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Home / Courts / Criminal Practice – Attorneys – Potential Conflict of Interest – Prior Representation of State’s Witness – Trial Court Inquiry – Evidence – Hearsay – Against Penal Interest

Criminal Practice – Attorneys – Potential Conflict of Interest – Prior Representation of State’s Witness – Trial Court Inquiry – Evidence – Hearsay – Against Penal Interest

State v. Choudhry. (Lawyers Weekly No. 10-07-0801, 20 pp.) (Sanford L. Steelman Jr., J.) (Cheri Beasley, J., dissenting) Appealed from Durham County Superior Court. (Henry W. Hight Jr., J.) N.C. App.

Holding: Even though defense counsel had previously represented a prosecution witness in an unrelated criminal matter, since the trial court explained the issue to defendant, and since defendant understood and nevertheless accepted representation by counsel, defendant waived any possible conflict of interest.

No error in defendant’s conviction of first-degree murder.

The prosecutor informed the trial court that in June 2003, defense counsel had represented state’s witness Michelle Wahome with regard to criminal charges that were reduced to common-law forgery. Defendant appeared along with Wahome in a videotape taken in the store where the criminal conduct occurred, but was not charged. Defense counsel asserted that there was no conflict and that he did not intend to question Wahome about that particular incident.

The trial court conducted a hearing, in which defendant was fully advised of the facts underlying the potential conflict and was given the opportunity to express his views. Defendant waived any possible conflict of interest.

Defendant’s accomplice/brother-in-law, Umar Malik, made a statement to police indicating that the victim was the aggressor, defendant had taken the victim’s gun and run back to his car, and Malik had then wrestled a bat away from the victim and struck the victim with it. Malik absconded before trial.

Defendant sought to introduce Malik’s statement into evidence under the penal interest exception to the rule against hearsay. However, no evidence at trial corroborated Malik’s account of events. Another eyewitness’s account of the incident had defendant and Malik attacking the victim with a baseball bat and returning to the car together, and he did not mention a firearm.

Moreover, at trial, Wahome testified that when defendant called her that evening after the beating, he stated that “he had a bat or a stick or something and he hit [the victim] and he said [Malik] got the stick or the bat and just kept hitting him.”

Malik had a motive to give a false statement. Malik and defendant were friends at the time of the incident. Malik was also romantically involved with defendant’s sister and had married her by the time he gave his statement to police.

Furthermore, an examination of Malik’s statement shows that not only was Malik exculpating defendant, but he was also attempting to establish a possible defense, i.e. that he acted in self-defense.

The trial court did not abuse its discretion in holding that Malik’s hearsay statement to police was not admissible under N.C. R. Evid. 804(b)(3).


(Beasley, J.) The trial court did not specifically inform defendant of the consequences the attorney’s potential conflict of interest might impose upon defendant. The trial court did not inform defendant that if Wahome testified, as she did, that if defendant’s attorney examined her, the attorney might be prohibited from zealously questioning her about the 2003 events for which she was convicted or about any information garnered from his representation of Wahome, which might have been detrimental to Wahome or detrimental or beneficial to defendant.

It is unclear however, whether the attorney did not question Wahome about the forgery conviction because of confidential matters preventing him from seeking to impeach her character for truthfulness or because he did not wish to implicate defendant for his involvement with Wahome in the 2003 incident by opening the door for the state’s witness to provide greater detail about defendant’s involvement.

It is not enough for the trial court to ask defendant if he had any concerns about whether defendant’s attorney could appropriately represent defendant in this case because he represented a witness for the state in the past without informing defendant about the possible consequences a potential conflict of interest might bear on defendant’s attorney’s ability to zealously represent him.

In determining whether a conflict existed, it would not be enough for the trial court to rely on defendant’s attorney to explain the consequences, especially if a conflict actually exists.

Because I believe that the trial court did not properly conduct a hearing to inform defendant of the consequences of any potential conflict of interest and because defendant was not fully informed, he did not knowingly, intelligently, and voluntarily waive any such conflict.

The record does not clearly show on its face that the conflict adversely affected counsel’s performance. I would remand for the trial court to conduct an evidentiary hearing.

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