Brown v. State

Thompson, J., delivered the opinion of the Court. Delone Emerson Brown, the appellant, was convicted of second degree murder in the Circuit Court for Carroll County, in a court trial; a sentence of fifteen years was imposed. Brown had been convicted of the same crime in a previous trial, but the judgment was reversed by this Court in Brown v. State, 6 Md. App. 564 , 252 A. 2d 272 . On this appeal, Brown contends: (1) the conviction should be reversed due to a conflict of interest in counsels’ representation of appellant and a co-indictee, an alleged accessory after the fact; and that the trial court improperly: (2) refused to admit the confession of another to the murder, (3) admitted a statement made by the appellant, and (4) refused a motion for judgment of acquittal.

For the reasons set out below, we reverse and remand. On February 18, 1968, William Everett Paugh was stabbed to death in Bob and Madelyn’s Tavern near Deer Park in Garrett County, Maryland. The stabbing occurred after a scuffle and argument between the appellant, the decedent, and Ruth Malcomb, the woman with whom the appellant was living, and who was indicted as an accessory after the fact. Although there were about 25 people in the tavern at the time, no witness admitted actually seeing the stabbing.

The State called only two of those present to testify as to what occurred: Alexander Snyder and Ricky Malcomb, son of Ruth Malcomb. Snyder testified he was a patron in the tavern on the evening in question. Noting that the tavern was dimly lit and noisy, Snyder said he saw the appellant and Ruth Malcomb sitting in a booth together. He also heard an argument between the deceased and Mrs. Malcomb at the booth.

After the argument, a scuffle broke out during which the deceased swung at the appellant and the ap ²¹⁸ pellant held his hands in front of his face seeming to defend himself. The scuffle stopped and then started again about a half minute later, but Snyder was unable to see what happened because of the people surrounding the booth. After the scuffle stopped again, Snyder heard a thud and saw the deceased lying on the floor. Snyder did not see anyone with a knife; he did see Mrs. Malcomb hit the deceased; and he did not see the appellant leave his seated position next to the wall in the booth.

Several times Snyder repeated he was not paying much attention and could not see the booth at the time of the homicide. Ricky Malcomb, who was ten years old at the time of the crime, testified he lived with his mother, two sisters, and the appellant at his mother’s house at that time. On the evening of February 18, 1968, he went to the tavern with Albert Paugh, the brother of the decedent, and Mrs. Paugh. At the tavern he sat with Mr. and Mrs. Paugh, his mother, and the appellant.

In the tavern, he saw the deceased, whom he had previously known because he had lived with Ricky’s mother. Ricky testified a fight erupted between the deceased and the appellant after some name-calling and shouting; during the fight the booth in which they were sitting was knocked over. After the fight, Ricky was taken home by his mother and the appellant. In the house, while he was in the other room, Ricky overheard a conversation between his mother and the appellant during which the appellant said “You don’t have to worry anymore, I killed the son of a bitch.” Ricky also observed the appellant bum a knife sheath.

He testified he had seen the knife which belonged with the sheath earlier that evening at the tavern. He identified a knife shown to him by the prosecution as belonging to the appellant and said that he had 3een the appellant with it at the tavern. On cross-examination, it was brought out that Ricky had not testified concerning the conversation in the first trial. Virginia Lee Malcomb, the daughter of Ruth Malcomb, who was seventeen at the time of trial, stated that on ■the evening in question after her mother and appellant ²¹⁹ returned to the house where Virginia was, she heard the appellant say “I killed the son of a bitch, he won’t bother you or no one else no more.” She also heard the appellant ask to be driven to Ohio but Mrs. Malcomb refused.

Virginia contradicted Ricky as to where they were in the house when they overheard the appellant’s conversation. Prior to the first trial, she had not revealed the conversation to joint counsel for appellant and her mother. Trooper Robert Lashley testified about being called to the tavern after the stabbing, discovering the deceased lying on the floor, arresting Malcomb and the appellant, and recovering the knife, later identified as belonging to appellant. Dr. Benedict Skitarelic, the medical examiner, testified as to the results of his examination of the decedent, including the stab wound in the left chest which was the cause of death.

There were also two cuts on the right arm and right side of the chest. Blood alcohol content was .22, indicating the deceased was drunk at the time of death. Upon being called as a defense witness, Dr. Skitarelic testified that someone in a seated position against the wall in the booth described in the tavern could not inflict a wound like the one that caused death. The defense called nine patrons in the tavern at the time of the stabbing as witnesses.

