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SJC-12229
COMMONWEALTH vs. NATHANIEL BROWN.
Norfolk. March 4, 2024. – July 11, 2024.
Present: Budd, C.J., Gaziano, Kafker, Wendlandt, Georges, & Dewar, JJ.
Homicide. Practice, Criminal, New trial, Assistance of counsel, Motion to suppress, Waiver, Capital case. Constitutional Law, Assistance of counsel. Attorney at Law, Conflict of interest. Conflict of Interest. Waiver.
Indictment found and returned in the Superior Court Department on September 25, 2013.
A motion for a new trial, filed on September 24, 2019, was heard by William F. Sullivan, J.
Tracey A. Cusick, Assistant District Attorney (Carolyn L. Hely, Assistant District Attorney, also present) for the Commonwealth. John H. Cunha, Jr. (Charles Allan Hope also present) for the defendant.
DEWAR, J. In 2016, a jury convicted the defendant,
Nathaniel Brown, of murder in the first degree on the theory of
extreme atrocity or cruelty in connection with the stabbing 2
death of Jordan Baskin. Following his conviction, represented
by new counsel, the defendant filed a motion for a new trial,
claiming two violations of his right to counsel under art. 12 of
the Massachusetts Declaration of Rights. First, the defendant
argued that his trial counsel failed to provide minimally
effective representation before and during a police interview in
which police acquired incriminating evidence later introduced at
his trial. Second, the defendant claimed that his trial counsel
suffered from a conflict of interest in her continued
representation of him following the police interview, because
filing a motion to suppress the resulting incriminating evidence
on the ground of ineffective assistance of counsel would have
been contrary to his trial counsel's own interests. The
defendant's direct appeal was stayed pending the outcome of the
motion for a new trial. In 2023, following an evidentiary
hearing, a Superior Court judge (motion judge) allowed the
motion for a new trial, finding a new trial warranted under art.
12 on both of the grounds raised by the defendant. The case is
now before this court on the Commonwealth's appeal.
Finding no error of law or abuse of discretion in the
motion judge's conclusion that trial counsel labored under an
actual conflict of interest in representing the defendant, we
affirm the allowance of a new trial on this ground and do not
reach the defendant's other claimed art. 12 violation. 3
1. Background. a. Facts. We first briefly summarize the
nature of the criminal case against the defendant and then
recite the facts relevant to his motion for a new trial as found
by the motion judge in his written decision, supplemented with
undisputed facts in the record. See Commonwealth v. Velez, 487
Mass. 533, 535 (2021).
On the evening of April 14, 2013, police responded to a
report of a stabbing at a home in Milton. Upon arrival, they
found the victim lying on the enclosed porch of the home he
shared with his parents, bleeding from multiple stab wounds.
Medical personnel transported him to the hospital, where he died
shortly thereafter from his injuries. The victim had struggled
with addiction and, on the day of his death, had sought
emergency medical attention for withdrawal symptoms and also
reportedly sought to purchase drugs with a group of friends. At
the crime scene, police discovered the victim's cell phone and a
palm print, which matched that of the defendant, on the
shattered porch door. On neighboring properties, police found a
bag of marijuana and heroin that had a fingerprint on it that
matched that of the defendant, another cell phone that was
associated with a telephone number used by the defendant, and
one of the victim's shoes.
When police contacted the registered owner of a 2002
Oldsmobile Bravada (SUV) matching the description of a vehicle 4
seen on camera leaving Milton and entering Boston around the
time of the stabbing, they obtained information linking the SUV
to the defendant. Police learned that the mother of the
defendant's child had possession of the SUV, and that an
associate of the defendant reported that he often drove the
defendant in the SUV around Boston and Milton to sell drugs.
Police visited various locations seeking to speak with the
defendant.
Shortly thereafter, the defendant was put in contact with
the attorney who would go on to serve as the defendant's trial
counsel (trial counsel). Trial counsel began practicing as an
attorney in 1996 and had previously served as an assistant
district attorney prosecuting criminal cases before turning to
criminal defense.
The defendant retained trial counsel to represent him with
regard to what trial counsel understood to be an investigation
by the Milton police department; the defendant disclosed to
trial counsel that he had learned that the Milton police wanted
to speak with him and were interested in the SUV. The defendant
and trial counsel had an initial discussion focused on the SUV,
which the police were at that point seeking but had not yet 5
found.1 The defendant told trial counsel that he had purchased
the SUV within the past month for the mother of his child to use
to transport the child to and from school and showed counsel a
receipt for the purchase. Trial counsel advised the defendant
that any evidence of a crime in the SUV would create a problem
for him. The defendant repeatedly assured trial counsel that
nothing in the SUV could implicate him in any crime and stated
that he never drove the SUV. Trial counsel believed the
defendant's assurances and believed it would benefit him to turn
over the vehicle voluntarily.
