July 08, 2004
KEVIN A. MCCRIMMON, APPELLANT,
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the District of Columbia (F-9350-94) (Hon. Harold L. Cushenberry, Jr., Trial Judge).
Before Farrell, Ruiz and Washington, Associate Judges.
The opinion of the court was delivered by: Ruiz, Associate Judge
Argued June 5, 2001
The key issue in this appeal is whether, as a result of a discussion between defense counsel and a crucial prosecution witness over a tentative attorney-client relationship, appellant's appointed counsel operated under an "actual conflict" in violation of the Sixth Amendment right to effective assistance of counsel as established in Cuyler v. Sullivan, 446 U.S. 335 (1980). In Cuyler, the Supreme Court held that "a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Id. at 350. To demonstrate an actual conflict, the appellant must "point to specific instances in the record to suggest an actual conflict or impairment of his or her interests," and show that the "alleged conflict of interest . . . obstructs the use of a particular strategy or defense . . . [that is] plausible." Derrington v. United States, 681 A.2d 1125, 1133 (D.C. 1996) (quoting Fitzgerald v. United States, 530 A.2d 1129, 1138 (D.C. 1987)). Where there is an actual conflict, the defendant "need not demonstrate prejudice in order to obtain relief." Cuyler, 446 U.S. at 349-50. Although McCrimmon has not, as of yet, met the Cuyler standard, he has presented enough facts to merit an evidentiary hearing before the trial court.
The alleged conflict of interest in this case would arise from a preliminary conversation between McCrimmon's attorney and Antonio Murphy, a witness the government said was "crucial" to its case against McCrimmon. Both the prosecutor and the defense attorney had information about*fn1 this conversation, which they presented to the court separately in ex parte hearings at the beginning of the trial when the government disclosed that it would be presenting Murphy as a witness.
The defense attorney, Bernard Grimm, informed the court that Murphy had sought Grimm's representation in connection with unrelated charges involving possession of a gun and cocaine. Murphy told Grimm that his fee would be paid by a third party, who Grimm believed to be a friend or relation of McCrimmon. That person later contacted Grimm to say that he would not pay for the*fn2 representation. When Grimm repeated the comment to Murphy, he became "very irritated and said [']well, if he's going to be like that we'll see - if he wants to play like that, let's see what happens[,'] or words to that effect." Grimm claimed that he was unaware at the time - in fact, not until trial - that Murphy was involved in the crime charged in McCrimmon's case, although Murphy had off-handedly asked Grimm about McCrimmon, and Grimm had replied that McCrimmon was involved in the shooting underlying this appeal. See note 1, supra.*fn3
In a separate ex parte hearing, the prosecutor revealed that Murphy was indeed angry with McCrimmon and upset that his friends would not pay for his lawyer. Murphy told the government that although he did not contact Grimm directly, a person named Jimmy Robinson "would get [Murphy] a lawyer and that [Robinson] would pay for [that] lawyer." Murphy believed that "he would get Mr. Grimm [as his attorney] and Kevin McCrimmon would get Mark Rochon." Murphy also believed that McCrimmon had "snitched" on him, telling police there was a gun and drugs at his house, and was angry over the others' failure to pay for his counsel "because they kind of left him sitting in jail."