Most of them did not observe any significant facts; however, two of them, the proprietor and a waitress, observed a fight between Mrs. Malcomb and the deceased, immediately after which the deceased fell to the floor and died. Several witnesses did testify to seeing the appellant remain seated in the corner of the booth against the wall. Such other facts as are necessary will be presented with the various contentions. CONFLICT OF INTEREST Appellant contends there is a conflict of interest since the same counsel represented him as represented Ruth Malcomb, who had been indicted as an accessory after the fact.

After the crime, Malcomb confessed to the killing, describing in great detail how she took a knife from ap ²²⁰ pellant,- carried it with her into the tavern, and stabbed the decedent. ■ She later recanted this confession. After the first trial, -Malcomb was told by a probation and parole officer, that she “had nothing to lose” and could freely discuss the case; whereupon, she directed all guilt to the appellant. In the interim between the first and second trials*: appellant’s counsel indicated that Mrs. Malcomb would not speak or cooperate with counsel, but she did cooperate with the State by discussing the case without counsel present with the State’s Attorney on several occasions. Also, neither of the Malcomb children revealed the alleged -admission of guilt made by the appellant in Malcomb’s home prior to or at the first trial although both did testify about it at the instant trial.

The evening before the trial, appellant’s counsel discovered that Mrs. Malcomb was to be a prosecution witness; however, she ultimately did not testify. Several times during the course of the trial, the problem of a conflict of interest was presented to the trial court, although it was presented in the context-of a conflict of interest if Mrs. Malcomb testified, which she did not. Counsel did indicate that he felt hampered in his cross-examination due to the special knowledge that had come to him as a result of being Malcomb’s attorney and expressed uncertainty about how to remedy what he felt was a clear conflict of interest. 1 Although there have been numerous conflict of interest issue cases, the issue has been by no means resolved. Most logically, it can be handled by answering a series of questions: .

I. Is an’ actual or imminent conflict of interest present?

II

Given an actual or imminent conflict of interest in existence, ²²¹ a. What quantum of prejudice must exist before there is reversible error ? b. Does that amount of prejudice exist.in the present case ?

III

What responsibility, if any, is on the trial court to raise the conflict of interest sua- sponte ? I Existence of an Actual Conflict of Interest In Maryland, a conflict of interest begins with a consideration of the requirement that either an actual conflict of interest exists or that a conflict of interest be “imminently potential”, Pressley v. State, 220 Md. 558 , 155 A. 2d 494 . Previous Maryland opinions give general guidance in how to determine whether this requirement has been fulfilled. Within the facts of an individual case, it is proper to consider the complexity of both the law and the facts since the more complex a case becomes, either legally or factually, the more opportunity exists for a conflict of interest.

Conversely, if the law is simple and the evidence of guilt strong, the opportunity for conflict of interest may be lessened. Pressley v. State, supra. Of course, the contention may still be found to be an unsupported allegation, Pressley v. State, supra, or to have been waived at trial, Plater v. Warden, 211 Md. 629 , 126 A. 2d 574 . In addition to these general considerations, certain specific guidance is provided by Maryland precedent.

This Court reaffirms its holding that mere joint representation, without more, of two or more defendants by one attorney is not a conflict of interest. Davenport v. State, 7 Md. App. 89 , 253 A. 2d 768, 772 . It would be unusual to find a conflict of interest when, as in Davenport, supra, each of the co-defendants presents an alibi which maintains his own innocence and coincidentally the innocence of his co-defendant, albeit the stories are conflicting. The mere fact that the stories are different does usually not present a conflict of interest if the innocence of both parties is maintained by both stories. ²²² It is mainly to out-of-state cases that we must turn in order to review factual situations which have been found to contain actual or imminent conflicts of interests.

Generally, if not always, a conflict of interest is found to be actual or imminent when the accuracy of the determination of guilt or innocence is questioned as a result of the conflict. This may be true when: (1) one co-defendant cooperates with the prosecution and attempts to place the blame for the crime on the other or (2) the effectiveness of cross-examination is significantly diminished as a result of an actual or imminent conflict of interest. The leading Supreme Court case on conflict of interest, Glasser v. United States, 315 U. S. 60 , 62 S. Ct. 457 , 86 L. Ed. 680 , dealt mainly with the quantum of prejudice involved and hence made no attempt to extensively analyze or catalog those factual situations which would in-, elude an imminent conflict of interest. The Court found that the inability of counsel to effectively cross-examine was an actual conflict of interest.