After having this conversation with the defendant, trial
counsel called the Milton police to inform them that the
defendant was going to surrender the SUV they were seeking.
Counsel did not inquire about the reason the police were
interested in the SUV nor the nature of their investigation.
Around the time the police obtained the SUV, police
investigators became interested in speaking with the defendant
about the homicide. At that point, trial counsel still did not
1 Although not addressed expressly by the motion judge, there was conflicting testimony at the hearing on the motion for a new trial regarding when and how the police obtained the SUV, and, in particular, whether trial counsel was responsible for turning over the SUV to the police following this conversation with the defendant or whether the police independently obtained the SUV. This dispute is not material to our decision, and we recite the facts as found by the motion judge, which are consistent with trial counsel's account. 6
know that the investigation related to a murder and believed
that the police intended to ask the defendant questions about
the SUV. Although she believed that the vehicle may have been
involved in a drug-related crime, she did not know for certain,
and she knew the defendant was anxious to retrieve the SUV from
the police as soon as possible. Trial counsel had a
conversation with the defendant about the possibility of
speaking with the police. She asked him if there was any reason
why the police would want to speak with him and specifically
asked if he had "any issues" in Milton or in Quincy. The
defendant responded that he was not aware of any reason the
police would want to speak with him, nor of any issue in Milton
or Quincy in particular, and told trial counsel that he had no
concerns about speaking with the police. Although she
maintained lingering suspicions about the SUV's potential
involvement in drug activities, trial counsel felt that the
defendant was being honest with her, and she did not believe a
police interview would put him "in jeopardy." To the contrary,
believing the defendant's statements that "there was nothing to
hide," trial counsel thought speaking with the police "would be
to [the defendant's] benefit, because it would be exculpatory in
nature if he went and cooperated."
In the course of this conversation about the possible
police interview, trial counsel told the defendant what she 7
believed to be the "normal advice that you'd give a client,"
including that he should be truthful with her about whether he
had anything to hide, because he did not know what the police
would ask him. Although trial counsel did not recite the
Miranda warnings, she spoke with the defendant about the dangers
and ramifications of speaking with the police. She advised him
that he should not speak with the police if he did have anything
to hide and further advised him that anything he said to the
police could be used against him.
The defendant decided to speak with the police. Trial
counsel called the Milton police and spoke with a detective to
arrange for an interview at the Milton police station for the
morning of Sunday, April 21, 2013. As with her prior call to
the Milton police regarding the SUV, trial counsel again did not
inquire about the nature of the investigation, nor whether her
client was a suspect, person of interest, or target of the
investigation. It appears from the record that the conversation
with the detective involved solely setting up the logistics of
the interview. Prior to the interview she arranged, trial
counsel knew only that the investigation "had to do with
something in Milton" and remained unaware that the police
investigation related to a homicide.
Present at the Milton police station that Sunday morning
for the interview were two State police homicide investigators 8
assigned to the office of the district attorney for the Norfolk
district, as well as one detective from the Milton police
department. At the outset of the interview, they explained to
trial counsel and the defendant that the investigation concerned
the April 14, 2013, murder of the victim in Milton. After thus
learning that police sought to question the defendant in
connection with a homicide investigation, trial counsel did not
terminate the interview nor request to speak privately with the
defendant before proceeding, forgoing the opportunity to inquire
of her client specifically about a homicide or to advise him
regarding the potential perils of speaking with the officers.
In keeping with what she testified at the motion hearing was her
usual practice for police interviews, trial counsel did not
consent to the interview being recorded. The officers provided
a Miranda form to the defendant, who signed it with his right
hand. Trial counsel signed the Miranda form as a witness.
Over the course of the interview, the defendant denied
knowing the victim after being shown a picture of him, denied
ever going to the victim's house, denied ever owning a cell
phone, and denied any association with three specific cell phone
numbers. At this point, trial counsel became concerned that the
defendant was making a misrepresentation regarding the cell
phone numbers. She was aware that the defendant had a cell
phone and recognized one of the cell phone numbers the police 9
listed. She then stopped the interview to speak with the
defendant in the hallway.
The motion judge made no findings as to the content of
trial counsel's hallway conversation with the defendant. Trial
counsel's fragmented testimony relating to the content of the
conversation included that she confronted the defendant about
his misrepresentations regarding the cell phones; repeated what
she had told him prior to the interview, that he should not
speak further to the police if he had anything to hide; and
informed him of her view that the police likely already knew the
telephone numbers were his. Trial counsel and the defendant
then reentered the room and resumed the interview.
