State of Delaware v. Washington.

SUPERIOR COURT
OF THE
STATE OF DELAWARE
JOHN A. PARKINS, JR. NEW CASTLE COUNTY COURTHOUSE
J UDGE 500 NORTH KING STREET, SUITE 10400
WILMINGTON, DELAWARE 19801-3733
TELEPHONE: (302) 255-2584
February 19, 2015
John S. Taylor, Esquire Sean A. Motoyoshi, Esquire
Department of Justice Office of the Public Defender
Carvel State Office Building Carvel State Office Building
820 North French Street 820 North French Street, 3rd Floor
Wilmington, Delaware 19801 Wilmington, Delaware 19801
Re: State of Delaware v. Tremayne U. Washington
ID No. 1409001507
Dear Counsel:
At the call of the trial calendar this morning the State raised for the
first time the possibility that Mr. Motoyoshi, an employee of the Office of the
Public Defender, had a conflict because that office 1 previously represented
one of the State’s witnesses in unrelated and now-closed matters. The State
contended that the mere appearance of a conflict precludes Mr. Motoyoshi
from representing the instant defendant. Mr. Motoyoshi denied he had any
conflict, and the court agrees with him.
1 The State did not suggest that Mr. Motoyoshi himself represented the witness.
There is no doubt that the Sixth Amendment right to counsel
encompasses a right to counsel who is free from actual conflict and whose
loyalties are not divided between the defendant and someone else. In most
instances such conflicts arise in the context of joint representation of co-
defendants. 2 But it is also possible that a conflict of constitutional
dimension can arise where defense counsel also represents a witness. In
Mirabal v. State, the defendant, a passenger in a car, and the driver were
arrested for possession of drugs. 3 The Public Defender represented both,
but the charges against the driver were resolved prior to trial. 4 At trial
Mirabal unsuccessfully sought to argue that the driver of the car, not he,
was the possessor of the drugs. 5 Mirabal was convicted and appealed. 6 On
appeal the Supreme Court reversed the conviction because of the divided
loyalties of Mirabal’s counsel, writing:
In this case, Mirabal has shown an actual conflict of
interest in the Public Defender's dual representation
of Mirabal and Stafford. That conflict prevented trial
counsel from calling Stafford as a witness out of
concern that she would either invoke her Fifth
Amendment rights or potentially make self-
inculpatory statements on the witness stand.
Because trial counsel's divided loyalties diminished
Mirabal's ability to present his defense that the drugs
were Stafford's and not his, Mirabal was denied his
right to effective assistance of counsel under the
Sixth Amendment. 7
2 E.g., Lewis v. State, 757 A.2d 709, 714 (Del. 2000).
3 86 A.3d 1119, 2014 WL 1003590, at *1 (Del. 2000) (TABLE).
4 Id.5 Id.6 Id.7 Id. at *2.
2
The mere existence of a possible conflict, as opposed to an actual
conflict, is insufficient to establish a Sixth Amendment violation. According
to the United States Supreme Court, the possibility of conflict is insufficient
to impugn a criminal conviction. In order to demonstrate a violation of his
Sixth Amendment rights, a defendant must establish that an actual conflict
of interest adversely affected his lawyer's performance.” 8 There is no actual
conflict here because there is no sign of any divided loyalties. Consequently,
the instant case presents none of the concerns found in Mirabal. First, the
court notes that the Public Defender’s representation of the witness related
to matters wholly unrelated to this case. Second, the State does not argue
that there is any likelihood that the defendant would use information beyond
the witness’s prior record to impeach the witness. 9 But those convictions
are matters of public record and do not involve client confidences exchanged
between the witness and the Public Defender. Consequently, Mr. Motoyoshi
will not be called upon to make the Hobson’s choice of either representing
his client or preserving a former client’s confidences. Here he can do both.
Moreover, this is not a case in which the Public Defender is simultaneously
representing both the defendant and the witness. Accordingly, the court
need not reach the question whether disqualification is required in such
instances.
8 Cuyler v. Sullivan, 446 U.S. 335, 350 (1980).
9 See D.R.E. 608(b)(“Specific instances of the conduct of a witness for the purpose of
attacking or supporting the witness’ credibility, other than a conviction of crime . . . may not
be proved by extrinsic evidence.”).
3
The court notes that there are practical problems associated with
disqualification of the Public Defender here. During a side bar at this
morning’s calendar the prosecutor brought to the court’s attention that the
Office of the Public Defender had previously represented the witness at
violation of probation hearings. As a service to this court, with the exception
of instances in which there is a privately retained attorney, the Office of the
Public Defender represents all probationers who are charged with a
probation violation. Disqualifying the Office of the Public Defender from
representing a defendant merely because that office had previously
represented a witness in the witness’s unrelated violation of probation
hearing would place a substantial burden on the State’s already
overburdened resources. In the absence of a constitutional demand to the
contrary, the court is unwilling to require this.
The court expresses its disappointment that this issue was not raised
until the very morning of trial when cases were being assigned to the judges.
The identity of the witness and his lengthy criminal record have been known
to the State for some time. Yet it was not until the literal eve of trial that the
State thought to check to see whether Mr. Motoyoshi’s representation of the
instant defendant would present a problem. The difficulty of this last-
minute notice was compounded by the fact that the State did not provide the
court with any legal authority, thus leaving it to conduct its own research on
the issue during a break which lasted roughly half an hour. The court
understands that prosecutors often receive assignments at the last minute
4
and that, with their heavy workload, matters such as this may occasionally
escape notice. But when this occurs counsel should, at a minimum, come
prepared with legal authorities to provide the court with some sort of
guidance. This did not happen here. This being said, the court is
appreciative that counsel raised the issue rather than simply remaining
silent. 10
Very truly yours,
John A. Parkins, Jr.
oc: Prothonotary
10 When the State raises the possibility of a conflict involving defense counsel, the court is
obligated to determine whether an actual conflict exists. Bonin v. California, 494 U.S. 1039,
1041 (1990) (citing Wood v. Georgia, 40 U.S. 261, 272 & n.18 (1981)).
5