Non-compliance with D.C. Super. Ct. R. Crim. P. 44(b) does not, by itself, mandate reversal. Appellants must also demonstrate the existence of an actual conflict of interest. A defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief. Actual conflict will not be found, however, unless appellants can point to specific instance in the record to suggest an actual conflict or impairment of their interests.
Defendants appealed from a judgment of the Superior Court of the District of Columbia that convicted each of them, after a joint trial by jury, on one count of possession with intent to distribute heroin, six counts of possession of an unregistered firearm, and four counts of unlawful possession of ammunition. Defendants, who were sisters, were represented at trial by the same attorney. Defendants contended that they were deprived of their right to effective assistance of counsel because they did not knowingly and intelligently waive their right to representation free from conflicts of interest; and their joint attorney's performance at trial was adversely affected by an actual conflict of interest.
Was defendant's representation at trial adversely affected by an actual conflict of interest?
The court also concluded that their representation at trial was adversely affected by an actual conflict of interest and therefore reversed the judgments. The trial court's inquiry pursuant to D.C. Super. Ct. R. Crim. P. 44(b) fell short of the requirements which had to be met to establish valid waivers of defendants' rights. Defendants were not adequately informed of their right to separate counsel, nor of their right to have counsel appointed if they could not afford to pay for counsel. An actual conflict of interest inhered in the joint representation because there were differing amounts of evidence against each one with respect to certain counts of the indictment.