*1 in the “uninsured” the word upon reliance to the Powells’ As exclusion, Cathell Judge for the statute, and the reasons 291): (86 110, at 585 A.2d Md.App. continued ie., wife’s that his urges, also appellant hold as “To under covered uninsured because it was was not vehicle excess buy an owner permit be policy, another would relatively at a for one vehicle policy one coverage under his separate policy under a coverage premium small cost, coverage the excess and have at a lesser other vehicles under to the vehicles covered apply policy of the first subsequent policies.” in the Powell case. Exclusion holding agree with
We is authorized policy 4 in insurance the GEICO number under 19—509(f)(1) applicable Article and is Insurance § of the enter a Court should The Circuit of this case. the facts Comer, Jr. is not entitled Ray judgment declaratory under the GEICO motorist benefits uninsured/underinsured policy. insurance ANNE FOR THE COURT OF CIRCUIT
JUDGMENT REMAND- AND CASE REVERSED ARUNDEL COUNTY A DECLARA- TO ENTER THE CIRCUIT COURT ED TO OPIN- IN WITH THIS ACCORDANCE JUDGMENT TORY E. APPELLEE RAY BE PAID BY THE TO ION COSTS COMER, JR.
James Term, Sept. 2008. No. Maryland. Appeals
Court April *3 Gansler, Atty. F. Jawor, Atty. (Douglas Gen. Asst. Daniel J. MD), brief, Baltimore, petition- on for Maryland, Gen. er/cross-respondent. (Nancy Defender S. Public Kopolow, Assigned L.
John Laurel, MD), brief, Defender, respon- for Forster, Public dent/cross-petitioner. BELL, C.J.,
Argued HARRELL, BATTAGLIA, before GREENE, MURPHY, BARBERA, ADKINS and JJ.
BARBERA, J. Jr.,
Respondent, James Earl Goldsberry,
was tried before a
jury
the Circuit Court
George’s County
for Prince
and
murder,
convicted of second degree felony
conspiracy to com-
murder,
mit second degree
attempted robbery
danger-
with a
ous
weapon,
handgun
use of a
in the commission of a
crime
appealed
of violence. He
the judgments of conviction to
of Special Appeals,
Court
where he raised a number of
claims. The Court of Special Appeals, finding merit in some
claims,
of those
reversed the convictions. The court remand-
ed the
case
a new trial on the charges
attempted
armed
robbery and use of handgun,
but not
charges
of second
degree
murder
felony
conspiracy
degree
commit second
State,
murder. Goldsberry
v.
182 Md.App.
We the parties’ respective petitions for certiorari to (1) consider whether: the trial court Goldsberry’s violated right under the Sixth Amendment representation by his choice, counsel of by disqualifying one of Goldsberry’s three (2) privately retained attorneys; the trial court erred in its (3) instruction to the jury regarding unanimity; and the Court Special Appeals erred in holding that Goldsberry was improperly convicted of the “nonexistent” crime of second degree felony murder predicated on attempted robbery with a dangerous weapon. follow,
For the reasons that we hold that the trial court *4 Goldsberry’s violated right to counsel of choice and the inter- mediate appellate court in erred its holding regarding the felony murder conviction. Because our disposition entitles trial, Goldsberry to a new we do not address the propriety the court’s unanimity instruction.
I. co-defendant, Goldsberry Jr., and his Myers, James were jointly tried on charges arising from the homicide of Vincent infra, jury- detail in more explained As Chamberlain. to rob Chamber- Myers attempted and that found so, shot Cham- doing Myers and while marijuana, lain of his head, him. killing in the berlain Jezic, McKen Joseph attorneys Andrew Goldsberry hired firm, to Giannetti, law each of a different zie, and John trial, filed a motion Myers him at trial. Before represent hearing on Goldsberry. At the that of his trial from sever counsel, Hart, informed motion, his Janet through Myers, that spoken previously had attorney that McKenzie the court Hart was not the case. Ms. the facts of Myers regarding place, took which the conversation the exact date on certain of conversation, McKenzie whether of the purpose Goldsberry, and on behalf of his appearance time had entered the time. Hart by counsel at represented whether client between her the conversation alleged nevertheless Rules of Maryland violations posed possible and McKenzie attorney’s to an duties (pertaining 1.181 Conduct Professional clients) communi- (concerning attorney 4.2 prospective entitled, "Duties to of Conduct 1.18 is Maryland Rule of Professional Client,” Prospective provides: forming a (a) lawyer possibility of person with a who discusses A prospective a relationship respect to a matter is client-lawyer with client. (b) ensues, relationship lawyer who client-lawyer Even when no prospective not use or reveal client shall had discussions with has consultation, except 1.9 would as Rule in the information learned respect of a former client. permit to information with (b) (c) represent subject paragraph not a client lawyer shall A prospective client in materially to those of a adverse interests lawyer informa- substantially if the received related matter same or significantly harmful to prospective that could be client tion from the (d). matter, provided paragraph If a except person as in the paragraph, representation this no lawyer disqualified under is from may knowingly lawyer is associated lawyer with which that in a firm matter, except as representation such a or continue undertake (d). provided paragraph and the (d) the affected client Representation permissible if both is consent, writing, confirmed in given informed prospective have client any participation in lawyer timely from disqualified screened or part fee therefrom. apportioned no of the and is the matter *5 counsel).2 person already represented by cations with a Hart that, further explained that McKenzie informed her after the Myers, conversation with he called the District Court and learned that there was no line of appearance filed on behalf of noted, however, Hart Myers. comput that the District Court system er “very accurately often” does not reflect the correct date of the line of appearance. argued
Hart to the trial court that McKenzie’s actions First, prejudiced her client in ways. Myers two would be assessing throughout trial whether to testify, possibili ty of him cross-examining McKenzie’s would “affect[ ] [Myers’s] clear, to make a ability unencumbered decision.” Second, if Myers him, testified and McKenzie cross-examined it would wrong” because McKenzie had already “look[ ] dis cussed the facts of the case with him.3
In response, attorney explained Jezic that McKenzie had not entered his appearance Goldsberry when he spoke with Myers and represented McKenzie never to Myers that he was person.” “disinterested Jezic noted also that the conversa- place and, tion took before Myers’s preliminary hearing date after McKenzie informed Jezic of the conversation with Myers, the two took several actions to mitigate any possible First, rule McKenzie, violations. upon learning Myers was unrepresented, called the District Court and attempted to And, second, obtain counsel for Myers. Jezic and McKenzie never “anything discussed Myers said.” McKenzie supplemented representations, that, Jezic’s adding although he 4.2, Maryland entitled, Rule of Professional of Conduct "Communica- 2. Counsel,” Represented by provides tion with pertinent part: Person (a) Except (c) provided as paragraph [authorizing communication government circumstances], with a repre- official under certain client, senting lawyer subject shall not communicate about the representation person lawyer with a represent- who the knows is by lawyer ed in the lawyer matter another unless the has the consent lawyer of the other or is authorized law or court order to do so. that, by "looking wrong,” We surmise suggesting Hart was Myers McKenzie, testify should and be resulting cross-examined only Myers, interaction not appear would be unfair to but would unfair jury. to the at no time Myers, the facts of the case with had discussed any the conversation did make admissions. during *6 representation also confirmed to court McKenzie Jezic’s prior to the Myers place the conversation with took Myers.4 and Goldsberry indictments of issue, trial from on the court hearing parties After both Myers a fact the conversation between and found as And, Myers took was based place McKenzie before indicted. representations, and McKenzie’s the court further on Jezic’s not the sum convey that “Mr. McKenzie did to Mr. Jezic found matter, ... any summary, any substance or for that Myers.” had with Mr. The court [Mr. conversation McKenzie] “It’s clear Mr. McKenzie did not know that stated: him, he talked to anybody representing was Mr. when reality absolutely wrong is with an nothing and the there’s co-defendant, may trying who attorney, representing be is with the other defendant if that defendant not communicate and, The court denied the motion for severance represented.” instead, on imposed restrictions McKenzie’s involvement trial. The court stated: Jezic, simply, you represent [Goldsberry], Mr. Mr.
Very reality is not him The representing anymore. McKenzie is prejudice been no absolutely [Goldsberry], that there’s and, McKenzie, you reality that—you but the can can table, you reality back from the trial but the is—and step trial, during can consult with course of the but Mr. Jezic going this trial forward wherein there’s going keep we’re taint whatsoever. no that, Goldsberry objected. He because de- argued
Jezic table, the trial presence sired McKenzie’s continued on involvement Goldsberry’s restriction McKenzie’s violated Amendment counsel of choice. The court right Sixth his its could ruling, explaining then modified that McKenzie re- April 2006. 4. The record shows that was indicted on The case, notice, Myers’s judicial docket entries of which we take on-line April reflect that he indicted on table, anything main at the trial but was not to reveal to Jezic related to Myers. his conversation with
At that point, brought State to the trial court’s attention conflict, a second one that involved McKenzie and Davis, Ms. Tawanna who was testify scheduled to as a State’s Davis, State, witness. Ms. according to the had testified jury before the that she grand by Goldsberry was “coached” that, and McKenzie. The if State advised the court Davis chang[ed] testimony “somehow her from what she had told the grand “there jury,” might point come a time where I’m her if going to ask she was coached an attorney.” court, hearing ruled:
That’s all the more disqualify reason [to McKenzie]. McKenzie put position himself of being possible *7 mind, witness in this case. So with that in the Court is even more now than it was two minutes with ago comfortable telling Mr. McKenzie that he can’t participate in this trial. we’re going So not to take any chances. Mr. McKenzie will sitting table, not now be at the trial not because [Goldsber- to, ry] does not want him reality but he is could potentially be a in witness this case. added.)
