Opinion
NO. 21-K-268
06-18-2021
STATE OF LOUISIANA v. MICHAEL T. WETZEL, JR.
IN RE MICHAEL T. WETZEL, JR. APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT, PARISH OF ST CHARLES, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE M. LAUREN LEMMON, DIVISION "D", NUMBER 93,923 Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Jude G. Gravois
WRIT GRANTED
Relator, Michael Wetzel, seeks supervisory review of the trial court's May 6, 2021 judgment that granted the State's motion to involuntarily remove defense counsel from representing relator in this domestic abuse battery case. For the following reasons, we grant relator's writ application and reverse the trial court's judgment.
On April 29, 2021, at relator's arraignment on a felony charge of second degree battery against his wife (which charge was filed in December 2020), the State filed a bill of information charging relator with a misdemeanor domestic abuse battery in violation of La. R.S. 14:35.3. Simultaneously, in open court, the State filed a motion and order to remove Orrin A. Marino and the Marino Law Firm as defense counsel for relator.
The felony charge was closed.
Also on that date, relator was arraigned and through his counsel, Mr. Marino, pled not guilty to the domestic abuse battery charge. At Mr. Marino's request, the trial judge heard the State's motion to remove him and his law firm as counsel for Mr. Wetzel, and after hearing argument from counsel, granted the State's motion "in an abundance of caution ... due to a conflict of interest." This writ application followed.
Mr. Marino's former representation of relator's wife—the alleged victim herein—in the expungement of two arrests involving an unrelated domestic matter that occurred five years prior to the domestic abuse battery pending against relator, serves as the basis for the State's alleged conflict-of-interest claim. At the hearing, the State argued that since the wife will be subject to cross-examination at relator's trial and, as such, in an adversarial relationship with her former counsel, Mr. Marino's continued representation of relator creates a possible conflict of interest warranting his removal. In short, the State argued that defense counsel's removal is "more about [the wife's] interests and the interest of the [S]tate and in the interest of justice for unfair cross-examination of a victim in a very serious domestic abuse case." Other than the argument of counsel regarding the "potential conflict," the transcript from the hearing reveals that the State did not introduce any documents or testimony into evidence in support of its motion.
At the hearing, the State submitted to the trial court that "while arguably a prior incident of expungement would not necessarily be admissible, the potential with impeachment ... it could be depending on the facts and circumstances of what comes out at trial."
In response, relator's counsel argued that his former representation of the wife in the expungement proceeding, which occurred before she and relator even knew one another, involved two arrests—not convictions—and as such, any information related to that proceeding would not/could not be admissible or the subject of cross-examination in the instant matter. Mr. Marino further argued that, pursuant to Rule 1.9 of the Rules of Professional Conduct, the expungement proceeding and the domestic abuse battery case are not "the same or substantially the same" to warrant his removal in the instant matter. Stated differently, the matters are not sufficiently interrelated in fact and substance that a reasonable person would not be able to disassociate the two.
In his writ application, relator argues that the State failed to carry its burden of proving the existence of a conflict of interest. We agree. "The burden of proving disqualification of an attorney or other officer of the court rests on the party making the challenge." Walker v. State, Dep't of Transp. & Dev., 01-2078, 01-2079 (La. 5/14/02), 817 So.2d 57, 60. Here, the State introduced no evidence or testimony at the hearing to substantiate its assertion that a conflict involving Marino's former client and his current client actually or potentially exists. In particular, the State failed to submit how the prior arrests of the wife would be relevant in relator's trial, when relator did not know the wife at the time of the arrests nor were the arrests related to domestic abuse involving him. In granting the State's motion to remove defense counsel, the trial judge stated in written reasons that she did so "having considered the argument of both parties ..." It is well-settled, however, that the argument of counsel is not evidence, and as such, is insufficient to carry the burden of proof. See State v. Anthony, 17-372 (La. App. 5 Cir. 12/30/20), 309 So.3d 912, 925.
In its response to defendant's writ application and his contention that the State failed to carry its burden of proving the existence of a conflict, the State contends that the concept of "res ipsa loquitur" applies. Specifically, the State claims that because Ms. Wetzel is the victim in the current case, all it was required to prove is that she is the same person the Marino Law Firm represented in the expungement matter; beyond that, the conflict "speaks for itself." With respect to defense counsel's contention that the current matter and the prior expungement proceedings "have nothing in common and are completely 'disassociated from one another,'" the State urges that when Rule 1.9 of the Rules of Professional Responsibility is "viewed through the lens of Mrs. Wetzel's perspective ... [s]he was and is the central part of both cases." [Emphasis supplied.] Consequently, the State maintains the trial court correctly determined that "a conflict of interest exits" and properly removed Mr. Marino and his law firm as counsel for Mr. Wetzel. We disagree.
