Defendant, who was convicted of murder and other offenses at his 2017 jury trial, appeals the trial court's denial of his petition for postconviction relief ("PCR") without an evidentiary hearing. He alleges his trial counsel's representation was compromised because his co-parent and girlfriend, who was called at trial as a fact witness for the State, paid for the legal fees of his private criminal defense attorney. Defendant contends the fee arrangement created an untenable conflict of interest.
The court affirms the PCR judge's determination that defendant was not deprived of effective representation of his counsel, who represented him zealously at trial. In particular, defense counsel vigorously cross examined the witness who had paid his fees about certain incriminating statements she made about defendant to police detectives.
The fee arrangement, of which defendant was surely aware, did not create a per se conflict of interest that disqualified his counsel in the circumstances presented. Nor has defendant shown he was actually prejudiced or subject to a great likelihood of such prejudice.
Going forward, the court recommends that private criminal defense counsel document the client's informed consent with a written acknowledgment or some other recorded means at the time the third-party payer's fee arrangement is made.
There may be instances in which the payer's testimony for the State is anticipated to be so hostile to a defendant's interests that the lawyer is, in fact, materially limited, but this is not one of them.