State v. Mountjoy

708 A.2d 682, 142 N.H. 648, 1998 N.H. LEXIS 17
CourtSupreme Court of New Hampshire
DecidedMarch 18, 1998
DocketNo. 95-646
StatusPublished
Cited by46 cases

This text of 708 A.2d 682 (State v. Mountjoy) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Mountjoy, 708 A.2d 682, 142 N.H. 648, 1998 N.H. LEXIS 17 (N.H. 1998).

Opinion

THAYER, J.

The defendant, Keith Mountjoy, appeals an order of the Superior Court (McHugh, J.), denying his motion to set aside [649]*649guilty verdicts for aggravated felonious sexual assault, see RSA 632-A:2, III (1986) (amended 1992, 1994, 1995, 1997), and burglary, see RSA 635:1 (1996). The defendant argues that the trial court erred when it failed to conduct a pretrial inquiry to secure, on the record, the defendant’s informed consent to representation by his attorney who had a potential conflict of interest. See Hopps v. State Board of Parole, 127 N.H. 133, 140, 500 A.2d 355, 359 (1985). We affirm.

The defendant was indicted for burglary and aggravated felonious sexual assault. In the defendant’s first and second trials, the jury deadlocked on both indictments. In the defendant’s third trial, the jury returned verdicts of guilty on both indictments, and the defendant was sentenced to the New Hampshire State Prison for a term of fifteen to thirty years.

Prior to the commencement of the defendant’s third trial, defense counsel informed the trial judge that he had undertaken representation of a State’s witness in an unrelated matter. The defendant’s trial counsel testified that his representation of the State’s witness was brought to the trial court’s attention during an in-chambers conference at which the trial court was inquiring whether there were, in general, any problems or anticipated problems in the case. The defendant’s trial counsel explained to the trial judge that he had informed the defendant of this other representation, and that the defendant consented to his continued legal representation. Neither defense counsel nor State’s counsel believed that there was a conflict of interest, and the defendant did not object at trial to the representation. No record was made of this in-chambers conference. The defendant was not present. Although the defendant claimed post-trial that his attorney never informed him of the other representation, the trial judge specifically found to the contrary.

After his conviction, the defendant moved to set aside the verdicts based on, inter alia, (1) ineffective assistance of counsel because his trial counsel had an actual conflict of interest, and (2) the trial judge’s failure to hold a hearing pursuant to Hopps to determine whether the defendant waived his right to conflict-free counsel. Hopps, 127 N.H. at 140, 500 A.2d at 359. The trial court denied the defendant’s motion. This appeal followed.

The defendant argues that we should reverse his convictions because the trial court failed to comply with the rule we established in Hopps. This case involves an alleged conflict of interest in an attorney’s simultaneous representation of a defendant and a State’s witness. The defendant argues that he was entitled to a Hopps-type [650]*650inquiry when the trial court was made aware of this situation prior to trial. We agree.

In Hopps, because of the great risk of conflict of interest in simultaneous representation of codefendants, we established, pursuant to our supervisory authority, a rule that requires trial courts to conduct an inquiry, on the record, to ensure that counsel has investigated with the defendants the possibility of conflict of interest between the lawyer and clients. Id. at 139-40, 500 A.2d at 359. While this case does not involve dual representation of codefendants, it does involve the potential for a conflict of interest, revealed to the court pretrial, where defense counsel was also representing a State’s witness in an unrelated case. We recognize a similar risk of conflict in such dual representation. Cf. Commonwealth v. Hodge, 434 N.E.2d 1246, 1248 (Mass. 1982).

Thus, our reasons for establishing the Hopps rule in codefendant cases are equally applicable here. The goal of the Hopps inquiry is to prevent conflicts. See Hopps, 127 N.H. at 139-40, 500 A.2d at 359. It is prophylactic in nature. Cf. id.; United States v. Crespo de Llano, 838 F.2d 1006, 1013 (9th Cir. 1987) (describing Federal Rule of Criminal Procedure 44(c), which requires a pretrial inquiry to investigate joint representation of codefendants, as “prophylactic” in nature); United States v. Alvarez, 696 F.2d 1307, 1309 (11th Cir.), cert. denied, 461 U.S. 907 (1983); United States v. Benavidez, 664 F.2d 1255, 1258-59 (5th Cir.), cert. denied, 457 U.S. 1121, 1135 (1982). “Such a procedure [of obtaining a client’s informed consent to simultaneous representation on the record] would tend to eliminate problems before trial, and would lessen the likelihood of protracted post-trial collateral proceedings . . . .” Hopps, 127 N.H. at 140, 500 A.2d at 359.

The State argues that “[t]here was nothing about the circumstances of this case that should have prompted the court to initiate an investigation into a possible conflict of interest.” We conclude, however, that the disclosure of the potential for conflict to the judge, regardless of whether the defense attorney or the State’s attorney believed there was an actual conflict, was sufficient to have prompted an inquiry by the court. We further note that it is in the State’s best interest to have the trial judge conduct a Hopps inquiry when the potential for conflict arises. Cf. Smith v. Anderson, 689 F.2d 59, 65 (6th Cir. 1982) (“The imposition upon the state, which is not heavy when [a potential conflict of interest] may be judicially remedied . . . increases dramatically once the trial has occurred and appellate or post conviction remedial vehicles are the forum for conflict claims.”).

[651]*651We therefore hold, pursuant to our supervisory authority, that when a trial court, as in this case, is made aware of any potential for, or actual, conflict of interest in which a defense attorney concurrently represents a defendant and a State’s witness, it is required to conduct an inquiry on the record to investigate the extent of the conflict.

This conclusion, however, does not end the inquiry. The defendant further argues that he is entitled to a reversal of his convictions based upon the failure of the trial court to conduct a Hopps inquiry and secure the defendant’s waiver of conflict-free counsel. We disagree with the defendant’s assertion that Holloway v. Arkansas, 435 U.S. 475 (1978), and Hopps require automatic reversal for noncompliance. Holloway is inapplicable because it recognizes that automatic reversal is mandated “whenever a trial court improperly requires joint representation [of codefendants] over timely objection.” Holloway, 435 U.S. at 488. Hopps is silent on the issue. See Hopps, 127 N.H. at 140, 500 A.2d at 359. Reason dictates that automatic reversal is not the appropriate remedy here. We are persuaded by the rationale in

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Bluebook (online)
708 A.2d 682, 142 N.H. 648, 1998 N.H. LEXIS 17, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mountjoy-nh-1998.