Lettley v. State

RAKER, Judge. In this case, Appellant, Donald Lettley, challenges the trial court’s denial of defense counsel’s motion to withdraw from representation of Appellant based on a conflict of interest. Donald Lettley was convicted of attempted first degree murder, use of a handgun in the commission of a crime of violence, and reckless endangerment. In this appeal, he challenges the adequacy of his trial counsel’s representation, contending that his attorney labored under an actual conflict of interest requiring reversal of his convictions.

The asserted conflict arose out of his counsel’s dual representation of Appellant and another client, who was not charged in the crime at issue but who had allegedly confessed to the attorney that he had in fact committed the crime. The trial court denied counsel’s request to withdraw and to permit Appellant to engage other counsel. For the reasons that follow, we shall hold that counsel’s representation of Appellant while simultaneously representing the client who allegedly confessed to the crime with which Appellant was charged created a conflict of interest which denied Appellant effective assistance of counsel, requiring reversal of his convictions. I. On December 10, 1997, Timothy Smith was shot three times in a parking lot in Baltimore.

He survived his injuries, and identified Appellant, Donald Lettley, in a photo array as the shooter. The Grand Jury for Baltimore City returned an indictment for attempted first degree murder and related offenses. A privately retained attorney entered her appearance for Appellant on February 11, 1998. On August 17, 1998, at the motions hearing the day before trial, counsel advised the court that she had a conflict of interest and requested the court to ³⁰ strike her appearance.

She told the court that an existing client, not a co-defendant of Lettley, whom she presently represented, had confessed to the Smith shooting, and that the client disclosed that information to her in confidence. Counsel advised the court that her ability to represent Lettley was compromised because of the conflict. The following colloquy occurred: DEF. ATT’Y: Well, I’m not saying that I can’t, that under no circumstances could I represent Donald Lettley, what I’m saying is that the conflict compromises my representation of him so that I don’t feel that I can represent him to the fullest of my ability because in order to represent him fully I would basically have to roll over on another client using information that was told to me in confidence at a time when I represented that person.

COURT: Yeah, but I mean, this wouldn’t have come up anyway. He’s obviously a colleague, a friend of your client or he would’ve never told you, right? DEF. ATT’Y: That’s true.

COURT: And your client’s got to know the question is, what’s the significance of that, let me tell you something in confidence and you’re not saying don’t give me something in confidence because I’m representing him. DEF. ATT’Y: Well, I had no idea what he was going to say---- He comes to me and says that he’d like to speak to me in confidence. He’s a client and I say sure and—....

I had no idea what it was about until he told me. And provided that, you know, that if, God forbid, he is convicted, then that’s clearly a basis for a post conviction against me. In response to the court’s questions, counsel told the court that the confessing client did not look like Appellant, although they had features in common. She noted that, but for the conflict, there were various things she could have done in Lettley’s defense, but as a result of the conflict, she was unable to do so.

As examples, she noted that she could have presented the information to the State’s Attorney’s Office and requested they investigate the other person; or she could ³¹ have encouraged Lettley to go to the police and have the other person investigated. At trial, during cross-examination of the witnesses, she might present the witnesses with a photograph of the other person and ask them to identify that person as the shooter. The court permitted Lettley to consult with independent counsel on the conflict issue. Independent counsel appeared before the court and represented that he had spoken with Appellant, and that in his opinion, trial counsel had a conflict of interest.

Appellant advised the court that he wished to retain different counsel. The judge denied the request for a postponement and advised Lettley that he could proceed with his present counsel or discharge her and proceed pro se. Lettley did not wish to represent himself, and the court ordered counsel to continue as Lettley’s attorney. The court’s refusal to permit defense counsel to withdraw from the case was based on three grounds.

First, the judge said that although counsel was ethically barred from using the confidential information to help Lettley, no other attorney would have access to that information either; as a result, Lettley’s position would not be improved by an attorney substitution. The court said that withdrawal would be inappropriate unless there was a “reasonable foreseeability or expectation that [the representation] is going to be different” with another attorney, and that here, there was no such reasonable expectation. Second, the judge said that based on the information he had learned at the motion to suppress the identification, “[a]ny belief that the defense will be adversely affected is unreasonable because there’s no real basis to believe that the person who admitted to defense [counsel] that he shot the victim [is] worthy of belief.” In support of this conclusion, the judge stated that there was “no other evidence that directly or indirectly points to another shooter,” and that the victim’s eyewitness identification of Lettley was reliable. Finally, the court expressed concern that to permit defense counsel to withdraw under these conditions would be allowing an open invitation to any defendant who is not happy with the judge that he has been assigned to, who is ³² not happy with the prosecutor who he has in the case, who is not happy with the fact that the witnesses, including the victim, [are] ascertainable and ready, willing and able to testify, to build in a postponement at will by merely having someone contact his or her lawyer and saying “look, I did it.

