Com. v. Agbanyo

872 N.E.2d 758

69 Mass. App. Ct. 841

COMMONWEALTH v. Charles AGBANYO.

No. 06-P-173.

Appeals Court of Massachusetts, Worcester.

Argued February 5, 2007.

Decided August 24, 2007.

Michael J. Fellows, Northampton, for the defendant.

Ellyn H. Lazar-Moore, Assistant District Attorney, for the Commonwealth.

Present: DUFFLY, DREBEN, & COHEN, JJ.

COHEN, J.

On the morning of his jury-waived trial, the defendant, Charles Agbanyo, learned for the first time that his trial counsel¹ had accepted an offer of future employment with the same district attorney's office that was prosecuting the defendant's case. In this appeal from the order denying his motion for a new trial,² the defendant claims that his right to the effective assistance of counsel was impaired by his attorney's conflict of interest. Although we disagree with the trial judge's rationale for denying the motion, i.e., that the defendant consented to his attorney's continuing representation, we affirm on other grounds. We conclude that the circumstances created a potential, but not an actual, conflict of interest and that the defendant is not entitled to relief because he has not demonstrated prejudice.

Background. The defendant was charged with intimidating a witness, see G.L. c. 268, § 13B, and threatening to commit a crime, see G.L. c. 275, § 2, as a result of events occurring during the September, 2004, criminal trial of his brother, Ian Agbanyo.³ As established by the Commonwealth in its case against the defendant, during Ian's trial, Ian and Charles confronted two police witnesses who had been observed talking to each other while under a sequestration order. Later, when Ian was found guilty, Charles softly told one of the officers, "You'll get yours." Charles then waited outside the court house until the officers appeared, made menacing gestures, and yelled at them. Among other things, he yelled, "I'm going to get you," and "I come to your house, you're dead."

As a result of these events, criminal complaints issued from the East Brookfield Division of the District Court Department charging both Ian and Charles with witness intimidation and threatening to commit a crime. Because of the relationship of that court and its personnel to the underlying matter, Charles's trial counsel moved for a change of venue. The motion was allowed, resulting in the transfer of the case to the Worcester Division of the District Court Department.

On August 4, 2005, Ian and Charles, separately represented, were tried together in a jury-waived trial. That morning, while the defendant was waiting in the holding area for the proceedings to begin, his privately-retained trial counsel informed him that she had accepted an offer of employment from the Worcester County district attorney's office. Although the record contains differing accounts as to the extent of their conversation,⁴ it is undisputed that this was the first time that the defendant learned that trial counsel had sought and obtained such employment.

This development was disclosed to the trial judge, who then conducted a brief colloquy with the defendant.⁵ After the defendant signified his consent to continued representation by trial counsel, the judge proceeded with the trial.

The Commonwealth presented its case through the testimony of three witnesses: the two police witnesses from Ian's trial, and an attorney who was with the officers when they encountered the defendant outside the court house. The defendant's trial counsel cross-examined all three of these witnesses, focusing on discrepancies in their accounts. Ian's attorney also cross-examined the police officers, but did not cross-examine the attorney witness. The defense then presented two witnesses: the attorney who represented Ian in the earlier case, and the mother of Ian's children, who also had been present at Ian's trial. The judge found Charles guilty on the charge of threatening to commit a crime and not guilty on the charge of witness intimidation, and found Ian guilty of witness intimidation.

The defendant appealed his conviction, obtained a stay of appellate proceedings, and pursued his motion for a new trial. The trial judge denied the motion without holding an evidentiary hearing, finding that the defendant, "a college educated person, a person with prior experiences in the Massachusetts Court system, a person not suffering from any mental or physical disability, expressed his consent to the continuing representation by [trial counsel]" and that "the defendant's consent was not coerced, nor the product of any confusion on the part of the defendant." Although the judge also stated that he "assume[d] without deciding" that this was a case of "genuine" or actual conflict of interest and that therefore the defendant did not need to show any prejudice in order to obtain relief, the judge made a finding that, based upon his reading of the transcript, "the defendant was not prejudiced in any way by the continued representation by [trial counsel]."