(Emphasis Jezic renewed his objection, earlier arguing again once the restriction on McKenzie’s to ability represent Goldsberry violated Goldsberry’s Sixth Amendment right to choice of counsel. The court responded that it believed “there’s an if exception going to be a [McKenzie is] witness.”5 out, permitted testify 5. As it turned Davis was not at trial. An in hearing camera testimony conducted to determine whether Davis's regarding by Goldsberry statements made her were as admissible conspiracy. developed hearing statements in furtherance of a It at the during telephone that Davis would have testified that conversation Goldsberry implicated shooting. himself and in the The court case-in-chief, testifying prosecution’s barred from finding Davis in the Goldsberry’s alleged statements Davis were made well after the completion alleged conspiracy. present purposes, of the For it is important transcript any to note hearing that absent from the of the is indicating statement Davis that she was "coached” McKenzie. unnecessary, It January Trial commenced here, all that to recount the issues we decide purposes which factual context within trial. To set the occurred at arose, summary on the rely we shall those issues Special Appeals’ set forth the Court underlying facts opinion.6 Goldsberry and Braxton, an of both acquaintance Wendy
. Chamberlain, to the victim, and the sole witness Vincent Chamberlain, gave of Mr. shooting attempted robbery trial. Ms. Brax- of the events at an uncontradicted account visiting while that sometime March ton testified invit- a call from Mr. Chamberlain Goldsberry, she received house to come to Mr. Chamberlain’s Goldsberry her and ing marijuana. to smoke house, handed Ms. Mr. Chamberlain arriving at the
On so, doing roll and while she marijuana to Braxton some selling discuss Goldsberry and Mr. Chamberlain heard to a marijuana. proceeded The three then Chamberlain’s marijuana. of the the house to smoke some field behind Goldsberry and Mr. Chamber- again Ms. Braxton observed field. Ms. Brax- returned from the conversing they lain as him off at Goldsberry dropped departed ton then his apartment. her called
Ms. Braxton further testified questions about Mr. Chamberlain. evening later that ask asked, she knew Mr. Chamber- particular, long He “how Braxton if cool and stuff.” Ms. subse- lain” and “he was *8 if asking she a call from Mr. Chamberlain quently received him pick up. that she play requesting cards and wanted approximately home at at Mr. Chamberlain’s arriving On Goldsberry testified that she saw 10:00 Ms. Braxton p.m., in the house. Golds- front of parked and another individual with Mr. Chamberlain spoke exited the car and berry Braxton further testified Golds- outside the house. Ms. car, “go get that he had to stating after berry left his Special Appeals' supplemented the Court of 6. We have and modified necessary. summary, where with Mr. something.” returning, Goldsberry proceeded On to a shed attached to the rear of the house. Chamberlain out of her car several minutes later and got Ms. Braxton if could use went to the shed to ask Mr. Chamberlain she bathroom. at the rear of the house near the While shed, front Goldsberry Ms. Braxton saw walk towards the Braxton Myers. the house and return with Mr. Ms. testi- Goldsberry Myers fied that as and Mr. entered the shed and house, Goldsberry approached leading the door to the drew Chamberlain, gun pointed gun Mr. at Mr. Cham- face, “give berlain’s and said me the stuff.” She then Myers pull observed Mr. from his gun pocket. Goldsber- ry repeated “give me the stuff.”
Ms. ran to backyard, Braxton hide behind a tree Myers chasing where she observed Mr. Mr. Chamberlain. shot, hearing She testified that saw Mr. prior gun she Myers pointing gun Mr. Chamberlain’s head. Ms. shed, Braxton then saw run out of Mr. Goldsberry house, run Myers around to the front of the and Mr. to the ground. Chamberlain fall After Mr. scene,
Goldsberry fled the Braxton Ms. ran to Cham- berlain and blood from his coming saw head. Unsure of do, what to Ms. Braxton got her car and left the scene. around,” As Ms. “driving Goldsberry Braxton was called her, if gone asked she had to the police, requested they meet. Ms. “I’m Goldsberry When Braxton told not going up you you you to meet so that can kill me like Vincent,” did “I kill I Goldsberry told her that didn’t him. going just didn’t know that was I there to happen. went him, got rob and James scared and he killed him.” Golds- berry warned her that “snitches stitches.” Ms. Braxton get also testified that offered her money, discussed up story,” the need “to make and told her to tell he police was not at the scene.
Fearing safety, stay for her Ms. Braxton went to with a hours, friend. next Over the she was called Goldsber- conversations, ry day.” “four or five times a During those Goldsberry asked where if repeatedly she was and she had *9 being family, upon Ms. Braxton’s
spoken police. with the witnessed, convinced her that of what she had told her incident, days Three after the police. must inform the she station, where she identified police Ms. Braxton went to shot” Chamberlain and Goldsber- “person as the who present shooting. as been at ry having 400-02, 1114-15. at 957 A.2d at Goldsberry, Md.App. case, Goldsberry moved for a of the State’s At the close mistrial, again once the Sixth Amendment counsel raising not been that “Mr. McKenzie has argument, noting choice trial” and had been “outside of able to the entire participate The court denied Goldsber the courtroom the entire case.” mistrial, “I have allowed Mr. stating: [ ] motion for a ry’s and Mr. Gian you McKenzie communicate with [Mr. Jezic] The fact that he’s representing [Goldsberry], netti terms of mean he couldn’t communi outside of the courtroom doesn’t that, cate, and, I he has been obviously, apparently, take note court further stated that communicating you.” The Mr. prejudiced during not been the trial Goldsberry had Mr. Jezic reminded the court McKenzie’s absence. witnesses,7 subject had been to the rule on because McKenzie nor had discussed with McKenzie neither Jezic Giannetti evidence adduced at trial. The court anything related I he though. “That’s not what the Court ruled said replied: he you. only thing and communicate with go could ahead you tell what his conversations were with couldn’t do was evidently forgot The court its earlier admonition Myers.” 5-615, witnesses,” provides: Maryland Rule entitled "Exclusion (b) (c) (a) provided general. Except in sections of this In as Rule, upon request party testimony begins, the of a made before they hear the court shall order witnesses excluded so that cannot necessary proper protection testimony When of other witnesses. action, may witness of the defendant in a criminal an identification appears open defendant court. The court be excluded before the upon may or order the exclusion of a witness on its own initiative any may request party time. The court continue the exclusion of a testimony party following if a of a witness witness likely give represents to be recalled to further witness testimony.
