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Respondent James Goldsberry, Jr. was tried before a jury in Prince George’s County Circuit Court and convicted of second degree felony murder, conspiracy, attempted robbery and weapons charges. He appealed the judgments of conviction to the Court of Special Appeals, where he raised a number of claims. The appellate court found merit in some claims, and reversed some of the convictions. The court remanded the case for a new trial on the attempted robbery and weapons charges, but affirmed the conviction of second degree felony murder and conspiracy to commit felony murder. Both parties sought Supreme Court review of the case. The issues presented to the Court for consideration were: (1) whether the trial court violated Respondent’s Sixth Amendment rights to representation by his counsel of choice when it dismissed one of Respondent’s three privately retained attorneys; (2) whether the trial court erred in giving the jury an instruction on an unanimous verdict; and (3) whether the appellate court erred by holding Respondent was convicted of a “non-existent” crime of second degree felony murder predicated on attempted robbery with a dangerous weapon. The Supreme Court found that the trial court did violate Respondent’s Sixth Amendment right to counsel of his choosing, and that the appellate court erred in its holding regarding the felony murder violation. The Court’s decision entitled Respondent to a new trial, and accordingly it did not address the propriety of the trial court’s jury instruction.Receive FREE Daily Opinion Summaries by Email
State of Maryland v. James Earl Goldsberry, Jr., No. 141, September Term 2008
CRIMINAL LAW - SIXTH AMENDMENT - RIGHT TO COUNSEL OF CHOICE DISQUALIFICATION OF COUNSEL - Although a trial court is afforded wide discretion
in deciding whether to disqualify a criminal defendant’s selection of counsel due to a
purported conflict of interest, the criminal defendant is afforded a presumption in favor of
his or her counsel of choice. That presumption may be rebutted only after the trial court
conducts an adequate inquiry into the circumstances underlying the purported conflict to
determine whether there is an actual or serious potential for conflict. The inquiry requires
the trial court to conduct a hearing on the matter and to make evidence-based findings that
balance the defendant’s right to counsel of choice on the one hand, and interests of fairness
and maintenance of ethical standards on the other. Failure to engage in this threshold level
of inquiry prior to disqualifying a criminal defendant’s counsel of choice constitutes
structural error for which reversal is automatic.
CRIMINAL LAW - FELONY MURDER - COMMON LAW - The crime of murder in
Maryland remains a common law offense. The Maryland statutes regarding murder merely
classify murder into various degrees of culpability, rather than separate crimes. In this
regard, Criminal Law Article §§ 2-201 and 2-204 differentiate first degree from second
degree felony murder based on the nature and severity of the underlying felony and the
available penalties for each. Because the difference is merely one of degrees of culpability
and resulting punishment, retrial on a charge of felony murder following conviction of
second degree felony murder is permitted when a trial court errs by instructing a jury on both
first and second degree felony murder despite the alleged underlying felony being one listed
by Criminal Law Article § 201 as a predicate for first degree felony murder.
Circuit Court for Prince George’s County
Case No. CT060914A
IN THE COURT OF APPEALS
September Term, 2008
STATE OF MARYLAND
JAMES EARL GOLDSBERRY, JR.
Opinion by Barbera, J.
Murphy, J., Concurs and Dissents.
Filed: April 26, 2011
Respondent, James Earl Goldsberry, Jr., was tried before a jury in the Circuit Court
for Prince George’s County and convicted of second degree felony murder, conspiracy to
commit second degree murder, attempted robbery with a dangerous weapon, and use of a
handgun in the commission of a crime of violence. He appealed the judgments of conviction
to the Court of Special Appeals, where he raised a number of claims. The Court of Special
Appeals, finding merit in some of those claims, reversed the convictions. The court
remanded the case for a new trial on the charges of attempted armed robbery and use of a
handgun, but not the charges of second degree felony murder and conspiracy to commit
second degree murder. Goldsberry v. State, 182 Md. App. 394, 957 A.2d 1110 (2008).
We granted the parties’ respective petitions for certiorari to consider whether: (1) the
trial court violated Goldsberry’s right under the Sixth Amendment to representation by his
counsel of choice, by disqualifying one of Goldsberry’s three privately retained attorneys;
(2) the trial court erred in its instruction to the jury regarding unanimity; and (3) the Court
of 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
For the reasons that follow, we hold that the trial court violated Goldsberry’s right to
counsel of choice and the intermediate appellate court erred in its holding regarding the
felony murder conviction. Because our disposition entitles Goldsberry to a new trial, we do
not address the propriety of the court’s unanimity instruction.
Goldsberry and his co-defendant, James Myers, Jr., were tried jointly on charges
arising from the homicide of Vincent Chamberlain. As explained in more detail infra, the
jury found that Goldsberry and Myers attempted to rob Chamberlain of his marijuana, and
while doing so, Myers shot Chamberlain in the head, killing him.
Goldsberry hired attorneys Andrew Jezic, Joseph McKenzie, and John Giannetti, each
of a different law firm, to represent him at trial. Before trial, Myers filed a motion to sever
his trial from that of Goldsberry. At the hearing on that motion, Myers, through his counsel,
Janet Hart, informed the court that attorney McKenzie had spoken previously to Myers
regarding the facts of the case. Ms. Hart was not certain of the exact date on which the
conversation took place, the purpose of the conversation, whether McKenzie by that time had
entered his appearance on behalf of Goldsberry, and whether Myers was represented by
counsel at the time. Hart nevertheless alleged that the conversation between her client and
McKenzie posed possible violations of Maryland Rules of Professional Conduct 1.181
Maryland Rule of Professional of Conduct 1.18 is entitled, “Duties to Prospective
Client,” and provides:
(a) A person who discusses with a lawyer the possibility of forming a
client-lawyer relationship with respect to a matter is a prospective client.
(b) Even when no client-lawyer relationship ensues, a lawyer who has had
discussions with a prospective client shall not use or reveal information
learned in the consultation, except as Rule 1.9 would permit with respect to
information of a former client.
(c) A lawyer subject to paragraph (b) shall not represent a client with interests
materially adverse to those of a prospective client in the same or a substantially
related matter if the lawyer received information from the prospective client
that could be significantly harmful to that person in the matter, except as
provided in paragraph (d). If a lawyer is disqualified from representation under
(pertaining to an attorney’s duties to prospective clients) and 4.2 (concerning attorney
communications with a person already represented by counsel).2 Hart further explained that
McKenzie informed her that, after the conversation with Myers, he called the District Court
and learned that there was no line of appearance filed on behalf of Myers. Hart noted,
however, that the District Court computer system “very often” does not reflect accurately the
correct date of the line of appearance.
Hart argued to the trial court that McKenzie’s actions prejudiced her client in two
ways. First, Myers would be assessing throughout trial whether to testify, and the possibility
of McKenzie’s cross-examining him would “affect [Myers’s] ability to make a clear,
unencumbered decision.” Second, if Myers testified and McKenzie cross-examined him, it
this paragraph, no lawyer in a firm with which that lawyer is associated may
knowingly undertake or continue representation in such a matter, except as
provided in paragraph (d).
(d) Representation is permissible if both the affected client and the prospective
client have given informed consent, confirmed in writing, or the disqualified
lawyer is timely screened from any participation in the matter and is
apportioned no part of the fee therefrom.
Maryland Rule of Professional of Conduct 4.2, entitled, “Communication with
Person Represented by Counsel,” provides in pertinent part:
(a) Except as provided in paragraph (c) [authorizing communication with a
government official under certain circumstances], in representing a client, a
lawyer shall not communicate about the subject of the representation with a
person who the lawyer knows is represented in the matter by another lawyer
unless the lawyer has the consent of the other lawyer or is authorized by law
or court order to do so.
would “look wrong” because McKenzie had already discussed the facts of the case with
In response, attorney Jezic explained that McKenzie had not entered his appearance
for Goldsberry when he spoke with Myers and McKenzie never represented to Myers that
he was a “disinterested person.” Jezic also noted that the conversation took place before
Myers’s preliminary hearing date and, after McKenzie informed Jezic of the conversation
with Myers, the two took several actions to mitigate any possible rule violations. First,
McKenzie, upon learning that Myers was unrepresented, called the District Court and
attempted to obtain counsel for Myers. And, second, Jezic and McKenzie never discussed
“anything that Mr. Myers said.” McKenzie supplemented Jezic’s representations, adding
that, although he had discussed the facts of the case with Myers, at no time during the
conversation did Myers make any admissions.
McKenzie also confirmed Jezic’s
representation to the court that the conversation with Myers took place prior to the
indictments of Goldsberry and Myers.4
After hearing from both parties on the issue, the trial court found as a fact that the
conversation between Myers and McKenzie took place before Myers was indicted. And,
We surmise that, by “looking wrong,” Hart was suggesting that, should Myers testify
and be cross-examined by McKenzie, the resulting interaction not only would be unfair to
Myers, but would appear unfair to the jury.
The record shows that Goldsberry was indicted on April 18, 2006. The on-line
docket entries of Myers’s case, of which we take judicial notice, reflect that he was indicted
on April 18, 2006.
based on Jezic’s and McKenzie’s representations, the court further found that “Mr.
McKenzie did not convey to Mr. Jezic the sum and substance . . . or any summary, for that
matter, of any conversation [Mr. McKenzie] had with Mr. Myers.” The court stated: “It’s
clear that Mr. McKenzie did not know that anybody was representing Mr. Myers when he
talked to him, and the reality is there’s absolutely nothing wrong with an attorney, who may
be representing a co-defendant, trying to communicate with the other defendant if that
defendant is not represented.” The court denied the motion for severance and, instead,
imposed restrictions on McKenzie’s involvement in the trial. The court stated:
Very simply, Mr. Jezic, you represent [Goldsberry], and Mr. McKenzie is not
representing him anymore. The reality is that there’s been absolutely no
prejudice to [Goldsberry], but the reality is that -- you can and, Mr. McKenzie,
you can step back from the trial table, but the reality is -- and you can consult
with Mr. Jezic during the course of the trial, but we’re going to keep this trial
going forward wherein there’s no taint whatsoever.
Jezic objected. He argued that, because Goldsberry desired McKenzie’s continued
presence at the trial table, the restriction on McKenzie’s involvement violated Goldsberry’s
Sixth Amendment right to counsel of his choice. The court then modified its ruling,
explaining that McKenzie could remain at the trial table, but was not to reveal to Jezic
anything related to his conversation with Myers.