The officers questioned the defendant further. Among other
responses, and as would become relevant to cell phone evidence
in the case, the defendant admitted that "Nasty" was a nickname
that he had had since childhood.
As the questioning continued, one of the officers noted a
bandage on the defendant's right index finger. The defendant
complied with an officer's request to remove the bandage,
revealing a cut. The police then asked to photograph the cut,
at which point trial counsel denied the request and terminated
the interview.
Trial counsel and the defendant left the police station.
Later that day, the defendant through trial counsel informed the 10
officers that one of the cell phone numbers about which they had
inquired had been his for the past thirteen years.
A grand jury indicted the defendant for murder in September
2013.
b. Proceedings. Trial counsel's presence at the
defendant's police interview gave rise to concerns, raised
repeatedly by the prosecutor and judges during the pretrial
proceedings, that trial counsel had a potential conflict of
interest because she might need to testify at trial if a dispute
arose regarding what had occurred at the police interview. See
Commonwealth v. Patterson, 432 Mass. 767, 777 (2000), S.C., 445
Mass. 626 (2005), overruled on other grounds by Commonwealth v.
Britt, 465 Mass. 87 (2013) (trial counsel had actual conflict of
interest once it became apparent trial counsel ought to be
called to testify at trial to dispute key detail in police
account of defendant's counseled police interview).
Notwithstanding trial counsel's repeated representations that
the defendant would not be disputing at trial what occurred at
the police interview, the prosecutor placed trial counsel on the
witness list and later moved to disqualify her. Trial counsel
was ultimately permitted to continue representing the defendant
after repeated colloquies to confirm that the defendant
understood the nature and implications of this potential
conflict, knew he was entitled to the appointment of counsel 11
without such a potential conflict, and nevertheless wished to
continue with her as his counsel.
At a final pretrial conference, the judge asked the parties
to review Commonwealth v. Celester, 473 Mass. 553 (2016), and
inform him if the case affected their view of his decision to
permit trial counsel's continued representation of the
defendant. Released that morning, Celester, supra at 567-568,
held, as a matter of first impression, that if a person is
accompanied by counsel at a prearraignment custodial
interrogation, the person has a right under art. 12 to the
effective assistance of that counsel. The judge briefly
commented that he understood the circumstances in Celester
differed in at least one respect from the defendant's case and
deferred further discussion until the parties had a chance to
review the decision. The judge was unexpectedly unable to
preside at the defendant's trial the following month, and
Celester was never addressed on the record again.2
2 Thus, no motion was ever filed pursuant to Celester, nor any motion to suppress all of the evidence from the police interview. However, at the prompting of the newly assigned trial judge, trial counsel did file a motion to exclude several questions asked by the investigators during the police interview and the defendant's corresponding responses, on the ground that the defendant's unequivocal denials of police accusations were inadmissible for certain purposes. See Commonwealth v. Spencer, 465 Mass. 32, 50 (2013). Ultimately, the judge and parties agreed that the defendant's denial of knowing the victim was admissible, and the prosecutor agreed not to elicit testimony 12
A full accounting of the evidence at the defendant's March
2016 trial is not necessary to the issue we decide today
concerning the claimed conflict of interest on the part of trial
counsel. Most relevant here is simply the fact that the
Commonwealth, in seeking to prove its theory that the defendant
had killed the victim after a drug transaction "went wrong,"
introduced evidence obtained during the police interview. The
Commonwealth introduced, and argued as consciousness of guilt,
testimony that the defendant at his police interview had falsely
denied knowing the victim, ever going to the victim's house,
owning a cell phone, and using any of the three cell phone
numbers identified at the interview. The Commonwealth also
introduced testimony that, at the time of the interview, the
defendant had a cut on his right index finger and demonstrated
his right-handedness when signing the Miranda form. And the
Commonwealth introduced testimony that the defendant
acknowledged at the interview that his nickname was "Nasty"; the
victim had cell phone contacts named "Nasty" and "Nasty New" and
had sent text messages to "Nasty New" and called that contact in
the hours and minutes leading up to his death.
The jury convicted the defendant of murder in the first
degree on the theory of extreme atrocity or cruelty. The
that the defendant denied knowing people associated with the victim. 13
defendant noticed an appeal, which was docketed in this court in
November 2016. In September 2019, the defendant, represented by
new counsel (defense counsel), filed a motion for a new trial,
claiming ineffective assistance of counsel. This court remanded
the motion for a new trial to the Superior Court.
