Witherspoon v. United States

557 A.2d 587, 1989 D.C. App. LEXIS 58, 1989 WL 34540

• Court: District of Columbia Court of Appeals
• Decided: April 12, 1989
• Docket: 84-71
• Status: Published

Opinions

ROGERS, Chief Judge:

Appellant James D. Witherspoon appeals his conviction of a single count of possession of heroin, D.C.Code § 33-541(a)(l) (1988 Repl.), on the grounds that he was denied his Sixth Amendment right to counsel where the trial judge failed to conduct inquiries into whether defense counsel had an actual conflict of interest with appellant and had adequately prepared appellant’s case.

In Singley v. United States, 548 A.2d 780 (D.C.1988), the court stated that when the trial judge fails to conduct an inquiry after being apprised of the possibility of a conflict of interest on the part of defense counsel, this court ordinarily will remand for a hearing in order to determine whether an actual conflict did in fact exist. Id. at 786. We must do so here. Defense counsel moved to withdraw from the case after apprising the trial judge that Deputy Bar Counsel had recommended withdrawal on the basis of defense counsel’s ethical concerns about his ability adequately to represent appellant. Since the trial judge did not conduct an inquiry to determine if counsel’s conflict would adversely affect his ability to represent appellant a remand is required so that such an inquiry can be made. Appellant’s other Sixth Amendment contention, that the trial judge failed to conduct the necessary inquiry to determine whether counsel had adequately prepared appellant’s case, is meritless.

I.

On November 16, 1983, appellant’s case was the oldest case on the trial judge’s calendar and was scheduled to go to trial. Defense counsel advised the judge that appellant wanted a continuance because there were witnesses appellant thought defense counsel should know about who had not been subpoenaed. Defense counsel informed the judge that appellant was unhappy with his representation and wanted either to retain counsel or to have another attorney appointed to represent him. Defense counsel admitted that he did not know who the witnesses were or how to contact them. The judge asked appellant whether or not he had been aware of these witnesses on September 15, 1983, when his counsel had announced that he was ready for trial. Appellant responded that he had been aware of the witnesses on September 15, but claimed that when he had told his counsel about them counsel had simply given him a business card and told him to get in touch. Appellant further claimed that his daily efforts to telephone counsel proved unavailing and he had not spoken with counsel until the day before trial. Defense counsel informed the judge that he had an answering service and had not received any message from appellant. Appellant then told the judge that Melvin Burton, Esquire, was going to handle his case. The judge observed that everyone involved had had a long time to inform the court about appellant’s dissatisfaction and the change in representation, and that he was not going to grant a continuance since the case was ready to go to trial.

When court reconvened in the afternoon, defense counsel renewed his motion for a continuance on the ground that appellant wanted to retain Mr. Burton and Mr. Burton had confirmed that he wanted to enter his appearance. Mr. Burton appeared to explain that appellant was familiar with his thoroughness of investigation and preparation for trial, and wished him to represent him.¹ The judge denied the continuance. The judge also rejected defense counsel’s suggestion that the hearing on appellant’s motion to suppress proceed but the trial be continued because he had a calendar to run and he would not “let people play games with that.”

The next day, following the motion hearing, defense counsel advised the judge at the bench that he wanted to withdraw from the case. Counsel explained cryptically that, as a result of an incident with prospective witnesses in the witness room, he had conferred with the Deputy Bar Counsel who had advised him to ask for leave to withdraw. Counsel apprised the judge that Deputy Bar Counsel told him to base his motion principally on Disciplinary Rule 2-110(C)(1)(d), which provides for permissive withdrawal where the client’s “conduct renders it unreasonably difficult for the lawyer to carry out his employment effectively.” CODE OF PROFESSIONAL RESPONSIBILITY DR 2-110(C)(l)(d) (1979). Counsel also informed the judge that Deputy Bar Counsel told him to rely on Disciplinary Rule 2-110(C)(l)(c), which provides for permissive withdrawal where the client “[ijnsists that the lawyer pursue a course of conduct that is prohibited under the Disciplinary Rules.” Id. DR 2-110(C)(l)(c). Counsel stated: “I can’t tell the Court what it was that happened out there but I sure don’t want to go forward with this case in its present posture.” The judge acknowledged that counsel was in a “tough spot,” but denied the motion, stating that “[counsel had] done the right thing ... [b]ut I’m not going to let Mr. Witherspoon out of this court, just not going to do it.” Defense counsel advised the judge that he was not in a position to call witnesses appellant would want him to call and that without those witnesses appellant’s testimony “may be rendered silly almost.” The judge repeated that appellant was not going to run the court, and said he did not think a continuance was an “absolute necessity.”

