Opinion
15–P–1406
05-10-2017
COMMONWEALTH v. Robert William MADIGAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury found the defendant, Robert William Madigan, guilty of unarmed burglary, breaking and entering in the daytime, vandalizing property, larceny over $250, negligent operation of a motor vehicle, operating with a suspended license, failing to stop for police, and conspiracy. The defendant contends that (1) his trial counsel had an actual conflict of interest that mandates reversal, and (2) a witness's reference to her guilty plea and the judge's instructions undermined the presumption of innocence. We affirm.
The defendant also pleaded guilty to a charge of larceny of a credit card.
Background. The Commonwealth presented evidence that the defendant and Ronald Renaud had borrowed a 1998 gold/tan Toyota Corolla from the defendant's then-girl friend, Courtney Ayers. The defendant and Renaud burglarized two homes, fled from the police in the Corolla, and asked Ayers to report to the police that the Corolla had been stolen, which she did. Ayers testified after having been granted immunity, having already pleaded guilty to one count of filing a false report and one count of accessory after the fact to unarmed burglary.
At the time of trial, Ayers and the defendant were no longer dating.
The Corolla belonged to Ayers's father.
The defendant was represented throughout pretrial and trial proceedings by Attorney Megan English–Braga. On the first day of trial, Attorney Robert Nolan entered his appearance "to assist" Attorney English–Braga and "[s]econd seat."
Before the trial began, Attorney Nolan brought to the judge's attention, on the record, that the prosecutor had "some concerns" regarding his prior representation of Ayers. Attorney Nolan advised the judge that he had represented Ayers in the same case, which had resulted in her plea. He stressed that his role as co-counsel in this matter would be limited to assisting Attorney English–Braga, and that he did not intend to participate in the opening, closing, or examination of any witness. The prosecutor requested that Attorney Nolan leave the courtroom for Ayers's testimony to prevent the appearance of impropriety. The judge stated that this was "a fair compromise," and the defendant's attorneys expressed that they had "no problem with that."
Discussion. 1. Conflict of interest. The defendant argues that his conviction must be reversed because he did not waive the actual conflict resulting from Attorney Nolan's prior representation of Ayers. Specifically, the defendant claims that an actual conflict exists because "the defense attorney had previously represented a prosecution witness in a matter related to the defendant's criminal case who furnished material testimony concerning a critical issue in the case against the defendant." Commonwealth v. Mosher, 455 Mass. 811, 820 (2010).
In Mosher, the defendant's attorney had previously represented a material Commonwealth witness in a matter unrelated to the crime on trial. Because the court concluded that the representation was not ongoing at the time of trial and involved a matter unrelated to the crime on trial, the conduct did not give rise to an actual conflict. Id. at 822. The defendant essentially claims that unless both factors at issue in Mosher are absent—i.e., no ongoing representation of the witness at the time of trial and prior matter is unrelated to the present case—an actual conflict automatically exists. Mosher, however, did not announce such a broad rule. Rather, the court only stated that an actual conflict of interest may be found where one of those two factors was present. Id. at 820–821. The court did not hold, as the defendant claims, that in every instance where either factor is present, a conflict exists. Such a conclusion would contradict long-established precedent. See, e.g., Commonwealth v. Martinez, 425 Mass. 382, 388–389 (1997) (distinguishing cases in which dual representation presents conflict from cases "in which the defense attorney's relationship with a prosecution witness had clearly ended before trial obviating the risk of simultaneous representation"); Commonwealth v. Balliro, 437 Mass. 163, 168 (2002) ("[W]e do not automatically infer a conflict of interest from dual or joint representation alone"). In short, we disagree with the defendant's narrow reading of Mosher, as Massachusetts courts have not endorsed such a bright-line rule.
Generally, consideration whether a defendant has received the "untrammeled and unimpaired assistance of counsel free of any conflict of interest and unrestrained by commitments to others," turns first on a consideration whether the defendant can show that there was an actual conflict. Such a conflict exists "when there is tension between the interests of one client of the attorney and the interests of another client of the same attorney." Commonwealth v. Pires, 389 Mass. 657, 660–661 (1983). The defendant bears the burden of proving an actual conflict exists. See, e.g., Commonwealth v. Griffin, 404 Mass. 372, 375 (1989).
If the defendant can show an actual conflict, rather than a potential conflict, he is not then required to prove "actual prejudice or adverse effect on his counsel's performance." Commonwealth v. Pires, 389 Mass. 657, 660 (1983).
In assessing whether that burden has been met, "the court must look at the attorney's role during the time he was alleged to be operating under a conflict." Ibid. Here, Attorney Nolan had represented Ayers on charges that arose in a case related to that at bar. However, that prosecution had been disposed of before Ayers testified here, and the attorney-client relationship had ended. See Commonwealth v. Patterson, 432 Mass. 767, 776 (2000), overruled on other grounds by Commonwealth v. Britt, 465 Mass. 87, 100 (2013) ("Cessation of ... representation of [defendant's brother in the same case] well before the defendant's trial eliminated any potential conflict that might have impaired counsel's representation of the defendant"); Commonwealth v. Filippidakis, 29 Mass. App. Ct. 679, 682–683 (1991) (no actual conflict where prior representation of prosecution's witness on related cases had ended by time of trial). Thus, there was no actual conflict at the time Attorney Nolan entered his appearance on behalf of the defendant. Ibid.