Since the trial judge had retired, a different judge held
an evidentiary hearing over the course of three days in 2021 and
2022. Defense counsel called three witnesses to testify at the
hearing: trial counsel, a lead investigator on the case who was
present at the defendant's police interview, and attorney
Charles Rankin as an expert witness.
In June 2023, the motion judge allowed the motion for a new
trial on both of the grounds urged by the defendant. First
addressing the defendant's claim of ineffective assistance of
counsel under Commonwealth v. Saferian, 366 Mass. 89 (1974), the
motion judge found that the defendant had received ineffective
assistance of counsel at the police interview based on trial
counsel's failure to terminate the interview or "at least" speak
further with the defendant once the police stated that they were
investigating a homicide, as well as her subsequent failure to
terminate the interview immediately upon "realiz[ing] that [the
defendant] was lying to police about his phone number." The
motion judge held that a new trial was required because trial
counsel's deficient performance had caused the defendant to make 14
a statement to the police, resulting in consciousness-of-guilt
and other inculpatory evidence used by the Commonwealth at trial
that likely influenced the jury's verdict. Turning to the
defendant's second claim of ineffective assistance of counsel,
the judge found that trial counsel labored under an actual
conflict of interest with respect to a potential motion to
suppress the evidence from the police interview, based on her
own ineffective assistance of counsel at the interview. The
motion judge held that a new trial was therefore required on
this additional basis, without a further showing of prejudice,
because the defendant had not made a voluntary, knowing, and
intelligent choice to waive the actual conflict of interest.
The Commonwealth appealed.
2. Discussion. The defendant's direct appeal from his
conviction of murder in the first degree pursuant to G. L.
c. 278, § 33E, is not currently before this court. Before us
now is solely the Commonwealth's appeal from the motion judge's
allowance of the defendant's motion for a new trial. We
therefore review the motion judge's decision under our usual
standard of review following the grant of a new trial. See
Commonwealth v. Yat Fung Ng, 489 Mass. 242, 247-248 (2022).
We review the allowance of a new trial "to determine
whether there has been a significant error of law or other abuse
of discretion" and reverse the motion judge's decision only "if 15
it is manifestly unjust" (quotations and citation omitted). Yat
Fung Ng, 489 Mass. at 248. We may affirm on "grounds different
from those relied upon by the motion judge, so long as the
correct or preferred basis for the affirmance is supported by
the record and the findings" (quotation and citation omitted).
Id. Where, as here, the motion judge did not preside at trial,
we defer to the motion judge's assessment of the credibility of
witnesses who testified at the hearing on the motion but regard
ourselves in as good a position as the motion judge to assess
the trial record. Id. at 248-249. We accept the motion judge's
findings of fact if they are supported by the record, which we
examine in its entirety. Id. at 248.
"The Sixth Amendment to the United States Constitution and
art. 12 of the Declaration of Rights entitle a defendant to the
effective assistance of counsel." Commonwealth v. Perkins, 450
Mass. 834, 850 (2008), quoting Commonwealth v. Martinez, 425
Mass. 382, 387 (1997). While a defendant's right to counsel
under the Sixth Amendment "attaches only at the initiation of
adversary criminal proceedings," a defendant also has a right
under the Fifth Amendment to "consult with an attorney and to
have counsel present during questioning" in a custodial
interrogation. Davis v. United States, 512 U.S. 452, 456-457
(1994), citing Miranda v. Arizona, 384 U.S. 436, 469-473 (1966).
The United States Supreme Court has recognized these Miranda 16
rights as "indispensable to the protection of the Fifth
Amendment privilege" against self-incrimination. Miranda, supra
at 469. Interpreting the distinct right against self-
incrimination in art. 12, this court has placed even "greater"
emphasis on ensuring that the right to speak with an attorney
during a custodial interrogation is "'actualize[d]' and
'substantively meaningful.'" Celester, 473 Mass. at 567,
quoting Commonwealth v. Mavredakis, 430 Mass. 848, 860 (2000).
The court in Celester, supra at 567-568, held that "the right to
the assistance of counsel that art. 12 provides in connection
with a prearraignment, custodial interrogation is a right to the
effective assistance of counsel," because "a person's right to
speak with counsel is not 'actualize[d]' or 'substantively
meaningful' if counsel fails to provide at least minimally
competent advice" (emphasis added).