Discussion. We begin by addressing the issue of the defendant's consent, which was the stated ground for the judge's decision. "Under art. 12 of the Declaration of Rights of the Massachusetts Constitution, a defendant has the `right to the full and undivided loyalty of his attorney. A defendant is entitled to the untrammeled and unimpaired assistance of counsel free from any conflict of interest.'" Commonwealth v. Miller, 435 Mass. 274, 282, 755 N.E.2d 1266 (2001), quoting from Commonwealth v. Shraiar, 397 Mass. 16, 20, 489 N.E.2d 689 (1986). See Commonwealth v. Allison, 434 Mass. 670, 688, 751 N.E.2d 868 (2001). Nevertheless, even in a case of an actual, as distinct from a potential, conflict of interest, "a defendant may consent to continued representation by his attorney `so long as his consent is voluntarily, knowingly, and intelligently made.'" Commonwealth v. Martinez, 425 Mass. 382, 392, 681 N.E.2d 818 (1997), quoting from Commonwealth v. Goldman, 395 Mass. 495, 498, 480 N.E.2d 1023, cert. denied, 474 U.S. 906, 106 S.Ct. 236, 88 L.Ed.2d 237 (1985). However, the trial judge has an affirmative duty to conduct a colloquy to insure that the defendant is informed adequately of the risks and potential dangers of the conflict and to obtain the defendant's acknowledgment on the record that he understands this information. Commonwealth v. Martinez, supra at 393, 681 N.E.2d 818.

In the present case, the judge's exchange with the defendant (much like the colloquy held to be inadequate in Commonwealth v. Martinez, supra at 387 n. 3, 681 N.E.2d 818) failed to cover important points. The judge neglected to inquire into the defendant's understanding of the possible conflict, to advise the defendant that he had a constitutional right to an attorney free of divided loyalties, to invite the defendant to raise or discuss any concerns that he might have, to inform the defendant that he could consult with another attorney before deciding what to do, or to offer a continuance to permit the defendant to investigate his options or obtain new counsel.⁶ See ibid., and cases cited. Given these deficiencies in the colloquy, we cannot conclude that the defendant — whatever his language ability and educational background — gave his consent voluntarily, knowingly, and intelligently.

We think, however, that the order denying the defendant's motion for a new trial may be sustained on alternative grounds. Compare Commonwealth v. Ilges, 64 Mass.App.Ct. 503, 515, 834 N.E.2d 276 (2005). Although we certainly do not condone trial counsel's belated disclosure of a situation that could have been relevant to the defendant's choice of representation,⁷ we are of the opinion that seeking and accepting a position with the district attorney's office created a potential, rather than an actual, conflict of interest. That being so, to obtain relief from his conviction, the defendant was required to show prejudice; this he has not done.

"Our decisions have distinguished between actual and potential conflict of interest. To demonstrate an actual conflict, the defendant must prove that a genuine conflict existed." Commonwealth v. Allison, 434 Mass. at 688, 751 N.E.2d 868, citing Commonwealth v. Davis, 376 Mass. 777, 781, 384 N.E.2d 181 (1978). If the defendant shows a genuine conflict, "art. 12 does not require the defendant to show that the conflict resulted in actual prejudice or that it had an adverse effect on his counsel's performance." Commonwealth v. Fogarty, 419 Mass. 456, 459, 646 N.E.2d 103 (1995), and cases cited. However, where a defendant demonstrates only a potential conflict, the defendant's conviction will not be reversed except on a showing of actual prejudice. Ibid.

"An `actual' or `genuine' conflict of interest arises where the `independent professional judgment' of trial counsel is impaired either by [her] own interests, or by the interests of another client." Commonwealth v. Shraiar, 397 Mass. at 20, 489 N.E.2d 689. "The burden is on the defendant to prove, without mere conjecture or speculation, both the existence and the precise character of the alleged conflict of interest." Commonwealth v. Allison, supra at 694, 751 N.E.2d 868. Unsubstantiated claims of divided loyalties will not suffice. See ibid.

In the present case, because trial counsel was not employed as a prosecutor at any time during her representation of the defendant, she was never in the position of owing conflicting professional duties to the defendant and to the district attorney's office. See, e.g., Commonwealth v. Soffen, 377 Mass. 433, 437-438, 386 N.E.2d 1030 (1979); Commonwealth v. Leo, 11 Mass. App.Ct. 283, 285-286, 415 N.E.2d 875 (1981). It remains to be considered, however, whether her future employment at the district attorney's office created a substantial risk that her representation of the defendant "would be materially and adversely affected by [her] financial or other personal interests." Commonwealth v. Milley, 67 Mass.App.Ct....