At that point, the State brought to the trial court’s attention a second potential conflict,
one that involved McKenzie and Ms. Tawanna Davis, who was scheduled to testify as a
State’s witness. Ms. Davis, according to the State, had testified before the grand jury that she
was “coached” by Goldsberry and McKenzie. The State advised the court that, if Davis
“somehow chang[ed] her testimony from what she had told the grand jury,” “there might
come a point in time where I’m going to ask her if she was coached by an attorney.” The
court, on hearing that, ruled:
That’s all the more reason [to disqualify McKenzie]. McKenzie put himself
in the position of being a possible witness in this case. So with that in mind,
the Court is even more comfortable now than it was two minutes ago with
telling Mr. McKenzie that he can’t participate in this trial. So we’re not going
to take any chances. Mr. McKenzie will not now be sitting at the trial table,
not because [Goldsberry] does not want him to, but the reality is he could
potentially be a witness in this case.
Jezic renewed his earlier objection, arguing once again that the restriction on
McKenzie’s ability to represent Goldsberry violated Goldsberry’s Sixth Amendment right
to choice of counsel. The court responded that it believed “there’s an exception if
[McKenzie is] going to be a witness.”5
Trial commenced on January 31, 2007. It is unnecessary, for purposes of the issues
we decide here, to recount all that occurred at trial. To set the factual context within which
those issues arose, we shall rely on the summary of the underlying facts set forth in the Court
As it turned out, Davis was not permitted to testify at trial. An in camera hearing
was conducted to determine whether Davis’s testimony regarding statements made to her by
Goldsberry were admissible as statements in furtherance of a conspiracy. It developed at the
hearing that Davis would have testified that during a telephone conversation Goldsberry
implicated himself and Myers in the shooting. The court barred Davis from testifying in the
prosecution’s case-in-chief, finding that Goldsberry’s alleged statements to Davis were made
well after the completion of the alleged conspiracy. For present purposes, it is important to
note that absent from the transcript of the hearing is any statement by Davis indicating that
she was “coached” by McKenzie.
of Special Appeals’ opinion.6
Wendy Braxton, an acquaintance of both Goldsberry and the victim,
Vincent Chamberlain, and the sole witness to the attempted robbery and
shooting of Mr. Chamberlain, gave an uncontradicted account of the events at
trial. Ms. Braxton testified that sometime in March 2006, while visiting
Goldsberry, she received a call from Mr. Chamberlain inviting her and
Goldsberry to come to Mr. Chamberlain’s house to smoke marijuana.
On arriving at the house, Mr. Chamberlain handed Ms. Braxton some
marijuana to roll and while doing so, she heard Goldsberry and Mr.
Chamberlain discuss selling Mr. Chamberlain’s marijuana. The three then
proceeded to a field behind the house to smoke some of the marijuana. Ms.
Braxton again observed Goldsberry and Mr. Chamberlain conversing as they
returned from the field. Ms. Braxton then departed with Goldsberry and
dropped him off at his apartment.
Ms. Braxton further testified that Goldsberry called her later that
evening to ask questions about Mr. Chamberlain. He asked, in particular,
“how long she knew Mr. Chamberlain” and if “he was cool and stuff.” Ms.
Braxton subsequently received a call from Mr. Chamberlain asking if she
wanted to play cards and requesting that she pick him up. On arriving at Mr.
Chamberlain’s home at approximately 10:00 p.m., Ms. Braxton testified that
she saw Goldsberry and another individual parked in front of the house.
Goldsberry exited the car and spoke with Mr. Chamberlain outside the house.
Ms. Braxton further testified that Goldsberry left in his car, after stating that
he had to “go get something.” On returning, Goldsberry proceeded with Mr.
Chamberlain to a shed attached to the rear of the house.
Ms. Braxton got out of her car several minutes later and went to the
shed to ask Mr. Chamberlain if she could use the bathroom. While at the rear
of the house near the shed, Ms. Braxton saw Goldsberry walk towards the
front of the house and return with Mr. Myers. Ms. Braxton testified that as
Goldsberry and Mr. Myers entered the shed and approached the door leading
to the house, Goldsberry drew a gun on Mr. Chamberlain, pointed the gun at
Mr. Chamberlain’s face, and said “give me the stuff.” She then observed Mr.
Myers pull a gun from his pocket. Goldsberry repeated “give me the stuff.”
Ms. Braxton ran to hide behind a tree in the backyard, where she
observed Mr. Myers chasing Mr. Chamberlain. She testified that prior to
hearing the gun shot, she saw Mr. Myers pointing the gun at Mr.
Chamberlain’s head. Ms. Braxton then saw Goldsberry run out of the shed,
We have supplemented and modified the Court of Special Appeals’ summary, where
Mr. Myers run around to the front of the house, and Mr. Chamberlain fall to
the ground. After Mr. Myers and Goldsberry fled the scene, Ms. Braxton ran
to Mr. Chamberlain and saw blood coming from his head. Unsure of what to
do, Ms. Braxton got in her car and left the scene.
As Ms. Braxton was “driving around,” Goldsberry called her, asked if
she had gone to the police, and requested that they meet. When Ms. Braxton
told Goldsberry “I’m not going to meet up with you so that you can kill me
like you did Vincent,” Goldsberry told her that “I didn’t kill him. I didn’t
know that was going to happen. I just went there to rob him, and James got
scared and he killed him.” Goldsberry warned her that “snitches get stitches.”
Ms. Braxton also testified that Goldsberry offered her money, discussed the
need “to make up a story,” and told her to tell police he was not at the scene.
Fearing for her safety, Ms. Braxton went to stay with a friend. Over the
next 72 hours, she was called by Goldsberry “four or five times a day.”
During those conversations, Goldsberry asked repeatedly where she was and
if she had spoken with the police. Ms. Braxton’s family, upon being told by
her of what she had witnessed, convinced her that she must inform the police.
Three days after the incident, Ms. Braxton went to the police station, where
she identified Myers as the “person who shot” Chamberlain and Goldsberry
as having been present at the shooting.
Goldsberry, 182 Md. App. at 400-02, 957 A.2d at 1114-15.
At the close of the State’s case, Goldsberry moved for a mistrial, raising once again
the Sixth Amendment counsel of choice argument, and noting that “Mr. McKenzie has not
been able to participate in the entire trial” and had been “outside of the courtroom the entire
case.” The court denied Goldsberry’s motion for a mistrial, stating: “I have allowed  Mr.
McKenzie to communicate with you [Mr. Jezic] and Mr. Giannetti in terms of representing
[Goldsberry]. The fact that he’s outside of the courtroom doesn’t mean he couldn’t
communicate, and, obviously, I take note that, apparently, he has been communicating with
you.” The court further stated that Goldsberry had not been prejudiced during the trial by
Mr. McKenzie’s absence. Mr. Jezic reminded the court that, because McKenzie had been
subject to the rule on witnesses,7 neither Jezic nor Giannetti had discussed with McKenzie
anything related to the evidence adduced at trial. The court replied: “That’s not what the
Court ruled though. I said he could go ahead and communicate with you. The only thing he
couldn’t do was tell you what his conversations were with Mr. Myers.” The court evidently
forgot its earlier admonition to defense counsel that Mr. McKenzie has “got to go outside
because he may be a potential witness.”
At the close of all the evidence, the court gave the following instructions concerning
Question number two reads -- and this is what we call felony murder.
It’s different from first degree premeditated murder. Felony murder can be
divided into two different degrees. Question two deals with first degree felony
murder. That means that each defendant is charged with the crime of felony
murder. If your verdict is not guilty on question one [first degree premeditated
murder], then you go onto two.
In order to prove the elements of question two, the State must prove that
the defendant, or another participating in the crime with that defendant,
committed or attempted to commit the underlying felony. The underlying
felony in this case is question five, attempted robbery with a deadly weapon.
So that’s a precursor to question two.
Maryland Rule 5-615, entitled “ Exclusion of witnesses,” provides:
(a) In general. Except as provided in sections (b) and (c) of this Rule, upon
the request of a party made before testimony begins, the court shall order
witnesses excluded so that they cannot hear the testimony of other witnesses.
When necessary for proper protection of the defendant in a criminal action, an
identification witness may be excluded before the defendant appears in open
court. The court may order the exclusion of a witness on its own initiative or
upon the request of a party at any time. The court may continue the exclusion
of a witness following the testimony of that witness if a party represents that
the witness is likely to be recalled to give further testimony.
Number two, the second element, is that the defendant, or another
participating in the crime, killed the victim, in this case Mr. Chamberlain.
That the defendant, or another person participating in the crime, killed the
And, number three, that the act resulting in the death of the victim
occurred during the commission of the underlying felony. In this particular
case, the underlying crime is the attempted robbery with a deadly weapon. So
if the murder occurred during the course of the attempted robbery, that satisfies
that element, if proven beyond a reasonable doubt.
It is not necessary for the State to prove that the particular defendant
intended to kill the victim. So in the felony murder, the intent to kill is not
necessary to prove.
Now, that would be the definition of first degree felony murder,
question number two.
If your verdict is not guilty of question number two, then you would go
to question number three, which is second degree felony murder. Second
degree felony murder means that the defendant, or another participating in the
crime with the defendant, committed or attempted to commit the underlying
felony, again, question five, attempted robbery with a deadly weapon.
Element number two, that the way in which the attempted robbery with
a deadly weapon was committed or attempted under all circumstances created
--and here’s the distinction between first degree felony murder and second
degree. In second degree felony murder, that attempted robbery with a deadly
weapon created a reasonably foreseeable risk of death or serious physical
injury likely to result in death. So that act created a reasonably foreseeable
risk of death or serious physical injury likely to result in death.
The third element is that, as a result of the way in which the attempted
robbery with a deadly weapon was committed, Mr. Chamberlain was killed.
That distinguishes second degree felony murder from first degree. But
remember, the intent to kill doesn’t have to be present for either one.
The court’s instruction on the requirement of unanimity was as follows:
Your verdict as to each and every charge, as to each defendant, must be
unanimous. Anything short of a unanimous verdict is not acceptable.
Unanimous means a 12 to nothing vote. Our two alternates do not deliberate.
During its deliberations, the jury sent a note to the court, stating: “[c]ould you please
clarify the difference between first and second degree felony murder.” The court repeated
the basic elements of first degree and second felony murder, then stated, in pertinent part:
Now, here’s where the difference comes in. This is the second element
of second degree, and this makes it different from first degree. That the way
in which the attempted robbery with a deadly weapon -- your question five -was committed -- or in this case attempted -- under all the circumstances,
under all the circumstances [sic], created a reasonably foreseeable risk of death
or of serious physical injury likely to result in death.
I’ll repeat that one more time. That the manner in which the attempted
robbery with a deadly weapon was committed, under all circumstances,
created a reasonably foreseeable risk of death or of serious physical injury
likely to result in death.
Thereafter the jury convicted Goldsberry of second degree felony murder, attempted
robbery with a dangerous weapon, use of a handgun in the commission of a crime of
violence, and conspiracy to commit second degree murder.
Prior to sentencing, Goldsberry moved for a new trial. Goldsberry repeated his
previous argument that Maryland law does not recognize second degree felony murder based
upon the underlying felony of attempted robbery with a dangerous weapon. Thus, in
Goldsberry’s view, the second degree felony murder conviction could not stand. The court
rejected Goldsberry’s contention as contrary to Maryland law and denied the motion.