A criminal defendant's right to the effective assistance of
counsel under art. 12 is a right to "the untrammeled and
unimpaired assistance of counsel free of any conflict of
interest." Commonwealth v. Hodge, 386 Mass. 165, 167 (1982),
quoting Commonwealth v. Michel, 381 Mass. 447, 453 (1980). See
Strickland v. Washington, 466 U.S. 668, 688 (1984) (counsel's
"basic duties" include "a duty to avoid conflicts of interest,"
because "[c]ounsel's function is to assist the defendant, and
hence counsel owes the client a duty of loyalty"). "A defense 17
counsel makes countless choices, on and off the record, to
protect a defendant's rights, and we rely on counsel's zealous
advocacy, unimpeded by a conflict of interest, to ensure that no
person is punished without fair proceedings; when a counsel's
professional judgment is impaired by an actual conflict of
interest, every action, and inaction, is called into question,
and we cannot be confident that the outcome of the proceedings
is fair and just." Commonwealth v. Dew, 492 Mass. 254, 264
(2023). Article 12 therefore entitles a defendant to "the
undivided loyalty of his counsel to present the defense case
with full force and zealousness." Perkins, 450 Mass. at 850,
quoting Commonwealth v. Downey, 65 Mass. App. Ct. 547, 552
(2006).
Thus recognizing that "the assistance of legal '[c]ounsel
is vital to the adversary process,'" we have long held that,
where a defendant has shown that counsel was laboring under an
actual conflict of interest, art. 12 does not require "a showing
that the conflict had an adverse impact on the defendant."
Martinez, 425 Mass. at 387-388, quoting Commonwealth v. Connor,
381 Mass. 500, 503 (1980). Rather, "the conflict alone . . .
renders assistance ineffective," because "[t]he conflict
engendered in the attorney's own mind may have unmeasurable
adverse effects on the client's interests." Commonwealth v.
Rondeau, 378 Mass. 408, 416 n.7 (1979). By contrast, under the 18
Sixth Amendment, a defendant must show that an actual conflict
adversely affected counsel's representation. See Cuyler v.
Sullivan, 446 U.S. 335, 349-350 (1980). Our "more protective
course" under art. 12 "avoid[s] putting a defendant in the
untenable position where he would otherwise 'be put to the
burden, perhaps insuperable, of probing the resolve and the
possible mental conflict of counsel,'" a burden difficult to
prove, "particularly as to things that may have been left not
said or not done by counsel." Martinez, supra at 388, quoting
Hodge, 386 Mass. at 169-170. Thus, under art. 12, "[o]nce an
actual conflict of interest has been established, the
defendant's conviction must be reversed unless . . . the client
has waived the conflict." Perkins, 450 Mass. at 853.
"An 'actual' or 'genuine' conflict of interest arises where
the 'independent professional judgment' of trial counsel is
impaired, either by his [or her] own interests, or by the
interests of another client." Perkins, 450 Mass. at 852,
quoting Commonwealth v. Shraiar, 397 Mass. 16, 20 (1986). An
actual conflict 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" (citation omitted). Commonwealth v. Mosher,
455 Mass. 811, 819-820 (2010). A defendant bears the burden to
"detail[] the precise character of the alleged conflict." 19
Patterson, 432 Mass. at 774, quoting Martinez, 425 Mass. at 389.
"In determining whether such a conflict exists we look to the
standards set forth in the applicable codes of professional
ethics." Commonwealth v. Cousin, 478 Mass. 608, 617 (2018),
S.C., 484 Mass. 1042 (2020), citing Mass. R. Prof. C. 1.7, as
appearing in 471 Mass. 1335 (2015). "The critical inquiry is
whether the lawyer has a competing interest or responsibility
that 'will materially interfere with the lawyer's independent
professional judgment in considering alternatives or foreclose
courses of action that reasonably should be pursued on behalf of
the client.'" Perkins, supra at 851-852, quoting comment 4 to
Mass. R. Prof. C. 1.7, 426 Mass. 1330 (1998). Our analysis
hinges on the particular "attendant facts and circumstances
surrounding the claimed actual conflict." Cousin, supra at 618.
Here, the defendant claimed, and the motion judge found,
that trial counsel was burdened by an actual conflict of
interest in representing the defendant because the
representation required deciding whether to move to suppress the
evidence derived from the defendant's counseled police interview
based on ineffective assistance of counsel by trial counsel
herself. We discern no error in the motion judge's conclusion
that the circumstances here did present an actual conflict of
interest. 20
Under Mass. R. Prof. C. 1.7, as amended, 490 Mass. 1303
(2022), "a lawyer shall not represent a client if the
representation involves a concurrent conflict of interest."
