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13-P-1292 Appeals Court

COMMONWEALTH vs. TIMOTHY A. ZABEK.

No. 13-P-1292.

Franklin. March 5, 2014. - October 28, 2014.

Present: Kafker, Fecteau, & Agnes, JJ.

Attorney at Law, Attorney as witness, Conflict of interest, 

Withdrawal. Constitutional Law, Assistance of counsel.

Practice, Criminal, New trial, Assistance of counsel.

Witness, Attorney as witness. Conflict of Interest.

Indictments found and returned in the Superior Court 

Department on November 16, 2009. 

The cases were tried before John A. Agostini, J., and a 

motion for a new trial was considered by him.

William A. Korman for the defendant.

Steven Greenbaum, Assistant District Attorney, for the 

Commonwealth.

AGNES, J. It is a cardinal principle of both Federal and 

State law that the right to the effective assistance of counsel 

requires that the defendant not only have an opportunity to 

obtain the advice and guidance of counsel, but also to rely on 
2

the undivided loyalty of counsel to represent the defendant 

"with full force and zealousness." Commonwealth v. Perkins, 450 

Mass. 834, 850 (2008), quoting from Commonwealth v. Downey, 65 

Mass. App. Ct. 547, 553 (2006). "A conflict of interest arises 

whenever an attorney's regard for one duty, such as that owed to 

a third party or in service of his own interests, leads the 

attorney to disregard another duty, such as that owed to his 

client." Perkins, supra at 851. See Commonwealth v. Shraiar, 

397 Mass. 16, 20 (1986) ("An actual or genuine conflict of 

interest arises where the independent professional judgment of 

trial counsel is impaired, either by his own interests, or the 

interests of another client") (internal quotation marks

omitted). 

In the present case, a serious, potential conflict of 

interest became apparent shortly before trial commenced. 

Appropriate steps were taken by the judge to identify the risks 

of defense counsel's continued representation of the defendant. 

The judge was warranted in concluding that, based on the 

evidentiary landscape prior to trial, defense counsel's 

prospective testimony as the sole witness to a statement made by 

one of the victims would not be required. We commend the judge 

for conducting a thorough colloquy with the defendant prior to 

the trial to ensure that the defendant was fully informed of his 

attorney's potential conflict of interest and could make a 
3

voluntary decision to continue to have counsel represent him. 

See Perkins, supra at 856 (emphasizing "the importance of trial 

judges being vigilant about conflicts of interest"). We also 

have considered the evidence as it developed at trial and 

conclude that there was no substantial risk of a miscarriage of 

justice resulting from defense counsel not testifying as a 

witness. Accordingly, we affirm the denial of the defendant's 

motion for a new trial.1

Background. The defendant was charged with, and ultimately 

convicted of, one count of rape of a child (G.L. c. 265, § 23), 

five counts of indecent assault and battery on a child under the 

age of fourteen (G. L. c. 265, § 13B), and four counts of 

indecent assault and battery on a person fourteen years of age 

or older (G. L. c. 265, § 13H). There were three victims, each 

of whom testified that the defendant committed various acts 

against her, including one victim who testified that she was 

raped; numerous instances of indecent and unlawful acts were

described by each of the victims. Two of the victims were the 

children of the defendant's girl friend. 

Following the defendant's arraignment, one of the victims, 

who by this time was an adult, expressed reservations about 

 

1 The defendant initially filed a direct appeal from his 

convictions. That appeal was dismissed for lack of prosecution. 

This subsequent appeal is solely from the order denying the 

defendant's motion for a new trial.
4

testifying against the defendant due to concerns about the 

impact it would have on her family. She related her concerns to 

her mother who, in turn, spoke to the defendant. The defendant 

suggested that the victim speak to the defendant's lawyer. The 

victim's mother outlined options for the victim including 

testifying that the incidents of rape and sexual abuse did not 

occur, testifying that the victim was confused and did not 

remember what had happened, and simply telling the truth. The 

victim's mother brought the victim to defense counsel's office, 

where the victim spoke alone with counsel. The January 20, 

2010, interview was not recorded. 