In Glasser , one attorney represented two clients at a joint trial and could not effectively cross-examine prosecution witnesses because questions which would exculpate one client would inculpate the other. The importance of effective cross-examination was also crucial in Commonwealth v. Jones, 215 Pa. Super. 41 , 257 A. 2d 367 (Pa. Super.

Ct. 1969), California v. Fuller, 74 Cal. Rptr. 488 (Cal. Ct. App. 1969), Application of Buffalo Chief, 297 F. Supp. 687 (U.S.D.C., S. D. 1969), and Craig v. United States, 217 F. 2d 355 (6th Cir. 1954). In Jones, Buffalo Chief and Craig , relief was granted since the effectiveness of cross-examination had been impaired.

As the cases indicate, cross-examination is especially important where it would benefit one party to attack the credibility of another party. A case factually close to the instant case is that of People v. Bopp, 279 Ill. 184 , 116 N. E. 679 (1917), wherein the Supreme Court of Illinois found error in appointing the same counsel to represent the accused and an accessory or co-defendant where they had different alibis, the alibi of one tending to exculpate himself but incul ²²³ pate the other. A similar result was reached in Commonwealth v. Jones, supra, Commonwealth ex rel. Whitling v. Russell, 406 Pa. 45 , 176 A. 2d 641 (Pa.

S. Ct. 1962) and United States v. Gougis, 374 F. 2d 758 (7th Cir. 1867). In Jones and Whitling, each co-defendant attempted to shift all blame to the other defendant, while in Gougis the government solicited the cooperation of the co-defendant to present a version of the case that would convict the appellant. Of special relevance to our consideration in this case are those cases in which one attorney was simultaneously representing the defendant and a prosecution witness against the defendant, who was usually under indictment or awaiting sentence. See State v. Ebinger, 97 N. J. Super. 23, 234 A. 2d 233 (N. J. Super.

Ct. 1967), People v. Ware, 39 Ill. 2d 66 , 233 N.E.2d 421 (Ill. S. Ct. 1968), United States ex rel. Williamson v. LaVallee, 282 F. Supp. 968 (U.S.D.C., N. Y. 1968) and United States ex rel. Platts v. Myers, 253 F. Supp. 23 (U.S.D.C., Pa. 1966).

In these cases, relief was granted since it was a harmful conflict of interest for one attorney to represent both a defendant and the witness who testified against him. A similar result was reached in People v. Jenkins, 32 A.D.2d 632 , 300 N.Y.S. 2d 403 (S. Ct. N. Y. 1969) wherein a defendant was without his knowledge represented by the same attorney who represented the informer against him. In actuality, the factual situations which contain an actual or imminent conflict of interest cannot be put into compartments as neatly as has been done in this analysis. A factual situation wherein the effectiveness of cross-examination has been impaired will frequently, though not always, contain conflicting alibis which exculpate one party but inculpate another.

Even after a factual analysis of numerous cases, it is difficult to state general rules. Impaired cross-examination, exculpatory alibis and joint representation of defendant and a prosecution witness are mere signposts indicating that further inquiry into potential conflicts of interest is required rather than conclusive indications that a conflict already exists. Even ²²⁴ given the presence of these signposts, a case; by case review remains a practical necessity. In the instant case, our considerations of the factual situation lead to the conclusion that an actual conflict of interest existed.

From the very beginning of the trial, counsel frequently indicated his cross-examination of Mrs. Malcomb, should she be called as a witness, and both of her children, who were called as witnesses, was significantly impaired in effectiveness due to a conflict of interest. A review of the record shows that the cross-examination was in fact less effective than that which might be expected. Further, Mrs. Malcomb had volunteered to the prosecution a story which completely exculpated herself by shifting all blame to the appellant. In addition, she had apparently cooperated more with the prosecution than with her own counsel.

While it is true that Mrs. Malcomb never testified for the prosecution, appellant apparently did not take advantage of the opportunity to call her as his own witness to establish in court what her story was, and should she be found to be a hostile witness, to cross-examine her concerning her own self-interest and self-serving statements or about her confession to the homicide. The most effective testimony against the appellant was presented by the Malcomb children at a time that counsel still represented their mother. The prospect of an attorney cross-examining the children about any attempts to influence their memories or testimony at a time when their mother could still be convicted presents a real conflict. II Prejudice Given the existence of an actual conflict of interest, we must next evaluate the quantum of prejudice resulting from that conflict of interest to determine whether harmful error has occurred.

This evaluation requires the answering of two sub-questions: (A) What quantum of prejudice is required before a conflict of