Ill *10 “got go Mr. McKenzie has to outside defense counsel that he be a witness.” may because evidence, gave following the the At the close of all the court concerning felony murder: instructions call Question number two reads—and this is what we felony degree premeditat- murder. It’s different from first Felony ed murder. murder can be divided into two differ- degrees. Question degree felony ent two deals with first charged murder. That means that each defendant is with your guilty the crime of murder. If verdict is not felony murder], one then question degree premeditated you [first go onto two. two,
In prove question order to elements the State defendant, in prove must that the or another participating defendant, crime or to attempted with that committed underlying felony. underlying felony commit five, question attempted robbery deadly this case is with a a weapon. precursor question So that’s two. two, element, defendant,
Number the second is that the crime, victim, or another killed the participating defendant, this case Mr. Chamberlain. That the or another crime, in the killed the victim. person participating And, three, resulting number that the act in the death of during underlying the victim occurred the commission of the case, felony. In this is the particular underlying crime if attempted robbery deadly weapon. with a So the murder during attempted robbery, occurred the course of the element, if proven beyond satisfies that a reasonable doubt. necessary prove It is not for the State to defendant intended to kill the victim. So in the particular murder, felony necessary the intent to kill is not to prove. Now, degree felony that would be the definition of first murder, question number two. two,
If your guilty question verdict is not number then three, which you go question would number is second murder. murder degree felony degree felony Second defendant, in the participating means that the or another defendant, com- attempted committed or crime with five, felony, attempted underlying again, question mit the deadly weapon. a robbery with two, inway attempt- that the which the Element number deadly was committed or at- robbery weapon ed created—and here’s the under all circumstances tempted murder and second degree felony distinction between first murder, attempted degree felony In second degree. foresee- robbery deadly weapon reasonably with a created likely result physical injury able risk of death or serious reasonably risk in death. So that act created foreseeable in death. physical injury likely of death or serious to result inway element is as a result of the which The third *11 robbery deadly weapon the with a was commit- attempted ted, distinguishes was killed. That second Mr. Chamberlain remember, murder from first But degree felony degree. kill one. present the intent to doesn’t have to be for either of requirement unanimity The court’s instruction on the as follows: to each every charge,
Your verdict as to each as defendant, of a unani Anything must be unanimous. short means a 12 to acceptable. mous verdict is not Unanimous deliberate.[8] vote. Our two alternates do not nothing deliberations, court, the a note to the During jury its sent “[cjould clarify the difference first stating: you please between repeated murder.” The court degree felony and second murder, degree felony elements of first and second then basic stated, in pertinent part:
Now, in. here’s where the difference comes This is degree, element of second and this makes it different second way attempted That the in which the degree. from first Maryland Jury 8. The State Bar Associations Criminal Pattern Instruc- ("MPJI-Cr”) (2005) following instruction tions 2:03 recommends unanimity: pertaining to juror represent judgment each Your verdict must the considered words, you In other all twelve of must and must be unanimous. agree. H3 question five—was deadly weapon—your with a robbery all the cir- attempted—under in committed—or this case [sic], a cumstances, circumstances created under all the physical or of serious reasonably foreseeable risk of death in injury likely to result death. That the manner which
I’ll that one more time. repeat deadly weapon a was commit- attempted robbery with circumstances, ted, reasonably a foresee- under all created injury likely to physical of death or of serious able risk in death. result Goldsberry degree of second jury
Thereafter the convicted murder, robbery dangerous weapon, with a felony attempted violence, of a crime of handgun the commission use of murder. degree to commit second conspiracy moved for a new trial. sentencing, Goldsberry Prior to Maryland law repeated previous argument his Goldsberry degree felony upon second murder based recognize does not robbery dangerous with a underlying felony attempted Thus, view, Goldsberry’s degree felony the second weapon. rejected The court Golds- murder conviction could not stand. contrary Maryland law and denied berry’s contention as motion. attempted robbery merged
The Court conviction degree felony with the murder convic- deadly weapon second tion, 30-year imprison- to a term of and sentenced murder, degree felony 20-year ment for second consecutive *12 for in the commission imprisonment handgun term of use of violence, concurrent term of 30-year of a crime of and a degree to commit second murder. imprisonment conspiracy Appeal claims of error before the Court of Goldsberry raised five 394, 182 957 A.2d Special Appeals. Goldsberry, Md.App. See Court, Goldsberry 1110. relevance to the issues before this Of by: that the trial committed reversible error contended court (1) representing Goldsberry McKenzie from disqualifying choice; right Amendment to counsel of violation of the Sixth (2) degree felony to the of second submitting jury charge
114
(3)
murder;
a unanimous
instructing
jury
only
400,
Id. at
115 “in determin- trial within its discretion held that the court was out- [Goldsberry’s] to counsel of choice was right ing that fairness, interests of maintain- countervailing weighed by standards, interest.” avoiding conflicts of ethical Id. ing 420, A.2d at 1126. at 957 contention, Special Appeals the Court of the second
As for murder degree felony Goldsberry that second agreed with robbery a “nonexistent” armed is predicated upon attempted 1116. A.2d at Maryland law. Id. at 957 under crime the trial Appeals held that Accordingly, Special the Court of felony degree in on jury second instructing court erred and, jury. that to the sending charge presumably, murder degree held that the second Special of Appeals The Court of possibility must reversed without the murder conviction be 400, 957 A.2d charge of murder. Id. at felony on the retrial at 1115. reli- by in Special Appeals began explaining, of
The Court (2001), State, 786 706 Fisher v. 367 Md. A.2d ance on scheme, divides Maryland’s statutory which purpose degrees, severity punish- to differentiate murder into 404-05, then noted Id. 957 A.2d at The Court ment. felony murder. degree the distinction between first and second Court, murder, degree felony explained requires First commission, or attempted homicide that occurs in the commis- (2002 sion, in Maryland of one of felonies listed Code § 2-201 of the Criminal Law Article Repl.Vol., Supp.2009), (“CrL”) (a), alia, murder is (providing inter “[a] represented
berry]
by
selected—and the
was still
Mr. Jezic—whom he
ruling permitted
[Goldsberry's]
Mr. McKenzie
assist in
trial court’s
they
consulting
long
Jezic and Mr.
as
as
defense
with Mr.
Giannetti
Myers.”
Md.App. at
not discuss the conversation with Mr.
did
420-21,
A.2d at
two
with those state-
1126. We have
concerns
First,
differently
we read
as concerns the trial
ments:
the record
insofar
representation
Goldsberry.
we
As
court’s limitation McKenzie’s
court,
it,
though going
point,
fact
the trial
back and forth on this
see
disqualified
altogether
[ ]
court
McKenzie
McKenzie
when the
said "Mr.
Second,
participate
disagree,
in this
we
for reasons that
can’t
trial.”
discuss, infra,
Goldsberry’s right
of choice was not
we
counsel
disqualification
prejudiced
of McKenzie.
*14
(4)
first
if it
...
in
degree
is
committed
the perpetration of or
(ix)
an
...
attempt
perpetrate:
robbery
§
under
3-402 or
(b)
§
article!,]”
3-403
this
in
providing
punish-
that the
ment,
life”).
generally, “shall be ...
imprisonment for
Second
degree felony murder is predicated upon
felony that,
al-
2-201(a)(4),
in
though
§
not listed CrL
its nature or the
inway
perpetrated
which it is
sufficiently dangerous to life.
407,
Goldsberry,
Md.App.
182
at
The Court of Special Appeals found additional error in the
trial court’s
subject
re-instruction on the
in
response to
jury’s
for
request
further instruction distinguishing first from
second degree felony murder. The trial court instructed that
the difference between the two degrees was whether “the
attempted robbery
deadly
with a
weapon created a reasonably
foreseeable risk of death or of
physical
serious
injury likely to
Fisher,
result
death.” Citing
250,
The Court of Special Appeals also agreed with Goldsberry
that the trial court’s jury instruction regarding unanimity coercive and erroneous.
Id. at
We question: ing of his constitution- Goldsberry deprive
Did the lower courts effectively disqualifying by his choice to counsel of right al attorney? defense one trial on to a new is entitled
holdWe right under Goldsberry’s court violated that the trial ground disqualifying by counsel of choice Amendment to his the Sixth hold, team. further the defense We McKenzie from attorney re-try Golds- may the State explain, that for reasons we shall to the limitations subject murder felony charge on the berry outline) peculiar (which that are demanded we shall of this case. circumstances
II. Amendment Claim The Sixth
A. that, all criminal provides “[i]n The Amendment Sixth have the ... to enjoy right the accused shall prosecutions, to counsel right The for his defence.” of Counsel Assistance court- defendant, require not who does of a right includes the 118 counsel, to the counsel of his or her
appointed
choosing.
select
Wheat,
State,
159,
1692;
See
The facts of Wheat the with presented Supreme Court the opportunity explicate to these The Court principles. had question before it the whether court federal district had refusing erred in to his permit right Wheat to waive to representation by conflict-free counsel and obtain an attorney who several at represented co-defendants. 486 U.S. S.Ct. 1692. and numerous Wheat co-defendants had been charged drug with in a participating conspiracy. distribution co-defendants, Bravo, Two of those Javier Gomez-Barajas and attorney were represented by Eugene Iredale. Iredale had Gomez-Barajas obtained on behalf of an acquittal respect to the distribution and a drug charges subsequent plea deal on events the time of the relevant charges at unrelated court. case, by district yet accepted not been had Wheat’s 155, 108 Id. at plea a deal for Bravo. negotiated also Iredale results, Wheat, evidently impressed those 1692. S.Ct. con- his At the representation. request Iredale to contacted Iredale informed proceeding, guilty plea of Bravo’s clusion represent Iredale request of to have court Wheat’s district Id. his trial. upcoming him at sugges court, prompted by Government’s
The district pose potential representation would proposed that the tion issue, day conflict, decide the one hearing conducted a commence. The Gov trial was scheduled to before Wheat’s grounds representation to Iredale’s objected ernment on two Gomez-Barajas for his deal plea of at trial while Wheat First, posed representation Id. the dual pending. remained Gomez-Barajas’s possibility conflict given court, in a trial rejected by resulting the district plea would be might be called Government during which Wheat Gomez-Barajas. Id. at 108 S.Ct. testify against prevent Iredale ethical strictures would happen, Should Wheat, rendering rep Iredale’s cross-examining thereby from Second, the dual Gomez-Barajas of ineffective. resentation because, as posed separate potential conflict representation deal, agreed testify against he part plea of Bravo’s Wheat 156, 108 of 1692. Given the Rules trial. Id. at S.Ct. Wheat’s be unable to cross- Iredale would Responsibility, Professional Bravo, representation his of rendering ineffective examine Wheat. the Sixth Amendment responded right that his under
Wheat right him to choice entitled waive his to counsel his disputed He the Government’s concern conflict-free counsel. that were “manufac “highly improbable” conflicts posing as he, Go Wheat also noted that disqualify tured” to Iredale. any potential had claims of mez-Barajas, and Bravo all waived 156-57, 108 Id. at S.Ct. 1692. conflict interest. request
The district court denied Wheat’s substitution *17 joint ground representa- on the that the Iredale as his counsel 120
tion would
an
pose
irreconcilable and un-waivable conflict.
trial,
counsel,
Wheat proceeded
represented by
original
to
his
and was
of conspiracy
marijuana
convicted
to distribute
related
appealed, arguing, among
offenses. Wheat
other
claims, that
ruling deprived
district court’s
him of his
right
Ap-
constitutional
counsel of choice. The Court of
peals for the Ninth Circuit
and affirmed
disagreed
judg-
Wheat,
(9th Cir.1987).
ments.
v.