Shortly before trial, these developments came to the 

attention of the Commonwealth. On April 22, 2011, the 

Commonwealth filed a motion in limine seeking clarification of 

defense counsel's status as counsel or a witness and requesting 

rulings of law. After conducting a hearing, the judge entered 

an order in which he recognized that a potential conflict of 

interest existed and outlined a procedure to address it. The 

judge appropriately invited the Commonwealth to review a written 

summary of the interview with the victim (summary) that was 

submitted by defense counsel prior to trial to ascertain whether 

she disagreed with any statements she may have made to defense 

counsel, and, if so, whether they were material to the issues at 
5

trial.

2 If the answer to these questions was "yes," defense 

counsel would be given an opportunity to be heard on whether his 

disqualification from representing the defendant would work a 

substantial hardship on his client. Even if the answer to 

either question was "no," the judge stated he would conduct a 

colloquy with the defendant to ensure that he understood the 

risks of proceeding with his current attorney. 

Prior to the selection of the jury, the judge conducted a 

further hearing. The Commonwealth reported that a State police 

officer reviewed the summary with the victim who stated that she 

agreed with it subject only to two minor exceptions that did not 

involve material facts. After conferring with the Commonwealth, 

defense counsel answered in the affirmative to the judge's 

inquiry whether he was "satisfied that there will be at this 

point nothing coming out of [the victim's] testimony which would 

be so different that [he] would have to take the stand to rebut 

it in order to effectively represent [his] client." Counsel 

also reported that he had discussed the issue with the defendant

who desired that counsel continue representing him. The judge 

 

2 The summary prepared by defense counsel states that the 

victim disclosed prior abuse by her stepfather (a person other 

than the defendant). Otherwise, it states that with respect to 

the essential points related by the victim to the police about 

the defendant's unlawful acts, she did not clearly recall the 

details and may have confused acts committed by her stepfather 

with those she said had been committed by the defendant.
6

conducted an extensive colloquy3 and found that the defendant had 

been informed of the potential conflict, but wanted to retain 

his present attorney as defense counsel for the trial.

At trial, the victim in question testified that as a very 

young child she had been sexually abused by her stepfather prior 

to the time that the defendant came into her mother's life. She 

also testified that during her grammar school years, she had 

been sexually abused by the defendant, including one instance in 

which he digitally penetrated her vagina. This victim also 

testified about the statement she had given to the police, her 

reservations about testifying against the defendant, and the 

statement that she had given to defense counsel. Further 

details of her testimony are reserved for the discussion below. 

Discussion. 1. Pretrial assessment of conflict of 

interest. It is the defendant's burden to prove a genuine

conflict of interest by presenting "demonstrative proof 

detailing both the existence and the precise character of th[e]

alleged conflict of interest; we will not infer a conflict based 

on mere conjecture or speculation." Shraiar, 397 Mass. at 20. 

The defendant's principal argument on appeal is that the judge 

erred in denying his motion for a new trial based on two 

decisions by the Supreme Judicial Court: Commonwealth v. 

 

3 The colloquy, including the judge's findings and rulings,

is reproduced in an appendix to this opinion.
7

Rondeau, 378 Mass. 408 (1979), and Commonwealth v. Patterson, 

432 Mass. 767 (2000).4 In Rondeau, the defendant was convicted 

of an armed robbery of a Worcester credit union. The 

defendant's trial counsel testified at a hearing on a motion for 

a new trial that he saw the defendant in the courthouse on the

morning when the defendant was alleged to have committed the 

crime. Although there were other alibi witnesses, the

defendant's trial counsel was the only alibi witness without a 

criminal history. The judge denied the defendant's motion for a 

new trial based on his determination that counsel's alibi 

testimony lacked credibility and thus its unavailability at 

trial was not a source of prejudice. Although the Supreme 

Judicial Court upheld that portion of the judge's ruling, it 

determined that counsel's failure to abide by his ethical 

obligations to withdraw created an actual conflict of interest. 

