NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

13-P-1292                                            Appeals Court

                COMMONWEALTH   vs.   TIMOTHY A. ZABEK.


                           No. 13-P-1292.

        Franklin.      March 5, 2014. - October 28, 2014.

            Present:    Kafker, Fecteau, & Agnes, JJ.


Attorney at Law, Attorney as witness, Conflict of interest,
     Withdrawal. Constitutional Law, Assistance of counsel.
     Practice, Criminal, New trial, Assistance of counsel.
     Witness, Attorney as witness. Conflict of Interest.



     Indictments found and returned in the Superior Court
Department on November 16, 2009.

     The cases were tried before John A. Agostini, J., and a
motion for a new trial was considered by him.


     William A. Korman for the defendant.
     Steven Greenbaum, Assistant District Attorney, for the
Commonwealth.


    AGNES, J.    It is a cardinal principle of both Federal and

State law that the right to the effective assistance of counsel

requires that the defendant not only have an opportunity to

obtain the advice and guidance of counsel, but also to rely on
                                                                      2


the undivided loyalty of counsel to represent the defendant

"with full force and zealousness."     Commonwealth v. Perkins, 450

Mass. 834, 850 (2008), quoting from Commonwealth v. Downey, 65

Mass. App. Ct. 547, 553 (2006).      "A conflict of interest arises

whenever an attorney's regard for one duty, such as that owed to

a third party or in service of his own interests, leads the

attorney to disregard another duty, such as that owed to his

client."    Perkins, supra at 851.   See Commonwealth v. Shraiar,

397 Mass. 16, 20 (1986) ("An actual or genuine conflict of

interest arises where the independent professional judgment of

trial counsel is impaired, either by his own interests, or the

interests of another client") (internal quotation marks

omitted).

    In the present case, a serious, potential conflict of

interest became apparent shortly before trial commenced.

Appropriate steps were taken by the judge to identify the risks

of defense counsel's continued representation of the defendant.

The judge was warranted in concluding that, based on the

evidentiary landscape prior to trial, defense counsel's

prospective testimony as the sole witness to a statement made by

one of the victims would not be required.      We commend the judge

for conducting a thorough colloquy with the defendant prior to

the trial to ensure that the defendant was fully informed of his

attorney's potential conflict of interest and could make a
                                                                     3


voluntary decision to continue to have counsel represent him.

See Perkins, supra at 856 (emphasizing "the importance of trial

judges being vigilant about conflicts of interest").    We also

have considered the evidence as it developed at trial and

conclude that there was no substantial risk of a miscarriage of

justice resulting from defense counsel not testifying as a

witness.   Accordingly, we affirm the denial of the defendant's

motion for a new trial.1

     Background.   The defendant was charged with, and ultimately

convicted of, one count of rape of a child (G.L. c. 265, § 23),

five counts of indecent assault and battery on a child under the

age of fourteen (G. L. c. 265, § 13B), and four counts of

indecent assault and battery on a person fourteen years of age

or older (G. L. c. 265, § 13H).     There were three victims, each

of whom testified that the defendant committed various acts

against her, including one victim who testified that she was

raped; numerous instances of indecent and unlawful acts were

described by each of the victims.    Two of the victims were the

children of the defendant's girl friend.

     Following the defendant's arraignment, one of the victims,

who by this time was an adult, expressed reservations about

     1
       The defendant initially filed a direct appeal from his
convictions. That appeal was dismissed for lack of prosecution.
This subsequent appeal is solely from the order denying the
defendant's motion for a new trial.
                                                                     4


testifying against the defendant due to concerns about the

impact it would have on her family.   She related her concerns to

her mother who, in turn, spoke to the defendant.   The defendant

suggested that the victim speak to the defendant's lawyer.     The

victim's mother outlined options for the victim including

testifying that the incidents of rape and sexual abuse did not

occur, testifying that the victim was confused and did not

remember what had happened, and simply telling the truth.      The

victim's mother brought the victim to defense counsel's office,

where the victim spoke alone with counsel.   The January 20,

2010, interview was not recorded.

