Gee v. State

²⁴² MOYLAN, Judge. The appellants, Michael Gee and Guy Coffey, were charged in separate criminal informations with divers narcotics violations. At a joint trial, a Baltimore City jury convicted both Gee and Coffey of possession of heroin; Coffey was also convicted of battery and resisting arrest. The trial court sentenced Gee to four years imprisonment and Coffey to a total of 18 years imprisonment.

Upon this joint appeal, each of the appellants raises the single contention: That the trial court erred when it refused to allow defense counsel to terminate his representation of Michael Gee. Our consideration of this issue does not require a detailed recitation of the facts of the crime. It is sufficient to note that on December 13, 1990, at approximately 8:45 a.m., two Baltimore City police officers — Daniel Brown and Kevin Sewell — were on routine patrol “when they saw defendant Guy Coffey receive money from Mr. Gee and give [Gee] a glassine bag with a white powdered substance.” A brief chase ensued, which concluded with the apprehension and arrest of the two appellants. A search of Gee’s person yielded a glassine bag containing a quantity of what was later identified as heroin, while Coffey was found to be in possession of $138 in cash.

Gee was initially charged with possession of heroin and conspiracy to violate the narcotics laws. Coffey was charged with possession of heroin, battery and resisting arrest. On July 11, 1991, a pretrial hearing was held in the Circuit Court for Baltimore City. At the hearing the appellants were represented by Gordon Tayback, a public defender.

Tayback informed the court that he was representing both Gee and Coffey. He then called the court’s attention to what he perceived to be a conflict of interest emanating from that joint representation. He advised the court: “I have had discussions with the state’s attorney today and based on a request made by the state’s attorney as to ²⁴³ a possible plea by Mr. Gee and possible acknowledgement by him of certain information there is a substantial potential conflict of interest.” Discussion among the court, defense counsel, and the prosecutor — Asa Shawan Rose — revealed that, as to Gee, the State was willing to recommend a sentence of seven months in the Baltimore City Jail. That recommendation, however, was contingent upon: 1) Gee’s pleading guilty to both charges and 2) Gee’s acknowledgment that the State’s statement of facts — which specified that Coffey sold the heroin to Gee — was accurate.

The critical part of the colloquy was: “Defense: I have indicated to the state the possibility of working out a guilty plea as to possession of heroin. That’s always been the situation ... The kicker, if you will, is the concern by the state that he acknowledge the offense report is true ... ****** Defense: [I]f he wishes ... to proceed on the basis that is in accord with what the state is requesting, then I have a conflict____ I cannot advise [Gee] further because of the conflict between [Gee and Coffey]. ****** Defense: I haven’t even gone further with the state on that. I can’t really represent Mr. Gee effectively where he has a potential benefit if he cooperates against Mr. Coffey.

Court: You’re telling me you can’t effectively assist him, but I don’t believe that’s correct, Mr. Tayback. That’s a defense position which the court rejects. Now, Mr. Rose, what is the offer to Mr. Coffey, first of all? State: Okay, Your Honor ...

The offer to Mr. Gee was 7 months to the Department of Correction. Court: The offer is for the state for seven months or a guilty plea. The question is, do you want to accept or reject that [Mr. Gee]? Defendant: I accept it. ²⁴⁴ Court: If you accept that, do you accept what Mr. Rose said as an accurate statement of the facts in this case?