The Maryland State Bar Associations Criminal Pattern Jury Instructions (“MPJICr”) 2:03 (2005) recommends the following instruction pertaining to unanimity:
Your verdict must represent the considered judgment of each juror and must
be unanimous. In other words, all twelve of you must agree.
The Court merged the conviction of attempted robbery with a deadly weapon with the
second degree felony murder conviction, and sentenced Goldsberry to a 30-year term of
imprisonment for second degree felony murder, a 20-year consecutive term of imprisonment
for use of a handgun in the commission of a crime of violence, and a 30-year concurrent term
of imprisonment for conspiracy to commit second degree murder.
Goldsberry raised five claims of error before the Court of Special Appeals. See
Goldsberry, 182 Md. App. 394, 957 A.2d 1110. Of relevance to the issues before this Court,
Goldsberry contended that the trial court committed reversible error by: (1) disqualifying
McKenzie from representing Goldsberry in violation of the Sixth Amendment right to
counsel of choice; (2) submitting to the jury the charge of second degree felony murder; and
(3) instructing the jury that only a unanimous verdict was acceptable. Id. at 400, 957 A.2d
With regard to the first of those contentions, the Court of Special Appeals, relying on
its interpretation of Wheat v. United States, 486 U.S. 153 (1988), concluded that “the trial
court’s ruling properly balanced [Goldsberry’s] qualified right to counsel against competing
factors that weighed against continued unrestricted representation by Mr. McKenzie.”
In addition to the contentions listed, the Court of Special Appeals rejected
Goldsberry’s claim that the trial court committed reversible error in failing to instruct the jury
that it may disbelieve the uncontradicted testimony of Braxton, and granted him relief on his
claim that the court erred in submitting to the jury a charge of conspiracy to commit second
degree murder. See Goldsberry, 182 Md. App. at 423, 957 A.2d at 1127. There is no
challenge here to either of those holdings.
Goldsberry, 182 Md. App. at 421, 957 A.2d at 1124. The court reasoned that McKenzie’s
conduct posed two potential ethical violations: McKenzie “could have violated [Rule of
Professional Conduct] 1.18” when he spoke with Myers; and there was a “potential violation
of [Rule of Professional Conduct] 3.7” (“Lawyers as Witness”), given the State’s
representation that led the trial court to believe McKenzie could be called as a witness if
Tawanna Davis testified at trial, as the State anticipated she might, in a manner inconsistent
with her testimony before the grand jury that she had been “coached” by McKenzie. Id. at
420, 957 A.2d at 1126. The Court of Special Appeals, though acknowledging that Davis
ultimately did not testify, reasoned that the trial court “did not have the benefit of hindsight
when it made its ruling.” Id., 957 A.2d at 1126.
The Court of Special Appeals also emphasized that Goldsberry was not deprived of
his counsel of choice when the court disqualified McKenzie because Goldsberry was still
represented by attorney Jezic (and attorney Giannetti), whom he had selected. Id. at 421,
957 A.2d at 1126.10 The court therefore held that the trial court was within its discretion “in
determining that [Goldsberry’s] right to counsel of choice was outweighed by the
The Court of Special Appeals observed in this regard: “In addition, [Goldsberry]
was not deprived of his right to counsel of choice. [Goldsberry] was still represented by Mr.
Jezic —whom he selected—and the trial court’s ruling permitted Mr. McKenzie to assist in
[Goldsberry’s ] defense by consulting with Mr. Jezic and Mr. Giannetti as long as they did
not discuss the conversation with Mr. Myers.” 182 Md. App. at 420-21, 957 A.2d at 1126.
We have two concerns with those statements: First, we read the record differently insofar
as concerns the trial court’s limitation on McKenzie’s representation of Goldsberry. As we
see it, the trial court, though going back and forth on this point, in fact disqualified McKenzie
altogether when the court said “Mr. McKenzie  can’t participate in this trial.” Second, we
disagree, for reasons that we discuss, infra, that Goldsberry’s right to counsel of choice was
not prejudiced by the disqualification of McKenzie.
countervailing interests of fairness, maintaining ethical standards, and avoiding conflicts of
interest.” Id. at 420, 957 A.2d at 1126.
As for the second contention, the Court of Special Appeals agreed with Goldsberry
that second degree felony murder predicated upon attempted armed robbery is a “nonexistent” crime under Maryland law. Id. at 402, 957 A.2d at 1116. Accordingly, the Court
of Special Appeals held that the trial court erred in instructing the jury on second degree
felony murder and, presumably, sending that charge to the jury. The Court of Special
Appeals held that the second degree murder conviction must be reversed without the
possibility of a retrial on the charge of felony murder. Id. at 400, 957 A.2d at 1115.
The Court of Special Appeals began by explaining, in reliance on Fisher v. State, 367
Md. 218, 786 A.2d 706 (2001), that the purpose of Maryland’s statutory scheme, which
divides murder into degrees, is to differentiate severity of punishment. Id. at 404-05, 957
A.2d at 1116. The Court then noted the distinction between first and second degree felony
murder. First degree felony murder, explained the Court, requires a homicide that occurs in
the commission, or attempted commission, of one of the felonies listed in Maryland Code
(2002 Repl. Vol., Supp. 2009), § 2-201of the Criminal Law Article (“CrL”) (providing in (a),
inter alia, that “[a] murder is in the first degree if it is . . . (4) committed in the perpetration
of or an attempt to perpetrate: . . . (ix) robbery under § 3-402 or § 3-403 of this article[,]”
and providing in (b) that the punishment, generally, “shall be . . . imprisonment for life”).
Second degree felony murder is predicated upon a felony that, although not listed in CrL §
2-201(a)(4), is by its nature or the way in which it is perpetrated sufficiently dangerous to
life. Goldsberry, 182 Md. App. at 407, 957 A.2d at 1117 (citing Roary v. State, 385 Md.
217, 867 A.2d 1095 (2005)); see also CrL § 2-204(a), (b) (providing that “[a] murder that is
not in the first degree under § 2-201 of this subtitle is in the second degree[,]” punishable by
“imprisonment not exceeding 30 years”). The Court of Special Appeals reasoned that,
because armed robbery with a dangerous weapon is listed in CrL § 2-201(a)(4)(ix) as a
predicate for first degree felony murder, it “may not also support a charge of second degree
felony murder, regardless of the circumstances or manner of its commission.” Id. at 407, 957
A.2d at 1118. The Court therefore concluded that the trial court erred in instructing the jury
on the charge of second degree felony murder.
The Court of Special Appeals found additional error in the trial court’s re-instruction
on the subject in response to the jury’s request for 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 with a deadly weapon created a reasonably
foreseeable risk of death or of serious physical injury likely to result in death.” Citing
Fisher, 367 Md. at 250, 786 A.2d at 706, the Court of Special Appeals explained that the
instruction was improper because a reasonably foreseeable risk of death is required for the
felony murder doctrine to be applicable in the first place and thus has “no bearing on the
degree of punishment.” Goldsberry, 182 Md. App. at 407, 957 A.2d at 1118.
The Court of Special Appeals also agreed with Goldsberry that the trial court’s jury
instruction regarding unanimity was coercive and erroneous. Id. at 417, 957 A.2d at 1124.
We need say nothing more about that holding because, as we mentioned at the outset, the
State’s challenge to that holding, though one on which we granted certiorari, does not need
to be addressed in light of our disposition of this appeal.
The State petitioned this Court for further review of the judgment, as did Goldsberry,
by way of cross-petition. We granted the State’s petition to address two questions:
To the extent preserved, did the Court of Special Appeals err in reversing and
remanding for a new trial on the ground that the trial court’s modified
unanimity instruction could have coerced the deliberative process?
Did the Court of Special Appeals err by ruling that the trial court should not
have given the pattern jury instruction on second degree felony murder when
the felony underlying the murder is an attempted robbery with a dangerous
We granted Goldsberry’s cross-petition to address the following question:
Did the lower courts deprive Goldsberry of his constitutional right to counsel
of his choice by effectively disqualifying one defense attorney?
We hold that Goldsberry is entitled to a new trial on the ground that the trial court
violated Goldsberry’s right under the Sixth Amendment to his counsel of choice by
disqualifying attorney McKenzie from the defense team. We further hold, for reasons we
shall explain, that the State may re-try Goldsberry on the charge of felony murder subject to
the limitations (which we shall outline) that are demanded by the peculiar circumstances of
The Sixth Amendment Claim
The Sixth Amendment provides that, “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to have the Assistance of Counsel for his defence.” The right to counsel
includes the right of a defendant, who does not require court-appointed counsel, to select the
counsel of his or her choosing. See Wheat, 486 U.S. at 159; Gonzales v. State, 408 Md. 515,
530, 970 A.2d 908, 916 (2009); McCleary v. State, 122 Md. 394, 400, 89 A.2d 1100, 1103,
(1914). Cf. Powell v. Alabama, 287 U.S. 45, 53 (1932) (“It is hardly necessary to say that,
the right to counsel being conceded, a defendant should be afforded a fair opportunity to
secure counsel of his own choice.”).
The right to counsel of choice, however, is qualified. It is subject to the trial court’s
“independent interest in ensuring that criminal trials are conducted within the ethical
standards of the profession and that legal proceedings appear fair to all who observe them.”
Wheat, 486 U.S. at 160; accord Moore v. State, 390 Md. 343, 405, 889 A.2d 325, 362 (2005)
(stating that a defendant’s right to counsel of choice “will not be permitted to frustrate the
[ethical and] orderly administration of criminal justice”). This right to counsel, though
protected by a presumption in favor of a defendant’s counsel of choice, can be overcome.
Wheat, 486 U.S. at 164. The presumption can be overcome if, for example, the defendant’s
attorney “has a previous or ongoing relationship with an opposing party.” Id. at 159. And
it can be overcome, “not only by a demonstration of actual conflict but by a showing of a
serious potential for conflict.” Id. at 164.
The facts of Wheat presented the Supreme Court with the opportunity to explicate
these principles. The Court had before it the question whether the federal district court had
erred in refusing to permit Wheat to waive his right to conflict-free counsel and obtain
representation by an attorney who represented several co-defendants. 486 U.S. at 154.
Wheat and numerous co-defendants had been charged with participating in a drug
distribution conspiracy. Two of those co-defendants, Gomez-Barajas and Javier Bravo, were
represented by attorney Eugene Iredale. Iredale had obtained on behalf of Gomez-Barajas
an acquittal with respect to the drug distribution charges and a subsequent plea deal on
unrelated charges that, at the time of the relevant events in Wheat’s case, had not yet been
accepted by the district court. Iredale also negotiated a plea deal for Bravo. Id. at 155.
Wheat, evidently impressed by those results, contacted Iredale to request his representation.