After the ex parte hearings, the trial court found that McCrimmon knew of Murphy's frustration over not receiving the representation he had expected and agreed to Grimm's continuing representation. The trial court also determined that Grimm's conversations with Murphy were*fn4 covered by the attorney-client privilege, but that Murphy had waived that privilege by admitting his guilt in a plea bargain. The trial court commented that Grimm "ought" to cross-examine Murphy*fn5 with respect to his supposed bias against McCrimmon for not paying (or not allowing his associate or relative to pay) for Grimm to act as Murphy's lawyer.*fn6
During trial, however, Grimm did not cross-examine Murphy about whether he was motivated to testify against McCrimmon because the anticipated payment for Grimm's representation in his own trial had not materialized. Instead, Grimm impeached Murphy on a number of other issues, including his anger against McCrimmon for "snitching."*fn7
II. Procedural Posture
Appellant filed two motions (both appealed and presently before us) under D.C. Code § 23-110 (1996). The first motion was filed by appointed appellate counsel and requested a new trial based on claimed ineffective assistance of counsel (on grounds other than conflict of interest) as well as the recantation of a government witness. After the trial court denied that motion without a hearing, counsel sought permission from this court to withdraw from the case. New appointed*fn8 appellate counsel filed a second § 23-110 motion making a different claim of ineffectiveness of trial counsel based on the conflict of interest raised by the trial record and requesting a hearing. The trial*fn9 judge denied the second motion without a hearing on the ground that it was a "second or successive motion." See D.C. Code § 23-110 (e) (providing that the trial court need not entertain "a second or successive motion for similar relief").*fn10
The second motion was not "successive" because it raised a new claim. See McClesky v. Zant, 499 U.S. 467, 487 (1991) (explaining that a "successive" motion is one that raises a claim identical to that contained in a previous motion); Junior v. United States, 634 A.2d 411, 417 n.15 (D.C. 1993) (stating that a successive motion is identical to the first motion). As a "second" motion, it could nonetheless be properly denied as procedurally barred as an "abuse of the writ," unless there was cause for the delay and prejudice resulting from failure to consider the motion. See Junior, 634 A.2d at 417 n.15; Head v. United States, 489 A.2d 450, 451 (D.C. 1985). Ineffective assistance of counsel will constitute "cause" if counsel was constitutionally required. See Murray v. Carrier, 477 U.S. 478, 494 (1986). Although the Constitution does not guarantee the right to counsel on "collateral attack," see Coleman v. Thompson, 501 U.S. 722, 752 (1991), our judicial policy, which generally requires appellate counsel to file known claims of ineffective assistance of trial counsel during the pendency of the direct appeal and consolidate the appeals for review, treats such post-conviction proceedings as part and parcel of the appeal to which appellant is entitled and, correspondingly, extends the obligations of appellate counsel. See Shepard v. United States, 533 A.2d 1278, 1280 (D.C. 1987). We need not finally resolve in this case whether those extended obligations of counsel appointed for direct appeal implicate the constitutional right to counsel on direct appeal under Evitts v. Lucey, 469 U.S. 387, 396 (1985). See Williams v. United States, 783 A.2d 598, 604 (D.C. 2001) (en banc); id. at 604 (Ruiz, J., concurring) (citing Thomas v. United States, 772 A.2d 818, 829-30 (D.C. 2001) (Ruiz, J., dissenting in part)); id. at 605 (Glickman, J., concurring). In Williams, we held that appellate counsel who does not file a timely appeal of the*fn11 denial of a § 23-110 motion fails in his obligations under the Criminal Justice Act, and entitles appellant to relief so as to avoid a procedural default. See id. at 601. We "reserv[ed] for another case the issue of which rights, if any, a defendant may have with respect to appellate counsel's conduct of the hearing on a claim of ineffectiveness made in accordance with Shepard." Id. at 600 n.1. This case raises the issue of first appellate counsel's deficient conduct in failing to raise the conflicts issue in the first § 23-110 motion. We have no doubt that the filing of a § 23-110 motion claiming ineffectiveness of trial counsel due to a possible conflict reflected in the trial court record and requesting a hearing that would supplement the claim made in the § 23-110 motion (and, in this case, also in the direct appeal) is an integral part of appellate counsel's statutory obligation to represent a defendant "through appeals, including ancillary matters appropriate to the proceeding." D.C. Code § 11-2603 (2001) (emphasis added). That statutory obligation is confirmed by the rule*fn12 in Shepard, which directs counsel to use § 23-110 as a procedural vehicle ancillary to the direct appeal: it is "a means of making a record regarding matters relevant to the ineffectiveness claim that do not appear in the record on the case on appeal." Shepard, 533 A.2d at 1280. As we later discuss, the trial record in this case raises questions about a possible conflict that cannot be answered within the four corners of the record on direct appeal. Thus, appellate counsel was required by statute to pursue and, per our guidance in Shepard, to file during the pendency of the direct appeal a § 23-110*fn13 motion requesting a hearing.