Defendant: —like he said, though. Court: Well, if you don’t agree with those facts then I’m not going to put you in that position ... ****** Court: Mr. Gee, the court will not accept any guilty plea under those circumstances ... and your request to a trial by jury will be granted. ****** Defense: If there’s a claim of conflict, Your Honor, the court [cannot] — in all good conscience allow poor Mr. Gee to go to trial in a situation where there is a conflict of interest in our — . ****** Defense: [I]f [Mr. Gee] agreed to the statement of facts, which would indicate that the statement of facts was true and in essence, therefore, that Mr. Coffey distributed the controlled dangerous substance to him. That’s really where both my potential conflict if not actual conflict of interest comes up as well as the difficulty in going ahead with the plea on his behalf. ****** Defense: [0]nce Mr. Rose says T want you as part of that plea agreement to also have him plead guilty to the second count,' then I’m placed in the position where I can represent Mr. Gee because its conspiracy of the two, or I can represent Mr. Coffey but I don’t see how I can represent both because if I have Mr. Gee say, ‘Yes, I did conspire with your other client, Mr. Coffey, to violate the law’ then I’m not representing Mr. Coffey. If I represent Mr. Coffey and sit and tell Mr. Gee, ‘no you can’t plead guilty to that,’ then I’m being unfair to Mr. Gee because he has the potential, I think — well, I know the state did file a subsequent offender status of his past record so he has the potential to get eight years instead of seven months. ²⁴⁵ That’s what I think is the difficulty that I’m indicating to the court. ****** Defense: I can’t advise Mr. Gee to do so or not to do so because that is in conflict with Mr. Coffey’s position, where I would want him to be a witness for Mr. Coffey.

But that’s a very beneficial plea to Mr. Gee. If I were representing Mr. Gee alone I would indicate to him, ‘Don’t testify for anybody. Take the plea.’ So there’s a problem. Court: I think I’m in the position where I must say there is no conflict because a guilty plea is not a matter of right, Mr. Tayback____” The trial court determined that defense counsel’s representation of Gee and Coffey did not give rise to a conflict of interest.

Having so concluded, the court directed Tayback to represent both appellants for the duration of the trial. After the pretrial hearing was concluded, the appellants were tried jointly. The appellants now contend that because their attorney was laboring under a conflict of interest, they were denied effective assistance of counsel. We agree. “The guarantees of the Bill of Rights are the protecting bulwarks against the reach of arbitrary power.

Among those guarantees is the right granted by the Sixth Amendment to an accused in a criminal case ‘to have the assistance of counsel for his defense.’ ” Glasser v. United States, 315 U.S. 60, 69 , 62 S.Ct. 457, 464 , 86 L.Ed. 680 (1942). That guarantee encompasses “more than a minimum level of professional competence; even otherwise competent trial lawyers may sometimes find themselves in a position in which they are unable to render effective assistance of counsel.” United States v. Alvarez, 580 F.2d 1251, 1254 (5th Cir.1978). Hence, where defense counsel in a criminal trial represents “one of several clients with conflicting interests, his effectiveness as a vigorous advocate for a ²⁴⁶ particular defendant may be impaired by his commitment to other defendants.” Id. The law is well settled, however, that “[requiring or permitting a single attorney to represent codefendants, often referred to as joint representation, is not a per se violation of constitutional guarantees of effective assistance of counsel.” Holloway v. Arkansas, 435 U.S. 475, 482 , 98 S.Ct. 1173, 1177 , 55 L.Ed.2d 426, 433 (1978).

See Austin v. State, 327 Md. 375 , 609 A.2d 728 (1989); Brown v. State, 10 Md.App. 215, 221 , 269 A.2d 96 (1970) (“[M]ere joint representation without more, of two or more defendants by one attorney is not a conflict of interest.”); Bauckman v. State, 9 Md.App. 612, 623 , 267 A.2d 309 (1970); Pressley v. State, 220 Md. 558, 562 , 155 A.2d 494 (1959) (“[T]hat the same lawyer represented the two defendants is not of itself error.”). It is equally beyond dispute that the Sixth Amendment right to counsel is breached and “effective representation is lacking ... if counsel, unknown to the accused and without his knowledgeable assent, is in a duplicitous position where his full talents — as a vigorous advocate having the single aim of acquittal by all means fair and honorable — are hobbled or fettered or restrained by commitment to others.” Alvarez, 580 F.2d at 1254 . “[T]he Sixth Amendment right to counsel includes the right to effective assistance free of conflicts of interest, and in the case of a single attorney representing multiple defendants, free from conflicting interests among each of the defendants.” Hoffman v. Leeke, 903 F.2d 280, 285 (4th Cir.1990). See State v. Hunt, 26 Md.App. 417, 421-423 , 338 A.2d 95 (1975); Caddie v. Warden, 3 Md.App. 192, 194 , 238 A.2d 129 (1968). There is, concededly, “no precise test as to when the possible conflict of interest inherent in dual or multiple representation will become an actual conflict of interést.” Austin, 327 Md. at 386 , 609 A.2d 728 .