Let me retain you, I did it.” The trial commenced, with the same attorney representing Lettley. Lettley was convicted by a jury and the court sentenced him to a term of imprisonment of twenty years for attempted murder, and a consecutive term of ten years, the first five without the possibility of parole, for the handgun conviction. He noted a timely appeal to the Court of Special Appeals. We issued a writ of certiorari on our own motion before review by that court.

As a threshold matter, we note that claims of ineffective assistance of counsel ordinarily are best left for review on post-conviction and not on direct appeal. See Stewart v. State, 319 Md. 81, 92 , 570 A.2d 1229, 1234 (1990). The claim usually arises from a defendant’s contention that he was prejudiced by his attorney’s deficient performance. The record is usually inadequate for appellate review and devoid of a response from defense counsel concerning the allegations.

Where the claim is based on conflict of interest, and the record is clear, however, there is no need to await a post-conviction hearing. See Austin v. State, 327 Md. 375, 394 , 609 A.2d 728, 737 (1992). The record in this case is clear and all the facts necessary for resolution of the issue are contained in the record. No useful purpose would be served by relegating the issue to post-conviction proceedings.

II

Appellant contends that he was denied effective assistance of counsel on the basis that he did not receive conflict-free representation because defense counsel engaged in dual representation of Appellant and another client. He argues that the trial court’s refusal to allow him to obtain a new ³³ attorney forced him to trial with counsel who labored under an actual conflict of interest, thereby violating his right to the effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights. Appellant argues that his counsel’s representation was materially limited by her representation of the confessing client because her interest in forestalling any renewed investigation of the crime, for the benefit of the confessing client, was in conflict with her interest in obtaining an acquittal for Appellant. This conflict limited the extent to which counsel could investigate the crime and the manner in which she could cross-examine witnesses at trial.

The State argues that no conflict of interest existed, reasoning as follows. While it was true that counsel was ethically barred from using the confession to help Appellant, a new attorney would have no way of learning of the confession or of the confessing client’s existence. Different counsel, therefore, would have been unable to provide representation superior to-that of existing counsel. Counsel’s representation of Appellant was unimpaired, and consequently, there was no conflict of interest.

III

The Sixth Amendment to the United States Constitution 1 and Article 21 of the Maryland Declaration of Rights, 2 as a safeguard necessary to ensure fundamental human rights of life and liberty, guarantee to any criminal defendant the right to have the assistance of counsel. See Glasser v. United States, 315 U.S. 60, 69 , 62 .S.Ct. 457, 86 L.Ed. 680 (1942); ³⁴ Austin v. State, 327 Md. 375, 381 , 609 A.2d 728, 730-31 (1992). This right includes the right to an attorney who is not encumbered with conflicts of interest. See Wood v. Georgia, 450 U.S. 261, 271 , 101 S.Ct. 1097 , 67 L.Ed.2d 220 (1981); Pressley v. State, 220 Md. 558, 562 , 155 A.2d 494, 496 (1959).

A defense attorney’s representation must be untrammeled and unimpaired, unrestrained by commitments to others; counsel’s loyalty must be undivided, leaving counsel free from any conflict of interest. 3 See Holloway v. Arkansas, 435 U.S. 475, 482 , 98 S.Ct. 1173 , 55 L.Ed.2d 426 (1978); Glasser, 315 U.S. at 70 , 62 S.Ct. 457 ; Austin, 327 Md. at 381 , 609 A.2d at 731 . While joint representation is not a per se violation of the Sixth Amendment, whether a conflict exists must be determined by the facts and circumstances of each individual case. See Holloway, 435 U.S. at 482 , 98 S.Ct. 1173 ; Attorney Griev. Com’n v. Kent, 337 Md. 361, 379 , 653 A.2d 909, 919 (1995); Austin, 327 Md. at 386 , 609 A.2d at 733 .

Although ineffective assistance of counsel/conflict of interest claims typically arise in the context of multiple representation, the defendant’s right to conflict-free representation is not limited to situations involving multiple representation, but extends to any situation in which defense counsel owes conflicting duties to the defendant and some other third person. See, e.g., United States v. Soto Hernandez, 849 F.2d 1325, 1328 (10th Cir.1988). In order to show ineffective assistance of counsel, a defendant must prove that his or her counsel’s representation fell below an objective standard of reasonableness (commonly referred to as deficient performance), and that he or she was prejudiced. See Strickland v. Washington, 466 U.S. 668, 687 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984).