II.

The Sixth Amendment guarantee of assistance of counsel for an accused’s defense requires “representation that is free from conflicts of interest.” Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 1103, 67 L.Ed.2d 220 (1981) (citing Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Holloway v. Arkansas, 435 U.S. 475, 481, 98 S.Ct. 1173, 1177, 55 L.Ed.2d 426 (1978)); see also Singley, supra, 548 A.2d at 783. To protect the defendant’s right to counsel that is free of conflicts of interest, “the trial court has an affirmative ‘duty to inquire’ into the effectiveness of counsel whenever ‘the possibility of a conflict’ becomes apparent before or during trial.” Douglas v. United States, 488 A.2d 121, 136 (D.C.1985) (quoting Wood, supra, 450 U.S. at 272, 101 S.Ct. at 1104 (emphasis in original)). An appellant who “ ‘shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief.’ ” Singley, supra, 548 A.2d at 786 (quoting Cuyler, supra, 446 U.S. at 349-50, 100 S.Ct. at 1718-19).

Appellant’s objection to the absence of any meaningful inquiry is well taken in light of our recent decision in Singley, supra. In Singley, the prosecutor informed the trial judge on the second day of trial that the defense counsel had previously represented a government witness in a civil action against the defendant arising out of the same incident for which the defendant was on trial. Id. at 781-82. The prosecutor stated that when counsel impeached the witness during cross-examination he relied on information that he had obtained from his prior representation of the witness. The trial judge examined the court jacket from the witness’ pending civil case against the defendant and found that counsel had at one time represented the witness. Counsel stated that he did not recognize the witness, implying that his questioning of the witness was not the result of information obtained in the prior attorney-client relationship, but conceded that if he had represented the witness he should withdraw from the case. The trial judge would not allow counsel to withdraw, however, in the middle of the trial. This court held that the trial judge erred in failing to inquire into the possible conflict of interest:

[I]t is clear that the trial court was apprised of differing versions of the relationship between [the witness] and [defense counsel] but did not test either party’s recollection in an effort to reconcile the statements and determine the facts in order to gauge whether an actual conflict of interest existed at the time of appellant’s trial and, if so, whether it had any potential for prejudice to appellant.

Id. at 784. However, because the record disclosed that the judge treated counsel’s prior representation of the government witness as an actual conflict of interest and, to the defendant’s disadvantage, instructed the jury to ignore counsel’s impeachment of the witness, the court concluded that no further inquiry was required and the conviction must be reversed and the case remanded for a new trial. Id. at 786.

The circumstances in the instant case differ from Singley since the potential conflict stems from appellant’s demand that certain witnesses be called in his defense. The trial judge might have suspected, under all the circumstances, that appellant sought to manufacture a conflict for the purpose of obtaining a further continuance of his trial. After both appellant and his counsel had been ready for trial two months earlier, appellant claimed for the first time on the November 16, 1983, trial date that he needed a continuance because his counsel had not interviewed or subpoenaed his witnesses. When the trial judge inquired, appellant and defense counsel gave irreconcilable accounts. Appellant stated that he had called his counsel “daily,” apparently for two months, to provide him with the names and addresses of his witnesses. Defense counsel reported that he had received no messages on his answering service. The judge was in a position to observe the demeanor of the two men, and to recognize that defense counsel spoke as an officer of the court while appellant was, in view of his five prior convictions, probably facing a prison term if convicted. Moreover, if appellant needed the witnesses in question for his defense, the judge understandably could wonder at his readiness for trial two months earlier when he had not mentioned their absence.