United States
It is in the
Supreme
latter
noted the
“likelihood and dimensions of nascent conflicts of
are
interest
notoriously
predict,”
hard to
the trial
act
requiring
court to
without the
of a fully
benefit
record
at
developed
produced
162,
trial.
Id.
reason,
at
S.Ct. 1692.
this
For
the trial
court is
afforded “substantial
latitude
of
refusing waivers
conflicts of
Id. at
interests.”
121 that case with what grappled Wheat have applying Courts weighty making court in the important of a trial requires of issue. United by choice counsel a presented assessment Cir.2006) (5th In Nolen, illustrative. 472 F.3d v. 362 States Nolen, protestor,” charged case, persistent a “tax that District of for the Eastern United District Court the States willfully attempting to evade counts of Texas three represented being 369. After income taxes. See id. at federal proceed- throughout pre-trial attorneys several different by him. See id. at represent hired John to ings, Nolen Green hac vice. pro Green was admitted 370. continuance, magis referred to the
In a motion for Green presided preliminary had over matters judge, trate who that, in the involved, not in manner district which Green was Rule 8.02.11 No view, Disciplinary Texas implicated court’s len, court a show cause 472 at 370. The district ordered F.3d and, proceeding, pro revoked Green’s hac vice hearing eva Nolen was later convicted of willful tax admission. Id. sion. successfully district court appeal, argued Nolen that the
On
failing to
the need
committed reversible error
“to balance
Nolen’s Sixth Amendment
against
to enforce [ethical rules]
Fifth
of
Id. at 371. The
Circuit
Right
counsel
choice.”
may
criminal
choice of counsel
be
explained that a
defendant’s
“if,
‘in light of the
disqualified
only
for an ethical violation
ethics,
the
need
underlying
interests
the
social
standards
party’s right
ethical
the
counsel
practice outweighs
”
Kitchin,
United
v.
592
(quoting
his choice.’ Id. at
States
(5th Cir.1979)).
Therefore,
“[conducting such
F.2d
balancing
disqualifying
thus a
counsel
prerequisite
test is
choice,
the record
explicating
process
defendant’s
Nolen,
appellate
review.”
Fuller v.
The Third Circuit That court noted that a trial court, issue, when with a of confronted choice counsel must “ conduct a ‘make hearing specific findings of fact consistent with the Id. at 608 v. (quoting evidence[.]’” United States Romano, 812, (3d Cir.1988) 849 F.2d 820 that (finding district summary court’s denial of vio- requested defendant’s counsel choice)). right lated of Looking counsel to the trial court’s request vice, denial of for pro Fuller’s counsel hac the Third Circuit concluded that “the trial approach court’s wooden and its failure record-supported findings to make the balancing right to the counsel with the of demands of administration justice arbitrary resulted in an denial of’ the of right to choice Fuller, counsel. F.2d at The 868 Fuller Court was careful to explain, though, holding that its did not “militate” against the broad discretion afforded trial court as discussed Wheat, instead, but, simply made plain only “[u]pon obtaining sufficient information” is the court equipped discretion, “instinct[,] exercise its judgment and based (internal experience.” quotation Id. marks and citation omit- ted).
123
the
to be
specificity
steps
courts
addressed with
Other
have
choice
counsel
by
assessing
court
undertaken
a trial
Ortega,
in People
The
Court did so
v.
Supreme
Illinois
issues.
530,
(2004). In
354,
N.E.2d 496
Ill.2d
283 Ill.Dec.
808
present
are
purposes,
the
of which
irrelevant
Ortega,
facts
following
Illinois
the
frame
Supreme
suggested
Court of
the
work,
must first determine
based on
trial court
Wheat:
for conflict.”
there
“actual or serious
whether
530,
If the
B. Goldsberry argues that the evidence of the two purported ethical conflicts relied upon by the trial court disqualify McKenzie—his Myers conversation with before trial and McKenzie’s alleged coaching of sketchy” Davis—“was too justify disqualification under Wheat and its progeny. Golds- berry first directs us to the record pertaining to McKenzie’s conversation Myers, Myers’s with which counsel suggested posed potential Maryland violations of Rules of Professional Conduct 4.2 and Goldsberry 1.18. maintains that the evidence presented to the court did not support finding potential of a violation of either rule of professional conduct.
Goldsberry points out that Rule 4.2 prohibits an attorney, engaged client, while in the representation of a from “commu- nicat[ing] subject about of the representation with a person lawyer who the represented knows is in the matter by lawyer....” another He argues, based representations on the court, made to the trial all of which indicated that not represented by counsel at the spoke time he with McKen- zie, that the record does not support transgression of Rule 4.2. 1.18,
Turning to Rule
Goldsberry emphasizes that the Rule
applies only
client,”
a “prospective
defined as
person
“[a]
who discusses with a lawyer the possibility
forming
a client-
matter____”
lawyer
relationship
respect to a
contends that there is no indication in the record that Myers
*21
and McKenzie discussed
that
anything
would implicate Rule
1.18. To the contrary, argues Goldsberry,
only
the
representa-
on this
indicate that
point
made to the trial court
tions
case and
only the
of the
McKenzie and
discussed
facts
no
to McKenzie.
Myers made
admissions
deter
Special Appeals’
next
the Court of
Goldsberry
attacks
3.7,”
there
“a
violation of
[Rule]
mination that
was
(a poten
given
representation
State’s
that Tawanna Davis
the
witness)
jury
before the
that
grand
tial
had testified
State’s
lawyer
Rule 3.7
a
prohibits
had “coached” her.12
McKenzie
attorney
a client in a trial which the
representing
from
”
Goldsberry
witness....
asserts
“likely
necessary
to be
the trial court
presented
insufficient information
to
there was
court
to
“a
need”
compelling
to
the
determine
allow
testify. Goldsberry argues
“any
scenario
McKenzie to
‘necessary
have become a
witness’
which Mr. McKenzie could
Ms. Davis
a remote and
‘coaching’
a result of
was
[ ] as
Goldsberry,
record before
speculative
According
one.”
to
the
decide,
inquiry
to
necessary
court lacks the sort
trial
3.7,
Rule
to honor
choice
regard
whether
a defendant’s
“conclusory”
made
representation
Other than the
counsel.
State,
Goldsberry,
proffer
there
no
made
argues
what, if
McKenzie
testimony
anything,
nor
taken to indicate
Moreover,
require
Davis.
trial court did not
said to
be if
testimony
would
proffer
State either
what McKenzie’s
or
“there was no
called as a witness
to demonstrate that
Mr. McKenzie to the stand.”
calling
feasible alternative
the trial
Goldsberry suggests
required
had
court
fash
parties
make these
could have
showings,
State to
witness,
being
alternative
called as
ioned an
McKenzie’s
concerning
the conversation between
stipulation
such as
the trial
and Ms.
alleges
McKenzie
Davis.
change
a “purely hypothetical
court made its decision based on
testimony.”
[Ms. Davis’s]
Myers’s
anyone
applicability
else
Neither
counsel nor
mentioned
Special
3.7 at trial.
Court of
of Rule of Professional Conduct
3.7,
however,
upholding
Appeals,
relied
the trial court's
on Rule
ruling.
*22
Goldsberry
cases,
refers us to various
the notable ones of
which
above,
we have discussed at
length
support of his
that
argument
the trial court failed to employ
analysis
required when confronted with the decision whether to de-
prive a defendant of
her
his or
chosen
counsel.
contends, in
that the
particular,
trial court failed to conduct a
sufficient threshold level
evidentiary
of
inquiry
alleged
into the
conflicts, which, undertaken,
if
would have enabled the proper
balancing Goldsberry’s
right
counsel of choice on the one
hand,
fairness,
and the
conflicts,
interests
avoidance of
and
maintenance of ethical standards on the other. Because the
trial court failed to conduct such an inquiry, contends Golds-
berry,
the presumption of counsel of one’s choice was not
overcome, and
disqualification
McKenzie’s
constituted struc-
tural error under United States v. Gonzalez-Lopez, 548 U.S.