Rondeau, supra at 416-417.5 The court explained that an actual 

 

4 The trial judge was aware of these decisions and 

appropriately relied on them in addressing the issues prior to 

the trial.

5 In Rondeau, the court reasoned that the conflict of 

interest was defined by counsel's violation of S.J.C. Rule 3:07, 

Canon 5, Disciplinary Rule 5-102(A), as appearing in 382 Mass. 

779 (1981), which established counsel's duty to withdraw from 

representation at trial, subject to only limited exceptions 

which were not applicable, when counsel learned he ought to be 

called as a witness to testify on behalf of his client. The 

current rule that corresponds to its predecessor is Mass. R.

Prof. C. 3.7, 426 Mass. 1396 (1998). It prohibits a lawyer from 

acting as trial counsel "at a trial in which the lawyer is 
8

conflict of interest exists once it becomes apparent to defense 

counsel that "his testimony might be necessary to the proper 

defense of his client." Id. at 414. An actual conflict of 

interest denies the defendant his right to representation by an 

attorney with undivided loyalty. Id. at 414-415. Counsel's 

failure to withdraw in such a case is constitutionally 

ineffective assistance, without the need to show prejudice. See 

Commonwealth v. Davis, 376 Mass. 777, 781-782 (1978). "[U]nder 

art. 12, if a defendant establishes an actual conflict of 

interest, he is entitled to a new trial without a further 

showing; he need not demonstrate that the conflict adversely 

affected his lawyer's performance or resulted in actual 

prejudice." Commonwealth v. Mosher, 455 Mass. 811, 819 (2010).

6

Similarly, in Patterson the court noted that within a few 

days of the defendant's arraignment, it should have been evident 

to defense counsel that an actual conflict of interest existed 

because counsel was present when the defendant reportedly made 

 

likely to be a necessary witness." See Patterson, supra at 778 

nn.12-13.

6 "The conflict lies in the fact that the client's interests 

would be better served by having the attorney testify while the 

attorney's interests would be better served by not testifying."

Patterson, supra at 780. See ibid. n.18 (explaining that once a 

conflict arises, counsel's decision to remain as trial attorney 

cannot be defended as a legitimate strategic choice because 

counsel is no longer in a position to render independent 

professional judgment on behalf of her client).
9

statements to the police. Further, counsel was the only witness 

(other than the defendant) who could contradict the police 

version of the defendant's statement that the Commonwealth 

intended to offer at trial. Id. at 777-778.

Avoiding the consequences of an actual conflict of interest 

is a shared responsibility of counsel and the court. Under the 

Code of Professional Responsibility, both the prosecutor and 

defense counsel have a duty to notify the court and take 

appropriate steps to withdraw from a case when an actual 

conflict arises.7 The judge also has an obligation to "take 

 

7 The Code of Professional Responsibility is self-executing. 

See Borman v. Borman, 378 Mass. 775, 787-788 (1979) ("If an 

attorney is unsure whether in a given case his conduct violates 

the code, he should terminate the questionable conduct or seek 

the advice of the appropriate Committee on Ethics and 

Professional Responsibility. If he persists in questionable 

conduct, he risks disciplinary action including disbarment. When 

a lawyer, exercising his best judgment, determines that his 

employment will not bring him into conflict with the code, 

disqualification may occur only if the trial court determines 

that his continued participation as counsel taints the legal 

system or the trial of the cause before it").

It should be noted that a conflict of interest does not 

exist merely because an attorney interviews one or more of the 

witnesses scheduled to testify at trial. See Commonwealth v. 

Wright, 376 Mass. 725, 734 (1978). This case, however, 

illustrates the risks when counsel interviews a witness alone. 

"To avoid lawyer-witness problems, it is typical and advisable 

for lawyers to conduct witness interviews [in the presence of an 

investigator] so that a third person can be called as an 

impeachment witness if the interviewee testifies inconsistently 

at trial." State v. Sanchez, 171 Wash. App. 518, 546 (2012).

The same advice applies to prosecutors. See United States v. 

