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February 24, 1983


The opinion of the court was delivered by: WEBER

 Defendant has filed Motions for New Trial and a Motion for a Grant of Immunity. After consideration of facts elicited at hearings conducted by the court and the argument of counsel both in briefs and in oral arguments, we conclude that a new trial is necessary and that immunity must be denied.

 Hugo J. Carducci and John Heatherington were indicted in June 1982 for distribution and conspiracy to distribute cocaine. Trial of this matter began August 2, 1982. A mistrial was declared on August 3, 1982 due to the fatal shooting of the co-defendant John Heatherington.

 The retrial of Carducci began November 2, 1982, and concluded that same day. A jury verdict of guilty on both counts was returned against Carducci, and sentencing was set for December 2, 1982. In the interim, defendant Carducci discharged his trial attorney and acquired new counsel. Prior to sentencing Carducci's new counsel presented a motion for new trial because of the ineffective assistance of trial counsel. This court heard testimony on defendant's motion on three separate occasions. During this process defendant filed an amended motion for new trial and a motion to accord defendant judicial immunity. The parties have briefed the issues and the court has heard oral argument of counsel.

 Defendant's initial motion for new trial alleged that a conflict of interest existed for defendant's trial counsel which affected the presentation of the defense. Defendant's amended motion for new trial alleges additional instances of ineffective assistance necessitating a new trial. Primarily these are allegations of failure to exclude improper evidence, failure to present exculpatory evidence, failure to adequately prepare the defense, failure to explore and recommend a plea bargain and failure to develop the facts as related by the defendant.

 Defendant also seeks to assert as a basis for a new trial that on the explicit or tacit direction of trial counsel, defendant testified falsely.



 In considering a post trial motion of this type we employ the standard stated in Cuyler v. Sullivan, 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980). To establish a Sixth Amendment violation necessitating a new trial, the court required defendant to prove "that an actual conflict of interest adversely affected his lawyer's performance." Id. at 348. Two elements then are necessary, (1) an actual conflict, and (2) an adverse affect. As to actual conflict of interest, the Cuyler standard is more stringent than that applied prior to trial. At the earlier stage a potential conflict of interest is sufficient to justify the disqualification of counsel. On post trial motion the conflict of interest must be actual, and not merely potential. We conclude from the facts presented that not one but two actual conflicts exist in the instant case, and that each was an element in trial counsel's decision to exclude certain exculpatory testimony.

 The first arises from Carducci's trial counsel's representation of a suspect in Heatherington's murder. Subsequent to the shooting and at a time prior to Carducci's second trial, Carducci's trial counsel undertook the representation of a suspect in Heatherington's murder. Both the murder victim and the suspect were intimately involved with two potential witnesses in Carducci's entrapment defense. Prior to the initial trial Carducci's trial counsel had interviewed two women, clients of Carducci's talent agency, who were witnesses to events supportive of Carducci's entrapment defense. Witness A had been the girl friend of Heatherington, and Witness B dated the murder suspect, trial counsel's new client. Both witnesses were involved with or knowledgeable of the activities of the murder victim and the suspect. Both Witnesses A and B were questioned in the murder investigation and were called before the grand jury. These witnesses would have been corroborative of Carducci's testimony on entrapment which was otherwise largely uncorroborated; specifically Witnesses A and B would describe the repeated requests made by Bernie Duffy to Carducci to contact a source for drugs. At the same time trial counsel also had an interest in preventing any testimony regarding Heatherington's activities or the involvement of his other client, the murder suspect.

 Both Witnesses A and B were witnesses to events supportive of the entrapment defense. Trial counsel had interviewed both Witnesses A and B prior to the first trial, and had indicated his intention to use one or both of them at trial. Both witnesses were asked to be available for use at the first trial, but the mistrial occurred before the defense was begun. Subsequent to Heatherington's murder and trial counsel's retention by the murder suspect, trial counsel decided not to call Witness A. Although Witness B arrived at trial during trial counsel's closing, and this may have contributed to his decision, trial counsel chose not to move to reopen his case to put her on, and chose to leave Carducci's testimony largely uncorroborated.

 Trial counsel has stated a number of tactical reasons for excluding Witnesses A and B. Witness A had a past history of involvement in drugs and close association with Heatherington. Trial counsel was concerned that her past drug involvement would reflect poorly on the entrapment defense. At Carducci's second trial, his trial counsel concluded that Witness B was not appropriately dressed for an appearance in court, and that her alluring attire would reflect poorly on herself and the defendant. Trial counsel did not consider either Witness A or B to be strong witnesses and believed both to be subject to attack on credibility. Further, trial counsel concluded that because their testimony was merely corroborative of Carducci's testimony, the utility of their testimony did not outweigh the possible drawbacks. Trial counsel believed that Witnesses A's ...

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