At the conclusion of Bravo’s guilty plea proceeding, Iredale informed the district court of
Wheat’s request to have Iredale represent him at his upcoming trial. Id.
The district court, prompted by the Government’s suggestion that the proposed
representation would pose a potential conflict, conducted a hearing to decide the issue, one
day before Wheat’s trial was scheduled to commence. The Government objected on two
grounds to Iredale’s representation of Wheat at his trial while the plea deal for GomezBarajas remained pending. Id. First, the dual representation posed a potential conflict given
the possibility that Gomez-Barajas’s plea would be rejected by the district court, resulting
in a trial during which Wheat might be called by the Government to testify against GomezBarajas. Id. at 155. Should that happen, ethical strictures would prevent Iredale from crossexamining Wheat, thereby rendering Iredale’s representation of Gomez-Barajas ineffective.
Second, the dual representation posed a separate potential conflict because, as part of Bravo’s
plea deal, he agreed to testify against Wheat at Wheat’s trial. Id. at 156. Given the Rules of
Professional Responsibility, Iredale would be unable to cross-examine Bravo, rendering
ineffective his representation of Wheat.
Wheat responded that his right under the Sixth Amendment to counsel of his choice
entitled him to waive his right to conflict-free counsel. He disputed the Government’s
concern as posing “highly improbable” conflicts that were “manufactured” to disqualify
Iredale. Wheat also noted that he, Gomez-Barajas, and Bravo all had waived any potential
claims of conflict of interest. Id. at 156-57.
The district court denied Wheat’s request for substitution of Iredale as his counsel on
the ground that the joint representation would pose an irreconcilable and un-waivable
conflict. Wheat proceeded to trial, represented by his original counsel, and was convicted
of conspiracy to distribute marijuana and related offenses. Wheat appealed, arguing, among
other claims, that the district court’s ruling deprived him of his constitutional right to counsel
of choice. The Court of Appeals for the Ninth Circuit disagreed and affirmed the judgments.
Wheat v. United States, 813 F.2d 1399 (9th Cir. 1987).
The Supreme Court affirmed. The Court began its analysis with the recognition that
the Sixth Amendment right to counsel includes the right to choose one’s own counsel. The
Court explained that “the essential aim” of the Sixth Amendment is to “guarantee an
effective advocate for each criminal defendant rather than to ensure that a defendant will
inexorably be represented by the lawyer whom he prefers.” Wheat, 486 U.S. at 159. The
right to choose one’s counsel nevertheless may be circumscribed by a trial court when
necessary to uphold “the ethical standards of the profession” and to ensure that “legal
proceedings appear fair to all who observe them.” Id. at 160. In other words, the right to
choice of counsel is not absolute: one may not select an unbarred advocate or an attorney
about whom a “court justifiably finds an actual [or a serious potential for a] conflict of
interest[.]” Id. at 162.
It is in the latter context, noted the Supreme Court, that the “likelihood and
dimensions of nascent conflicts of interest are notoriously hard to predict,” requiring the trial
court to act without the benefit of a fully developed record produced at trial. Id. at 162. For
this reason, the trial court is afforded “substantial latitude in refusing waivers of conflicts of
interests.” Id. at 163. The Court determined that the proper balance is struck when “the
district court [ ] recognize[s] a presumption in favor of [the defendant’s] counsel of choice,”
which “may be overcome not only by a demonstration of actual conflict but by a showing of
a serious potential for conflict.” Id. at 164 (emphasis added).
Courts applying Wheat have grappled with what that case requires of a trial court in
making the important and weighty assessment presented by a choice of counsel issue. United
States v. Nolen, 472 F.3d 362 (5th Cir. 2006) is illustrative. In that case, Nolen, a persistent
“tax protestor,” was charged in the United States District Court for the Eastern District of
Texas with three counts of willfully attempting to evade federal income taxes. See id. at 369.
After being represented by several different attorneys throughout pre-trial proceedings,
Nolen hired John Green to represent him. See id. at 370. Green was admitted pro hac vice.
In a motion for continuance, Green referred to the magistrate judge, who had presided
over preliminary matters in which Green was not involved, in a manner that, in the district
court’s view, implicated Texas Disciplinary Rule 8.02.11 Nolen, 472 F.3d at 370. The district
court ordered a show cause hearing and, at that proceeding, revoked Green’s pro hac vice
admission. Id. Nolen was later convicted of willful tax evasion.
On appeal, Nolen argued successfully that the district court committed reversible error
by failing to “to balance the need to enforce [ethical rules] against Nolen’s Sixth Amendment
Right to counsel of choice.” Id. at 371. The Fifth Circuit explained that a criminal
defendant’s choice of counsel may be disqualified for an ethical violation only if, “‘in light
of the interests underlying the standards of ethics, the social need for ethical practice
outweighs the party’s right to counsel of his choice.’” Id. at 375 (quoting United States v.
Kitchin, 592 F.2d 900, 903 (5th Cir. 1979)). Therefore, “[c]onducting such a balancing test
is thus a prerequisite to disqualifying counsel of defendant’s choice, and explicating the
process on the record is a pre-requisite to appellate review.” Nolen, 472 F.3d at 375
(emphasis added). Turning to the district court’s order revoking attorney Green’s pro hac
vice admission, the Nolen Court found no indication that the district court had conducted the
necessary balancing test and, accordingly, concluded that the district court abused its
discretion in revoking Green’s admission. Id. at 376.
Fuller v. Diesslin, 868 F.2d 604 (3d Cir. 1989) is to like effect. Fuller was convicted
of various drug-related offenses following a trial before the New Jersey Superior Court. In
a pre-trial motion, Fuller requested, through local counsel, that he be represented pro hac vice
Texas Disciplinary Rule 8.02 states, in pertinent part, that “[a] lawyer shall not make
a statement that the lawyer knows to be false or with reckless disregard as to its truth or
falsity concerning the qualifications or integrity of a judge . . . .”
by two out-of-state attorneys. Id. at 605. That request was denied based on the trial court’s
belief that local counsel was competent, the “case was going to be hotly contested,” and the
out-of-state attorneys would create “probable delay . . . so grave as to overcome the
unfettered right of a defendant to counsel of his own choosing . . . .” Id. at 605-06. In his
collateral attack of the convictions, Fuller maintained that the trial court arbitrarily denied
him the constitutional right to counsel of choice. Id. at 606.
The Third Circuit agreed. That court noted that a trial court, when confronted with
a choice of counsel issue, must conduct a hearing to “‘make specific findings of fact
consistent with the evidence[.]’” Id. at 608 (quoting United States v. Romano, 849 F.2d 812,
820 (3d Cir. 1988) (finding that district court’s summary denial of defendant’s requested
counsel violated right to counsel of choice)). Looking to the trial court’s denial of Fuller’s
request for counsel pro hac vice, the Third Circuit concluded that “the trial court’s wooden
approach and its failure to make record-supported findings balancing the right to counsel
with the demands of the administration of justice resulted in an arbitrary denial of” the right
to choice of counsel. Fuller, 868 F.2d at 611. The Fuller Court was careful to explain,
though, that its holding did not “militate” against the broad discretion afforded a trial court
as discussed in Wheat, but, instead, simply made plain that only “[u]pon obtaining sufficient
information” is the court equipped to exercise its discretion, “instinct[,] and judgment based
on experience.” Id. (internal quotation marks and citation omitted).
Other courts have addressed with specificity the steps to be undertaken by a trial court
in assessing choice of counsel issues. The Illinois Supreme Court did so in People v. Ortega,
808 N.E.2d 496 (Ill. 2004). In Ortega, the facts of which are irrelevant for present purposes,
the Supreme Court of Illinois suggested the following framework, based on Wheat: The trial
court must first determine whether there is “actual or serious potential for conflict.” Ortega,
808 N.E.2d at 502. If the court finds a conflict, it must then determine whether the
presumption favoring one’s counsel of choice is overcome by the interests of fairness and
maintenance of ethical standards implicated by the conflict. Id. (citing Wheat, 486 U.S. at
160). In conducting this balancing test, the court may consider the following, among all
other factors relevant to the conflict: the likelihood that defense counsel will have divided
loyalties; the State’s right to a fair trial; the appearance of impropriety should the jury learn
of the conflict; and the likelihood that defense counsel’s continued representation will
provide grounds for overturning the conviction. Id. Connecticut follows an approach similar
to that of the Illinois Supreme Court. See State v. Peeler, 828 A.2d 1216, 1225 (Conn. 2003)
(citing Fuller for this proposition and stating that “the trial court cannot vitiate [the right to
counsel of choice] without first scrutinizing closely the basis for the claim”).
We adopt the approach to this issue taken by the Illinois and Connecticut courts, as
it is well-grounded in the principles announced in Wheat and applied in Nolen and Fuller.
We hold that, before a trial court is permitted to disqualify a criminal defendant’s privately
obtained counsel (regardless of whether counsel is the defendant’s only attorney or one of
several on the defense team), the court must conduct a hearing on the matter, “scrutinize
closely the basis for the claim,” Peeler, 828 A.2d at 1225, and make evidence-based findings
to determine, based on factors such as those outlined in Ortega, 804 N.E.2d at 502, whether
there is “actual or serious potential for conflict” that overcomes the presumption the
defendant has to his or her counsel of choice. The record must reflect that the trial court
contemplated relevant factors in conducting the test that balances the right to one’s counsel
of choice against the necessity to uphold “the ethical standards of the profession” that ensure
that “legal proceedings appear fair to all who observe them.” See Wheat, 486 U.S. at 160;
Fuller, 868 F.2d at 608, 611. With this legal framework in mind, we turn to the parties’
Goldsberry argues that the evidence of the two purported ethical conflicts relied upon
by the trial court to disqualify McKenzie—his conversation with Myers before trial and
McKenzie’s alleged coaching of Davis—“was too sketchy” to justify disqualification under
Wheat and its progeny. Goldsberry first directs us to the record pertaining to McKenzie’s
conversation with Myers, which Myers’s counsel suggested posed potential violations of
Maryland Rules of Professional Conduct 4.2 and 1.18. Goldsberry maintains that the
evidence presented to the court did not support a finding of a potential violation of either rule
of professional conduct.
Goldsberry points out that Rule 4.2 prohibits an attorney, while engaged in the
representation of a client, from “communicat[ing] about the subject of the representation with
a person who the lawyer knows is represented in the matter by another lawyer . . . .” He
argues, based on the representations made to the trial court, all of which indicated that Myers
was not represented by counsel at the time he spoke with McKenzie, that the record does not
support a potential transgression of Rule 4.2.