    Shortly before trial, these developments came to the

attention of the Commonwealth.   On April 22, 2011, the

Commonwealth filed a motion in limine seeking clarification of

defense counsel's status as counsel or a witness and requesting

rulings of law.   After conducting a hearing, the judge entered

an order in which he recognized that a potential conflict of

interest existed and outlined a procedure to address it.     The

judge appropriately invited the Commonwealth to review a written

summary of the interview with the victim (summary) that was

submitted by defense counsel prior to trial to ascertain whether

she disagreed with any statements she may have made to defense

counsel, and, if so, whether they were material to the issues at
                                                                    5


trial.2   If the answer to these questions was "yes," defense

counsel would be given an opportunity to be heard on whether his

disqualification from representing the defendant would work a

substantial hardship on his client.   Even if the answer to

either question was "no," the judge stated he would conduct a

colloquy with the defendant to ensure that he understood the

risks of proceeding with his current attorney.

     Prior to the selection of the jury, the judge conducted a

further hearing.   The Commonwealth reported that a State police

officer reviewed the summary with the victim who stated that she

agreed with it subject only to two minor exceptions that did not

involve material facts.   After conferring with the Commonwealth,

defense counsel answered in the affirmative to the judge's

inquiry whether he was "satisfied that there will be at this

point nothing coming out of [the victim's] testimony which would

be so different that [he] would have to take the stand to rebut

it in order to effectively represent [his] client."   Counsel

also reported that he had discussed the issue with the defendant

who desired that counsel continue representing him.   The judge


     2
       The summary prepared by defense counsel states that the
victim disclosed prior abuse by her stepfather (a person other
than the defendant). Otherwise, it states that with respect to
the essential points related by the victim to the police about
the defendant's unlawful acts, she did not clearly recall the
details and may have confused acts committed by her stepfather
with those she said had been committed by the defendant.
                                                                   6


conducted an extensive colloquy3 and found that the defendant had

been informed of the potential conflict, but wanted to retain

his present attorney as defense counsel for the trial.

     At trial, the victim in question testified that as a very

young child she had been sexually abused by her stepfather prior

to the time that the defendant came into her mother's life.     She

also testified that during her grammar school years, she had

been sexually abused by the defendant, including one instance in

which he digitally penetrated her vagina.    This victim also

testified about the statement she had given to the police, her

reservations about testifying against the defendant, and the

statement that she had given to defense counsel.    Further

details of her testimony are reserved for the discussion below.

     Discussion.   1.   Pretrial assessment of conflict of

interest.   It is the defendant's burden to prove a genuine

conflict of interest by presenting "demonstrative proof

detailing both the existence and the precise character of th[e]

alleged conflict of interest; we will not infer a conflict based

on mere conjecture or speculation."    Shraiar, 397 Mass. at 20.

The defendant's principal argument on appeal is that the judge

erred in denying his motion for a new trial based on two

decisions by the Supreme Judicial Court:    Commonwealth v.

     3
       The colloquy, including the judge's findings and rulings,
is reproduced in an appendix to this opinion.
                                                                    7


Rondeau, 378 Mass. 408 (1979), and Commonwealth v. Patterson,

432 Mass. 767 (2000).4   In Rondeau, the defendant was convicted

of an armed robbery of a Worcester credit union.   The

defendant's trial counsel testified at a hearing on a motion for

a new trial that he saw the defendant in the courthouse on the

morning when the defendant was alleged to have committed the

crime. Although there were other alibi witnesses, the

defendant's trial counsel was the only alibi witness without a

criminal history.   The judge denied the defendant's motion for a

new trial based on his determination that counsel's alibi

testimony lacked credibility and thus its unavailability at

trial was not a source of prejudice.   Although the Supreme

Judicial Court upheld that portion of the judge's ruling, it

determined that counsel's failure to abide by his ethical

obligations to withdraw created an actual conflict of interest.

Rondeau, supra at 416-417.5   The court explained that an actual


     4
       The trial judge was aware of these decisions and
appropriately relied on them in addressing the issues prior to
the trial.
     5
       In Rondeau, the court reasoned that the conflict of
interest was defined by counsel's violation of S.J.C. Rule 3:07,
Canon 5, Disciplinary Rule 5-102(A), as appearing in 382 Mass.
779 (1981), which established counsel's duty to withdraw from
representation at trial, subject to only limited exceptions
which were not applicable, when counsel learned he ought to be
called as a witness to testify on behalf of his client. The
current rule that corresponds to its predecessor is Mass. R.
Prof. C. 3.7, 426 Mass. 1396 (1998). It prohibits a lawyer from
acting as trial counsel "at a trial in which the lawyer is
                                                                      8


