See Burleson v. State, 543 P.2d 1195, 1199 (Alaska 1975); Klockenbrink v. State, 472 P.2d 958, 964 (Alaska 1970).
Henry's argument that the superior court erred in refusing to grant his discovery requests
Prior to trial, Henry's attorney requested additional discovery relating to the Alaska State Troopers and its Special Emergency Response Team (SERT), the specialized unit involved in Henry's prolonged standoff. Specifically, the defense attorney asked for the troopers' policies on the use of force, the procedures related to standoff or barricaded-shooter situations, and the firearms-training records of the specific troopers involved in Henry's case. The attorney pointed out that Henry was shot during the standoff and he argued that the requested documents were potentially relevant to Henry's case because they could show that it was the troopers' failure to follow protocol that placed them in fear, or that their failure to follow protocol caused them to lie about or exaggerate Henry's conduct in order to justify shooting him.
The court ordered the State to produce copies of the policies and protocols for in camera review. The court did not order the State to disclose the individual troopers' firearms-training records or to provide them for in camera review. After reviewing the policies and protocols, the court provided a portion of these materials to Henry.
On appeal, Henry asserts that the superior court should have provided him additional materials from the troopers' policies and protocols. We have reviewed those documents — i.e., the same policies and protocols the superior court reviewed in camera — and conclude that the superior court did not fail to distribute any exculpatory or otherwise material information to Henry.
See Alaska R. Crim. P. 16(b)(3), (b)(7).
Henry also argues that the superior court erred in refusing to order disclosure, or at least conduct an in camera review, of the troopers' individual firearms-training records. Henry argues that these records would have been relevant if they "contained evidence that one or more of the troopers was not properly trained or qualified for SERT membership or a 'standoff' situation" because "this might support the defense theory that the troopers deviated from proper operating procedure and tend to negate Henry's guilt."
Having reviewed the proceedings below, we conclude that Henry failed to preserve the argument he now makes on appeal. When this issue was litigated in the trial court, defense counsel argued at length about why the policies and protocols were relevant to his defense — that the troopers lied about Henry's conduct to avoid civil liability and were not actually placed in fear by him. But when defense counsel was asked to articulate why the firearms-training records of individual officers were relevant, defense counsel offered only the following explanation:
In terms of like gun scores and stuff like that, I understand that for a SERT sniper at least, it's a pass or fail type thing, and they've got to do it twice a year. And I'm also curious as to where they're supposed to make shots. So, I mean . . . those are the concerns that I have.
Given defense counsel's failure to articulate any theory for why the firearms-training records were exculpatory or otherwise material, the superior court did not err in refusing to order disclosure, or conduct an in camera review, of those records. To the extent Henry now articulates a theory of relevance not provided to the trial court, he failed to preserve that argument for appeal.
See Booth v. State, 251 P.3d 369, 375 (Alaska App. 2011) (holding that to obtain in camera review of a police officer's personnel files the defendant must show that "if the requested personnel files contain the sort of information described [by the defendant], this information would be relevant to the defendant's guilt or innocence").
See Moreno v. State, 341 P.3d 1134, 1139 (Alaska 2015).
Conclusion
For the reasons explained above, we AFFIRM the judgment of the superior court.