Although we require separate notices of appeal from the conviction and denial of the § 23-110 motion, the case is before us for the first time as a unitary whole. A hearing on the second motion would have permitted appellant to supplement the record with facts that would have established - or ruled out - whether there was a conflict of interest. Unlike the jurisdictional obstacle hurdled in Williams, "the procedural default rule is neither a statutory nor a constitutional requirement, but it is a doctrine adhered to by the courts to conserve judicial resources and to respect the law's important interest in the finality of judgments." Massaro v. United States, 538 U.S. 500, 503 (2003). Until the case has run its appellate course, however, there is no final judgment to protect through application of the procedural default rule. Therefore, although it would be preferable for counsel to bring all known ineffectiveness claims to the trial court in a single motion during the pendency of the direct appeal, to procedurally bar a second motion filed while the appeal is still pending undermines the procedure we have established to facilitate the presentation of claims of ineffective assistance of counsel on a fully-developed record which enables "this court to conserve its time and effort by deciding the entire case in a single proceeding." Washington v. United States, 834 A.2d 899, 906 (D.C. 2003) (holding that the Shepard rule is fully consistent with Massaro). Cf. Matos v. United States, 631 A.2d 28, 30 (D.C. 1993) (holding that a § 23-110 motion claiming ineffective assistance of counsel was procedurally barred because it was not filed during pendency of direct appeal and no cause or prejudice was shown for failure to do so). Moreover, we are aware*fn14 that if the second § 23-110 motion were procedurally barred, a request to recall the mandate due to the ineffectiveness of the appellate counsel who filed the first § 23-110 motion probably would require referral to the trial court for a hearing. See Williams, 783 A.2d at 603 n.5 (citing Watson v. United States, 536 A.2d 1056, 1061 (D.C. 1987) (en banc)).
We conclude, therefore, that the failure of first appointed counsel on appeal to raise the conflict issue did not bar appellant from presenting it in his second § 23-110 motion. We have no occasion to decide here whether, in an appropriate case, excessive filings, undue delay, and prejudice to the other party may be factored into the trial court's consideration even if the appeal has not been decided. In this case, no proper reason has been advanced - and we do not perceive one in the record - for the denial of the motion without reaching the merits.
We now turn to address prejudice, both in the context of "cause and prejudice" and as an integral part of the claim of ineffectiveness of counsel. Prejudice sufficient to satisfy "cause and prejudice" is shown if the defendant would have been entitled to relief, in this case, for ineffectiveness of trial counsel. An ineffectiveness claim grounded on conflict of interest is not judged by Strickland's prejudice prong - i.e., a reasonable probability that but for counsel's errors, the outcome would have been different - but by a more lenient standard: whether the conflict had an impact on a "plausible" defense strategy. See Derrington, 681 A.2d at 1133 (citing Chase v. United States, 656 A.2d 1151, 1154 & n.7 (D.C. 1995)); see also Mickens v. Virginia, 535 U.S. 162, 175-76 (2002) (questioning - but leaving undecided - whether Cuyler's rule of presumed prejudice should apply to cases of successive representation rather than "multiple concurrent representation"). Our review of the record leads us to conclude that, if Grimm held back during cross-examination because of his prior relationship with Murphy, it could have had an impact.
