State v. Goldsberry

MURPHY, J.,

concurring and dissenting.

I agree with the majority that “the jury’s finding that Goldsberry is guilty of felony murder should stand,” but I dissent from the holding “that the trial court violated Golds-berry’s right to counsel of choice.” Because I agree with the Court of Special Appeals that “the trial court was well within its bounds to restrict [the Respondent’s] qualified right to counsel of choice,” I also dissent from the conclusion that this Court does not need to address the issue of whether the Circuit Court’s “modified unanimity instruction” was coercive.

As the Court of Special Appeals stated:

Though the potential conflicts in this case were different from those in Wheat, the trial court here similarly acted within its discretion in determining that appellant’s right to counsel of choice was outweighed by the countervailing interests of fairness, maintaining ethical standards, and avoiding conflicts of interest. Continued representation of appellant by Mr. Mckenzie could have violated RPC 1.18 and jeopardized Mr. Myers’s right to a fair trial. In addition, Mr. Mckenzie’s “coaching” of Ms. Davis made him a possible witness in the case and presented a potential violation of RPC 3.7, prohibiting a lawyer from acting as an advocate in trial where the lawyer is likely to be called as a witness. Though Ms. Davis was ultimately restricted in her testimony, the trial court did not have the benefit of hindsight when it made its ruling. In addition, appellant was not deprived of his right to counsel of choice. Appellant was still represented by Mr. Jezic—whom he selected—and the trial court’s ruling permitted Mr. Mckenzie to assist in appellant’s defense by consulting with Mr. Jezic and Mr. Giannetti as long as they did not discuss the *139 conversation -with Mr. Myers. Thus, the trial court’s ruling properly balanced appellant’s qualified right to counsel against competing factors that weighed against continued unrestricted representation by Mr. Mckenzie.

Further, unlike Gonzalez-Lopez, the trial court here did not err in its interpretation of the ethics rules, but instead correctly assessed that continued unfettered representation of appellant by Mr. Mckenzie created a very real possibility of violations. Also of note is that fact that in Gonzalez-Lopez the defendant was deprived of his only counsel of choice, whereas here appellant was still represented by his co-counsel of choice, Mr. Jezic. Finally, the trial court’s decision was not based on Mr. Mckenzie’s conduct in a separate matter, as in Gonzalez-Lopez, but was instead based on actions in this case. Thus, the trial court was well within its bounds to restrict appellant’s qualified right to counsel of choice.

182 Md.App. at 420-22, 957 A.2d at 1126-27. (Emphasis supplied). I agree with, and hereby adopt, that analysis.

I disagree with the majority’s conclusion that “the record developed at trial ... simply does not come close to revealing the ‘potential for serious conflict’ required by Wheat.” The record shows that the following transpired immediately before the jury was selected:

[MYERS’ COUNSEL]: I was informed yesterday morning by Mr. McKenzie and Mr. Jezic that Mr. McKenzie spoke with my client, Mr. Myers, about the facts of this case on a date that cannot be determined at this point. I do know that in the District Court we entered a line of appearance on or about April 17th stating that I would represent Mr. Myers. Mr. McKenzie does not know the date on which he went to speak with Mr. Myers about the facts of the case. After speaking with Mr. Myers about the facts of the case, he then went and called the District Court to see if he was represented.

*140 That, however, was not done before he went to speak with my client about the facts of the case. And I would note that very often the computer does not reflect the reality of the filing of the line.

I don’t actually know the purpose of speaking with Mr. Myers, and I don’t actually know the details of the conversation. I don’t know if the purpose of the meeting involves Rule 1.18 and whether it as an attempt to speak with a prospective client or whether it was to interview a codefendant regarding facts of the case. A detail I also don’t know is whether Mr. McKenzie had already entered his line of appearance for Mr. Goldsberry at the time that he went to speak with Mr. Myers.

THE COURT: What relief are you asking for, [Mr. Myers’ Counsel]?

[MYERS’ COUNSEL]: Well, I think there are a couple of things the Court can do. Of course, the Court may want to hold a hearing to sift out some more details that I don’t actually, at this point, know. But, ultimately, I think this does involve Rule 4.2.

Mr. Jezic has explained that he has erected a Chinese wall, but I don’t think that my client should have to worry about the foundation and endurance of that wall. I also think that it’s going to create, certainly at the very least, an appearance of impropriety as my client decides whether to testify and by whom he will be cross-examined.

So for those reasons I would ask the Court to sever the Myers matter from the Goldsberry matter.

THE COURT: What prejudice is there to your client at this point in time?