Such a conflict exists where, among other circumstances, "there
is a significant risk that the representation of one . . .
client[] will be materially limited . . . by a personal interest
of the lawyer." Id. While a lawyer's personal interests may
take many forms, comment 10 to rule 1.7 expressly contemplates
the species of conflict at issue in this case: "[f]or example,
if the probity of a lawyer's own conduct in a transaction is in
serious question, it may be difficult or impossible for the
lawyer to give a client detached advice." Id. at comment 10.3
We have previously recognized an analogous actual conflict
arising from a criminal defense lawyer's personal interests
where the lawyer was in a position to serve as an alibi witness
for his client. In Rondeau, 378 Mass. at 410, a lawyer
testified at a hearing on the defendant's motion for a new trial
that the lawyer had sought, and was denied, permission to
3 While rule 1.7 was amended during the period trial counsel represented the defendant, the changes are not material here. The version of Mass. R. Prof. C. 1.7 in effect in 2013 stated, in relevant part, that "[a] lawyer shall not represent a client if the representation of that client may be materially limited . . . by the lawyer's own interests." Mass. R. Prof. C. 1.7 (b), as amended, 430 Mass. 1301 (1999). The sentence regarding "the probity of a lawyer's own conduct" contained in the current version of comment 10 was formerly in comment 6 of the version of rule 1.7 in effect in 2013. 21
withdraw from representing his client so that he could testify
at trial that he had seen his client at regular intervals at a
court house on the morning of the armed robbery at issue. The
motion judge, who was also the trial judge, denied the motion
for a new trial because the judge did not believe the lawyer's
account. Id. Declining to disturb the motion judge's
credibility assessment, this court upheld the denial of the
defendant's motion for a new trial to the extent it was based on
the lawyer's "mere failure . . . to testify." Id. at 413. We
nevertheless ordered a new trial based on the "insoluble
dilemma" created by the lawyer's "decision to remain as
counsel," where "appearing as a witness would have placed him
'in the unseemly and ineffective position of arguing his own
credibility.'" Id. at 415, quoting American Bar Association
Code of Professional Responsibility and Canons of Judicial
Ethics, Ethical Consideration 5-9. We found that "[s]trong
personal pressures would inevitably counsel against" the
attorney choosing to testify, while "failure to testify might
foreseeably deprive the defendant of relevant alibi evidence
that the jury could weigh together with other evidence."
Rondeau, supra at 416. "In short," we concluded, "testifying
would likely embarrass the advocate, whereas not testifying
would embarrass the client." Id. Accord Commonwealth v.
Delnegro, 91 Mass. App. Ct. 337, 345-347 (2017) (rule 1.7 22
required counsel's withdrawal due to actual conflict of interest
where counsel had "significant involvement as a participant and
witness in both incidents leading to the defendant's arrests,"
police testimony "portray[ed] her in a less than flattering
light," and probity of her conduct was in question).4
Here, trial counsel faced a conflict in which prejudice was
similarly "'inherent in the situation,' such that no impartial
observer could reasonably conclude that the attorney [was] able
to serve the defendant with undivided loyalty" in working to
obtain an acquittal on his behalf (citation omitted). Mosher,
455 Mass. at 819-820. The circumstances here necessitated, at a
minimum, a strategic decision by trial counsel regarding whether
to pursue a motion to suppress on grounds of ineffective
assistance of counsel. Trial counsel did not immediately
terminate the defendant's police interview once she first
learned that it pertained to a homicide investigation, nor pause
at that time to speak with her client about the risks of
proceeding. Instead, the interview went forward, and trial
4 In addition to raising conflict concerns under rule 1.7, the prospect of a lawyer appearing as a witness at his or her client's trial also implicates Mass. R. Prof. C. 3.7, as amended, 490 Mass. 1309 (2022) ("A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness," subject to certain exceptions). See, e.g., Delnegro, 91 Mass. App. Ct. at 343-345 (lawyer was necessary witness and therefore could not represent defendant at trial under rule 3.7). 23
counsel again did not terminate the interview, nor in their
hallway conversation5 convince the defendant to terminate the
interview, when the defendant made statements -- that he did not
own a cell phone nor use a telephone number that trial counsel
recognized to be his -- that trial counsel immediately
recognized as untruthful. Cf. Celester, 473 Mass. at 571-572,
quoting American Bar Association Standards for Criminal Justice,
Defense Function, Standard § 4-3.7(a) (4th ed. 2015) ("Defense
counsel should inform the client of his or her rights in the
criminal process at the earliest opportunity, and . . . take
necessary actions to vindicate such rights"). The defendant's
misstatements not only were potential evidence of consciousness
of guilt but also independently risked criminal liability;
willfully misleading a police officer "with the intent to or
with reckless disregard for the fact that it may . . . impede,
5 Trial counsel's testimony at the motion hearing did not include a detailed account of the substance of this hallway conversation with her client, and accordingly the motion judge did not make factual findings regarding what was said. The record contains contradictory evidence regarding whether trial counsel paused the interview at that time: an officer testified at the motion hearing that he did not recall the defendant and trial counsel leaving the room at any time prior to the exchange regarding the cut on the defendant's finger; the police report recounting the interview does not mention this pause; and the defendant's affidavit submitted with his motion for a new trial denies that counsel paused the interview or spoke with him at this juncture. The motion judge nevertheless found that a pause occurred, a finding we do not disturb because it is supported by testimony from trial counsel that the motion judge evidently credited. See Yat Fung Ng, 489 Mass. at 248. 24
obstruct, delay, prevent or otherwise interfere with[] a
criminal investigation" is a felony. G. L. c. 268, § 13B (b).