Turning to Rule 1.18, Goldsberry emphasizes that the Rule applies only to a
“prospective client,” defined as “[a] person who discusses with a lawyer the possibility of
forming a client-lawyer relationship with respect to a matter . . . .” Goldsberry contends that
there is no indication in the record that Myers and McKenzie discussed anything that would
implicate Rule 1.18. To the contrary, argues Goldsberry, the only representations made to
the trial court on this point indicate that McKenzie and Myers discussed only the facts of the
case and Myers made no admissions to McKenzie.
Goldsberry next attacks the Court of Special Appeals’ determination that there was
“a potential violation of [Rule] 3.7,”given the State’s representation that Tawanna Davis (a
potential State’s witness) had testified before the grand jury that McKenzie had “coached”
her.12 Rule 3.7 prohibits a lawyer from representing a client in a trial in which the attorney
is “likely to be a necessary witness . . . .” Goldsberry asserts that there was insufficient
information presented to the trial court to allow the court to determine “a compelling need”
for McKenzie to testify. Goldsberry argues that “any scenario by which Mr. McKenzie
could have become a ‘necessary witness’  as a result of ‘coaching’ Ms. Davis was a remote
and speculative one.” According to Goldsberry, the record before the trial court lacks the
sort of inquiry necessary to decide, with regard to Rule 3.7, whether to honor a defendant’s
Neither Myers’s counsel nor anyone else mentioned the applicability of Rule of
Professional Conduct 3.7 at trial. The Court of Special Appeals, however, relied on Rule
3.7, in upholding the trial court’s ruling.
choice of counsel. Other than the “conclusory” representation made by the State, argues
Goldsberry, there was no proffer made nor testimony taken to indicate what, if anything,
McKenzie said to Davis. Moreover, the trial court did not require the State either to proffer
what McKenzie’s testimony would be if called as a witness or to demonstrate that “there was
no feasible alternative to calling Mr. McKenzie to the stand.” Goldsberry suggests that, had
the trial court required the State to make these showings, the parties could have fashioned an
alternative to McKenzie’s being called as a witness, such as a stipulation concerning the
conversation between McKenzie and Ms. Davis. Goldsberry alleges that the trial court made
its decision based on a “purely hypothetical change in [Ms. Davis’s] testimony.”
Goldsberry refers us to various cases, the notable ones of which we have discussed
at length above, in support of his argument that the trial court failed to employ the analysis
required when confronted with the decision whether to deprive a defendant of his or her
chosen counsel. Goldsberry contends, in particular, that the trial court failed to conduct a
sufficient threshold level of evidentiary inquiry into the alleged conflicts, which, if
undertaken, would have enabled the proper balancing of Goldsberry’s right to counsel of
choice on the one hand, and the interests of fairness, avoidance of conflicts, and maintenance
of ethical standards on the other. Because the trial court failed to conduct such an inquiry,
contends Goldsberry, the presumption of counsel of one’s choice was not overcome, and
McKenzie’s disqualification constituted structural error under United States v. GonzalezLopez, 548 U.S. 140 (2006) (holding that the denial of counsel of choice is structural error
such that prejudice is presumed).
The State, not surprisingly, urges us to affirm the Court of Special Appeals’ holding
on this issue. The State contests Goldsberry’s characterization of the record as “sketchy.”
In the State’s view, the record “adequately established the potential conflicts of interest and
ethical violations committed by Mr. McKenzie prior to trial.” The State argues that,
consistent with the reasoning employed by the Supreme Court in Wheat, 486 U.S. 153, the
trial court was well within its considerable discretion in finding that McKenzie’s conduct
posed “a serious potential for conflict.” (Quoting Wheat,486 U.S. at 164).
Turning to McKenzie’s conversation with the co-defendant Myers, the State contends
that, given the breadth of conduct prohibited by Rule 1.18, there was a sufficient showing of
a potential violation of that Rule. This is so, argues the State, even though the record “does
not disclose the substance of that conversation.” The State explains that, pursuant to Rule
1.18, a prospective client includes a person who discusses with a lawyer the possibility of
forming an attorney-client relationship with respect to a matter. The State, though it does not
expressly say so, presumably contends that, based on the representations made by attorneys
Hart, Jezic, and McKenzie, there was enough in the record to afford Myers the protections
provided to prospective clients.
The State implies that prospective-client status for Myers would be significant for two
reasons. First, under Rule 1.18(a), even though McKenzie and Myers never formed an
attorney-client relationship, McKenzie is prohibited from using any information he learned
during the consultation with Myers, absent Myers’s informed consent or an applicable
exception to confidentiality. Second, Rule 1.18(c) and (d) are implicated because McKenzie,
who presumably obtained information harmful to Myers during their conversation, would be
representing Goldsberry, whose interests are “materially adverse” to Myers.
With regard to McKenzie’s alleged “coaching” of the potential State’s witness,
Tawanna Davis, the State concedes “that the record does not disclose the substance of that
conversation [between McKenzie and Davis].”
The State notes, however, that the
prosecutor’s representation to the trial court (i.e., that Davis testified before the grand jury
that she was coached by McKenzie), suggests that McKenzie told Davis “how to testify,
including what to say and what not to say.” The State contends that this representation, in
and of itself, made McKenzie a potential witness in the case. For these reasons, the State
argues that there was “a firm foundation for [the trial court’s] decision to exclude Mr.
We conclude that Goldsberry has the better part of the argument on this issue. The
State grounds its argument on the Supreme Court’s decision in Wheat. Though Wheat indeed
supports the State’s contention that a trial court is afforded discretion in deciding whether a
criminal defendant’s selection of counsel is permissible given a purported conflict of interest,
that discretion does not excuse the trial court’s failure to conduct a threshold level of inquiry
to determine whether there was a “serious potential,” Wheat, 486 U.S. at 164, that the
asserted conflicts existed or would arise.
Moreover, the sparse record in the present case stands in sharp contrast to the facts in
Wheat suggesting the serious potential for a conflict of counsel. In approving of the district
court’s exercise of discretion in Wheat, the Supreme Court noted that the district court had
been confronted, as a result of Wheat’s desired substitution of counsel one day before trial,
with the proposed representation of “three conspirators of varying stature in a complex drug
distribution scheme.” Wheat, 486 U.S. at 163-64. Furthermore, the Government advised the
district court that, at Wheat’s trial, the Government intended to (and in fact did) call Bravo
as a witness. Id. And, the district court was informed that, should Gomez-Barajas’s plea
deal collapse, Wheat would “probab[ly]” be called upon to testify at the trial. Id. In either
of the latter two circumstances, attorney Iredale’s joint representation and corresponding
ethical obligations to each client would preclude effective representation of all. Id. For these
reasons, all of which were revealed to the district court at the “conflict” hearing, the Supreme
Court concluded that the district court properly denied Wheat’s choice of counsel.
Here, the trial court, prompted by representations made first by attorneys Hart, Myers,
and Jezic, and then by the State, determined sua sponte to deny Goldsberry’s choice of
counsel. Contrary to the “serious,” if not near-certain, potential for conflict posed by
Iredale’s representation in Wheat, the record here of a potential conflict posed by
McKenzie’s continued representation of Goldsberry is, using his language, “sketchy” at best.
We agree with the Court of Special Appeals that McKenzie’s conversation with Myers
“could have” violated Rule 1.18. See Goldsberry, 182 Md. App. at 420, 957 A.2d at 1126.
But the record developed at trial, upon which the trial court rested its decision, does not come
close to revealing the “serious potential for conflict,” that Wheat requires be established
before the trial court may exercise its discretion to deprive a defendant of his or her counsel
At the hearing on Myers’s motion to have his trial severed from Goldsberry’s, the trial
court was presented with imprecise assertions from Myers’s counsel about McKenzie’s
conversation with Myers. We have mentioned that there were no facts indicating that, at the
time of the conversation, Myers was represented by counsel. Moreover, the only information
before the trial court concerning the content of the conversation came from McKenzie’s
representation to the court that Myers related to him only the “facts” of the case, and made
“no admissions.” The trial court did not ask of McKenzie his intentions in meeting with
Myers, i.e., whether he sought Myers to solicit him as a client. Nor did the trial court request
from Myers’s counsel a proffer concerning the nature of the conversation. Indeed, Myers’s
counsel, who presumably would have put forth her strongest arguments in an attempt to sever
the trials, could only say “I don’t know if the purpose of the meeting involves Rule 1.18 and
The Dissent evidently relies on Lettley v. State, 358 Md. 26, 746 A.2d 392 (2000),
and the authority cited therein, for the proposition that the trial court should be permitted to
accept, at face value and without further inquiry, Myers’s counsel’s assertion that McKenzie
had created a serious potential for a conflict by speaking with Myers, when and under the
circumstances he did. That authority, though, concerns the situation in which defense
counsel himself or herself brings to the trial court’s attention counsel’s own potential or
actual conflict of interest, which, in that attorney’s view, prevents the attorney from
adequately representing his or her client. It is in that context that “judges should normally
accept at face value a lawyer’s assertion that a conflict of interest exists.” (quoting CHARLES
W. WOLFMAN, MODERN LEGAL ETHICS, § 8.2 at 416 (1986)).
That situation is not present in the case at bar. Neither do we believe it to be sound
policy, much less constitutionally proper, to allow the Wheat presumption in favor of counsel
of one’s choice to be overcome by the trial court’s accepting “at face value” and without
further inquiry the representation of a co-defendant’s counsel or prosecutor that defense
counsel might have committed an ethical violation or acted in such a way that might suggest
a serious potential for a conflict on the part of defense counsel.
whether it was an attempt to speak with a prospective client or whether it was to interview
a co-defendant regarding facts of the case.”14
Likewise, though Rule 4.2, which prohibits a lawyer from communicating with a
person whom the lawyer “knows is represented in the matter by another attorney,” was not
specifically mentioned by the trial court in its decision to disqualify McKenzie, the court
explicitly rejected the possibility of the rule’s violation when it found that McKenzie “did
not know” whether Myers was represented by counsel.15 The trial court stated:
It’s clear that Mr. McKenzie did not know that anybody was representing Mr.
Myers when he talked to him, and the reality is there’s absolutely nothing
wrong with an attorney, who may be representing a co-defendant, trying to
communicate with the other defendant if that defendant is not represented.
We consider, too, the State’s representation to the trial court that the potential State
witness, Ms. Tawanna Davis, had testified before the grand jury to being “coached” by
McKenzie. The trial court, relying solely on that representation, inferred that McKenzie
could be called by the State as a witness. We agree with the Court of Special Appeals that
the allegations may have implicated Rule 3.7. But we cannot conclude, based on the record
For an example of a reversal of a trial court’s disqualification of defense counsel for
failing to balance properly the defendant’s Sixth Amendment right to counsel against a
potential conflict posed by a putative attorney-prospective client relationship, see State ex
rel. Youngblood v. Sanders, 575 S.E.2d 864, 892 (W. Va. 2002) (“[B]efore disqualification
of counsel [due to a prospective attorney-client relationship], the court must satisfy itself
from a review of the available evidence, including affidavits and testimony of affected
individuals, that confidential information was discussed.”).