[MYERS’ COUNSEL]: Well, the ones I just mentioned, that he has had a conversation with Mr. McKenzie about the facts of the case. As he sits here through this trial, he evaluates constantly whether he’s going to testify in his own defense, whether he’s going to give up that fifth amendment right or not. I think, at the very least, it certainly looks bad for him to have to make that decision in the context *141 of whether Mr. McKenzie is going to cross-examine him, knowing what he has already said about the facts of the case, the subject, the very essence of the cross-examination. So I think it affects his ability to make a clear, unencumbered decision whether to testify or not.

And then the next prong, the next problem is the actual testimony. Should he decide to take the stand, at the very least it looks wrong for an attorney for a codefendant, who has already talked about the facts of the case, to cross-examine my client if he decides to take the stand.

Those are problems my client should not have to be encumbered with because of the actions of the codefendant’s counsel. He not only needs a fair trial, it needs to look like a fair trial, and I don’t think that there’s any way to have it be fair and to look fair without separating, severing Mr. Goldsberry’s case from Mr. Myers’s case.

THE COURT: Mr. McKenzie, what do you want to tell me? MR. JEZIC: Your Honor, may I first address the Court? THE COURT: Go ahead, Mr. Jezic.

MR. JEZIC: Just to give the Court more context, Mr. McKenzie had not entered his appearance, in fact, when— THE COURT: Entered his appearance in what case?

MR. JEZIC: In the Goldsberry case when he spoke to Mr. Myers.

THE COURT: Well, if I tell you that his appearance in the Circuit Court on behalf of Mr. Goldsberry was entered 6-28-06, [yjou’re saying that he spoke with Mr. Myers before that date?

MR. JEZIC: He spoke to Mr. Myers—what Mr. McKenzie remembers is that he spoke to Mr. Myers before the preliminary hearing date. He called me to tell me about the prospective client Mr. Goldsberry. He told me that he had spoken to Mr. Myers. I immediately said, “Mr. McKenzie, you’ve got to call the Court to find out if a line has been *142 entered.” As you said, he called and he was told a line had not been entered for Mr. Myers.

THE COURT: Did Mr. Myers have a substantive conversation with you, Mr. McKenzie?

MR. JEZIC: About the facts of the case.

MR. MCKENZIE: What constitutes substantive?

THE COURT: Did you discuss about the chronology or facts in this case?

MR. MCKENZIE: Yes, we did.

THE COURT: Did he make any admissions to you. MR. MCKENZIE: No, Your Honor.

THE COURT: Mr. McKenzie, I would point out, participated in the suppression hearing addressing the issue of identification, as did [Mr. Myers’ Counsel], on August 11th of '06. Mr. McKenzie, was there a reason you didn’t advise [Myers’ Counsel] at that time that you had talked with her client on a prior occasion?

MR. MCKENZIE: At that time I did not know—and I didn’t think that there was an obligation to disclose that to her.

THE COURT: Well, clearly, you were representing Mr. Goldsberry at that point in time.

MR. MCKENZIE: Yes, I was.

MR. JEZIC: There is no malice intended here whatsoever, Your Honor. I don’t think there’s any alleged malice. He’s just a very young attorney. As a matter of fact, he took the responsibility of calling me as soon as he spoke to Myers and Goldsberry____ Clearly, it was not a good idea, but we do not believe there was any violation of the rules of professional responsibility.

THE COURT: ... [Mr. Myers’ Counsel], anything else you want to tell me?

*143 [MYERS’ COUNSEL]: I think that the Rule 4.2, I don’t think that you can ignore the fact that, in a first-degree murder case, this man is going to have a lawyer. You can’t pretend like that’s not true, and ignoring that rule because the line hasn’t been in the file yet is a very fine distinction, and I think that the prejudice to my client vastly outweighs judicial economy.

THE COURT: All right. What is obviously clear from the record is that Mr. McKenzie spoke with the codefendant Mr. Myers at a date prior to his appearance and that Mr. Jezic’s being entered on behalf of Mr. Goldsberry on June 28th of '06. Mr. McKenzie, do you know when you may have talked to Mr. Myers?

MR. MCKENZIE: It was probably towards the latter part of March. It was before they were indicted, possibly very early April.

MR. JEZIC: My understanding is this can be verified.

THE COURT: The bottom line is that there had been charges initiated; he just hadn’t been indicted; is that correct?

MR. MCKENZIE: Yes.

THE COURT: From the representations made, it’s clear that Mr. McKenzie did not convey to Mr. Jezic the sum and substance—

MR. MCKENZIE: No.

THE COURT:—or any summary, for that matter, of any conversations he had with Mr. Myers.

We know now that [Mr. Myers’ Counsel], on behalf of the Public Defender’s Office, according to the Circuit Court file, entered her appearance on behalf of the defendant Myers on May 8th.