The circumstances of the interview thus raised, at the least, a
serious question regarding trial counsel's performance
sufficient to warrant considering pursuit of a motion to
suppress on ineffective assistance of counsel grounds.6
Yet trial counsel also had an obvious "competing interest"
of her own that "materially interfere[d] with [her] independent
professional judgment in considering" whether to file a motion
to suppress on the defendant's behalf: such a motion would
inherently call into question her own professional competence.
Perkins, 450 Mass. at 851-852, quoting comment 4 to Mass. R.
Prof. C. 1.7, 426 Mass. 1330 (1998). In the circumstances of
this case, "the probity" of trial counsel's "own conduct" would
be put "in serious question" by the motion to suppress, where,
amidst a homicide investigation, trial counsel failed to end the
defendant's police interview even after the defendant made
6 We express no view concerning whether such a motion to suppress would or should have been granted if it had been filed, nor concerning the Commonwealth's argument, in disputing the motion judge's grant of a new trial on the separate ground that the defendant received ineffective assistance of counsel under Saferian, 366 Mass. at 96, that declining to file such a motion to suppress was not a manifestly unreasonable strategic decision by trial counsel. Our concern here is "the conflict alone." Rondeau, 378 Mass. at 416 n.7. See Patterson, 432 Mass. at 780 n.18 ("The very problem with an attorney's conflict of interest is that the attorney's judgment about strategic choices is clouded by conflict"). 25
statements to the police that counsel immediately recognized to
be falsehoods, and the interview instead went on to yield
additional inculpatory evidence. Comment 10 to Mass. R. Prof.
C. 1.7 (a), as amended, 490 Mass. 1303 (2022). For this reason,
the motion judge correctly found that trial counsel's own
personal interests as a practicing attorney would materially
interfere with her independent professional judgment in
considering whether to file such a motion to suppress, and that,
burdened by this actual conflict, she could not pursue any such
motion with the "full force and zealousness" we require of
criminal defense counsel (quotation omitted). Perkins, supra at
850. Such a motion would, moreover, place trial counsel in the
inherently ineffectual position of arguing to the court that she
herself performed deficiently. See Rondeau, 378 Mass. at 415.
We therefore see no error in the motion judge's conclusion that
"no impartial observer could reasonably conclude that" trial
counsel would be "able to serve the defendant with undivided
loyalty" in the circumstances of this case. Mosher, 455 Mass.
at 819-820.
While our conclusion that trial counsel did labor under an
actual conflict of interest is founded upon the particular
factual circumstances here, this conclusion is consistent with
the holdings of a number of other courts that "'forcing trial
counsel to prove [counsel's] own ineffectiveness' create[s] a 26
conflict of interest." Lesko v. Secretary Pa. Dep't of
Corrections, 34 F.4th. 211, 226 (3d Cir. 2022), quoting United
States v. Del Muro, 87 F.3d 1078, 1080 (9th Cir. 1996) (per
curiam) (surveying additional such decisions). In Lesko, supra,
for example, the United States Court of Appeals for the Third
Circuit concluded that the defendant's trial counsel had
operated under a conflict of interest that effectively prevented
him from raising in the defendant's earlier State and initial
Federal habeas proceedings a potential claim that trial counsel
had interfered with the defendant's right to testify. Raising
such a claim "'would have required [counsel] to denigrate [his]
own performance' -- something he 'cannot reasonably be expected
to' do." Lesko, supra, quoting Christeson v. Roper, 574 U.S.