conflict of interest exists once it becomes apparent to defense

counsel that "his testimony might be necessary to the proper

defense of his client."   Id. at 414.     An actual conflict of

interest denies the defendant his right to representation by an

attorney with undivided loyalty.     Id. at 414-415.   Counsel's

failure to withdraw in such a case is constitutionally

ineffective assistance, without the need to show prejudice.        See

Commonwealth v. Davis, 376 Mass. 777, 781-782 (1978).      "[U]nder

art. 12, if a defendant establishes an actual conflict of

interest, he is entitled to a new trial without a further

showing; he need not demonstrate that the conflict adversely

affected his lawyer's performance or resulted in actual

prejudice."   Commonwealth v. Mosher, 455 Mass. 811, 819 (2010).6

     Similarly, in Patterson the court noted that within a few

days of the defendant's arraignment, it should have been evident

to defense counsel that an actual conflict of interest existed

because counsel was present when the defendant reportedly made



likely to be a necessary witness."      See Patterson, supra at 778
nn.12-13.
     6
       "The conflict lies in the fact that the client's interests
would be better served by having the attorney testify while the
attorney's interests would be better served by not testifying."
Patterson, supra at 780. See ibid. n.18 (explaining that once a
conflict arises, counsel's decision to remain as trial attorney
cannot be defended as a legitimate strategic choice because
counsel is no longer in a position to render independent
professional judgment on behalf of her client).
                                                                    9


statements to the police.   Further, counsel was the only witness

(other than the defendant) who could contradict the police

version of the defendant's statement that the Commonwealth

intended to offer at trial.   Id. at 777-778.

     Avoiding the consequences of an actual conflict of interest

is a shared responsibility of counsel and the court.   Under the

Code of Professional Responsibility, both the prosecutor and

defense counsel have a duty to notify the court and take

appropriate steps to withdraw from a case when an actual

conflict arises.7   The judge also has an obligation to "take


     7
       The Code of Professional Responsibility is self-executing.
See Borman v. Borman, 378 Mass. 775, 787-788 (1979) ("If an
attorney is unsure whether in a given case his conduct violates
the code, he should terminate the questionable conduct or seek
the advice of the appropriate Committee on Ethics and
Professional Responsibility. If he persists in questionable
conduct, he risks disciplinary action including disbarment. When
a lawyer, exercising his best judgment, determines that his
employment will not bring him into conflict with the code,
disqualification may occur only if the trial court determines
that his continued participation as counsel taints the legal
system or the trial of the cause before it").

     It should be noted that a conflict of interest does not
exist merely because an attorney interviews one or more of the
witnesses scheduled to testify at trial. See Commonwealth v.
Wright, 376 Mass. 725, 734 (1978). This case, however,
illustrates the risks when counsel interviews a witness alone.
"To avoid lawyer-witness problems, it is typical and advisable
for lawyers to conduct witness interviews [in the presence of an
investigator] so that a third person can be called as an
impeachment witness if the interviewee testifies inconsistently
at trial." State v. Sanchez, 171 Wash. App. 518, 546 (2012).
The same advice applies to prosecutors. See United States v.
Johnston, 690 F.2d 638, 645 (7th Cir. 1982) (en banc). See also
ABA Standards for Criminal Justice, Prosecution Function and
                                                                  10


early and effective action," as the judge did in this case,

whenever the existence of a potential or actual conflict of

interest comes to the court's attention.8   Rondeau, supra at 417.

     The present case is clearly distinguishable from Rondeau

and Patterson because, prior to trial, the judge determined, and

both counsel and the defendant agreed, that there was no reason

to believe that the victim would testify in a manner that was

inconsistent with what she had told defense counsel during the

interview.   Under these circumstances, there was thus no basis

for defense counsel to believe he would be required to testify



Defense Function, Standard 4–4.3(e), Relation With Prospective
Witnesses (3d ed. 1993); Committee for Public Counsel Services
Assigned Counsel Manual, Policies and Procedures, Chapter IV,
Part II, Preliminary Proceedings & Preparation, E., Special
Concerns (online resource last viewed August 27, 2014) ("Counsel
should take advantage, where appropriate, of opportunities to
interview witnesses who may be present in court. Counsel must
avoid becoming a witness in his/her own case. Therefore,
interviews of prosecution witnesses should be 'witnessed' by
another person (e.g. another defense attorney) to avoid later
problems with proving an impeaching statement at trial").
     8
       A judge has discretion to decline to accept the
defendant's waiver of conflict-free counsel in circumstances in
which the judge determines that it is unlikely that counsel will
be able to provide effective representation. See Commonwealth
v. Jordon, 49 Mass. App. Ct. 802, 810 (2000), citing Wheat v.
United States, 486 U.S. 153, 163 (1988). In Wheat, the Supreme
Court observed that although there is a "presumption" in favor
of the defendant's counsel of choice, "that presumption may be
overcome not only by a demonstration of actual conflict but by a
showing of a serious potential for conflict. The evaluation of
the facts and circumstances of each case under this standard
must be left primarily to the informed judgment of the trial
court." Id. at 164.
                                                                     11