[MYERS’ COUNSEL]: Your Honor, that’s a line of appearance for the Circuit Court.

THE COURT: That’s all I can go on.

*144 [MYERS’ COUNSEL]: We entered in the District Court. I did the preliminary hearing for Mr. Myers. There is no line from the District Court case in the Circuit Court. I have my line. It’s not stamped, but it shows that we sent it to the prosecutor’s office on April 17th.

There’s another matter that may well arise at trial regarding Mr. McKenzie—

THE COURT: Here is what the Court is going to do. Very simply, Mr. Jezic, you represent Mr. Goldsberry, and Mr. McKenzie is not representing him anymore. Just as simple as that. This is not a problem. The reality is that there’s been absolutely no prejudice to Mr. Goldsberry, but the reality is that—and, Mr. McKenzie, you can step back from the trial table, but the reality is—and you can consult with Mr. Jezic during the course of the trial, but we’re going to keep this trial going forward wherein there’s no taint whatsoever.

MR. JEZIC: Your Honor, may I put one thing on the record?

THE COURT: Yes, sir, Mr. Jezic.

MR. JEZIC: I apologize. It’s back at the trial table. May I get my folder real quick? Have a cite to give. It will be very brief.

THE COURT: You can give that to me later.

MR. JEZIC: Just to put it on the record, my objection, Your Honor, is that the recent Supreme Court case in 2006, in June, was about the sixth amendment right to counsel. The Supreme Court ruled that the defendant has an absolute right to counsel of choice, and it did involve the judge weighing a potential violation of the rules of professional responsibility versus the sixth amendment. My client has indicated to me this morning that he would like Mr. McKenzie to remain at the trial table and that is our objection.

THE COURT: Well, the reality is, if he remains at the trial table, he can remain at the trial table. I don’t have a problem with that.

*145 I’m just going ahead and pointing out that there should not be any communication between you, Mr. Jezic, and you, Mr. McKenzie, regarding the conversations that may have been made by Mr. Myers to Mr. McKenzie. This isn’t a basis for a severance.

MR. TEFERI: A witness by the name of Tawanna Davis, who you instructed to come back today, gave grand jury testimony. If she somehow changes her testimony from what she had told the grand jury—and if I have to go line by line—there might come a point in time where I’m going to ask her if she was coached by an attorney. She told the grand jury that she was coached by one Mr. Goldsberry and also Mr. McKenzie before she went to that grand jury. I just wanted to put that on the record.

THE COURT: That’s all the more reason. Mr. McKenzie has put himself in the position of being a possible witness in this case. So with that in mind, the Court is even more comfortable now than it was two minutes ago with telling Mr. McKenzie he can’t participate in this trial.

So we’re not going to take any chances. Mr. McKenzie will not now be sitting at trial table, not because Mr. Goldsberry doesn’t want him to, but the reality is he could potentially be a witness in this case.

MR. JEZIC: Okay, Your Honor, we understand. We just continue the objection. Thank you.

THE COURT: I think there’s an exception if he’s going to be a witness. The other point, there’s a motion for severance. It’s denied on that basis.

(Emphasis supplied).

As to the suggestion that the Circuit Court should have required an explanation for Mr. McKenzie’s visit and/or what he and Mr. Myers discussed during the visit, in Lettley v. State, 358 Md. 26 , 746 A.2d 392 (2000), this Court quoted with approval the following analysis:

[I]f the lawyer is required to supply a sufficiently detailed basis for his or her concern about the need to cross-examine *146 or the need to refuse to do so, that also creates a serious risk of exposing confidential communications of one or both clients. The absence of any clearly correct course of action in such a case suggests ... that judges should normally accept at face value a lawyer’s assertion that a conflict of interest exists.

CHARLES W. WOLFMAN, MODERN LEGAL ETHICS, § 8.2 at 416 (1986) (footnote omitted). Moreover, in making the required “threshold level of evidentiary inquiry into the alleged conflicts,” the trial court is obligated to respect all applicable privileges. In the case at bar, the Circuit Court could not (1) compel Mr. Myers to testify about his conversation with Mr. McKenzie, or (2) compel Mr. McKenzie to testify about his conversation with Mr. Myers.