In cross-examining Murphy, Grimm attempted to impeach him primarily for bias in favor of the government because of a desire to curry favor with the prosecutor pending sentencing on his guilty plea. As far as bias against McCrimmon, Grimm brought up that McCrimmon had told police that Murphy had guns and drugs in his house. Grimm also generally impeached Murphy with prior convictions, inconsistencies in his testimony, and a longstanding drug addiction. Notwithstanding this broad-based impeachment, however, Murphy maintained that McCrimmon - who was not involved in the actual shooting - was instrumental in providing all of the weapons that were used by the shooters. Without Murphy's testimony, the evidence would have been sufficient to convict McCrimmon as a conspirator and an aider and abettor, but it would have been less compelling. The*fn15 government conceded as much when the prosecutor characterized Murphy as a "crucial" witness.*fn16 So the question becomes whether additional impeachment of Murphy for bias against McCrimmon because Murphy held McCrimmon responsible for foiling Murphy's expectation that Grimm would represent him would have had an impact on the defense strategy of undermining Murphy's testimony against McCrimmon. Although the transcript of Murphy's cross-examination shows that he was impeached with his pending sentencing and drug addiction, the additional impeachment for bias could have made a difference in pointing out that Murphy had a reason to lie not only to help himself, but in order to get back at McCrimmon. The questioning on Murphy's animus against McCrimmon was relatively minor in comparison with the other points of impeachment. Murphy deflected the charge that he was incriminating McCrimmon because he was mad at him for "snitching." See note 7, supra. If Grimm had brought up the issue that Murphy was angry because McCrimmon would not assist Murphy retain Grimm as his lawyer, he would have been able to use Murphy's own words ("if he wants to play like that, let's see what happens") to show the jury the intensity of Murphy's discontent. The importance to Murphy of having Grimm's representation could have been driven home to a jury that had observed Grimm's in-court performance defending McCrimmon, as compared to the frustrated Murphy who pled guilty because his attorney had told him he faced an "uphill battle."
III. The Potential Conflict
We agree with the trial court that any attorney-client privilege Murphy might have with Grimm concerning the underlying crime was waived by Murphy's plea. Moreover, Murphy himself had disclosed to the prosecutor that he was mad at McCrimmon for snitching and angry that his representation had not come through as he expected. See Bundy v. United States, 422 A.2d 765,*fn17 767 (D.C. 1980). The ethical rules, however, would nonetheless preclude Grimm from cross-examining Murphy based on their conversation, even if he were not revealing privileged information. Rule of Professional Conduct 1.6 prohibits an attorney from using either a "confidence" or a "secret" against a client. A confidence is defined as information protected by the attorney-client privilege, whereas a "secret" is "other information gained in the professional relationship that the client has requested be held inviolate, or the disclosure of which would be embarrassing, or would be likely to be detrimental, to the client." D.C. Rules of Prof'l Conduct R. 1.6 (b) (emphasis added). If*fn18 Grimm were to cross-examine Murphy about their private conversation, it would seem to be at least embarrassing to Murphy, and perhaps could even be seriously detrimental to him, if the examination succeeded in showing that Murphy perjured himself in his testimony against McCrimmon or that Murphy had been willing to "help" McCrimmon in his criminal prosecution in exchange for assistance in retaining the counsel he wanted. See Herbin v. Hoeffel, 806 A.2d 186, 197 (D.C.*fn19 2002); see also In re Gonzales, 773 A.2d 1026, 1029-30 (D.C. 2001) (stating that public allegations that the client "deliberatively lied" to his attorney is a "secret" within the meaning of a comparable Virginia rule of professional conduct because it could be "embarrassing" and "detrimental" to the client). In addition, Rule 1.7 prohibits a lawyer from representing a client in a matter in which the lawyer's judgment may be affected by duties to other parties without the client's consent. It is*fn20 axiomatic that the validity of McCrimmon's consent to Grimm's representation is necessarily dependent on his understanding of Grimm's remaining ethical obligations to Murphy.
That a lawyer has violated a rule of professional conduct designed to preserve client confidences and avoid conflicts of interest does not necessarily equate to a disqualifying conflict requiring reversal for infringement of the Sixth Amendment right to counsel. See Mickens, 535 U.S. at 172-73 (holding that reversal for conflict requires showing of effect on counsel's performance). The rules do provide guidance, however, and can shed light on counsel's perceived constraints. We have noted that the subjective belief of an attorney that a conflict is present, while not conclusive, is strong evidence of an actual conflict:
The fact that [the attorney] believed that there was a conflict of interest, and acted as though there was a conflict, constitutes strong, if not conclusive, evidence that an actual conflict existed. This court has recognized that, in determining whether a trial judge properly denied a defense request for a continuance based on a possible conflict of interest, it is "significant" whether counsel "believed the potential for conflict was so real as to oblige him to seek leave to withdraw from the case."