373, 378 (2015). In so holding, the court likewise relied in
part on the principle that, "if the probity of a lawyer's own
conduct in a transaction is in serious question, it may be
difficult or impossible for the lawyer to give a client detached
advice." Lesko, supra, quoting American Bar Association Model
Rules of Professional Conduct 1.7 comment 10. See, e.g.,
Christeson, supra at 378-379 (petitioner entitled to new
substitute counsel where counsel could not "reasonably be
expected to" denigrate counsel's own performance in arguing for
tolling of statute of limitations based on counsel's
miscalculation of deadline); State v. Taylor, 1 S.W.3d 610, 612 27
(Mo. Ct. App. 1999) ("An accused is entitled to representation
which is uncluttered by counsel's efforts to vindicate his own
conduct" [citation omitted]).
Concluding for this same reason that trial counsel had an
actual conflict of interest in representing the defendant in
this prosecution, we need not reach the additional
considerations mentioned by the motion judge and disputed by the
Commonwealth, that trial counsel had an actual conflict because
the filing of such a motion to suppress risked harming her
professional reputation and future financial interests. The
question whether a hypothetical motion to suppress filed by
trial counsel posed sufficient threat to her reputational or
financial interests as to create an actual conflict of interest
is academic, where it is otherwise so plain that trial counsel
could not ethically represent the defendant in connection with
such a motion. In our view, the actual conflict burdening trial
counsel in the circumstances of this case stemmed from the
difficulty or impossibility of giving her client the benefit of
a lawyer's detached and independent advice and the zealous
defense to which he was entitled, where her client's defense
required considering whether and how to attack the adequacy of
her own professional performance at his police interview.
Nothing further is required to establish the existence of an
actual conflict of interest here. 28
We discern no error in the motion judge's further
conclusion that the defendant did not validly waive this actual
conflict of interest. Even "where an actual conflict of
interest is established, the defendant 'may consent to continued
representation by his attorney so long as his consent is
voluntarily, knowingly, and intelligently made'" (quotation
omitted). Perkins, 450 Mass. at 853, quoting Martinez, 425
Mass. at 392. "Because [c]ounsel's undivided loyalty to the
client is crucial to the integrity of the entire adversary
system, . . . this waiver by the defendant must be clear and
unambiguous" (quotation omitted). Id. While the parties did
extensively discuss before trial a potential conflict of
interest arising from trial counsel's presence at the
defendant's police interview, that conflict was distinct: a
risk that, depending on the evidence admitted at trial, trial
counsel ought to be called as a witness to dispute another
witness's account of the interview. See Patterson, 432 Mass. at
777-779. Although trial counsel took the position that this
eventuality was unlikely, the defendant underwent repeated
colloquies confirming his wish to be represented by trial
counsel notwithstanding her status as a potential trial witness.7
7 In addressing this potential conflict, the judges involved in this case appropriately acknowledged the defendant's right to choose his own counsel under art. 12 and the Sixth Amendment. 29
While these colloquies thoroughly plumbed the defendant's
understanding of the Patterson issue, none addressed or even
mentioned a conflict of interest pertaining to the adequacy of
counsel's performance at the police interview.
Nor can we find a waiver of the actual conflict here based
on the fact that one judge, shortly before trial, did briefly
question whether our decision in Celester, 473 Mass. at 567-568,
had a bearing on his earlier decision that trial counsel could
continue to represent the defendant. In an exchange with the
prosecutor and trial counsel on the morning Celester was
decided, the judge mentioned the decision; noted that, unlike in
this defendant's case, in Celester a murder warrant had been
issued for the defendant at the time of the police interview;
and suggested that further discussion of Celester could occur at
a later date once the prosecutor and trial counsel had a chance
to review the decision. However, no subsequent conversation
related to Celester ever occurred on the record, nor did any
colloquy with the defendant concerning an actual conflict
arising from trial counsel's performance at the police
interview. The record thus does not reflect that the defendant
provided a voluntary, knowing, and intelligent waiver of trial
counsel's actual conflict of interest.
See Commonwealth v. Francis, 485 Mass. 86, 95-97 (2020), cert. denied, 141 S. Ct. 2762 (2021). 30
The defendant is therefore "entitled to a new trial under
art. 12 without a further showing of prejudice." Commonwealth
v. Tate, 490 Mass. 501, 518 (2022). Affirming the grant of a
new trial on this basis, we do not reach the question whether
the motion judge committed an error of law or abused his
discretion in further concluding that, even aside from counsel's
actual conflict requiring reversal without consideration of
prejudice, a new trial was also warranted on the basis of
ineffective assistance of counsel under our usual standard for
assessing such claims set forth in Saferian, 366 Mass. at 96.
Rather, we remand for a new trial at which the defendant shall
be represented by unconflicted counsel.
Order allowing motion for a new trial affirmed.