Johnston, 690 F.2d 638, 645 (7th Cir. 1982) (en banc). See also 

ABA Standards for Criminal Justice, Prosecution Function and 
10

early and effective action," as the judge did in this case, 

whenever the existence of a potential or actual conflict of 

interest comes to the court's attention.8 Rondeau, supra at 417.

The present case is clearly distinguishable from Rondeau

and Patterson because, prior to trial, the judge determined, and 

both counsel and the defendant agreed, that there was no reason 

to believe that the victim would testify in a manner that was 

inconsistent with what she had told defense counsel during the 

interview. Under these circumstances, there was thus no basis 

for defense counsel to believe he would be required to testify 

 

Defense Function, Standard 4–4.3(e), Relation With Prospective 

Witnesses (3d ed. 1993); Committee for Public Counsel Services 

Assigned Counsel Manual, Policies and Procedures, Chapter IV, 

Part II, Preliminary Proceedings & Preparation, E., Special 

Concerns (online resource last viewed August 27, 2014) ("Counsel 

should take advantage, where appropriate, of opportunities to 

interview witnesses who may be present in court. Counsel must 

avoid becoming a witness in his/her own case. Therefore, 

interviews of prosecution witnesses should be 'witnessed' by 

another person (e.g. another defense attorney) to avoid later 

problems with proving an impeaching statement at trial").

8 A judge has discretion to decline to accept the 

defendant's waiver of conflict-free counsel in circumstances in 

which the judge determines that it is unlikely that counsel will 

be able to provide effective representation. See Commonwealth

v. Jordon, 49 Mass. App. Ct. 802, 810 (2000), citing Wheat v. 

United States, 486 U.S. 153, 163 (1988). In Wheat, the Supreme 

Court observed that although there is a "presumption" in favor 

of the defendant's counsel of choice, "that presumption may be 

overcome not only by a demonstration of actual conflict but by a 

showing of a serious potential for conflict. The evaluation of 

the facts and circumstances of each case under this standard 

must be left primarily to the informed judgment of the trial 

court." Id. at 164.
11

about his interview, and there was no actual conflict of 

interest. As for the potential conflict of interest that 

remained, "[a] defendant claiming ineffective assistance of 

counsel due to a potential conflict of interest will be entitled 

to a new trial only if he can establish 'material prejudice' to 

his defense resulting from the alleged conflict." Mosher, 455 

Mass. at 823, quoting from Shraiar, supra at 20.

2. Ineffective assistance of counsel during trial. We 

address two remaining questions. First, whether the potential 

conflict of interest that existed at the outset of the trial 

developed into an actual conflict of interest as the evidence 

unfolded. Second, we examine the record to determine whether 

the defendant has established that he was materially prejudiced 

in some concrete way by his counsel's decision not to testify. 

See Commonwealth v. Boateng, 438 Mass. 498, 508-509 (2003). 

a. Absence of actual conflict of interest during trial. 

We begin by reiterating that the burden rests with the defendant 

to demonstrate the existence of an actual conflict of interest. 

See Shriar, supra. Conjecture about what might have occurred is 

not a substitute for credible evidence of an actual conflict.

See Commonwealth v. Balliro, 437 Mass. 163, 168 (2002). It is 

unnecessary to determine whether the judge's pretrial colloquy 

was an effective waiver of the right to conflict-free counsel 

because the differences between the victim's testimony at trial 
12

and what counsel and the judge anticipated her testimony would 

be at the outset of the trial were not significant, and, thus at 

no time did circumstances arise creating an actual conflict of 

interest that required defense counsel to withdraw in order to 

be a witness for the defendant. 

b. Absence of material prejudice. The defendant does not 

point to anything his counsel did or failed to do at trial that 

resulted in material prejudice. The record indicates that 

defense counsel conducted a vigorous defense on behalf of his 

client. See Shraiar, supra at 25. Defense counsel effectively 

impeached the victim. Counsel's cross-examination of the victim 

brought out that she made previous inconsistent statements 

regarding whether the defendant touched her inappropriately. 