The Comments to Rule 4.2 state that “[t]he prohibition on communications with a
represented person applies only if the lawyer has actual knowledge that the person in fact is
represented in the matter to be discussed.”
before the trial court, that there was a showing of “serious potential” that McKenzie would
be called as a witness. Put simply, the trial court failed to demand of the State the requisite
showing to support such a finding, before relying on it as grounds for disqualifying
McKenzie. At a minimum, the court, prior to disqualifying McKenzie, should have
conducted an in camera hearing to determine the likelihood that the State would be calling
Ms. Davis as a witness16; and, in that event, whether she would in fact testify to having been
“coached” by McKenzie and, if so, what she meant by the term “coach.”17
To be sure, the trial court’s decision to remove attorney McKenzie from the defense
team was made, not with “the wisdom of hindsight after the trial has taken place, but in the
murkier pretrial context when relationships between parties are seen through a glass,
darkly[,]” at which time, “[t]he likelihood and dimensions of nascent conflicts of interest are
notoriously hard to predict, even for those thoroughly familiar with criminal trials.” Wheat,
486 U.S. at 162. It remains, though, that the record provides no basis upon which to assess
We have mentioned that a subsequent hearing was conducted on the admissibility
of certain testimony by Ms. Davis, and the trial court ruled that the State would not be
permitted to elicit that testimony. In the end, Ms. Davis did not testify, at all. See supra note
Goldsberry suggests that, under the circumstances presented here, the State was
required to demonstrate—in addition to McKenzie being likely called as a witness—that
McKenzie’s testimony was essential to the State’s case and would provide information for
which there was no feasible alternative source. Given that the record was insufficient to
support a finding of “serious potential conflict” as required by Wheat, we need not analyze
the case under this more stringent, “compelling need test.” See Flores v. State, 155 S.W.3d
144, 148 (Tex. Crim. App. 2004); cf. Venable v. State, 108 Md. App. 395, 407, 762 A.2d
123, 129 (1996) (holding that the trial court erred when it allowed the State to call defense
counsel as a witness without first requiring the State to make a detailed proffer, allowing
defense counsel to respond, and considering alternatives).
the legal correctness of the court’s ultimate decision to disqualify McKenzie, because the
court did not conduct an adequate threshold inquiry into the circumstances underlying the
purported conflicts in order to assess whether there was a serious potential for conflict. See
Fuller, 868 F.2d at 611; Ortega, 808 N.E.2d at 502; Peeler, 828 A.2d at 1225.
We therefore hold that the court’s failure to develop a factual record that supports its
decision to take the undeniably drastic action of disallowing McKenzie as one of
Goldsberry’s defense attorneys denied Goldsberry his Sixth Amendment right to counsel of
his choice.18 That constitutional violation entitles Goldsberry to a new trial. See GonzalezLopez, 548 U.S. at 148, 150 (holding that, when the court wrongly denies the defendant the
“right to be assisted by counsel of one’s choice,” structural error results and prejudice is
The Unanimity Instruction
Our holding that Goldsberry is entitled to a new trial on the ground that he was
deprived of his Sixth Amendment right to counsel of his choice obviates the need to address
The Dissent comments that “[t]his Court should not be focusing upon the issue of
whether Mr. McKenzie had an actual conflict of interest, ‘serious’ or otherwise, with either
Goldsberry or Myers.” We agree with the Dissent that the focus should not be on whether
McKenzie had an actual conflict, as that is not the issue the parties briefed or we decide.
Rather, the issue is whether the trial court had before it a record sufficient to overcome the
presumption in favor of upholding the right to counsel of choice and justify the court’s
exercise of discretion to disqualify McKenzie. Under Wheat, it is not enough for the record
to demonstrate a potential for a conflict of counsel; it must demonstrate a serious potential
for conflict.” 486 U.S. at 164. For the reasons we have stated, the record falls short of
the State’s challenge to the Court of Special Appeals’ holding that the court erred in giving
a coercive jury instruction on the requirement of jury unanimity. See Goldsberry, 182 Md.
App. at 416-17, 962 A.2d at 371. We therefore decline to address that contention.
The Felony Murder Conviction
The State’s remaining contention, that the Court of Special Appeals erred in holding
that Goldsberry was convicted of a “non-existent” crime, i.e., second degree felony murder
based on the crime attempted robbery with a dangerous weapon (hereafter attempted armed
robbery), is a different matter. See id. at 407-08, 962 A.2d at 1117. If the State is correct
that the Court of Special Appeals erred in any aspect of that holding, then the State is not
foreclosed from re-trying Goldsberry for felony murder. We therefore shall address the
The State’s argument, in a nutshell, is: (1) the General Assembly’s legislative
determination that killing a victim during the commission of an attempted armed robbery
supports a conviction of first degree (not second degree) felony murder did not foreclose the
jury in this case from finding Goldsberry guilty of felony murder; because (2) the identity
of the underlying felony, once proven, relates only to whether the maximum sentence is life
(if a first degree felony murder), or thirty years’ imprisonment (if second degree felony
murder); and therefore (3) the Court of Special Appeals erred in reversing, without the
possibility of re-trial, Goldsberry’s conviction of what that court characterized as the “nonexistent crime” of second felony degree murder predicated on attempted armed robbery.
We begin our analysis of this contention with what is essentially uncontested:19 The
parties seem to agree that the trial court ought not have instructed the jury on the crime of
second degree felony murder and sent that charge to the jury, because the facts developed at
To be precise, the State does not concede that the court “erred” in giving the second
degree murder instruction and sending that charge to the jury. The State admits, however,
that, “[w]hile factually generated by the case, the trial court’s instruction on, and the jury’s
finding of, a reasonably foreseeable risk of death or injury was, legally speaking,
unnecessary[.]” The State suggests that the court evidently relied on the “Notes on Use”
accompanying the pattern jury instruction for second degree felony murder, MPJI-Cr
220.127.116.11. The notes on use for that pattern instruction include that the trial court should give
the instruction when “the defendant is charged with second degree felony murder and the
predicate felony is one that is inherently dangerous to human life because of the way in
which it was committed.” MPJI-Cr 4:17.7.2. The State then suggests:
Justifiably discerning no incompatibility in the “Notes on Use” of both [the
first degree felony murder and the second degree felony murder] instructions,
and believing, based on the content of the instructions themselves, that the
manner of the attempted robbery’s commission distinguished first from second
degree felony murder, the trial court gave the jury the option to classify
Goldsberry’s offense in either the first or second degree. Under the
instructions as given, the jury convicted Goldsberry of second degree felony
murder and not first degree felony murder because the jury believed that the
manner in which he attempted the armed robbery “created a reasonably
foreseeable risk of death or of serious physical injury,” for that was the only
content of the court’s second degree felony-murder instruction not found in the
first degree felony-murder instruction.
It was in this context that the State maintained:
While factually generated by the case, the trial court’s instruction on, and the
jury’s finding of, a reasonably foreseeable risk of death or injury was, legally
speaking, unnecessary because the General Assembly has already found as a
legislative fact in Section 2-201 that attempted armed robbery is always
inherently dangerous, and for that reason warrants the maximum punishment
allowed by law as first degree felony murder.
trial make out what the General Assembly has characterized as first degree felony murder,
i.e., a criminal homicide that occurred during commission of an attempted armed robbery.
The parties also agree that the elements of felony murder are determined by Maryland’s
common law; and that CrL § 2-201 (first degree felony murder) and CrL § 2-204 (second
degree felony murder), at least in the present context, have “identical elements.” Where the
parties part company is on the effect of the jury’s finding Goldsberry not guilty of the charge
of first degree felony murder and guilty of the charge of second degree felony murder.
The State argues that, under the circumstances of this case, the jury’s finding
Goldsberry guilty of second degree murder, when, if anything, he should have been found
guilty of first degree felony murder, does not absolve him of guilt of felony murder. Citing
Fisher, 367 Md. at 250, 786 A.2d at 725, the State emphasizes that “the common law of
Maryland alone defines the elements of felony murder” and “alone imposes culpability for
felony murder.” The State points out the broad description we accorded the offense in Roary,
385 Md. at 226, 867 A.2d at 1100, where we said that a person commits felony murder when
the person’s “conduct [brings] about an unintended death in the commission or attempted
commission of a felony . . . .” Id. (Quoting 2 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL
LAW § 14.5(a) (2d ed. 2003)).
The State asserts that the General Assembly’s division of common law felony murder
into first degree and second degree felony murder creates nothing more than a “penalty
scheme.” In support of that assertion, the State directs us to Weighorst v. State, 7 Md. 442,
451 (1855), where we stated: “The design [of Chapter 138, § 3 of the 1809 Act] was to
discriminate in awarding the punishment” for the various forms of murder. The State also
reminds us of our predecessors’ description of the General Assembly’s purpose in enacting
the 1809 Act:
“Murder” is here recognized as a general denomination, including
offenses differing from each other in their degrees of atrocity, but not in their
nature or kind; no attempt is made to explain or modify its meaning or abridge
its range. Its common law sense is left unimpaired; the measure of punishment
only is sought to be graduated according to the circumstances under which it
. . . . This Act of Assembly, now codified, does not create a new crime;
it neither adds to nor diminishes the class of cases which constituted murder
at common law; nor does it increase the punishment.
Davis v. State, 39 Md. 355, 374 (1874). The State argues that more recent precedent of this
Court, citing, inter alia, Fisher, also mandates its requested result. The State asserts: “This
Court has explained that the felony-murder doctrine operates independently to elevate an
unintentional killing to murder, only after which do Sections 2-201 and 2-204 [of the CrL]
operate to assign a penalty[.]”
The State contends that the Court of Special Appeals’ decision is contrary to the
General Assembly’s intent to impose a “comprehensive scheme” mandating punishment for
all felony murders; moreover, the decision is illogical, because it conflicts with the
commonsensical notion that an offense that warrants a greater punishment can also warrant
a lesser punishment. In that regard, the State points out the “catch-all” quality of CrL § 2204(a), which provides: “A murder that is not in the first degree under [CrL § 2-201] of this
subtitle is in the second degree.” Finally, the State concedes that the jury in the present case,
by its verdict, limited the court to imposition of a penalty for Goldsberry’s crime of felony
murder that was not anticipated by the General Assembly. That, however, argues the State,
should have only the effect of punishing Respondent to a lesser degree and not of erasing
Goldsberry’s culpability for the crime.
Goldsberry responds that we should affirm the judgment of the Court of Special
Appeals. He agrees with that court’s conclusion that the statutory scheme created by Chapter
138, § 3 of the Acts of 1809 imposed two “mutually exclusive” categories of felony murder.
He emphasizes that the plain language of CrL §§ 2-201(a) and 2-204(a) provides that certain
underlying felonies serve as predicates for first degree felony murder, and that all other
felonies, inherently dangerous in nature or by way of commission, support felony murder in
the second degree.