140,
2557,
(2006)
126 S.Ct.
Special Appeals’ holding on this issue. The State contests Goldsberry’s characterization of the record as In “sketchy.” view, the State’s the record “adequately poten established the tial conflicts of and interest ethical violations committed prior McKenzie that, trial.” The State argues consis tent with the reasoning employed by the Supreme Court in Wheat, 486 U.S. 108 S.Ct. the trial court was well (cid:127)within its considerable discretion finding McKenzie’s conduct “a posed serious potential for conflict.” (Quoting Wheat, 1692). 164, 108 486 U.S. at S.Ct.
Turning to McKenzie’s conversation with the co-defendant that, Myers, the State given contends the breadth of conduct prohibited by 1.18, Rule there was a sufficient showing of a so, violation of State, that Rule. This is argues even though the record “does not disclose the substance of that, conversation.” The explains State pursuant to Rule 1.18, a prospective client person includes a who discusses -with lawyer the possibility an forming attorney-client relation- ship respect State, to a matter. The it though does not so, say presumably contends based on the expressly Hart, Jezic, McKenzie, representations by attorneys made enough there was in the record to afford Myers protec- provided prospective tions clients. implies prospective-client Myers
The State status for First, Rule significant would be for two reasons. under 1.18(a), never formed an though even McKenzie McKenzie from attorney-client relationship, prohibited using *23 any during information he learned the consultation with informed an Myers, Myers’s applicable absent consent or 1.18(c) (d) Second, are confidentiality. Rule exception McKenzie, presumably because who obtained infor- implicated conversation, Myers during mation harmful to their would be representing Goldsberry, “materially whose interests are ad- Myers. verse” to the regard alleged “coaching” poten-
With to McKenzie’s witness, Davis, tial State’s Tawanna the State concedes “that the record not the that does disclose substance of conversation notes, however, McKenzie and [between Davis].” State (i.e., prosecutor’s that the to the that representation trial court grand jury Davis testified before the that she coached McKenzie), McKenzie told “how to suggests testify, Davis including say say.” what and what not to The State itself, contends that in representation, this and of made potential reasons, McKenzie a in witness the case. For these the argues State that there was “a firm foundation [the trial decision to exclude Mr. court’s] McKenzie.”
C. conclude that Goldsberry part We has the better of the argument on grounds argument this issue. The State its Supreme Though Court’s decision Wheat. Wheat in deed supports State’s contention that a trial court is afforded discretion in whether a criminal deciding defendant’s given selection of counsel is conflict permissible purported interest, does not trial discretion excuse the court’s failure to conduct inquiry a threshold level of to determine Wheat, 486 U.S. potential,” a “serious there was
whether existed or asserted conflicts 108 S.Ct. arise. would stands
Moreover,
present
record in the
case
sparse
the serious
suggesting
facts in Wheat
contrast to the
sharp
In
of the district
approving
of counsel.
for a conflict
Wheat, the
Court
Supreme
exercise of discretion
court’s
confronted, as a result
court had been
that the district
noted
trial,
day
substitution of counsel one
before
desired
of Wheat’s
conspirators
“three
representation of
proposed
with the
scheme.”
drug
in a
distribution
varying
complex
stature
Furthermore,
Wheat,
163-64,
We Rule 1.18. “could have” violated Myers zie’s conversation with 1126. But at 957 A.2d at Goldsberry, Md.App. 182 See trial, court rested at which the trial developed upon the record decision, revealing not come close to “serious its does conflict,” established requires be Wheat potential
129 may before the trial court exercise its discretion to deprive defendant of his or her counsel of choice.13 Myers’s
At the motion to trial hearing have his severed from the trial Goldsberry’s, presented impre- court was with from Myers’s cise assertions counsel about McKenzie’s conver- Myers. sation with We have mentioned that there were no conversation, indicating facts at the time of the Myers Moreover, represented by only counsel. information concerning before the trial court content of conversa- tion came from McKenzie’s to the court representation case, him only related to the “facts” of the and made “no admissions.” trial court did not ask of McKenzie his ie., meeting intentions with Myers, sought whether he Myers to solicit him as a client. Nor did the trial court request Myers’s from counsel a proffer concerning the nature Indeed, counsel, of the conversation. Myers’s presum- who ably would have forth her put strongest arguments an trials, attempt to sever the could “I if only say don’t know the purpose meeting involves Rule 1.18 and whether it was attempt an with speak prospective client or whether it State, evidently Lettley 13. The Dissent relies on v. Md. 746 A.2d (2000), therein, authority proposition and the cited for the that the permitted accept, trial court be should at face value and without inquiry, Myers's further counsel’s assertion that McKenzie had created potential by speaking a serious for a Myers, conflict when and authority, though, under the circumstances he did. That concerns the brings situation in which defense counsel himself or herself to the trial interest, court’s attention counsel’s own or actual conflict of which, view, attorney’s prevents attorney in that adequately from representing his or her "judges client. It is in that context that should normally accept lawyer’s at face value a assertion that a conflict of (quoting interest Legal exists." Wolfman, Ethics, Charles W. Modern (1986)). § at 8.2 present That situation is not in the case bar. Neither do we believe policy, constitutionally proper, it to be sound much less to allow the presumption Wheat in favor of counsel one's choice to be overcome *25 by accepting the trial court’s “at face value” and without further inquiry representation prosecutor of a co-defendant's counsel or might that defense counsel have committed an ethical violation or acted way might suggest potential in such a that a serious for a conflict on the part of defense counsel. the case.”14 facts of regarding to interview a co-defendant was from 4.2, lawyer a Likewise, prohibits Rule which though lawyer “knows a whom communicating person not attorney,” was by matter another in the represented trial court its decision by the mentioned specifically McKenzie, explicitly rejected possibili the court disqualify “did not it found that McKenzie violation when ty of the rule’s The trial by counsel.15 represented was Myers whether know” court stated: anybody was did not know clear that Mr. McKenzie
It’s him, talked to when he representing attorney, with an absolutely nothing wrong reality is there’s co-defendant, trying to commu- a may representing be who if is not that defendant the other defendant nicate with represented. the trial consider, too, representation to the State’s
We Davis, witness, Ms. Tawanna State potential court that the being “coached” grand jury had testified before court, solely representa- on that relying McKenzie. The trial a by the as tion, could be called State inferred that McKenzie that the Special Appeals with the Court agree witness. We cannot Rule 3.7. But we implicated have allegations may court, that there conclude, the trial on the record before based would be that McKenzie showing potential” a of “serious was Put the trial court failed simply, a called as witness. support such requisite showing demand of the State disqualification of example of a trial court’s of a reversal 14. For an properly Sixth failing the defendant’s to balance defense counsel for against posed right conflict to counsel Amendment Young relationship, see State ex rel. putative attorney-prospective client 885, 892, (2002) Sanders, W.Va. 575 S.E.2d blood v. attorney- ("[B]efore prospective to a disqualification [due of counsel satisfy a review of the relationship], must itself from the court client evidence, testimony indi including of affected affidavits available discussed.”). viduals, confidential information prohibition on communi- ”[t]he 4.2 state that 15. The Comments to Rule lawyer applies only has actual represented person if the with a cations represented to be person in the matter knowledge in fact is discussed.”
131
finding, before
on it as
relying
grounds
disqualifying
minimum,
court,
McKenzie. At a
prior
disqualifying
to
McKenzie, should
an
have conducted
in camera
hearing
determine the likelihood
calling
that the State would be
Ms.
witness16; and,
event,
Davis as a
in that
whether she would in
testify
and,
so,
fact
to having
by
been “coached”
if
McKenzie
by
what she meant
the term “coach.”17
sure,
To be
the trial court’s decision
attorney
to remove
made,
McKenzie from the defense team was
not with “the
wisdom of hindsight after the trial has taken
place, but
murkier pretrial context when relationships
parties
between
through
time,
are seen
a glass, darkly[,]” at which
“[t]he
likelihood and dimensions of nascent conflicts of interest are
notoriously hard to predict, even for those thoroughly familiar
Wheat,
with criminal
162,
trials.”
486
at
U.S.
16. Wc have hearing mentioned that a was conducted on the admissibility Davis, testimony by of certain Ms. and the trial court ruled permitted that the State would testimony. not be to elicit that In the end, testify, supra Ms. Davis did not at all. See note 5. that, Goldsberry here, suggests presented under the circumstances required the State was being demonstrate—in addition McKenzie likely called as a testimony witness—that McKenzie's was essential to provide the State's case and would information for which there was no feasible alternative source. Given that the record was insufficient to Wheat, support finding required “serious conflict” as analyze we need not stringent, “compelling the case under this more State, need test.” See Flores 2004); (Tex.Crim.App. v. 155 S.W.3d 148 State, 395, 407, Md.App. Venable v. 108 672 A.2d cf. (1996) (holding that the trial court erred when it allowed the State to call defense requiring counsel as a witness without first the State to proffer, allowing make a respond, detailed defense counsel to alternatives). considering develop the court’s failure hold that therefore
We
undeniably
its decision to take
supports
factual record
Goldsberry’s
one of
McKenzie as
disallowing
action of
drastic
Amendment
Goldsberry his Sixth
attorneys denied
defense
violation
That constitutional
of his choice.18
to counsel
right
Gonzalez-Lopez,
See
to a new trial.
entitles
court
(holding
when the
148, 150,
III.