Defense counsel’s motion to withdraw on the following day arose from the problem of the witnesses whom appellant now wanted to present and whose supposed unavailability was the basis for his request for a continuance. One of the Disciplinary Rules which defense counsel invoked on the advice of Deputy Bar Counsel provides for permissive withdrawal where a client insists that the lawyer “pursue a course of conduct which is prohibited under the Disciplinary Rules.” DR 2-110(C)(l)(c). Given what had gone before, the trial judge might well have suspected that the conflict had been created by appellant’s demand that defense counsel assist him in presenting perjured testimony by these witnesses, whom defense counsel had apparently interviewed in the interim. If he permitted defense counsel to withdraw, the judge would in effect be rewarding appellant, for he would have to grant him the very continuance which he had denied on the day before. Nevertheless, assuming the trial judge’s instincts were correct, he was obligated to make more of an inquiry than he did.

Defense counsel advised the trial judge that he wished to withdraw because of ethical concerns that might present a conflict of interest with his client. Although defense counsel did not disclose the details underlying his motion to withdraw, counsel told the trial judge that he was unsure whether he “could be reasonably effective [in representing appellant] without taking chances on having to make some moral decisions that I didn’t know that I could make properly.” He stated that he had consulted with Deputy Bar Counsel who had advised him to withdraw from the case, and cited the disciplinary rules that were implicated. Counsel further suggested to the judge that his continued representation of appellant could prejudicially affect appellant’s own defense; specifically, counsel stated that “[b]y remaining in the case I think — feel that I’m going to have to be in a position to not call witnesses that he [appellant] would want me to call, but without those witnesses his testimony will be rendered — may be rendered silly almost.” These circumstances were sufficient to alert the judge to the possibility of a conflict and to his attendant duty to conduct an inquiry to determine whether an actual conflict existed and its potential for prejudice to appellant.² Id. at 784 (citations omitted).

Where a defendant appears to be attempting to create a conflict and then manipulating it to his own ends, a new and significant factor is introduced. The need to protect against such manipulation may, and indeed ought to be, considered by a trial judge in deciding whether to grant the relief which the manipulation was designed to secure. In Nix v. Whiteside, 475 U.S. 157, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986), the Supreme Court made clear that a defendant has no Sixth Amendment right to counsel who is willing to participate in the presentation of perjured testimony. Id. at 173-74, 106 S.Ct. at 998. The Code of Professional Responsibility precludes counsel from such involvement. CODE OF PROFESSIONAL RESPONSIBILITY DR 7-102(A)(4) (1979); see also STANDARDS FOR CRIMINAL JUSTICE Defense Function Standard 4-7.5(a) (1986). Nix expressly held that a “ ‘conflict’ between a client’s [illegal] proposal and counsel’s ethical obligation would [not] give[] rise to a presumption that counsel’s assistance was prejudicially ineffective.” 475 U.S. at 176, 106 S.Ct. at 999.³

In the instant case, if the trial judge had made an explicit finding, after a sufficient inquiry, to the effect that the alleged conflict resulted from appellant’s wish to avoid going to trial or to present perjured testimony, or both, then we could sustain his denial of the motion to withdraw. Often the failure of the trial judge to inquire into the basis for defense counsel’s concern that he could not provide effective assistance to his client does not alone justify reversal of a criminal conviction. See Fitzgerald, v. United States, 530 A.2d 1129, 1138 (D.C.1987); Thornton, supra note 2, 357 A.2d at 434. In the absence of an inquiry in the usual case a defendant must demonstrate on appeal that an actual conflict of interest adversely affected the adequacy of his representation to obtain a reversal. Cuyler, supra, 446 U.S. at 348-50, 100 S.Ct. at 1718-19; Fitzgerald, supra, 530 A.2d at 1138; Thornton, supra note 2, 357 A.2d at 429. The problem here is that, so far as we can determine, appellant may not even have been aware of his counsel’s motion to withdraw. If he did know of it, he certainly was never offered the opportunity to give his side of the story.⁴ Nothing in the record suggests that appellant waived his right to conflict-free representation.⁵ See Fitzgerald v. United States, supra 530 A.2d 1129, 1134 (D.C.1987) (citing Holloway, supra, 435 U.S. at 483 n. 5, 98 S.Ct. at 1178 n. 5); Douglas, supra, 488 A.2d at 137. Since the trial judge did not seek appellant’s position on his counsel’s motion, we do not know (as the judge probably did not) what the precise problem between client and counsel was, who the witnesses in question were, what they were going to say, and why counsel was unwilling to present their testimony. Lacking this information, and given the less than comprehensive character of the findings, we conclude that a remand is appropriate.⁶ Further inquiry might not have provided much enlightenment, but it is not obvious that it would have been fruitless.