Despite the Supreme Court’s admonition in Glasser v. United States, 315 U.S. at 76 , 62 S.Ct. at 467 , “against ‘nice calculations as to the amount of prejudice,’ many courts have continued to use ²⁴⁷ prejudice as the standard for reversal, and their ‘nice calculations’ have resulted in such divergent definitions and applications that there is virtually no discernible standard.” Note, Criminal Codefendants and the Sixth Amendment: the Case for Separate Counsel, 58 Geo.LJ. 369, 379 (1969). In Brown v. State, supra, this Court, speaking through Judge Thompson, set out three key questions, the use of which will resolve most conflict of interest cases: “I. Is an actual or imminent conflict of interest present?

II

Given an actual or imminent conflict of interest in existence, 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?” Brown, 10 Md.App. at 220-221 , 269 A.2d 96 . In Kent v. State, 11 Md.App. 293, 295 , 273 A.2d 819 (1971), we discussed the “quantum of prejudice” which must exist in order for there to be reversible error: “In order to support a finding that a criminal defendant has been denied effective assistance of counsel because of a conflict of interest, the record must disclose that either an actual conflict of interest existed or that a conflict of interest was ‘imminently potential.’ Pressley v. State, 220 Md. 558 [ 155 A.2d 494 ]. Given such a situation where an actual or imminent conflict of interest is shown to exist, there must be a further showing that some prejudice to the accused resulted, although such prejudice need only be slight and the requirement is satisfied if it is demonstrated ‘that counsel was not as effective as he might have been had the conflict not existed.’ Brown v. State, 10 Md.App. 215, 227 [ 269 A.2d 96 ].” We “took a firm stand, in line with both Pressley and Glosser, that with respect to prejudice to the party asserting the presence of a conflict that the prejudice need only ²⁴⁸ be slight before relief is granted.” State v. Hunt, 26 Md.App. 417, 423 , 338 A.2d 95 (1975). We had stated in Brown : “In Maryland, Pressley v. State indicates that to merit relief there must be prejudice which prevents the lawyer from impartially and adequately representing his client____ This Court feels the better position, in line with both Pressley and Glosser, is that there must be a showing of some prejudice but the prejudice need only be slight before relief is required.

While Pressley requires a showing of prejudice, Glosser is written in terms too specific to require more than slight prejudice. Hence, the Supreme Court granted a new trial since the representation of Glosser ‘was not as effective as it might have been ...’ Thus, this Court holds that once an actual or imminently potential conflict of interest is shown, the only demonstration of prejudice that is required is that counsel was not as effective as he might have been had the conflict not existed.” 10 Md.App. at 227 , 269 A.2d 96 . Our initial task in the case before us is to determine whether an “actual or imminent conflict of interest” was present. Should we locate such conflict, we then must gauge the effect, if any, it may have had on the appellants’ representation.

The precise fact pattern we encounter here is of first impression in the appellate courts of this State. We look, therefore, to our sister jurisdictions for persuasive light. In People v. Dell, 60 A.D.2d 18 , 400 N.Y.S.2d 236 (1977), 1 New York’s intermediate appellate court faced a factual scenario remarkably similar to that now before us. In Dell , ²⁴⁹ three defendants — Keith Dell, Cliff Seger, and Fred Sims— were convicted of rape.

During trial, all three defendants were represented by the same attorney — Benjamin Gold. “Prior to commencement of the trial and during a colloquy [among] the court and the assistant district attorney, the defendant Dell, Dell’s father and Attorney Gold concerning a plea bargain, the court inquired about the apparent conflict of interests arising from Gold’s joint representation of the three defendants and the possibility of resultant prejudice to Dell.” Id. 400 N.Y.S.2d at 238 . The prosecutor had previously made a formal offer, on the record, of a plea to a reduced charge of rape in the second degree, with a recommendation of Youthful Offender treatment. The offer was, however, contingent upon Dell’s agreeing to testify against the other two defendants. Dell refused the offer.

