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
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
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 ...