Therefore, notwithstanding Nix, the trial judge should have determined by inquiry of counsel and appellant whether appellant had been advised by his counsel of counsel’s ethical responsibility not to present perjured testimony. If appellant did not waive his right to be represented by uncon-flicted counsel, the judge should have determined whether the conflict would adversely affect counsel’s representation of appellant. Although Nix provides that a conflict between a client and counsel with respect to the presentation of perjured testimony presumptively does not adversely affect the adequacy of the client’s representation, some counsel may not wish to be associated in any manner with the type of presentation of evidence permitted under the Code of Professional Responsibility. Such a preference, standing alone, will not rebut the presumption that counsel’s representation is adequate, especially where, as here, the judge evidently believed that appellant’s demands were manipulative. Accordingly, the trial judge should have inquired whether there was a reasonable possibility that defense counsel’s personal conflict might impair his ability to represent appellant effectively in other aspects of the case, and if so, allowed counsel to withdraw.

III.

Appellant also contends that the trial judge erred in failing to conduct a proper Monroe/Farrell⁷ inquiry in response to his pretrial claim of ineffective assistance of counsel based on counsel’s inadequate pretrial preparation.⁸ We disagree.

Counsel, who was appointed at arraignment, appeared with appellant at a status hearing on September 15, 1983, where he announced, without objection from appellant, that he was ready for trial. He had interviewed several defense witnesses, as well as at least one of the two new witnesses whom appellant wanted to subpoena. He also had contacted an expert witness and had interviewed at least four defense witnesses in the witness room before trial. Counsel had consulted with appellant on November 15, 1983, the day before trial began, and informed the judge that he had received no calls from appellant on his answering service between September 15 and November 15, 1983. He had filed a timely motion to suppress evidence and identification testimony and had argued the motion in a competent manner. Mr. Burton expressly stated that he was not representing to the court that defense counsel was unprepared, only that appellant preferred his method of preparation. Counsel also stated in connection with his motion to withdraw that only certain witnesses would be called on behalf of the defense for tactical or ethical reasons, and not because he was unprepared. From these circumstances the trial judge could properly conclude that appellant’s desire for new counsel did not result from legitimate dissatisfaction with defense counsel but from a personal preference for Mr. Burton, an attorney with whom he had a long-standing relationship. See Matthews v. United States, 459 A.2d 1063, 1066 (D.C.1983) (clear and convincing evidence of competent representation).

Appellant had known about the two witnesses at the first trial date and was not specific when the trial judge inquired “which witnesses,” stating only that they were present when appellant was arrested.⁹ He also admitted that the witness whose address he knew could still be subpoenaed for trial. Defense counsel’s statement that his answering service had received no messages from appellant provided an additional ground on which the trial judge could discredit appellant's complaints about his defense counsel. Furthermore, appellant had ample time before the second trial date to inform the court of his dissatisfaction with counsel and his desire to retain Mr. Burton. It is also clear that appellant’s own conduct prevented his securing substitute counsel in advance of trial.¹⁰ Likewise, appellant’s conduct, not defense counsel’s preparation, formed the basis of counsel’s motion to withdraw.

Accordingly, the case is remanded to the trial judge to determine whether the conflict between appellant and defense counsel adversely affected counsel’s representation of appellant.¹¹

1 . Most of Mr. Burton’s explanation focused on the nature of his pretrial preparation and on his past success in representing appellant. In response to the judge’s concern that appellant was being dilatory, Mr. Burton stated that he had known appellant for ten years and that he had never indicated "let’s take advantage of the system." The judge commented that he had an "inner feeling that somebody is playing with the system.”

