                                     SUPERIOR COURT
                                           OF THE
                                    STATE OF DELAWARE

JOHN A. PARKINS, JR.                                           NEW CASTLE COUNTY COURTHOUSE
        J UDGE                                             500 NORTH KING STREET, SUITE 10400
                                                           WILMINGTON, DELAWARE 19801-3733
                                                                  TELEPHONE: (302) 255-2584



                                   February 19, 2015


John S. Taylor, Esquire                        Sean A. Motoyoshi, Esquire
Department of Justice                          Office of the Public Defender
Carvel State Office Building                   Carvel State Office Building
820 North French Street                        820 North French Street, 3rd Floor
Wilmington, Delaware 19801                     Wilmington, Delaware 19801



                 Re:   State of Delaware v. Tremayne U. Washington
                       ID No. 1409001507


Dear Counsel:

        At the call of the trial calendar this morning the State raised for the

first time the possibility that Mr. Motoyoshi, an employee of the Office of the

Public Defender, had a conflict because that office 1 previously represented

one of the State’s witnesses in unrelated and now-closed matters. The State

contended that the mere appearance of a conflict precludes Mr. Motoyoshi

from representing the instant defendant. Mr. Motoyoshi denied he had any

conflict, and the court agrees with him.




1   The State did not suggest that Mr. Motoyoshi himself represented the witness.
        There is no doubt that the Sixth Amendment right to counsel

encompasses a right to counsel who is free from actual conflict and whose

loyalties are not divided between the defendant and someone else. In most

instances such conflicts arise in the context of joint representation of co-

defendants. 2      But it is also possible that a conflict of constitutional

dimension can arise where defense counsel also represents a witness.          In

Mirabal v. State, the defendant, a passenger in a car, and the driver were

arrested for possession of drugs. 3        The Public Defender represented both,

but the charges against the driver were resolved prior to trial. 4       At trial

Mirabal unsuccessfully sought to argue that the driver of the car, not he,

was the possessor of the drugs. 5 Mirabal was convicted and appealed. 6 On

appeal the Supreme Court reversed the conviction because of the divided

loyalties of Mirabal’s counsel, writing:

               In this case, Mirabal has shown an actual conflict of
               interest in the Public Defender's dual representation
               of Mirabal and Stafford. That conflict prevented trial
               counsel from calling Stafford as a witness out of
               concern that she would either invoke her Fifth
               Amendment rights or potentially make self-
               inculpatory statements on the witness stand.
               Because trial counsel's divided loyalties diminished
               Mirabal's ability to present his defense that the drugs
               were Stafford's and not his, Mirabal was denied his
               right to effective assistance of counsel under the
               Sixth Amendment. 7



2   E.g., Lewis v. State, 757 A.2d 709, 714 (Del. 2000).
3   86 A.3d 1119, 2014 WL 1003590, at *1 (Del. 2000) (TABLE).
4   Id.
5   Id.
6   Id.
7   Id. at *2.


                                            2
       The mere existence of a possible conflict, as opposed to an actual

conflict, is insufficient to establish a Sixth Amendment violation. According

to the United States Supreme Court, the possibility of conflict is insufficient

to impugn a criminal conviction. In order to demonstrate a violation of his

Sixth Amendment rights, a defendant must establish that an actual conflict

of interest adversely affected his lawyer's performance.” 8 There is no actual

conflict here because there is no sign of any divided loyalties. Consequently,

the instant case presents none of the concerns found in Mirabal. First, the

court notes that the Public Defender’s representation of the witness related

to matters wholly unrelated to this case. Second, the State does not argue

that there is any likelihood that the defendant would use information beyond

the witness’s prior record to impeach the witness. 9 But those convictions

are matters of public record and do not involve client confidences exchanged

between the witness and the Public Defender. Consequently, Mr. Motoyoshi

will not be called upon to make the Hobson’s choice of either representing

his client or preserving a former client’s confidences. Here he can do both.

Moreover, this is not a case in which the Public Defender is simultaneously

representing both the defendant and the witness.                   Accordingly, the court

need not reach the question whether disqualification is required in such

instances.




8 Cuyler v. Sullivan, 446 U.S. 335, 350 (1980).
9  See D.R.E. 608(b)(“Specific instances of the conduct of a witness for the purpose of
attacking or supporting the witness’ credibility, other than a conviction of crime . . . may not
be proved by extrinsic evidence.”).


                                               3
      The court notes that there are practical problems associated with

disqualification of the Public Defender here.        During a side bar at this

morning’s calendar the prosecutor brought to the court’s attention that the

Office of the Public Defender had previously represented the witness at

violation of probation hearings. As a service to this court, with the exception

of instances in which there is a privately retained attorney, the Office of the

Public Defender represents all probationers who are charged with a

probation violation.   Disqualifying the Office of the Public Defender from

representing a defendant merely because that office had previously

represented a witness in the witness’s unrelated violation of probation

hearing   would   place   a   substantial   burden    on   the   State’s   already

overburdened resources. In the absence of a constitutional demand to the

contrary, the court is unwilling to require this.

      The court expresses its disappointment that this issue was not raised

until the very morning of trial when cases were being assigned to the judges.

The identity of the witness and his lengthy criminal record have been known

to the State for some time. Yet it was not until the literal eve of trial that the

State thought to check to see whether Mr. Motoyoshi’s representation of the

instant defendant would present a problem.           The difficulty of this last-

minute notice was compounded by the fact that the State did not provide the

court with any legal authority, thus leaving it to conduct its own research on

the issue during a break which lasted roughly half an hour.            The court

understands that prosecutors often receive assignments at the last minute



                                        4
and that, with their heavy workload, matters such as this may occasionally

escape notice. But when this occurs counsel should, at a minimum, come

prepared with legal authorities to provide the court with some sort of

guidance.      This did not happen here.                This being said, the court is

appreciative that counsel raised the issue rather than simply remaining

silent. 10


                                             Very truly yours,


                                             John A. Parkins, Jr.



oc:    Prothonotary




10  When the State raises the possibility of a conflict involving defense counsel, the court is
obligated to determine whether an actual conflict exists. Bonin v. California, 494 U.S. 1039,
1041 (1990) (citing Wood v. Georgia, 40 U.S. 261, 272 & n.18 (1981)).


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