Unanimity Instruction
The
trial on the
entitled to a new
Goldsberry is
holding
Our
right
of his
Amendment
deprived
Sixth
that he
ground
to address the State’s
obviates the need
of his choice
counsel
holding that
the
Appeals’
of Special
to the Court
challenge
the re-
instruction on
jury
in
a coercive
giving
erred
court
at
Goldsberry,
See
Md.App.
182
unanimity.
jury
of
quirement
decline to address
416-17,
therefore
IV. The Murder Conviction Felony contention, of Special that the Court remaining The State’s of a Goldsberry was convicted holding in erred Appeals focusing not be Court should "[t]his Dissent comments 18. of had an actual conflict upon interest, whether Mr. McKenzie the issue of otherwise, Goldsberry Myers.” We or with either ‘serious’ or McKen- not be on whether agree that the focus should with the Dissent conflict, parties briefed or is not the issue the actual as that zie had an Rather, it a whether the trial court had before the issue is we decide. upholding the presumption in favor of the record sufficient to overcome justify court’s exercise of discretion right of choice and to counsel Wheat, enough for the record to disqualify it is not McKenzie. Under counsel; a potential of it must demonstrate for a conflict demonstrate S.Ct. 1692. For 486 U.S. at for conflict.” “serious stated, demonstrating that. record falls short of we have the reasons crime, ie., degree felony “non-existent” second murder based on the crime attempted robbery dangerous with a weapon (hereafter armed attempted robbery), is a different matter. 407-08, See id. at If A.2d the State is correct that the of Special Appeals any Court erred in aspect of that holding, then the State is not foreclosed from re-trying Golds- berry felony murder. shall We therefore address the contention. (1) nutshell,
The State’s argument, is: the General Assembly’s legislative killing determination that a victim dur- ing the commission of an attempted armed robbery supports a (not conviction of degree first second degree) felony murder did not foreclose jury this finding case from murder; (2) guilty felony because identity underlying felony, proven, once only relates to whether the (if maximum sentence is life degree felony murder), first or (if thirty years’ imprisonment second degree murder); felony (3) and therefore of Special Court Appeals erred reversing, without re-trial, possibility Goldsberry’s con- viction of what that court characterized as the “non-existent *28 of crime[]” second felony degree murder predicated on at- tempted armed robbery. begin
We our analysis of this contention with what is essentially uncontested:19 The parties seem to agree that the precise, 19. To be the State does not concede that the court "erred” in giving degree the sending second murder charge instruction and that admits, however, jury. "[wjhile the The State factually generated case, on, of, the the trial jury's court's instruction finding and the reasonably was, injury foreseeable risk of legally speaking, death or unnecessary[.]” suggests The State evidently that the court relied on the "Notes accompanying pattern on Use” jury the instruction for murder, degree felony second MPJI-Cr 4.17.7.2. The notes on use for pattern that instruction include give that the trial court should the charged instruction when "the defendant is degree felony with second predicate felony murder and the inherently dangerous is one that is way human life because of the in which it was committed.” MPJI-Cr suggests: 4:17.7.2. The State then Justifiably discerning no incompatibility in the “Notes on Use” of degree felony [the both first degree murder felony and the second instructions, believing, murder] and based on the content of the jury the crime of court not have instructed on the ought
trial jury, murder that to the degree felony charge second and sent developed the at trial make out what the Gener- because facts murder, degree Assembly felony al has characterized as first ie., during that commission of an a criminal homicide occurred the robbery. parties also attempted agree armed Maryland’s murder determined felony elements of are (first law; felony degree § and that CrL 2-201 common (second murder) murder), § at degree felony 2-204 CrL context, least in the have “identical elements.” Where present finding of parties company jury’s the on the the part effect felony of of first Goldsberry guilty charge degree not the felony of the of second guilty charge degree murder and murder. case, that, under the circumstances of this argues
The State murder, Goldsberry of second jury’s finding guilty degree the when, if he should been found of first anything, guilty have murder, him felony does absolve degree felony guilt not Fisher, 725, the murder. 786 A.2d at Citing Md. emphasizes Maryland that “the common law of alone State felony imposes defines the elements of murder” “alone points murder.” The State out the broad culpability felony Roary, the Md. at description we accorded offense themselves, robbery's attempted manner of the instructions the murder, degree distinguished felony first from second commission jury classify Goldsberry’s gave option trial the the offense the court given, degree. in either first or second Under instructions as jury degree felony second murder and convicted felony jury degree first not murder because believed attempted robbery manner he the armed "created a reason- in which ably physical injury,” of death serious for that foreseeable risk or of degree felony-murder only of the content court’s second felony-murder degree found in the first instruction. instruction not It was in context that State maintained: this *29 case, on, factually generated While the trial court’s instruction of, finding reasonably jury’s and the foreseeable risk of death or was, unnecessary injury legally speaking, because the General Assem- bly already legislative has as a fact in 2-201 that found Section inherently attempted robbery always dangerous, for armed is punishment law as that reason warrants the maximum allowed degree felony first murder.
135 1100, 867 A.2d at where we person felony said that a commits murder when the person’s [brings] “conduct about an unin- tended death in attempted the commission or commission of a Wayne 2 felony....” (Quoting Id. R. LaFave, Substantive 14.5(a) (2d ed.2003)). § Criminal Law The State asserts that the Assembly’s General division of common law felony murder into first degree and second degree felony murder creates nothing “penalty more than a assertion, scheme.” In support of that the State directs us to State, 442, Weighorst (1855), v. 7 Md. where we stated: “The design Chapter § [of the 1809 Act] discriminate awarding punishment” the various forms murder. The State also reminds us of predeces- our description sors’ of the General Assembly’s purpose enact- ing 1809 Act:
“Murder” is here recognized general denomination, as a including differing offenses from each other in degrees their atrocity, kind; but not their nature or no attempt is made explain or modify its or meaning abridge range. its Its common law sense unimpaired; is left the measure of punishment only sought graduated be according to the circumstances under which it was committed.
.... codified, This Act of Assembly, now does not create crime; a new it neither adds to nor diminishes the class of cases which law; constituted murder at common nor does it increase the punishment. State, (1874).
Davis v. 39 Md. The State argues that Court, more recent precedent alia, Fisher, of this citing, inter also mandates its requested result. The State asserts: “This Court has explained that the felony-murder operates doctrine independently to elevate an murder, unintentional killing to only after which do Sections 2-201 and 2-204 [of CrL] operate to assign penaltyf.]”
The State contends that the Court of Special Appeals’ decision is to the contrary General Assembly’s intent to im- pose “comprehensive scheme” mandating punishment for all murders; moreover, felony the decision is illogical, because it *30 136 that an offense that the commonsensical notion
conflicts with lesser can also warrant a punishment a greater warrants the out the “catch- regard, points In that State punishment. 2-204(a), § “A murder provides: which quality all” of CrL § of this degree in the under [CrL 2-201] that not first the concedes Finally, in State degree.” subtitle is the second verdict, case, the in its limited jury by that the present the Goldsberry’s crime of penalty of a for imposition court to the General Assem- felony anticipated by that was not murder however, State, the That, only the should have bly. argues not of degree lesser and Respondent effect punishing of for crime. erasing Goldsberry’s culpability the the of Goldsberry responds judgment that we should affirm He with that court’s agrees Special Appeals. the Court of 138, by statutory Chapter that the scheme created conclusion “mutually imposed § of of two exclusive” 3 the Acts 1809 He felony emphasizes plain murder. that the categories of 2-201(a) 2-204(a) §§ cer- provides and language of CrL for predicates degree tain felonies serve as first underlying murder, felonies, inherently danger- all other felony commission, murder support felony or of way ous nature in the degree. second that, when, Special Appeals the of as
We with Court agree here, felony only charge degree make of first the facts out crime murder, jury court errs in the on the instructing a trial errs, A as murder. trial court further degree felony of second here, its sending jury to deliberations the court did of jury option with the presents sheet verdict do degree of second murder. We finding guilty the defendant however, agree, present not that the trial court’s errors them, ease, lead jury’s flowing ineluctably from and the verdict on a cannot be re-tried conclusion that charge murder. felony of Assem- correctly identifies effect the General State 138, § 3 on of the Act 1809 had
bly’s
Chapter
enactment
That
felony
legislative
law crime of
murder.
common
7 Md.
decision,
early
Weighorst,
said as
as
as we
recently
230-31,
as
as in
Roary,
Md. at
The extensive subject leads us to conclude that, notwithstanding the errors the court committed in its sheet, instructions and on the jury’s verdict finding that Goldsberry guilty is of felony murder should stand. The verdict unequivocally jury’s reflects the finding that Chamber- lain was killed during Goldsberry’s commission of an attempt- ed armed robbery. Those facts make out felony the crime of murder, and Goldsberry does not argue contrary. to the only re-trial, windfall to which Goldsberry is entitled is should the jury again murder, once find him guilty of felony the court is impose bound to a sentence no greater than 30 years’ imprisonment, the statutory maximum sentence for degree second felony murder.