2 . In order to avoid the prejudice to appellant which could arise when defense counsel explains the ethical considerations which underlie his motion to withdraw, the judge who presides at appellant’s trial should be different from the judge who conducts the conflict inquiry. Banks v. United States, 516 A.2d 524, 529 (D.C.1986), cert. denied, — U.S. -, 108 S.Ct. 485, 98 L.Ed.2d 483 (1987); Butler v. United States, 414 A.2d 844, 852-53 (D.C.1980) (en banc); Thornton v. United States, 357 A.2d 429, 434 (D.C.), cert. denied, 429 U.S. 1024, 97 S.Ct. 644, 50 L.Ed.2d 626 (1976); In re W.N.W., 343 A.2d 55, 58 (D.C.1975).

3 . At the same time, the Court suggested that defense counsel should proceed cautiously in concluding that his client wishes to present perjured testimony. Id. 475 U.S. at 174, 106 S.Ct. at 998. See United States v. Long, 857 F.2d 436, 445 (8th Cir.1988) (defense counsel must have a firm factual basis for believing his client wishes to testify falsely before taking measures to prevent the presentation of perjured testimony).

4 . To provide such an opportunity may present a delicate problem for the trial judge, who must take care before questioning a defendant whose counsel is at least momentarily on the other side of the issue and may be unable to advise the defendant in a meaningful way.

5 . We need not decide whether there may be some conflicts so inherently prejudicial that a client cannot waive them.

6 . In other cases the record on appeal has enabled this court to hold that an appellant’s representation was adversely affected by counsel’s conflict. See, e.g., Singley, supra, 548 A.2d at 786 (appellant’s representation was adversely affected where his attorney was unable to impeach credibility of complaining witness because attorney had previously represented the witness in civil action against the appellant based on the same incident for which the appellant was on trial); Lewis v. United States, 446 A.2d 837, 842 (D.C.1982) (appellant’s representation was adversely affected where attorney did not argue appellant’s presentence motion to withdraw plea because underlying facts of the motion were appellant’s complaints against the attorney); Fitzgerald, supra, 530 A.2d at 1138-39 (appellant's representation was adversely affected by joint representation where attorney failed to develop and argue that government’s evidence of constructive possession was stronger against codefendant than appellant); McIver v. United States, 280 A.2d 527, 530-31 (D.C.1971) (same).

7 . Farrell v. United States, 391 A.2d 755 (D.C.1978); Monroe v. United States, 389 A.2d 811 (D.C.), cert. denied, 439 U.S. 1006, 99 S.Ct. 621, 58 L.Ed.2d 683 (1978).

8 . Appellant does not claim that the actual assistance rendered by counsel at trial was ineffective.

9 . Appellant has provided no further information about these two witnesses in his brief on appeal.

10 . Mr. Burton stated that the only reason he had not attempted to enter his appearance earlier was because appellant had failed to comply with his requirements for representation.

11 . Appellant's other contention, that the prosecutor improperly impeached him with a prior conviction where immediately following appellant's general denial of heroin possession, the prosecution asked appellant a question about his prior conviction for marihuana possession, is, as the government concedes, meritorious but, as the government also maintains, and we agree, the error was harmless. Dorman v. United States, 491 A.2d 455 (D.C.1984) (en banc). Although the trial judge did not immediately give a cautionary instruction to the jury, once appellant objected the prosecutor proceeded to impeach him properly and the trial judge gave a cautionary instruction. The judge also included a cautionary instruction in his general instructions to the jury at the close of all the evidence. See id. at 464; Fields v. United States, 396 A.2d 522, 526 (D.C.1978); Dixon v. United States, 287 A.2d 89, 99-100 (D.C.), cert. denied, 407 U.S. 926, 92 S.Ct. 2474, 32 L.Ed.2d 813 (1972). The evidence against appellant, moreover, was overwhelming.