On appeal, Dell contended, inter alia, that he had been deprived of his constitutional right to effective assistance of counsel and a fair trial “because of conflicts of interests” resulting from his attorney’s efforts to represent the three defendants jointly. The New York appellate court agreed. Employing unambiguous language it stated at 400 N.Y.S.2d at 239 : “The plea offered to defendant Dell was conditioned on his testifying for the prosecution against the other co-defendants. On the advice of Attorney Gold he rejected the offer of a plea to a Class D felony and the prosecution’s recommendation of youthful offender status, and proceeded to trial.

He was convicted of first degree rape, a B felony and has been sentenced to an indeterminate term of four years____ It would serve no purpose to speculate at this juncture, with the benefit of hindsight sharpened by knowledge of the jury verdict and the court’s sentence, as to what advice Dell might have received concerning the plea from a capable attorney representing him alone and devoted solely to protecting his interests. There can be no question, however, that in making the crucial decision of whether to accept or reject the offer, Dell had a constitu ²⁵⁰ tional right to legal assistance and counsel on which he could rely. Under the circumstances, it seems inconceivable that Attorney Gold, confronted as he was, with a situation posing a conflict of interests of the most flagrant sort, could have given such advice or have even attempted to do so, because the advice to accept the plea and testify for the prosecution would have been highly injurious to Seger and Sims and directly contrary to their interests. The prejudice to Dell, thus, appears obvious." (emphasis supplied) (footnote omitted).

Having determined that Dell’s constitutional right to the assistance of counsel had been “substantially impaired,” the court reversed Dell’s conviction and granted a new trial. Id. 400 N.Y.S.2d at 240 . The Court of Appeal of California reached a similar result in People v. Superior Court (Mroczko), 94 Cal.App.3d 626 , 156 Cal.Rptr. 487 (1979). In Mroczko, two prison inmates, Richard Mroczko and Thomas Brindle, were charged with the murder of a third inmate, Jay Love.

Both defendants were assigned the same public defender — Attorney Umhofer — to represent them at trial. Prior to trial, the State filed a motion to disqualify in an effort to have the court appoint separate counsel for the two defendants. The State based its motion on “an alleged conflict of interest of the public defender.” Id. at 628 , 156 Cal.Rptr. 487 . That conflict of interest “arose because [the prosecutor] offered [the defendants] ‘inconsistent’ plea bargain offers.” Id.

The prosecutor defined an inconsistent plea offer as an offer “to have one defendant plead to a lesser charge in exchange for his testimony against the other defendant.” The prosecutor then stated that such an offer had been formally made to the public defender in the case. The lower court denied the State’s motion to appoint separate counsel. The State then sought a writ of mandate in the Court of Appeal, directing the trial court to grant its motion for separate counsel. The appellate court held that the trial court had abused its discretion in failing to appoint separate counsel: ²⁵¹ “We hold that a conflict of interest arose from this offer which prevents the public defender from effectively representing the client to whom the offer was made (hereafter ‘offeree’) regarding the offer.

(See Holloway v. Arkansas (1978) 435 U.S. 475 [489-90, 55 L.Ed.2d 426 , 98 S.Ct. 1173, 1181 ]; People v. Pope (1979) 23 Cal.3d 412 [ 152 Cal.Rptr. 732 , 590 P.2d 859 ]; People v. Angulo (1978) 85 Cal.App.3d 514, 519 [ 148 Cal.Rptr. 517 ].) The public defender cannot ethically advise the offeree to accept the offer or otherwise advise him in any manner which might encourage a decision to accept the offer — to do so would be directly adverse to the interests of his other client. Conversely, counsel necessarily acts against the interests of the offeree if he advises rejection of an offer which should be accepted. ... [T]he public