A narrow exception to the Strickland standard exists where defendant’s ineffective assistance claim is based on a conflict of interest. See Strickland, 466 U.S. at 692 , 104 S.Ct. 2052 . In addressing an ineffective assistance claim alleging conflict of interest, we do ³⁵ not apply the Strickland two-pronged test but rather a more lenient standard that does not require a showing of prejudice. See id.; Holloway, 435 U.S. at 489-90 , 98 S.Ct. 1173 ; Glasser, 315 U.S. at 75-76 , 62 S.Ct. 457 ; Austin, 327 Md. at 381 , 609 A.2d at 731 .

The Sixth Amendment right to effective assistance of counsel in the conflict-free sense has been addressed by the Supreme Court in three significant cases, which have resulted in two divergent approaches. See Cuyler v. Sullivan, 446 U.S. 335 , 100 S.Ct. 1708 , 64 L.Ed.2d 333 (1980); Holloway; Glasser. A brief review of Supreme Court jurisprudence of ineffective assistance of counsel as it relates to conflict of interest will elucidate the two distinct lines of analysis that have developed in this area. In Glasser , which is sometimes referred to as the watershed conflict of interest case, the Supreme Court, in the context of co-defendants, reversed Glasser’s conviction primarily on the grounds that Glasser’s counsel “struggle[d] to serve two masters” because his conflict of interest violated Glasser’s right to effective assistance of counsel.

See Glasser, 315 U.S. at 75 , 62 S.Ct. 457 . The Court noted that the possibility of the inconsistent interests of Glasser and the co-defendant was “brought home” to the court, but instead of jealously guarding Glasser’s rights, the court created the conflict by appointing, over objection, counsel with conflicting interests, thereby depriving Glasser of his right to have the benefit of undivided assistance of counsel. See id. at 71 , 62 S.Ct. 457 . As to Glasser’s prejudice, the Court said: To determine the precise degree of prejudice sustained by Glasser as a result of the court’s appointment of Stewart as counsel for [a co-defendant] is at once difficult and unnecessary.

The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial. Id. at 75-76 , 62 S.Ct. 457 . In Holloway, again in the context of co-defendants at trial, the Supreme Court reversed a conviction on the ground that ³⁶ counsel’s conflict of interest deprived the defendants of effective assistance of counsel. Three defendants were on trial for robbery and rape, in a consolidated trial.

Defense counsel asked the court before trial to appoint separate counsel for the three defendants, the request based on the defendants’ statements to him that there was a possibility of a conflict of interest in each of their cases. The trial court denied defendants’ requests and the case proceeded to trial. All three defendants were convicted. The Supreme Court noted that trial counsel, as an officer of the court, alerted the court to the conflict, and focused explicitly on the probable risk of a conflict of interests.

See Holloway, 435 U.S. at 484 , 98 S.Ct. 1173 . The trial court, however, “failed either to appoint separate counsel or to take adequate steps to ascertain whether the risk was too remote to warrant separate counsel.” Id. The Court held that this “failure, in the face of the representations made by counsel weeks before trial and again before the jury was empaneled, deprived petitioners of the guarantee of ‘assistance of counsel.’ ” Id. Recognizing that joint representation is not per se violative of the constitutional guarantee of effective assistance of counsel, the Court nonetheless said that “since the decision in Glasser , most courts have held that an attorney’s request for the appointment of separate counsel, based on his representations as an officer of the court regarding conflict of interests, should be granted.” Id. at 485, 98 S.Ct. 1173 .

Turning to the question of proof of prejudice, the Holloway Court concluded that prejudice is presumed, regardless of whether it was shown independently. See id. at 489, 98 S.Ct. 1173 . The Court “read the Court’s opinion in Glasser ... as holding that whenever a trial court improperly requires joint representation over timely objection reversal is automatic.” Id. at 488, 98 S.Ct. 1173 . The Court recognized that joint representation of conflicting interests is suspect because of what it tends to prevent the attorney from doing, and that a rule requiring a defendant to show that a conflict, which he and his counsel tried to avoid by timely objection, prejudiced him in some specific fashion would not be susceptible of ³⁷ intelligent, evenhanded application.

See id. at 490 , 98 S.Ct. 1173 . Again rejecting a harmless error standard, the Court said: But in a case of joint representation of conflicting interests the evil—it bears repeating—is in what the advocate finds himself compelled to refrain from doing, not only at trial but also as to possible pretrial plea negotiations and in the sentencing process. It may be possible in some cases to identify from the record the prejudice resulting from an attorney’s failure to undertake certain trial tasks, but even with a record of the sentencing hearing available it would be difficult to judge intelligently the impact of a conflict on the attorney’s representation of a client. And to assess the impact of a conflict of interests on the attorney’s options, tactics, and decisions in plea negotiations would be virtually impossible.