We agree with the Court of Special Appeals that, when, as here, the facts make out
only a charge of first degree felony murder, a trial court errs in instructing the jury on the
crime of second degree felony murder. A trial court further errs, as the court did here, by
sending the jury to its deliberations with a verdict sheet that presents the jury with the option
of finding the defendant guilty of second degree murder. We do not agree, however, that the
trial court’s errors in the present case, and the jury’s verdict flowing from them, lead
ineluctably to the conclusion that Goldsberry cannot be re-tried on a charge of felony murder.
The State correctly identifies the effect the General Assembly’s enactment of Chapter
138, § 3 of the Act of 1809 had on the common law crime of felony murder. That legislative
decision, as we said as early as in Weighorst, 7 Md. at 451, and as recently as in Roary, 385
Md. at 230-31, 867 A.2d at 1102-03, did not abrogate the common law crime of felony
murder. Rather the Act divided the single, common law offense into two degrees of
culpability, for penalty purposes only, dependent solely on the severity of the underlying
felony. See also, e.g, Jackson v. State, 286 Md. 430, 436, 408 A.2d 711, 715 (1979) (stating
that “[t]he doctrine has not been abrogated by statute in this State. The Maryland statutes
with respect to murder do not create any new crime, but merely classify murder, as it was
known at common law, into degrees. . . . [T]he common law sense is left unimpaired; the
measure of punishment only is sought to be graduated according to the circumstances under
which it was committed) (internal quotation marks and citations omitted); Abbott v. State,
188 Md. 310, 312, 52 A.2d 489, 490 (1947) (same). Accord Sifrit v. State, 383 Md. 116,
138, 857 A.2d 88, 100 (2004) (noting that “[t]he crime of murder in Maryland remains a
common law offense”); Mitchell v. State, 363 Md. 130, 146, 767 A.2d 844, 853 (2001)
(same); Fisher, 367 Md. at 247-54, 786 A.2d at 723-27 (reviewing the history of CrL §§ 2201 and 2-204 and concluding that the statutes created only different grades of punishment).
The extensive authority on the subject leads us to conclude that, notwithstanding the
errors the court committed in its instructions and on the verdict sheet, the jury’s finding that
Goldsberry is guilty of felony murder should stand. The verdict unequivocally reflects the
jury’s finding that Chamberlain was killed during Goldsberry’s commission of an attempted
armed robbery. Those facts make out the crime of felony murder, and Goldsberry does not
argue to the contrary. The only windfall to which Goldsberry is entitled is that, at re-trial,
should the jury once again find him guilty of felony murder, the court is bound to impose a
sentence no greater than 30 years’ imprisonment, the statutory maximum sentence for second
degree felony murder.
JUDGMENT OF THE COURT OF SPECIAL
APPEALS REVERSED IN PART AND
AFFIRMED IN PART; CASE REMANDED
TO THE COURT OF SPECIAL APPEALS
WITH INSTRUCTIONS TO REMAND THE
CASE TO THE CIRCUIT COURT FOR A
NEW TRIAL CONSISTENT WITH THIS
OPINION; PETITIONER TO PAY THE
IN THE COURT OF APPEALS
September Term, 2008
STATE OF MARYLAND
JAMES EARL GOLDSBERRY, JR.
Concurring and Dissenting Opinion
by Murphy, J.
Filed: April 26, 2011
I agree with the majority that “the jury’s finding that Goldsberry is guilty of felony
murder should stand,” but I dissent from the holding “that the trial court violated
Goldsberry’s right to counsel of choice.” Because I agree with the Court of Special Appeals
that “the trial court was well within its bounds to restrict [the Respondent’s] qualified right
to counsel of choice,” I also dissent from the conclusion that this Court does not need to
address the issue of whether the Circuit Court’s “modified unanimity instruction” was
As the Court of Special Appeals stated:
Though the potential conflicts in this case were different
from those in Wheat, the trial court here similarly acted
within its discretion in determining that appellant’s right to
counsel of choice was outweighed by the countervailing
interests of fairness, maintaining ethical standards, and
avoiding conflicts of interest. Continued representation of
appellant by Mr. Mckenzie could have violated RPC 1.18
and jeopardized Mr. Myers’s right to a fair trial. In addition,
Mr. Mckenzie’s “coaching” of Ms. Davis made him a possible
witness in the case and presented a potential violation of RPC
3.7, prohibiting a lawyer from acting as an advocate in trial
where the lawyer is likely to be called as a witness. Though Ms.
Davis was ultimately restricted in her testimony, the trial court
did not have the benefit of hindsight when it made its ruling. In
addition, appellant was not deprived of his right to counsel of
choice. Appellant was still represented by Mr. Jezic—whom he
selected—and the trial court’s ruling permitted Mr. Mckenzie to
assist in appellant’s defense by consulting with Mr. Jezic and
Mr. Giannetti as long as they did not discuss the conversation
with Mr. Myers. Thus, the trial court’s ruling properly balanced
appellant’s qualified right to counsel against competing factors
that weighed against continued unrestricted representation by
Further, unlike Gonzalez-Lopez, the trial court here did not
err in its interpretation of the ethics rules, but instead
correctly assessed that continued unfettered representation
of appellant by Mr. Mckenzie created a very real possibility
of violations. Also of note is that fact that in Gonzalez-Lopez
the defendant was deprived of his only counsel of choice,
whereas here appellant was still represented by his co-counsel
of choice, Mr. Jezic. Finally, the trial court’s decision was not
based on Mr. Mckenzie’s conduct in a separate matter, as in
Gonzalez-Lopez, but was instead based on actions in this case.
Thus, the trial court was well within its bounds to restrict
appellant’s qualified right to counsel of choice.
182 Md. App. at 420-22, 957 A.2d at 1126-27. (Emphasis supplied). I agree with, and
hereby adopt, that analysis.
I disagree with the majority’s conclusion that “the record developed at trial . . . simply
does not come close to revealing the ‘potential for serious conflict’ required by Wheat.” The
record shows that the following transpired immediately before the jury was selected:
[MYERS’ COUNSEL]: I was informed yesterday morning by
Mr. McKenzie and Mr. Jezic that Mr. McKenzie spoke with my
client, Mr. Myers, about the facts of this case on a date that
cannot be determined at this point. I do know that in the District
Court we entered a line of appearance on or about April 17th
stating that I would represent Mr. Myers. Mr. McKenzie does
not know the date on which he went to speak with Mr.
Myers about the facts of the case. After speaking with Mr.
Myers about the facts of the case, he then went and called the
District Court to see if he was represented.
That, however, was not done before he went to speak with my
client about the facts of the case. And I would note that very
often the computer does not reflect the reality of the filing of the
I don’t actually know the purpose of speaking with Mr.
Myers, and I don’t actually know the details of the conversation.
I don’t know if the purpose of the meeting involves Rule 1.18
and whether it as an attempt to speak with a prospective
client or whether it was to interview a codefendant
regarding facts of the case. A detail I also don’t know is
whether Mr. McKenzie had already entered his line of
appearance for Mr. Goldsberry at the time that he went to speak
with Mr. Myers.
THE COURT: What relief are you asking for, [Mr. Myers’
[MYERS’ COUNSEL]: Well, I think there are a couple of
things the Court can do. Of course, the Court may want to hold
a hearing to sift out some more details that I don’t actually, at
this point, know. But, ultimately, I think this does involve Rule
Mr. Jezic has explained that he has erected a Chinese
wall, but I don’t think that my client should have to worry about
the foundation and endurance of that wall. I also think that it’s
going to create, certainly at the very least, an appearance of
impropriety as my client decides whether to testify and by whom
he will be cross-examined.
So for those reasons I would ask the Court to sever the
Myers matter from the Goldsberry matter.
THE COURT: What prejudice is there to your client at this point
[MYERS’ COUNSEL]: Well, the ones I just mentioned, that he
has had a conversation with Mr. McKenzie about the facts of the
case. As he sits here through this trial, he evaluates constantly
whether he’s going to testify in his own defense, whether he’s
going to give up that fifth amendment right or not. I think, at
the very least, it certainly looks bad for him to have to make
that decision in the context of whether Mr. McKenzie is
going to cross-examine him, knowing what he has already
said about the facts of the case, the subject, the very essence
of the cross-examination. So I think it affects his ability to
make a clear, unencumbered decision whether to testify or not.
And then the next prong, the next problem is the actual
testimony. Should he decide to take the stand, at the very
least it looks wrong for an attorney for a codefendant, who
has already talked about the facts of the case, to crossexamine my client if he decides to take the stand.
Those are problems my client should not have to be
encumbered with because of the actions of the codefendant’s
counsel. He not only needs a fair trial, it needs to look like a fair
trial, and I don’t think that there’s any way to have it be fair and
to look fair without separating, severing Mr. Goldsberry’s case
from Mr. Myers’s case.
THE COURT: Mr. McKenzie, what do you want to tell me?
MR. JEZIC: Your Honor, may I first address the Court?
THE COURT: Go ahead, Mr. Jezic.
MR. JEZIC: Just to give the Court more context, Mr. McKenzie
had not entered his appearance, in fact, when - THE COURT: Entered his appearance in what case?
MR. JEZIC: In the Goldsberry case when he spoke to Mr.
THE COURT: Well, if I tell you that his appearance in the
Circuit Court on behalf of Mr. Goldsberry was entered 6-28-06,
[y]ou’re saying that he spoke with Mr. Myers before that date?
MR. JEZIC: He spoke to Mr. Myers - - what Mr. McKenzie
remembers is that he spoke to Mr. Myers before the preliminary
hearing date. He called me to tell me about the prospective
client Mr. Goldsberry. He told me that he had spoken to Mr.
Myers. I immediately said, “Mr. McKenzie, you’ve got to call
the Court to find out if a line has been entered.” As you said, he
called and he was told a line had not been entered for Mr.
THE COURT: Did Mr. Myers have a substantive
conversation with you, Mr. McKenzie?
MR. JEZIC: About the facts of the case.
MR. MCKENZIE: What constitutes substantive?
THE COURT: Did you discuss about the chronology or facts
in this case?
MR. MCKENZIE: Yes, we did.
THE COURT: Did he make any admissions to you.
MR. MCKENZIE: No, Your Honor.
THE COURT: Mr. McKenzie, I would point out, participated in
the suppression hearing addressing the issue of identification, as
did [Mr. Myers’ Counsel], on August 11th of ‘06. Mr.
McKenzie, was there a reason you didn’t advise [Myers’
Counsel] at that time that you had talked with her client on a
MR. MCKENZIE: At that time I did not know - - and I didn’t
think that there was an obligation to disclose that to her.
THE COURT: Well, clearly, you were representing Mr.
Goldsberry at that point in time.
MR. MCKENZIE: Yes, I was.