JUDGMENT OF THE COURT OF SPECIAL APPEALS IN PART; REVERSED PART AND AFFIRMED IN CASE REMANDED THE TO COURT OF SPECIAL APPEALS THE CASE TO REMAND TO INSTRUCTIONS
WITH A TRIAL CONSIS- FOR NEW COURT THE CIRCUIT PAY OPINION; TO PETITIONER TENT WITH THIS THE COSTS.
MURPHY, J., and Dissents. Concurs MURPHY, J., dissenting. concurring finding that jury’s that “the majority agree I stand,” I but murder should felony guilty the trial court violated Golds- holding “that from the dissent I with the agree Because of choice.” right to counsel berry’s within “the trial court was well Special Appeals Court right Respondent’s] qualified [the to restrict its bounds that this choice,” the conclusion I also dissent from counsel of whether to address the issue does not need Court coercive. unanimity instruction” Court’s “modified Circuit Appeals stated: Special As the Court of different case were conflicts this Though *32 similarly Wheat, acted trial court here in from those determining appellant’s that in its discretion within outweighed by the coun- right choice was to counsel of maintaining fairness, ethical stan- tervailing interests of Continued dards, avoiding of interest. conflicts by Mr. Mckenzie could have appellant representation of Myers’s right jeopardized Mr. to a RPC 1.18 and violated addition, “coaching” of Ms. Mr. Mckenzie’s In fair trial. present- in witness the case possible made him a Davis 3.7, lawyer a prohibiting of RPC ed a violation lawyer likely in trial where acting as an advocate from ultimately Ms. Davis was Though to be called as witness. have the trial court did not testimony, in her restricted addition, In ruling. it made its hindsight when benefit choice. to counsel of right of his deprived was not appellant he Mr. Jezic—whom by represented was still Appellant Mr. Mcken- ruling permitted court’s the trial selected—and Mr. by consulting in defense appellant’s assist zie to did not discuss long they as as and Mr. Giannetti Jezic Thus, Myers. ruling conversation -withMr. the trial court’s properly appellant’s qualified right balanced to counsel against factors that continued competing weighed against unrestricted Mr. Mckenzie. representation Further, Gonzalez-Lopez, unlike the trial court here did interpretation rules, err in not its of the ethics but correctly rep- instead assessed that continued unfettered appellant by very resentation of Mr. Mckenzie created a possibility real of violations. Also of note is that fact that in Gonzalez-Lopez deprived only the defendant was of his choice, appellant repre- counsel of whereas here was still choice, sented his co-counsel of Mr. Jezic. Finally, trial court’s decision was not based on Mr. Mckenzie’s matter, conduct but was separate Gonzalez-Lopez, as Thus, instead based on actions in this case. the trial court well appellant’s qualified within its bounds to restrict right to counsel of choice. 420-22, at 957 A.2d 1126-27. Md.App. (Emphasis at with,
supplied). agree I and hereby adopt, analysis. I disagree majority’s with the conclusion that “the record ... developed simply revealing trial does not come close to ‘potential required by serious conflict’ Wheat.” The record shows that the following transpired immediately before jury was selected: I yesterday morning
[MYERS’ COUNSEL]: was informed by Mr. McKenzie and Mr. Jezic that Mr. McKenzie spoke client, with my Myers, Mr. about the facts of this case on point. date cannot be determined at this I do know the District Court we line appearance entered a April on or about 17th I stating represent that would *33 Mr. Myers. McKenzie does not know date on which speak Myers he went to with Mr. about facts of the case. After speaking with Mr. about the facts of the case, he then went and called the District Court to if he see represented. was with speak he went to
That, however, not done before note that And I would facts of the case. client about the my of the reality reflect the does not computer very often the line. filing of Mr. speaking of with purpose know the actually
I don’t of the conversa- know the details actually I don’t Myers, and meeting involves purpose of the if the I don’t know tion. attempt speak to with it as an 1.18 and whether Rule a code- it was to interview or whether prospective client I don’t the case. A detail also regarding facts of fendant entered his line already had Mr. McKenzie know is whether time that he went Goldsberry at the for Mr. appearance Myers. speak to for, Myers’ you asking [Mr. relief are
THE COURT: What Counsel]? Well, couple I think there are a COUNSEL]:
[MYERS’ course, to may the Court want can do. Of things the Court I details that don’t sift out some more hearing hold a to But, I think this ultimately, know. point, at this actually, Rule 4.2. does involve he has erected a Chinese explained
Mr. Jezic has worry wall, my think that client should have I don’t but that wall. I also and endurance of the foundation about create, least, an certainly very at the going think that it’s client whether to my as decides impropriety appearance he will be cross-examined. and whom testify to sever the I would ask the Court for those reasons So matter. Myers matter from client at this your is there to prejudice THE What COURT: in time? point mentioned, Well, I just the ones COUNSEL]:
[MYERS’ with Mr. McKenzie about had a conversation that he has trial, he through he here this As sits facts of case. testify his own going he’s constantly whether evaluates defense, up that fifth amendment going give he’s whether least, certainly think, very it looks I at the not. right or in the context make that decision him to have to bad for *34 him, going of whether Mr. McKenzie is to cross-examine already knowing said about the facts of the what he has case, subject, very essence of the cross-examina- clear, I to make a ability tion. So think it affects his testify whether to or not. unencumbered decision is the actual prong, problem And then the next next stand, he decide to take the at the testimony. Should attorney very wrong for an for a codefen- least it looks dant, case, already who has talked about the facts of the my if to cross-examine client he decides to take the stand. my
Those are client should not have to be problems of the actions of the codefendant’s encumbered with because trial, like only counsel. He not needs a fair it needs look trial, I it any way a fair and don’t think there’s have separating, severing be fair and to look fair without Mr. Goldsberry’s Myers’s case from Mr. case. McKenzie, you
THE COURT: Mr. what do want to tell me? Honor, MR. Your I first address the may JEZIC: Court? ahead, THE COURT: Go Mr. Jezic. context,
MR. give JEZIC: Just Court more Mr. fact, McKenzie had appearance, not entered his when— THE COURT: Entered his appearance what case? MR. JEZIC: In the Goldsberry spoke case when he to Mr. Myers. Well,
THE if I you appearance COURT: tell that his in the Circuit Court on behalf of Mr. was entered 6- 28-06, [yjou’re saying that he spoke Myers before that date?
MR. JEZIC: He spoke Myers—what to Mr. Mr. McKenzie remembers spoke is that he to Mr. before the preliminary hearing date. He called me to tell me about the prospective client Mr. He told me Goldsberry. that he had said, McKenzie, I spoken Myers. to Mr. “Mr. immediately you’ve got to call the if Court find out a line has been a line had said, and he was told you he called
entered.” As Myers. for Mr. not been entered Myers have a substantive conver- Did Mr. THE COURT: *35 you, Mr. McKenzie? sation of the case. About the facts MR. JEZIC: constitutes substantive? MR. MCKENZIE: What chronology you or about the THE Did discuss COURT: in this case? facts Yes, did. we
MR. MCKENZIE: you. any MR. he make admissions to THE COURT: Did No, Your Honor. MCKENZIE: out, McKenzie, point participat- I would THE Mr. COURT: addressing the issue of identi- hearing in the suppression ed Counsel], fication, 11th of '06. Myers’ August did as [Mr. McKenzie, [Myers’ didn’t advise you was there a reason Mr. talked with her client on you that time that had Counsel] occasion? prior I know—and I At that time did not MR. MCKENZIE: that to obligation there was an to disclose didn’t think that her. Mr. Well, you representing were clearly,
THE COURT: Goldsberry point at that time. Yes, I was.
MR. MCKENZIE: whatsoever, malice intended here There is no MR. JEZIC: any malice. He’s alleged Honor. I don’t think there’s Your fact, As a matter of he took just very young attorney. spoke calling me as he responsibility of soon as good Goldsberry____ Clearly, not a Myers it was and any violation of the idea, not believe there was but we do responsibility. professional rules of Counsel], you else Myers’ anything ... THE COURT: [Mr. to tell me? want 4.2, Rule I don’t I that the think COUNSEL]:
[MYERS’ first-degree in a the fact you ignore can think lawyer. You can’t case, man to have a going murder this is true, that rule because ignoring like not and that’s pretend distinction, very file fine yet line been in the is hasn’t vastly outweighs client my I think that the prejudice judicial economy. clear from the right. obviously
THE All is COURT: What with the codefendant spoke record that Mr. McKenzie that Mr. appearance prior at a date his of Mr. on June being Jezic’s entered on behalf McKenzie, have you may do know when you 28th of '06. Mr. Myers? talked to Mr. latter probably part
MR. It was towards the MCKENZIE: indicted, they possibly very of March. It before were early April. can be verified. My understanding
MR. JEZIC: is this *36 THE The line there had been COURT: bottom is indicted; initiated; charges just he hadn’t been is that correct?