Thus an inquiry into a claim of harmless error here would require, unlike most cases, unguided speculation. Id. at 490-91 , 98 S.Ct. 1173 . Two years later, the Supreme Court again addressed' the conflict of interest issue, in Cuyler . In Cuyler , the potential conflict of interest was not brought to the trial court’s attention.

Three co-defendants were jointly represented by two attorneys. Sullivan did not object to the multiple representation until after he was convicted and he moved for post-conviction relief on the grounds that he was denied effective assistance of counsel. In establishing a standard to be applied to cases in which the potential conflict is not brought to the trial court’s attention, the Supreme Court held that “[i]n order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.” 446 U.S. at 348 , 100 S.Ct. 1708 (emphasis added). In this context, “the possibility of conflict is insufficient to impugn a criminal conviction.” Id. at 350 , 100 S.Ct. 1708 .

Commenting on Glasser , the Court held: Glasser established that unconstitutional multiple representation is never harmless error. Once the Court concluded that Glasser’s lawyer had an actual conflict of interest, it ³⁸ refused to ‘indulge in nice calculations as to the amount of prejudice’ attributable to the conflict. The conflict itself demonstrated a denial of the ‘right to have the effective assistance of counsel.’ 315 U.S., at 76 , 62 S.Ct., at 467 . Thus, a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief.

But until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance. Id. at 349-50, 100 S.Ct. 1708 . Contrary to the resolution in Holloway, Sullivan, who did not object before trial, was required to show that an actual conflict of interest adversely affected his lawyer’s performance. To date the Supreme Court has never squarely resolved the question of whether proof of an adverse effect of a conflict of interest is required to reverse a conviction.

See e.g., Bonin v. California, 494 U.S. 1039, 1043 , 110 S.Ct. 1506 , 108 L.Ed.2d 641 (1990) (Marshall, J., dissenting). Numerous cases in other jurisdictions addressing conflict of interest conclude, however, that the time at which a conflict of interest, or a potential one, is raised and is brought to the court’s attention governs how this issue is to be treated. See, e.g., Selsor v. Kaiser, 22 F.3d 1029, 1032 (10th Cir.1994); United States v. Fish, 34 F.3d 488, 492 (7th Cir.1994); Hamilton v. Ford, 969 F.2d 1006, 1011 (11th Cir.1992); People v. Burchette, 257 Ill.App.3d 641 , 195 Ill.Dec. 550 , 628 N.E.2d 1014, 1023 (1994); State v. Wille, 595 So.2d 1149, 1153 (La.1992), cert. denied, 506 U.S. 880 , 113 S.Ct. 231 , 121 L.Ed.2d 167 (1992); State v. Marshall, 414 So.2d 684, 687 (La.1982); State v. Lemon, 698 So.2d 1057, 1061 (La.Ct.App.1997); State v. Dillman, 70 Ohio App.3d 616 , 591 N.E.2d 849 , 852 n. 1 (1990). See also Charles W. Wolfram, Modern Legal Ethics § 8.2, at 414 (1986) (“The different, and lesser, showing that obtained reversal in Holloway depended on the lawyer’s trial objection there.”).

The cases reason that when a possible conflict exists, but the trial court is not advised of the conflict in a timely manner, the Cuyler standard applies. In order to establish a violation of the Sixth Amend ³⁹ ment right to effective assistance of counsel, the defendant must show that an actual conflict of interest adversely affected his lawyer’s performance. On the other hand, when the defendant advises the trial court of the possibility of a conflict of interest, the Glasser/Holloway standard applies. “[A] court confronted with and alerted to possible conflicts of interest must take adequate steps to ascertain whether the conflicts warrant separate counsel.” Wheat v. United States, 486 U.S. 153, 160 , 108 S.Ct. 1692 , 100 L.Ed.2d 140 (1988). The trial court is required to “either appoint separate counsel, or to take adequate steps to ascertain whether the risk was too remote to warrant separate counsel.” Holloway, 435 U.S. at 484 , 98 S.Ct. 1173 .

If the trial court fails to take “adequate steps” or improperly requires joint or dual representation, then reversal is automatic, without a showing of prejudice, or adverse effect upon the representation. 4 ⁴⁰ Discussing the test for review on appeal, the Supreme Court of Kansas held: Thus, when a possible conflict exists,