about his interview, and there was no actual conflict of

interest.   As for the potential conflict of interest that

remained, "[a] defendant claiming ineffective assistance of

counsel due to a potential conflict of interest will be entitled

to a new trial only if he can establish 'material prejudice' to

his defense resulting from the alleged conflict."   Mosher, 455

Mass. at 823, quoting from Shraiar, supra at 20.

    2.   Ineffective assistance of counsel during trial.     We

address two remaining questions.   First, whether the potential

conflict of interest that existed at the outset of the trial

developed into an actual conflict of interest as the evidence

unfolded.   Second, we examine the record to determine whether

the defendant has established that he was materially prejudiced

in some concrete way by his counsel's decision not to testify.

See Commonwealth v. Boateng, 438 Mass. 498, 508-509 (2003).

    a.   Absence of actual conflict of interest during trial.

We begin by reiterating that the burden rests with the defendant

to demonstrate the existence of an actual conflict of interest.

See Shriar, supra.   Conjecture about what might have occurred is

not a substitute for credible evidence of an actual conflict.

See Commonwealth v. Balliro, 437 Mass. 163, 168 (2002).      It is

unnecessary to determine whether the judge's pretrial colloquy

was an effective waiver of the right to conflict-free counsel

because the differences between the victim's testimony at trial
                                                                    12


and what counsel and the judge anticipated her testimony would

be at the outset of the trial were not significant, and, thus at

no time did circumstances arise creating an actual conflict of

interest that required defense counsel to withdraw in order to

be a witness for the defendant.

    b.    Absence of material prejudice.   The defendant does not

point to anything his counsel did or failed to do at trial that

resulted in material prejudice.   The record indicates that

defense counsel conducted a vigorous defense on behalf of his

client.   See Shraiar, supra at 25.   Defense counsel effectively

impeached the victim.   Counsel's cross-examination of the victim

brought out that she made previous inconsistent statements

regarding whether the defendant touched her inappropriately.

Specifically, she testified that she told counsel that she did

not think the defendant's hugs were "sexual," that she might

have confused the defendant's conduct with that of her

stepfather, including the act of digital penetration, and that

she was unsure whether the defendant had touched her breasts.

When she did not recall a portion of the interview with defense

counsel, he read aloud the entire paragraph from the written

summary of the interview.   The defendant's argument that had his

attorney testified, the jury would have heard a "clear

recitation" of the interview he conducted with the victim is

speculative for the written summary is dated some fifteen months
                                                                   13


after the interview occurred.   Moreover, as the Commonwealth

points out, a fair reading of the defense counsel's written

summary of the interview is not that the victim recanted her

earlier statements; rather, as the victim acknowledged

forthrightly at trial, she made inconsistent statements.

    Conclusion.   When a judge becomes aware that an attorney in

the case may have a conflict of interest, the "best practice" is

to address it promptly by initiating a colloquy with counsel.

Perkins, supra at 856.   Here, the judge took appropriate steps

to identify that a serious, potential conflict of interest

existed, determined its precise nature, and then determined that

it was not an actual conflict of interest that required the

withdrawal or disqualification of counsel.    His findings and

rulings are supported by the evidence.    The judge also wisely

conducted a thorough colloquy with the defendant to ensure that

the defendant was aware of the potential conflict and wished to

have counsel continue to represent him.    (See appendix.)   Our

review of the evidence at trial leads us to conclude that the

defendant has failed to establish that he suffered any material

prejudice as a result of the potential conflict of interest.

                                    Order denying motion for
                                      new trial affirmed.
                              APPENDIX.

  Pretrial colloquy concerning potential conflict of interest

     THE JUDGE: "It is my understanding, through discussions
with counsel, that your attorney met with one of the alleged
victims in this case who will be a witness in this case. Is
that your understanding?"

    THE DEFENDANT:   "Yes, your Honor."

