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Commonwealth v. Delnegro

Appeals Court of Massachusetts, Hampden

April 12, 2017


          Heard: January 6, 2017.

         Complaints received and sworn to in the Springfield Division of the District Court Department on February 4, 2014, and June 8, 2015.

         Motions for disqualification of counsel, filed on April 10, 2015, and October 15, 2015, were heard by Patricia T. Poehler, J., and Philip A. Contant, J., respectively.

          Kaily Hepburn for the defendant.

          Bethany C. Lynch, Assistant District Attorney, for the Commonwealth.

          Present: Kafker, C.J., Hanlon, & Agnes, JJ.

          KAFKER, C.J.

         The defendant, David Delnegro, seeks interlocutory review of orders disqualifying his attorney, Kaily Hepburn, from representing him in two criminal cases. Hepburn was the sole passenger in the defendant's vehicle when he was charged with operating a motor vehicle under the influence of alcohol and negligent operation. Hepburn was also present at a subsequent hearing on that matter in which the defendant got into an altercation with court officers and was charged with assault and battery on a public employee, disruption of court proceedings, and disorderly conduct. The defendant claims that Hepburn is not a necessary witness in the first case, and even though she is a necessary witness in the second case, that she can represent him in pretrial proceedings. He also argues that he has consented to any conflict of interest arising from the representations.

         We dismiss the interlocutory appeals because the defendant did not petition a single justice of the Supreme Judicial Court for interlocutory review pursuant to G. L. c. 211, § 3, and the doctrine of present execution does not provide for interlocutory review of disqualification of counsel orders in criminal cases. We nonetheless consider the propriety of Hepburn's representation of the defendant, due to the important ethical considerations at stake, and conclude that she cannot represent him in either case at trial or any pretrial proceedings.


         The Commonwealth alleges the following facts. On February 4, 2014, at approximately 2:00 A.M., the defendant was driving in an erratic manner through the streets of Springfield. Hepburn was the only passenger in the vehicle. A police officer stopped the vehicle and approached it. Based on the defendant's "glassy and bloodshot" eyes, flushed face, slurred speech, and the odor of alcohol on his breath, the officer asked him to get out of the car. He had difficulty doing so and, in the officer's opinion, performed poorly on field sobriety tests. The officer then placed him under arrest. At this point, according to the officer, Hepburn "ran out" of the vehicle and "demanded" that the officer release the defendant, because she was an attorney. Again, according to the officer, Hepburn was "extremely belligerent" and began "screaming obscenities" at him.

         After the defendant's arraignment on the resulting criminal case, Hepburn sought to represent him. The Commonwealth moved to disqualify her, arguing that she had a conflict of interest because of her status as a percipient witness to the events underlying the charges. The motion judge agreed, noting that, because Hepburn was the only passenger in the vehicle, she was the "percipient witness, " and the only person "who could possibly rebut the testimony of the police." The judge further explained: "[The officer's] report does not cast her in a particularly flattering light. Given this police report, I do not see how Attorney Hepburn can be loyal to the defendant and to herself. Any analysis by her regarding whether she is a necessary witness for the defendant would naturally be impacted by her self interest in not embarrassing herself by taking the witness stand and subjecting herself to cross examination. The conflict lies in her divided loyalties."[1]

         Thereafter, at a hearing on June 8, 2015, the Commonwealth alleges that the defendant, representing himself, became aggravated with the judge. Hepburn sat in the gallery of the courtroom behind the defendant. After the judge continued the defendant's case, according to court officers, the defendant refused to leave the courtroom and began shouting about unrelated matters. There was also apparently a struggle over a court document in the defendant's hands that Hepburn may have given him. Several court officers attempted to escort him from the courtroom, and a physical struggle ensued. Hepburn followed the officers as they removed the defendant from the courtroom, lobby, and courthouse, insisting that they release him and attempting to record the incident.[2] The defendant was eventually placed under arrest.

         Initially, Hepburn sought to represent the defendant in the case arising from the second incident. The Commonwealth again moved to disqualify her, based on her presence at the hearing. The motion judge agreed and disqualified her from representing the defendant in the second case, finding that she "was not only a percipient witness but actively involved in the underlying events."


         1. Notices of appeal and the doctrine of ...

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