MR. MCKENZIE: Yes. made,
THE COURT: From the it’s clear representations that Mr. did not the sum and convey McKenzie Mr. Jezic substance—
MR. MCKENZIE: No. matter,
THE any summary, any COURT:—or he with Mr. Myers. conversations had Counsel], Myers’ know on behalf of the [Mr. We now Office, file, Public Defender’s to the Circuit Court according entered her on behalf of the defendant appearance May 8th. Honor, appear- Your that’s a line of COUNSEL]: [MYERS’ ance for the Circuit Court.
THE I go COURT: That’s all can on. entered in the District Court. We
[MYERS’ COUNSEL]: hearing Myers. I did the for Mr. There is no preliminary in the Court. I line from the District Court case Circuit stamped, line. It’s not but it shows that we sent it my have April to the office on 17th. prosecutor’s trial may There’s another matter that well arise at re- Mr. McKenzie— garding
THE going Very COURT: Here is what the Court is to do. Jezic, simply, you represent Goldsberry, Mr. Mr. and Mr. him representing anymore. simple McKenzie is not Just as problem. reality as that. This is not a The is that there’s absolutely prejudice Goldsberry, been no to Mr. but the that—and, McKenzie, can from reality you step back table, reality you is—and can consult trial but trial, during going Mr. Jezic the course of but we’re this trial forward wherein there’s no taint what- keep going soever. Honor, I one on the may put thing
MR. JEZIC: Your record? Yes, sir,
THE Mr. Jezic. COURT: MR. I back at the trial table. apologize. May JEZIC: It’s get my quick? give. I folder real Have a cite to It will be very brief. give
THE You can that me later. COURT: record, MR. it on the put my objection, JEZIC: Just Honor, Supreme Your is that the recent Court case June, right was about the sixth amendment to counsel. Supreme Court ruled that the defendant has an abso- choice, right judge lute to counsel of and it did involve the *37 weighing professional a violation of the rules of responsibility My versus the sixth amendment. client has morning indicated to me this that he would like Mr. McKen- objection. zie to remain at the trial table and that is our Well, is, reality THE if he remains at the trial COURT: table, he can remain at the trial table. I don’t have a problem with that. there should out that pointing ahead and just going
I’m Jezic, you, Mr. you, between communication any not be have may McKenzie, the conversations regarding Mr. isn’t a McKenzie. This Myers made Mr. Mr. by been for a severance. basis Davis, by of Tawanna A the name
MR. TEFERI: witness grand jury today, gave you come back instructed to who changes testimony from testimony. If her she somehow go if I grand jury—and have to she had told the what might point in time I’m come a where line line—there attorney. by an going if was coached She to ask her she Mr. grand jury that she was coached one told the Mr. McKenzie before she went to and also put grand jury. just I wanted to that on the record. Mr. McKenzie THE COURT: That’s all the more reason. being possible put position in the has himself mind, in the Court is witness in this case. So with that ago even more comfortable now than it was two minutes he can’t this trial. telling participate with Mr. McKenzie Mr. going any So we’re not to take chances. McKenzie table, trial not because Mr. sitting will not now be to, him reality want but the is he could Goldsberry doesn’t be a witness this case. potentially Honor, just Your we understand. We Okay, MR. JEZIC: objection. you. continue the Thank going I if exception THE COURT: think there’s an he’s motion for point, The other there’s a sever- be witness. ance. It’s denied on that basis. supplied).
(Emphasis
have
to the
the Circuit Court should
suggestion
As
an
for Mr. McKenzie’s visit
what
required
explanation
and/or
visit, v.
during
Lettley
discussed
he
State,
(2000),
quoted
Md.
[I]f or her concern the need to cross-examine basis for his about *38 146 so, that creates a
or the need to refuse to do also serious risk of confidential communications of one or both exposing any clearly clients. The absence of correct course of action ... suggests judges normally such a case should lawyer’s at face value a assertion that a conflict of accept interest exists. WOLFMAN, ETHICS,
CHARLES MODERN W. LEGAL (1986) (footnote omitted). Moreover, § at 416 in making 8.2 required evidentiary inquiry “threshold level of into the conflicts,” trial alleged obligated respect court is all bar, In applicable privileges. the case at the Circuit Court (1) Mr. compel testify could not about his conversa- (2) McKenzie, compel testify tion with Mr. or Mr. McKenzie to Myers. about his conversation with Mr. consequence
It is of no
that Mr. McKenzie’s
for
serious conflict was
to the Circuit Court’s attention
brought
In
Myers’
Lettley, supra,
trial counsel.
this Court stated:
Arkansas,
475,
1173,
In
v.
435 U.S.
98 S.Ct.
55
[Holloway
(1978)],
L.Ed.2d 426
defense counsel
to the
represented
trial court that he had received confidential information
ability
from one client that would interfere with his
examine his other clients on the witness stand.
id. at
See
476-78,
Id.
746
Rule 3.7
The
the COMMENT to
first sentence
(RPC)
Conduct
Maryland Lawyers’ Rules of Professional
“Combining the roles of advocate and witness can
states:
and can
opposing party
tribunal and the
also
prejudice the
I
a
and
lawyer
involve conflict of interest between
client.”
Giannetti,
that, like Mr.
Mr.
Mr. McKen-
am certain
Jezic and
knowingly
an
would
practitioner
zie is
ethical
who
not
violate
Maryland
Conduct.
I am
any
Lawyers’ Rules
Professional
certain, however,
visit to Mr.
that Mr. McKenzie’s
equally
By
merely
good
more than
“not
idea.”
discuss-
Myers was
Mr. McKenzie
ing
Myers,
the “facts of
case” with
conflict between himself
created the
for a serious
the Respondent.
Gee,
396,
(4th Cir.2002),
In
292
401-02
v.
F.3d
cert.
Rubin
Rubin,
denied,
637,
v.
123 S.Ct.
154
Gee
537 U.S.
(2002),
for the
Appeals
L.Ed.2d 523
the United States Court of
Fourth Circuit affirmed the decision of the United States
Maryland
grant
for the
federal
District Court
District
Rubin,20
Joyce
relief to
whose murder
corpus
habeas
Lisa
State,
in Rubin v.
conviction had been affirmed
this Court
(1992).
A.2d
courts conclud
325 Md.
602
677
federal
ground
entitled
new trial on
that she
ed
she was
to a
representation”
not
from two law
had
received “conflict-free
who,
“to
yers
her defense team
avoid criminal indictment
(D.Md.2001)
opinion
F.Supp.2d
20. citation to the
of the
federal
court.
district
keep
their conduct from coming
light,
...
took cover as
part of the defense team.”
While it is clear that the case at bar is not one in which Mr. McKenzie was attempting “take cover part as of the team,” defense 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 particular litigation strategy for purposes of reducing chances that Mr. might McKenzie be accused of violating Rule of Professional Conduct. The COMMENT to RPC 1.18 cautions “[i]n order to avoid acquiring disqualifying information from a client, prospective a lawyer considering whether or not to undertake a new matter should limit the initial interview only such information as reasonably appears necessary for bar, In purpose.” however, the case at it is clear that Mr. McKenzie and Mr. discussed “the chronology or facts *40 in this ease[.]”
Under circumstances, these if Mr. McKenzie was acting as the Respondent’s lawyer when he Myers, visited Mr. it is obvious that Mr. McKenzie was a potential witness. On the hand, other if Mr. McKenzie visited to discuss the possibility of forming lawyer-client relationship, though even no client-lawyer ensued, relationship Mr. McKenzie pro- was 1.18(b) hibited by RPC from revealing “information learned in consultation,” 1.18(c) prohibited by RPC from representing Respondent “in the same or a substantially related matter if [Mr. received McKenzie] information from Myers] [Mr. that could be significantly harmful to Re- [the spondent].” In Lettley, supra, this Court expressly rejected the argument no lawyer “because other would have had access information, to that confidential there was no conflict of interest.” Id. at 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 determin- ing Respondent’s] [the right to counsel of choice was outweighed by countervailing fairness, interests of maintaining standards, ethical and avoiding interests,” of conflicts I would ato is entitled Respondent of whether issue address delivered the Circuit Court on the ground trial new instruction. “unanimity” coercive A.3d Maryland
STATE v.
Emanuel TEJADA. Term, 103, Sept. 2009.
No. Maryland. Appeals Court April