MR. JEZIC: There is no malice intended here whatsoever, Your
Honor. I don’t think there’s any alleged malice. He’s just a
very young attorney. As a matter of fact, he took the
responsibility of calling me as soon as he spoke to Myers and
Goldsberry. . . . Clearly, it was not a good idea, but we do
not believe there was any violation of the rules of
THE COURT: . . . [Mr. Myers’ Counsel], anything else you
want to tell me?
[MYERS’ COUNSEL]: I think that the Rule 4.2, I don’t think
that you can ignore the fact that, in a first-degree murder case,
this man is going to have a lawyer. You can’t pretend like that’s
not true, and ignoring that rule because the line hasn’t been in
the file yet is a very fine distinction, and I think that the
prejudice to my client vastly outweighs judicial economy.
THE COURT: All right. What is obviously clear from the
record is that Mr. McKenzie spoke with the codefendant Mr.
Myers at a date prior to his appearance and that Mr. Jezic’s
being entered on behalf of Mr. Goldsberry on June 28th of ‘06.
Mr. McKenzie, do you know when you may have talked to Mr.
MR. MCKENZIE: It was probably towards the latter part of
March. It was before they were indicted, possibly very early
MR. JEZIC: My understanding is this can be verified.
THE COURT: The bottom line is that there had been charges
initiated; he just hadn’t been indicted; is that correct?
MR. MCKENZIE: Yes.
THE COURT: From the representations made, it’s clear that Mr.
McKenzie did not convey to Mr. Jezic the sum and substance - -
MR. MCKENZIE: No.
THE COURT: - - or any summary, for that matter, of any
conversations he had with Mr. Myers.
We know now that [Mr. Myers’ Counsel], on behalf of
the Public Defender’s Office, according to the Circuit Court file,
entered her appearance on behalf of the defendant Myers on
[MYERS’ COUNSEL]: Your Honor, that’s a line of appearance
for the Circuit Court.
THE COURT: That’s all I can go on.
[MYERS’ COUNSEL]: We entered in the District Court. I did
the preliminary hearing for Mr. Myers. There is no line from
the District Court case in the Circuit Court. I have my line. It’s
not stamped, but it shows that we sent it to the prosecutor’s
office on April 17th.
There’s another matter that may well arise at trial
regarding Mr. McKenzie - THE COURT: Here is what the Court is going to do. Very
simply, Mr. Jezic, you represent Mr. Goldsberry, and Mr.
McKenzie is not representing him anymore. Just as simple as
that. This is not a problem. The reality is that there’s been
absolutely no prejudice to Mr. Goldsberry, but the reality is that
- - and, Mr. McKenzie, you can step back from the trial table,
but the reality is - - and you can consult with Mr. Jezic during
the course of the trial, but we’re going to keep this trial going
forward wherein there’s no taint whatsoever.
MR. JEZIC: Your Honor, may I put one thing on the record?
THE COURT: Yes, sir, Mr. Jezic.
MR. JEZIC: I apologize. It’s back at the trial table. May I get
my folder real quick? Have a cite to give. It will be very brief.
THE COURT: You can give that to me later.
MR. JEZIC: Just to put it on the record, my objection, Your
Honor, is that the recent Supreme Court case in 2006, in June,
was about the sixth amendment right to counsel. The Supreme
Court ruled that the defendant has an absolute right to counsel
of choice, and it did involve the judge weighing a potential
violation of the rules of professional responsibility versus the
sixth amendment. My client has indicated to me this morning
that he would like Mr. McKenzie to remain at the trial table and
that is our objection.
THE COURT: Well, the reality is, if he remains at the trial table,
he can remain at the trial table. I don’t have a problem with
I’m just going ahead and pointing out that there should
not be any communication between you, Mr. Jezic, and you, Mr.
McKenzie, regarding the conversations that may have been
made by Mr. Myers to Mr. McKenzie. This isn’t a basis for a
MR. TEFERI: A witness by the name of Tawanna Davis, who
you instructed to come back today, gave grand jury
testimony. If she somehow changes her testimony from what
she had told the grand jury - - and if I have to go line by line
- - there might come a point in time where I’m going to ask
her if she was coached by an attorney. She told the grand
jury that she was coached by one Mr. Goldsberry and also
Mr. McKenzie before she went to that grand jury. I just
wanted to put that on the record.
THE COURT: That’s all the more reason. Mr. McKenzie has
put himself in the position of being a possible witness in this
case. So with that in mind, the Court is even more comfortable
now than it was two minutes ago with telling Mr. McKenzie he
can’t participate in this trial.
So we’re not going to take any chances. Mr. McKenzie
will not now be sitting at trial table, not because Mr. Goldsberry
doesn’t want him to, but the reality is he could potentially be a
witness in this case.
MR. JEZIC: Okay, Your Honor, we understand. We just
continue the objection. Thank you.
THE COURT: I think there’s an exception if he’s going to be a
witness. The other point, there’s a motion for severance. It’s
denied on that basis.
As to the suggestion that the Circuit Court should have required an explanation for
Mr. McKenzie’s visit and/or what he and Mr. Myers discussed during the visit, in Lettley v.
State, 358 Md. 26, 746 A.2d 392 (2000), this Court quoted with approval the following
[I]f the lawyer is required to supply a sufficiently detailed basis
for his or her concern about the need to cross-examine or the
need to refuse to do so, that also creates a serious risk of
exposing confidential communications of one or both clients.
The absence of any clearly correct course of action in such a
case suggests . . . that judges should normally accept at face
value a lawyer’s assertion that a conflict of interest exists.
CHARLES W. WOLFMAN, MODERN LEGAL ETHICS, § 8.2 at 416 (1986) (footnote omitted).
Moreover, in making the required “threshold level of evidentiary inquiry into the alleged
conflicts,” the trial court is obligated to respect all applicable privileges. In the case at bar,
the Circuit Court could not (1) compel Mr. Myers to testify about his conversation with Mr.
McKenzie, or (2) compel Mr. McKenzie to testify about his conversation with Mr. Myers.
It is of no consequence that Mr. McKenzie’s potential for serious conflict was brought
to the Circuit Court’s attention by Mr. Myers’ trial counsel. In Lettley, supra, this Court
In [Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173 (1978)],
defense counsel represented to the trial court that he had
received confidential information from one client that would
interfere with his ability to examine his other clients on the
witness stand. See id. at 476-78. The state argued that
“unscrupulous defense attorneys might abuse their ‘authority,’
presumably for purposes of delay or obstruction of the orderly
conduct of the trial.” Id. at 486. The Court rejected this view,
stating that courts should credit such representations of defense
counsel. The Court observed that an attorney representing two
clients “is in the best position professionally and ethically to
determine when a conflict of interest exists or will probably
develop in the course of a trial.” Id. at 485
(citation and internal quotation marks omitted). The Supreme
Court commented that “since the decision in Glasser [v. United
States, 315 U.S. 60, 62 S.Ct. 457 (1942)], most courts have held
that an attorney’s request for the appointment of separate
counsel, based on his representations as an officer of the court
regarding a conflict of interests, should be granted.” See id.
Attorneys’ representations are trustworthy,
the Court reasoned, because “attorneys are officers of the court,
and when they address the judge solemnly upon a matter before
the court, their declarations are virtually under oath.” Id. at 486
(citation and internal quotation marks omitted). “When a
considered representation regarding a conflict in clients
interests comes from an officer of the court, it should be
given the weight commensurate with the grave penalties
risked for misrepresentation.” Id. at 486 n.9.
Id. at 46-47, 946 A.2d at 404. (Emphasis supplied).
The first sentence in the COMMENT to Rule 3.7 of the Maryland Lawyers’ Rules of
Professional Conduct (RPC) states: “Combining the roles of advocate and witness can
prejudice the tribunal and the opposing party and can also involve a conflict of interest
between the lawyer and client.” I am certain that, like Mr. Jezic and Mr. Giannetti, Mr.
McKenzie is an ethical practitioner who would not knowingly violate any Maryland
Lawyers’ Rules of Professional Conduct.
I am equally certain, however, that Mr.
McKenzie’s visit to Mr. Myers was more than merely “not a good idea.” By discussing the
“facts of the case” with Mr. Myers, Mr. McKenzie created the potential for a serious conflict
between himself and the Respondent.
In Rubin v. Gee, 292 F.3d 396, 401-02 (4th Cir. 2002), cert. denied, Gee v. Rubin, 537
U.S. 1048 (2002), the United States Court of Appeals for the Fourth Circuit affirmed the
decision of the United States District Court for the District of Maryland to grant federal
habeas corpus relief to Lisa Joyce Rubin,20 whose murder conviction had been affirmed by
this Court in Rubin v. State, 325 Md. 552, 602 A.2d 677 (1992). The federal courts
concluded that she was entitled to a new trial on the ground that she had not received
“conflict-free representation” from two lawyers on her defense team who, “to avoid criminal
indictment and keep their conduct from coming to light, . . . took cover as part of the defense
team.” 292 F.3d at 398.
While it is clear that the case at bar is not one in which Mr. McKenzie was attempting
to “take cover as part of the defense team,” it is equally clear that the Respondent’s right to
“conflict-free representation” would have been impaired by the defense team’s decision to
128 F.Supp.2d 848 (D. Md. 2001) is the citation to the opinion of the federal district
employ a particular litigation strategy for purposes of reducing the chances that Mr.
McKenzie might be accused of violating a Rule of Professional Conduct. The COMMENT
to RPC 1.18 cautions that, “[i]n order to avoid acquiring disqualifying information from a
prospective client, a lawyer considering whether or not to undertake a new matter should
limit the initial interview to only such information as reasonably appears necessary for that
purpose.” In the case at bar, however, it is clear that Mr. McKenzie and Mr. Myers discussed
“the chronology or facts in this case[.]”
Under these circumstances, if Mr. McKenzie was acting as the Respondent’s lawyer
when he visited Mr. Myers, it is obvious that Mr. McKenzie was a potential witness. On the
other hand, if Mr. McKenzie visited Mr. Myers to discuss the possibility of forming a
lawyer-client relationship, even though no client-lawyer relationship ensued, Mr. McKenzie
was prohibited by RPC 1.18(b) from revealing “information learned in the consultation,” and
was prohibited by RPC 1.18(c) from representing the Respondent “in the same or a
substantially related matter if [Mr. McKenzie] received information from [Mr. Myers] that
could be significantly harmful to [the Respondent].” In Lettley, supra, this Court expressly
rejected the argument that, “because no other lawyer would have had access to that
confidential information, there was no conflict of interest.” Id. at 44, 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 in determining that [the Respondent’s] right to counsel of choice was
outweighed by countervailing interests of fairness, maintaining ethical standards, and
avoiding conflicts of interests,” I would address the issue of whether the Respondent is
entitled to a new trial on the ground that the Circuit Court delivered a coercive “unanimity”