A defendant is guaranteed the right to assistance of counsel by both the federal and state constitutions. U.S. Const. Amend VI; La. Const. of 1974, art. I, § 13. The right of a criminal defendant to the assistance of counsel during the proceedings against him is a cornerstone of our legal system. State v. Cisco, 01-2732 (La. 12/3/03), 861 So.2d 118, 129. Specifically, Article I, Section 13 of the Louisiana Constitution provides, in pertinent part, that "[a]t each stage of the proceedings, every person is entitled to assistance of counsel of his choice ..." The right of a defendant to counsel of his choice is codified at La. C.Cr.P. art. 515. See State v. Mitchell, 95-552 (La. App. 5 Cir. 7/30/96), 680 So.2d 64, 68.
The issue of conflicting loyalties usually arises in the context of joint representation, but can also arise where an attorney runs into a conflict because he or she is required to cross-examine a witness who is testifying against the defendant and who was or is a client of the attorney. State v. Kilpatrick, 443 So.2d 546, 552 (La. 1983), cert. denied, 466 U.S. 993, 104 S.Ct. 2374, 80 L.Ed.2d 847 (1984). If an objection to a possible conflict of interest is raised pre-trial, the trial court has two options to avoid defense counsel's conflict of interest: appoint separate counsel or take adequate steps to ascertain whether the risk of conflict is too remote to warrant separate counsel. See State v. Edwards, 430 So.2d 60, 62 (La. 1983).
In the instant matter, even if the trial judge were to have properly determined that a conflict exists—which, we find, she did not—she failed to take the necessary steps under Louisiana law to assure that defendant's Sixth Amendment right to effective assistance of counsel is not violated. Specifically, the record reveals that the trial judge failed to conduct an inquiry as to whether the conflict was too remote to warrant removal of defense counsel. See State v. Edwards, supra. Instead, the trial court accepted the State's argument—unsubstantiated by evidence or testimony—as proof that a conflict or potential conflict of interest exists that warranted removal of defendant's counsel of his choosing.
In the event the trial judge had determined that the conflict was not too remote, she bore the responsibility of explaining the conflict to relator and informing him of his right to representation free of conflict. Thereafter, if relator chose to proceed with conflicted counsel, relator should have been allowed to do so after making a knowing and intelligent waiver. See State v. Carmouche, 508 So.2d 792, 805 (La. 1987).
Additionally, at the hearing, the sole basis of the State's argument was that Mr. Marino labors under a potential conflict of interest as to the victim—not relator whose liberty is actually at stake here. The record is clear that rather than considering how relator's inability to use the information his counsel obtained through a privileged communication from the victim would affect his defense in the current case, and without considering his Sixth Amendment right to counsel of his choosing, the trial judge analyzed the "potential" conflict from the alleged victim's perspective. That is, the trial judge focused solely on how information acquired by Mr. Marino as a result of his former representation in the expungement matter may be prejudicial to the victim, or subject her to unfair cross-examination or impeachment in relator's trial for domestic abuse battery.
Because the State has only asserted—but has failed to prove—that a potential conflict exists involving Mr. Marino's former client and his current client, on the showing made, we find the State failed to carry its burden, and the trial judge erred in removing Mr. Marino as relator's chosen counsel. Consequently, relator's writ application is granted and the trial court's May 6, 2021 judgment removing Mr. Marino as relator's counsel is reversed.
Although the State attached two exhibits to its response memorandum filed in opposition to defendant's writ application, the transcript of the hearing evidences that the State did not introduce this information at the hearing and, thus, it cannot now be reviewed by this Court. Exhibits and attachments not properly and officially offered and admitted into evidence cannot be considered, even if it is physically filed into the trial court record. State v. Whitley, 14-747 (La. App. 5 Cir. 3/25/15), 169 So.3d 658, 660. Additionally, the fact that additional co-counsel has enrolled on behalf of defendant subsequent to the trial court's ruling, does not bear on the correctness of the judge's ruling at the time it was issued.
Gretna, Louisiana, this 18th day of June, 2021.
SMC
FHW
JGG