Derrington, 681 A.2d at 1134-35 (quoting Gibson v. United States, 632 A.2d 1155, 1159 n.14 (D.C. 1993)). Counsel "is in the best position to determine when a conflict exists." Mickens, 535 U.S. at 167 (quoting Holloway v. Arkansas, 435 U.S. 475, 485-86 (1978)). What McCrimmon and Murphy knew and what Grimm thought his ethical obligations were, are therefore essential to a determination of whether there was an actual conflict under Cuyler.
IV. The Record on Appeal
We cannot resolve this matter - nor could the trial court - without knowing whether Grimm actually believed there was a conflict, or whether McCrimmon understood the nature of the conflict when he consented to Grimm's continuing representation. If Grimm had no such belief and had other reasons not to question Murphy about his failed representation, McCrimmon's appeal would fail because the alleged conflict would not have obstructed a plausible strategy or defense. See Derrington, 681 A.2d at 1133. If, on the other hand, Grimm did believe that he was constrained by Rule 1.6, he most likely acted under an actual conflict. See id. The evidence we now have is inconclusive on the issue of Grimm's belief. Although the court determined that Grimm could "with complete ethical propriety, represent Mr. McCrimmon and . . . effectively cross-examine [Murphy]", it is odd that he did not pursue a line of questioning that the court said he "ought" to consider, particularly given that Murphy directly implicated McCrimmon in the shooting. It is possible to*fn21 read the transcript as indicating that defense counsel (and perhaps the prosecutor) had lingering doubts on the issue. The government explains that Grimm had reason to avoid this line of*fn22 questioning to prevent the jury from inferring that McCrimmon and Murphy (who the jury knew had pled to participating in the charged offense) were close associates. But this reasoning is weak at best. Even if the jury were to infer that McCrimmon and Murphy were close, that fact alone would have been much less damaging than the jury's crediting Murphy's testimony that McCrimmon prepared for and provided the guns immediately before the shooting. So the "critical question" remains, as in Derrington, "why a potential strategy, which was obvious[,] . . . was never pursued." 681 A.2d at 1136.
Moreover, if Grimm's decision not to more fully cross-examine Murphy for bias was in any way affected by Grimm's perception of a continuing obligation to Murphy, McCrimmon's reliance on Grimm's judgment that he was "comfortable" continuing the representation would be undermined. In the absence of McCrimmon's informed acquiescence, the trial court would have to conduct an inquiry if there was a "possibility of a conflict" to ascertain appellant's knowledge and informed consent. Witherspoon v. United States, 557 A.2d 587, 590 (D.C. 1989) (quoting Douglas v. United States, 488 A.2d 121, 136 (D.C. 1985)). In determining whether "a potential conflict reaches the point at which disqualification is warranted," we have recently said that the trial court should '"examine whether the subject matter of the first representation is substantially related to that of the second,' whether 'the conflict could cause the defense attorney improperly to use privileged communications in cross-examination,' and whether 'the conflict could deter the defense attorney from intense probing of the witness on cross-examination to protect privileged communications with the former client . . . .'" Pinkney v. United States, A.2d , 2004 D.C. App. LEXIS 316, *17 (D.C. June 17, 2004) (quoting United States v. Ross, 33 F.3d 1507, 1523 (11th Cir. 1994) (citations omitted)). The record raises - but does not answer - these questions. Thus, we disagree with appellant's contention that the substantive issue of the attorney's conflict can be decided on the present record.
We reverse and remand to the trial court for an evidentiary hearing and findings of fact on the question of Grimm's actual belief on whether he was ethically constrained in cross-examining Murphy; its impact, if any, on McCrimmon's consent to his continued representation, and whether it affected the defensive strategy followed in cross-examining Murphy.*fn23