Although the docket from Ayers's case does not appear in the record appendix, there is no dispute that her case, including sentencing, had concluded. See also Mosher, supra at 822 (imposition of continuance without finding completes attorney's work and, absent special circumstances, ends representation even though subsequent probationary period is part of that disposition).
In considering the alleged existence of an actual conflict, we also consider whether Attorney Nolan may have gained access to privileged information through his representation of Ayers that inhibited his representation of the defendant. See generally Commonwealth v. Smith, 362 Mass. 782, 783–784 (1973) ; Patterson, supra at 776; Commonwealth v. Teti, 60 Mass. App. Ct. 279, 286 (2004). Typically, this question relates to whether such information may have inhibited the attorney's cross-examination of Ayers at trial. Smith, supra. There was no risk of that occurring in this case where Attorney Nolan did not conduct the cross-examination of Ayers, and was not even in the court room when it occurred. See Teti, supra (because lawyer not aware who confidential informant [CI] was until after period of simultaneous representation had passed, no possibility existed that his judgment was impaired as the result of having represented CI). See also Smith, supra at 784 (where prior representation of witness was brief and on matter unrelated to case at bar, "extremely unlikely" that his cross-examination of previous client restricted); Commonwealth v. Walter, 396 Mass. 549, 559 (1986) (record reflected no indication that former client had communicated confidential information to attorney such that attorney was under a continuing duty to former client after withdrawing as his counsel). Moreover, Attorney Nolan was prohibited from disclosing any confidential information he may have received from Ayers to Attorney English–Braga, creating an additional barrier to its improper use. In sum, because it is a matter of speculation to suggest that the defense was inhibited by any communication that occurred between Ayers and Attorney Nolan, the defendant has not sustained his burden to establish an actual conflict. See Pires, supra at 660 ("It is the defendant's burden to demonstrate, without relying on speculation, that joint representation resulted in an actual conflict of interest").
Attorney Nolan did not question any witnesses or participate in the defendant's opening statement or closing argument.
We further note that Ayers was represented by her own counsel at trial in the present case.
Although the defendant does not contend that Attorney Nolan's representation of Ayers created a potential conflict of interest, even assuming that such a conflict existed the defendant has failed to show that he was materially prejudiced. See, e.g., Walter, supra. To the contrary, the record reflects vigorous cross-examination of Ayers by Attorney English–Braga during which she elicited favorable testimony for the defendant. See ibid.
The trial record confirms that Ayers provided testimony favorable to the defense, to the extent that defense counsel (Attorney English–Braga) argued in her closing that Ayers "has no reason to lie. She's been granted immunity in this case. She has no reason to lie for [the defendant]."
2. Remaining claims. The defendant contends that Ayers's reference to her plea, and the judge's instructions on immunity and the defendant's right under the Fifth Amendment to the United States Constitution violated due process and undermined the presumption of innocence. We disagree.
Ayers acknowledged during direct examination that she had pleaded guilty to filing a stolen motor vehicle report and to accessory after the fact to unarmed burglary. The defendant did not object to Ayers's testimony, and thus review is limited to whether the alleged error created a substantial risk of a miscarriage of justice.
The defendant argues that the judge should have instructed the jury not to consider Ayers's guilty plea as evidence against him. While we agree with the defendant that "[t]he better practice would have been for the judge to have provided a specific instruction," Commonwealth v. Prater, 431 Mass. 86, 98 (2000), the defendant failed to request such an instruction and our review of the entire record compels us to conclude that there was no substantial risk of a miscarriage of justice. The evidence against the defendant was strong and corroborated, the judge's instructions were accurate and thorough, and defense counsel elicited favorable testimony from Ayers, which was used in her closing argument. Further, the plea agreement was not admitted in evidence, or even introduced at trial. See id. at 98–99 (no substantial risk of a miscarriage of justice where the plea agreement "was not admitted in evidence, but only marked for identification," and the judge instructed the jury that items marked only for identification could not be considered as evidence).
The defendant next contends that the judge should have refrained from using the words "self-incrimination" in the contexts of his immunity instruction and his instruction regarding the defendant's decision not to testify. He argues that "[t]o cast the right to remain silent in the role of protector from self incrimination is to suggest that the defendant's exercise of that right is to protect himself from self incrimination," and that the judge's instructions undermined the defendant's presumption of innocence. Here again, in the absence of any objection at trial, our review is limited to whether the alleged error created a substantial risk of a miscarriage of justice.
For the reasons stated, supra, we discern no error. Before Ayers testified, the judge informed the jury that she had been granted immunity, and instructed that immunity "relates back to what I had mentioned before to you about the privilege against self-incrimination, our right to remain silent," and that "a [d]efendant cannot be convicted solely on the testimony of, or the evidence produced by a witness who has been granted immunity." He further instructed that "the law requires that in order for a conviction to result in a case where immunized testimony is offered, there must be some evidence from another source that supports the testimony of an immunized witness on at least one element of proof essential to convict." The judge reiterated these instructions in his jury charge. He also instructed that the defendant's choice not to testify at trial should not be taken as an inference of guilt, and that the defendant is presumed innocent, properly characterizing the presumption of innocence as "a bedrock Constitutional principle." The instructions were clear and comprehensive, and we presume the jury followed them. Commonwealth v. Williams, 450 Mass. 645, 651 (2008).
The judge instructed the jury that the defendant "has a perfect right not to testify during the course of this trial. He has exercised that right. He should not be found guilty because he exercised his right and his privilege against self-incrimination, his right to remain silent. He's presumed to be innocent."
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Judgments affirmed.