Today, the NC Supreme Court issued one criminal appellate decision, in the case of State v. Choudhry.
Choudhry was a non-capital case tried before Judge Henry Hight, Jr. in Durham County in September 2008.
Defendant and a friend, Umar Malik, went to settle a score and beat Rana Shazad to death with a baseball bat. The evidence against defendant included a friend who was in the stayed in the car while he went in to attack Mr. Shazad and defendant's girlfriend, Michelle Wahome, whom he confessed to.
Defendant's attorney, James "Butch" Williams, represented Ms. Wahome a few years earlier in a felony forgery charges. No party objected to the prior representation and Mr. Williams informed the court that he did not intend to cross examine Ms. Wahome on the prior incident.
Under Sullivan, defendant's have a right to conflict-free counsel. Successive representation of witness/defendants does not give rise to conflicts, absent special circumstances.
If the court is on notice of a potential conflict, the court must inquire into the propriety of the multiple representation and give the defendant an opportunity to show that the conflict impermissibly imperils his right to a fair trial.
Here, the prior representation presented at least a potential conflict of interest and an inquiry was necessary. The court conducted the following inquiry:
THE COURT: Mr. Choudry, I’m going to ask you some questions. You don’t need to keep your hand raised. If you don’t understand any question I ask you, tell me and we’ll go over it again until you do. Are you able to hear and understand me?
THE COURT: Do you understand that you are charged with First Degree Murder?
THE COURT: And you understand that that charge carries a possible maximum term imprisonment of life in prison without parole?
THE COURT: It has been indicated to this Court that a person may be called in as a witness in this case who was at some time in the past represented by your attorney, Mr. Williams. That witness being ... Michelle Wahome. You understand that?
THE COURT: And it’s further -– have you talked to Mr. Williams about that?
[DEFENDANT]: About the case?
THE COURT: No. Did you understand that Ms. Wahome might testify in this case and that Mr. Williams had represented her in the past?
[DEFENDANT]: Yes, sir.
THE COURT: Did you have any concerns about whether or not Mr. Williams can appropriately represent you in this case because he represented a witness for the State in the past?
THE COURT: Are you satisfied with his representation of you to this point?
THE COURT: And even in light of the fact that he represented a future witness in this case, do you desire for him to continue as your attorney in this matter?
THE COURT: And do you want to talk to him or me to make any further inquiry of him about his participation in that prior case or are you satisfied where you are?
THE COURT: Okay. Thank you, sir.
Defendant argues that this was not a knowing, intelligent, and voluntary waiver of the any conflict. "The trial court did not specifically explain the limitations that the conflict imposed on defense counsel’s ability to question Wahome regarding her 2003 criminal charges, nor did defense counsel indicate that he had given defendant such an explanation. Accordingly, we are unable to conclude that the trial court established that defendant had sufficient understanding of the implications of Mr. Williams’s prior representation of Wahome to ensure a knowing, intelligent, and voluntary waiver of the potential conflict of interest."
Court ruled that where the defendant can demonstrate "an actual conflict of interest that adversely affected his defense counsel's performance" he is entitled to relief, citing Sullivan and Strickland.
The defendant's case rested on discrediting Wahome. Counsel cross examined her with vigor. Court found that any conflict, if any, did not adversely effect defense counsel's performance.