     THE JUDGE: "And it's also my understanding that your
attorney received information, which he has reduced to writing
and has provided the Court with a copy, and you may yourself
have reviewed it; is that correct?"

    THE DEFENDANT:   "Yes, your Honor."

     THE JUDGE: "The concern that we have here is that if the
witness then decides to change her testimony, the only witness
who could say that she said something different at the time of
the interview is your attorney, Mr. Curtiss. Do you understand
that?"

    THE DEFENDANT:   "Yes, your Honor."

     THE JUDGE: "And then    it creates a situation where the
attorney becomes a witness   and, if we're aware of that ahead of
time we have to recuse the   attorney or have him step aside and
have another attorney come   in to take his place. Do you
understand that?"

    THE DEFENDANT:   "Yes, your Honor."

     THE JUDGE: "Now, that creates some issues, because it
delays the trial, you'd have to get a new attorney and things of
that nature. But it's done to protect your interests, to make
sure you have all the witnesses available to you during the
course of the trial. Do you understand that?"

    THE DEFENDANT:   "Yes, your Honor."

     THE JUDGE: "Now in going through this issue, as you
probably heard, the witness does not intend at this point to
contradict what she said to your attorney at the time of the
hearing except for two minor points. Do you understand that?"
                                                                     2


    THE DEFENDANT:   "Yes, I do, your Honor."

     THE JUDGE: "And    with respect to those two minor points,
they appear to be not   of consequence for this trial and both the
Commonwealth and your   attorney have agreed that that's not going
to be an issue in the   case. Do you understand that?"

    THE DEFENDANT:   "Yes, I do."

     THE JUDGE: "So the question becomes:     First of all, are
you aware of all of these circumstances?"

    THE DEFENDANT:   "Yes, your Honor, I am."

     THE JUDGE: "And are you also aware that you are entitled
under the Fifth Amendment to the United States Constitution to
be represented by counsel and to have that counsel free from any
possible conflict of interest, do you understand that?"

    THE DEFENDANT:   "Yes, I do, your Honor."

     THE JUDGE: "And do you understand by this information
coming out and determining what the witness is likely to say,
that your attorney, Mr. Curtiss, is able to effectively
represent you during the course of this trial?"

    THE DEFENDANT:   "Yes, your Honor."

     THE JUDGE: "Now, do you also understand -- we can't
guarantee what people are going to say, we are often surprised
and something may come up during the course of the trial we
can't anticipate and we'll have to deal with at that point.
However, at this time both counsel believe that this will not be
an issue in the case; do you understand that?"

    THE DEFENDANT:   "Yes, your Honor."

     THE JUDGE: "Given all this information, do you wish to
proceed with Atty. Curtiss representing you in this matter?"

    THE DEFENDANT:   "Yes, your Honor, absolutely."

     THE JUDGE: "I take it from reading the file he has
represented you right from the beginning in this case?"

    THE DEFENDANT:   "That's right."
                                                                   3


     THE JUDGE: "So that the record is clear, the arraignment
was on December 17th, 2009, so for almost a year and a half he
has represented you; is that correct?"

    THE DEFENDANT:    "That is correct, your Honor."

     THE JUDGE: "And you wish to have him continue to represent
you in this case?"

    THE DEFENDANT:    "Yes, your Honor."

     THE JUDGE:   "Are you making this decision freely and
voluntarily?"

    THE DEFENDANT:    "Yes, your Honor."

    THE JUDGE:    "Has anyone forced you to make this decision?"

    THE DEFENDANT:    "No."

     THE JUDGE: "Are you under the influence of any drugs,
medication or alcohol at this time?"

    THE DEFENDANT:    "No, your Honor."

     THE JUDGE: "Do you think it's in your best interests to
have Atty. Curtiss continue to represent you in this case?"

    THE DEFENDANT:    "Yes, your Honor, I do."

    THE JUDGE:    "Do you have any questions of me?"

    THE DEFENDANT:    "Not at this time."

    THE COURT:    "Thank you.   You may sit down."

    THE DEFENDANT:   "Thank you."

     THE COURT: "I find that the Defendant is fully apprised of
the situation, has been provided the information with respect to
this potential conflict and our solution concerning this
conflict, and that the Defendant has voluntarily agreed and
believes it's in his best interests to have Atty. Curtiss
represent him, so I'm going to allow Atty. Curtiss to continue
to represent the Defendant with respect to this case."
