Criminal – Comments By Codefendant's Counsel – Alleged Conflict Of Interest

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Where a defendant appeals his cocaine trafficking conviction, we hold that the appeal must fail because no merit exists to his contentions that reversible error occurred due to (1) comments made by codefendant’s counsel and (2) such counsel’s alleged conflict of interest.

Prosecutor’s Remarks

“[Defendant Salvatore] Russo argues that [certain] statements [by the prosecutor] constituted impermissible comment on his failure to take the stand and therefore violated his constitutional right to remain silent under the Fifth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. There is ample authority protecting a defendant from improper statements by judges and prosecutors relating to a defendant’s silence.’ The law in this Commonwealth has long been that art. 12 prohibits any comment by the judge which can be fairly understood as permitting the jury to draw an inference adverse to the defendant from the fact of his failure to testify.’ … Our cases rely on the ‘generalization that “the Fifth Amendment prohibits comment on the defendant’s silence” … [and that Federal law] has also been thorough in searching out and condemning references, even though indirect, to the circumstance that a defendant has availed himself of his constitutional privilege.’ …

“No Massachusetts appellate decision has addressed whether the constitutional protection afforded in cases involving comments by judges or prosecutors extends to statements made by counsel for a codefendant. ‘The policy at work’ in protecting a defendant from judicial and prosecutorial reference to his silence ‘is that of the privilege against self-incrimination.’ … The focus of review should be on whether a defendant has been prejudiced in his exercise of that privilege by direct or implicit comment on his failure to speak or testify and not upon the identity of the commentator, notwithstanding that counsel for a codefendant may not be perceived by jurors as being cloaked with the same authority as a judge or prosecutor. Accordingly, we discern no reason to withhold from a defendant protection from statements by a codefendant’s counsel. …

“Accordingly, the comments of [codefendant James] Ciampi’s counsel call for the same analytical inquiry as in the cases involving statements made by judges and prosecutors whether the comments ‘can be fairly understood as permitting the jury to draw an inference adverse to the defendant from the fact of his failure to testify.’ … We necessarily examine the challenged remarks in a complete context.

“The comments in issue are based on Ciampi’s conduct at the time the police executed the search warrant, and do not contain any direct reference to the defendant. Neither the comments nor the testimony on which they are based expressly contrasted Ciampi’s eagerness to explain his involvement in the leased apartment with Russo’s pretrial silence or his decision not to testify. Also, there is no indication in the trial record that either Russo or Ciampi pursued defenses which tended to blame the other or which otherwise were antagonistic. ‘The privilege against self-incrimination of a co-defendant who does not choose to testify does not go so far as to deprive one who does so choose of effective argument in [his] behalf, so long as it is, as it was here, sensitive to the rights of others.’ …

“To the extent the isolated comments could be construed as oblique and implicit references to Russo’s silence, they were not so prejudicial as to withstand the curative effect of proper judicial instruction. Here, the judge carefully instructed the jury prior to the Commonwealth’s opening statement that the defendants ‘have no responsibility to put on any evidence, to testify [or] to make an opening statement. …’ She repeated the essence of those instructions during the course of the trial and comprehensively expanded upon them in her final instructions to the jury. We also take into account the absence of any objection from Russo’s experienced counsel to either the comments or the judge’s instructions. … Even if we treat the comments as improper, these factors, coupled with the strength of the case against Russo lead us to conclude there was no substantial risk that his convictions constituted a miscarriage of justice. …

“Also advanced on appeal is a claim of ineffectiveness of Russo’s trial counsel for the failure to object to the comments of Ciampi’s counsel, a claim not presented in Russo’s motion for a new trial or taken up by the trial judge. We conclude that claim is waived. … In any event, the defendant was not deprived of an ‘otherwise available, substantial ground of defence.’ … Where the asserted failure has not resulted in a substantial risk of a miscarriage of justice, we cannot conclude there has been ineffectiveness of counsel. …”

‘Conflict Of Interest’ Claim

“At the time of his arrest, Russo communicated in confidence with an attorney, Mr. Joseph Machera, but he did not retain him as trial counsel. Mr. Machera had also consulted with Ciampi at that time and later represented him during the joint trial of Ciampi and Russo, with Mr. Joseph Balliro representing Russo. Renewing an argument he made in support of his motion for a new trial, Russo claims that Mr. Machera experienced a conflict of interest as Ciampi’s counsel which resulted in material prejudice to Russo during the joint trial. Although he maintains that the conflict was pervasive, he does not identify its precise form.

“‘[T]he burden lies with the defendant to prove both the existence and precise character of an alleged conflict of interest if he wishes to vitiate the results of prior proceedings.’ … Because their legal relationship was terminated before the beginning of adversary proceedings, … and Ciampi’s attorney no longer owed Russo any continuing duty, and no other conflicting relationship is expressly identified, Russo fails to show the existence of an actual conflict of interest. … Moreover, as we have determined, the record does not indicate that the defenses of Ciampi and Russo were antagonistic.

“Essentially conceding there is no actual conflict, Russo goes on to assert that he was prejudiced by the defense conducted at trial by Mr. Machera as Ciampi’s counsel. … He argues ‘that the prejudice he suffered cannot be fully defined without requiring [him] to waive the attorney-client privilege.’ Assuming, in these circumstances, that Mr. Machera had a continuing duty with respect to Russo amounting to a potential conflict, Russo nevertheless must make a showing of actual prejudice. … He might be entitled to relief upon a showing that some identified conduct of Ciampi’s defense was based on privileged information, resulting in material prejudice to Russo. … Russo, however, does not claim that Mr. Machera violated the attorney-client privilege or any rule of professional conduct. Russo also does not indicate that he brought any conflict of interest concerns to the attention of the trial judge. He points to nothing in the present record supporting his conclusory allegations of prejudice. Being entirely speculative, Russo’s assertions of prejudice accordingly are not susceptible of resolution in this appeal. …

“Judgments affirmed. Order denying motion for new trial affirmed.”

Commonwealth v. Russo (Lawyers Weekly No. 11-145-00) (11 pages) (Jacobs, J.) (Appeals Court) Cases tried before Rouse, J., and a new trial motion was heard by her. Marielise Kelly for the defendant; Kenneth E. Steinfield for the commonwealth (Docket No. 95-P-1330).