Before Steadman, Farrell, and Glickman, Associate Judges.
The opinion of the court was delivered by: Farrell, Associate Judge
Appeals from the Superior Court of the District of Columbia (Hon. Frederick H. Weisberg, Trial Judge)
Argued September 21, 2000
Opinion for the court by Associate Judge Farrell.
After a bench trial, appellant Malede was found guilty of stalking, two counts of felony threats, assault with intent to kill while armed, and related weapons offenses. He contends that the trial judge, sitting as factfinder, erroneously rejected his defense of insanity *fn1 and that the judge later erred in denying without a hearing his motion under D.C. Code § 23-110 alleging a "conflict of interest" and ineffective assistance on the part of his trial attorney. We affirm.
Malede did not dispute that he shot and seriously wounded Tigest Bekele, a woman with whom he had had a prior personal relationship, in Southwest Washington on April 23, 1994. His defense at trial was insanity, which the law required him to prove by a preponderance of the evidence. See D.C. Code § 24-301 (j) (1996); Bethea v. United States, 365 A.2d 64, 83 n.38 (D.C. 1976). He attempted to do so principally through the testimony of Dr. Robert K. Madsen, an expert in psychology and forensic psychology. The trial judge, however, found that neither that testimony nor any other evidence established preponderantly that on April 23, 1994, Malede shot Ms. Bekele as a result of a mental disease or defect which caused him to lack substantial capacity either to recognize the wrongfulness of his conduct or to conform his conduct to the requirements of the law. See Wilkes v. United States, 631 A.2d 880, 882 n.4 (D.C. 1993); Bethea, 365 A.2d at 79. Since the judge's subsidiary findings on the issue are well supported by the record, we may not disturb them. D.C. Code § 17-305 (a) (1997). Even conceding that Malede suffered from a mental disease or defect at the time of the acts charged (an issue on which the judge found "some doubt"), the trial judge had a solid factual basis on which to conclude that Malede had failed to establish a causal connection between that condition and the criminal acts. *fn2
Malede's more substantial contention is that by the time of trial his court-appointed attorney, Thomas Farquhar, had become so hostile to him - even expressing that hostility on the record - as to create an actual "conflict of interest" between the two that deprived Malede of his right to the effective assistance of counsel. Cuyler v. Sullivan, 446 U.S. 335 (1980); see Strickland v. Washington, 466 U.S. 668, 692 (1984).
The relationship that developed before trial between Malede and Farquhar, his third appointed counsel, is troublesome because it reached the point where Farquhar, in a written motion to withdraw from the case, claimed that Malede had "falsely accus[ed him] of all kinds of misconduct" such that counsel "no longer feels he can effectively represent this malevolent little man" (emphasis added). Farquhar was responding to written assertions Malede had made to the trial judge and Bar Counsel that Farquhar asked him for $5,000 to retain a defense psychiatrist, which Malede saw as an effort by his lawyer to "pad his pocket," and that Farquhar verbally abused him by "cursing [him] and calling [him] stupid." *fn3 Mutual hostility of that apparent intensity naturally requires close examination of whether Farquhar remained capable of representing Malede with undivided loyalty.
In denying Malede's post-conviction motion, the trial judge pointed out that, notwithstanding the ill-feelings between client and attorney, Malede had twice stated in open court that he wanted Farquhar to continue to represent him. Specifically, on June 23, 1995, Malede (after consulting with yet another appointed attorney) *fn4 declared that he wanted Farquhar to remain as his attorney provided they communicated through a language interpreter. Although Malede wrote letters to the court during the summer again requesting that Farquhar withdraw because of "the enmity that has developed between us," at a status hearing on September 27, 1995, when asked by the judge whether, "as of today, [you are] satisfied with Mr. Farquhar's work as your lawyer," he answered "yes." He made no complaint during trial about his relationship with Farquhar. Malede nevertheless argues on appeal that this record is too sparse to permit a conclusion that he "waived" any conflict of interest, see Douglas v. United States, 488 A.2d 121, 138 (D.C. 1985), and the government does not appear to argue the contrary. Given the terseness of the exchange between the judge and Malede at the September 27 hearing, and the government's disinclination to press the point, we agree that any conflict was not waived. *fn5 We therefore must consider whether in fact the hostility between Malede and Farquhar was of such a nature or magnitude as to create an "actual conflict of interest" affecting the representation. Cuyler v. Sullivan, 446 U.S. at 350.
Under Cuyler, a violation of the Sixth Amendment right to counsel is shown "if the defendant demonstrates that counsel `actively represented conflicting interests' and that `an actual conflict of interest adversely affected his lawyer's performance.'" Strickland, 466 U.S. at 692 (quoting Cuyler, 446 U.S. at 350). Such a conflict is typically shown when the defense attorney "is `required to make choices advancing [another client's] interest to the detriment of his [current] client's interest.'" Veney v. United States, 738 A.2d 1185, 1192 (D.C. 1999) (citations omitted; bracketed language in original). *fn6
Malede's claim of conflict does not fit the multiple-client mold. Instead, the parallel he claims is with cases such as Douglas, in which a conflict of interest was found where the defendant complained of his lawyer's performance to Bar Counsel and the lawyer thereby acquired a personal, potentially conflicting interest in how the defense would be conducted. 488 A.2d at 136-37. Malede too lodged a complaint against Farquhar with Bar Counsel. Most courts, however, have understandably refused to find a conflict of interest any time a defendant takes his grievance about counsel's performance to the disciplinary authority, for such a rule "would invite criminal defendants anxious to rid themselves of unwanted lawyers to queue up at the doors of bar disciplinary committees on the eve of trial." United States v. Burns, 990 F.2d 1426, 1438 (4th Cir. 1993); see also State v. Johnson, 592 N.E.2d 345, 355 (Ill. App. 1992) (citing cases rejecting such a per se rule). For this reason, in Douglas we pointed to the fact that Bar Counsel had already begun an investigation into the complaint against counsel at the time the issue arose in court, giving the attorney ten days to respond to the grievances in writing. 488 A.2d at 128; see also id. at 136 ("[A]s soon as [attorney] Kane learned of Bar Counsel's intention to pursue an investigation of appellant's complaint, he acquired a personal interest in the way he conducted appellant's defense."). The resulting circumstances, we found, "were not conducive to the cooperative spirit and singlemindedness of purpose that ordinarily should underlie a defendant/attorney relationship." Id. at 137.
Bar Counsel had not begun an inquiry into Malede's complaint at the time of trial, and we decline to hold that the bare filing of the disciplinary complaint created a conflict of interest necessitating Farquhar's discharge from the case. *fn7 Malede contends, however, that the hostility and contempt Farquhar expressed towards him in moving to withdraw guaranteed that he would be disloyal or at least conflicted in his continuing representation of Malede. Farquhar's language was certainly intemperate; and we can agree that it ill-befits a member of the Bar to denounce his client in a court document as a "malevolent little man," no matter what the perceived provocation. But an actual conflict of interest under Cuyler is not shown merely by an attorney's vehemence in disputing a client's complaint of wrongdoing. If it were, then a good many claims of defective representation against which an attorney defends before trial would demand near-automatic replacement of counsel despite our decisions holding that the proper remedy in such circumstances is inquiry by the court into the adequacy of counsel's pretrial preparation, and any necessary remediation. See Monroe v. United States, 389 A.2d 811 (D.C. 1978); Farrell v. United States, 391 A.2d 755 (D.C. 1978). Nor is an actual ...