It is of no consequence that Mr. McKenzie’s potential for serious conflict was brought to the Circuit Court’s attention by Mr. Myers’ trial counsel. In Lettley, supra, this Court stated:

In [Holloway v. Arkansas, 435 U.S. 475 , 98 S.Ct. 1173 , 55 L.Ed.2d 426 (1978) ], defense counsel represented to the trial court that he had received confidential information from one client that would interfere with his ability to examine his other clients on the witness stand. See id. at 476-78 , 98 S.Ct. 1173 . The state argued that “unscrupulous defense attorneys might abuse their ‘authority,’ presumably for purposes of delay or obstruction of the orderly conduct of the trial.” Id. at 486 , 98 S.Ct. 1173 . The Court rejected this view, stating that courts should credit such representations of defense counsel. The Court observed that an attorney representing two clients “is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of a trial.” Id. at 485 , 98 S.Ct. 1173 (citation and internal quotation marks omitted). The Supreme Court commented that “since the decision in Glasser [v. United States, 315 U.S. 60 , 62 S.Ct. 457 , 86 L.Ed. 680 (1942) ], 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 a conflict of interests, should be *147 granted.” See id. Attorneys’ representations are trustworthy, the Court reasoned, because “attorneys are officers of the court, and when they address the judge solemnly upon a matter before the court, their declarations are virtually under oath.” Id. at 486, 98 S.Ct. 1173 (citation and internal quotation marks omitted). “When a considered representation regarding a conflict in clients interests comes from an officer of the court, it should be given the weight commensurate with the grave penalties risked for misrepresentation.” Id. at 486 n. 9, 98 S.Ct. 1173 .

Id. at 46-47, 746 A.2d at 404 . (Emphasis supplied).

The first sentence in the COMMENT to Rule 3.7 of the Maryland Lawyers’ Rules of Professional Conduct (RPC) states: “Combining the roles of advocate and witness can prejudice the tribunal and the opposing party and can also involve a conflict of interest between the lawyer and client.” I am certain that, like Mr. Jezic and Mr. Giannetti, Mr. McKenzie is an ethical practitioner who would not knowingly violate any Maryland Lawyers’ Rules of Professional Conduct. I am equally certain, however, that Mr. McKenzie’s visit to Mr. Myers was more than merely “not a good idea.” By discussing the “facts of the case” with Mr. Myers, Mr. McKenzie created the potential for a serious conflict between himself and the Respondent.

In Rubin v. Gee, 292 F.3d 396, 401-02 (4th Cir.2002), cert. denied, Gee v. Rubin, 537 U.S. 1048 , 123 S.Ct. 637 , 154 L.Ed.2d 523 (2002), the United States Court of Appeals for the Fourth Circuit affirmed the decision of the United States District Court for the District of Maryland to grant federal habeas corpus relief to Lisa Joyce Rubin, 20 whose murder conviction had been affirmed by this Court in Rubin v. State, 325 Md. 552 , 602 A.2d 677 (1992). The federal courts concluded that she was entitled to a new trial on the ground that she had not received “conflict-free representation” from two lawyers on her defense team who, “to avoid criminal indictment *148 and keep their conduct from coming to light, ... took cover as part of the defense team.” 292 F.3d at 398 .

While it is clear that the case at bar is not one in which Mr. McKenzie was attempting to “take cover as part of the defense team,” it is equally clear that the Respondent’s right to “conflict-free representation” would have been impaired by the defense team’s decision to employ a particular litigation strategy for purposes of reducing the chances that Mr. McKenzie might be accused of violating a Rule of Professional Conduct. The COMMENT to RPC 1.18 cautions that, “[i]n order to avoid acquiring disqualifying information from a prospective client, a lawyer considering whether or not to undertake a new matter should limit the initial interview to only such information as reasonably appears necessary for that purpose.” In the case at bar, however, it is clear that Mr. McKenzie and Mr. Myers discussed “the chronology or facts in this ease[.]”

Under these circumstances, if Mr. McKenzie was acting as the Respondent’s lawyer when he visited Mr. Myers, it is obvious that Mr. McKenzie was a potential witness. On the other hand, if Mr. McKenzie visited Mr. Myers to discuss the possibility of forming a lawyer-client relationship, even though no client-lawyer relationship ensued, Mr. McKenzie was prohibited by RPC 1.18(b) from revealing “information learned in the consultation,” and was prohibited by RPC 1.18(c) from representing the Respondent “in the same or a substantially related matter if [Mr. McKenzie] received information from [Mr. Myers] that could be significantly harmful to [the Respondent].” In Lettley, supra, this Court expressly rejected the argument that, “because no other lawyer would have had access to that confidential information, there was no conflict of interest.” Id. at 44 , 746 A.2d at 402 .

Because I agree with the Court of Special Appeals that the Circuit Court did not err or abuse “its discretion in determining that [the Respondent’s] right to counsel of choice was outweighed by countervailing interests of fairness, maintaining ethical standards, and avoiding conflicts of interests,” I would *149 address the issue of whether the Respondent is entitled to a new trial on the ground that the Circuit Court delivered a coercive “unanimity” instruction.

. 128 F.Supp.2d 848 (D.Md.2001) is the citation to the opinion of the federal district court.