Specifically, she testified that she told counsel that she did 

not think the defendant's hugs were "sexual," that she might 

have confused the defendant's conduct with that of her 

stepfather, including the act of digital penetration, and that 

she was unsure whether the defendant had touched her breasts. 

When she did not recall a portion of the interview with defense 

counsel, he read aloud the entire paragraph from the written 

summary of the interview. The defendant's argument that had his 

attorney testified, the jury would have heard a "clear 

recitation" of the interview he conducted with the victim is 

speculative for the written summary is dated some fifteen months 
13

after the interview occurred. Moreover, as the Commonwealth 

points out, a fair reading of the defense counsel's written 

summary of the interview is not that the victim recanted her 

earlier statements; rather, as the victim acknowledged 

forthrightly at trial, she made inconsistent statements. 

Conclusion. When a judge becomes aware that an attorney in 

the case may have a conflict of interest, the "best practice" is 

to address it promptly by initiating a colloquy with counsel. 

Perkins, supra at 856. Here, the judge took appropriate steps 

to identify that a serious, potential conflict of interest

existed, determined its precise nature, and then determined that 

it was not an actual conflict of interest that required the 

withdrawal or disqualification of counsel. His findings and 

rulings are supported by the evidence. The judge also wisely 

conducted a thorough colloquy with the defendant to ensure that 

the defendant was aware of the potential conflict and wished to 

have counsel continue to represent him. (See appendix.) Our 

review of the evidence at trial leads us to conclude that the 

defendant has failed to establish that he suffered any material 

prejudice as a result of the potential conflict of interest.

Order denying motion for

 new trial affirmed.
APPENDIX.

Pretrial colloquy concerning potential conflict of interest

THE JUDGE: "It is my understanding, through discussions 

with counsel, that your attorney met with one of the alleged 

victims in this case who will be a witness in this case. Is 

that your understanding?"

THE DEFENDANT: "Yes, your Honor."

THE JUDGE: "And it's also my understanding that your 

attorney received information, which he has reduced to writing 

and has provided the Court with a copy, and you may yourself 

have reviewed it; is that correct?"

THE DEFENDANT: "Yes, your Honor."

THE JUDGE: "The concern that we have here is that if the 

witness then decides to change her testimony, the only witness 

who could say that she said something different at the time of 

the interview is your attorney, Mr. Curtiss. Do you understand 

that?"

THE DEFENDANT: "Yes, your Honor."

THE JUDGE: "And then it creates a situation where the 

attorney becomes a witness and, if we're aware of that ahead of 

time we have to recuse the attorney or have him step aside and 

have another attorney come in to take his place. Do you 

understand that?"

THE DEFENDANT: "Yes, your Honor."

THE JUDGE: "Now, that creates some issues, because it 

delays the trial, you'd have to get a new attorney and things of 

that nature. But it's done to protect your interests, to make 

sure you have all the witnesses available to you during the 

course of the trial. Do you understand that?"

THE DEFENDANT: "Yes, your Honor."

THE JUDGE: "Now in going through this issue, as you 

probably heard, the witness does not intend at this point to 

contradict what she said to your attorney at the time of the 

hearing except for two minor points. Do you understand that?"
2

THE DEFENDANT: "Yes, I do, your Honor."

THE JUDGE: "And with respect to those two minor points, 

they appear to be not of consequence for this trial and both the 

Commonwealth and your attorney have agreed that that's not going 

to be an issue in the case. Do you understand that?"

THE DEFENDANT: "Yes, I do."

THE JUDGE: "So the question becomes: First of all, are 

you aware of all of these circumstances?"

THE DEFENDANT: "Yes, your Honor, I am."

THE JUDGE: "And are you also aware that you are entitled 

under the Fifth Amendment to the United States Constitution to 

be represented by counsel and to have that counsel free from any 

possible conflict of interest, do you understand that?"

THE DEFENDANT: "Yes, I do, your Honor."

THE JUDGE: "And do you understand by this information 

coming out and determining what the witness is likely to say, 

that your attorney, Mr. Curtiss, is able to effectively 

represent you during the course of this trial?"

THE DEFENDANT: "Yes, your Honor."

THE JUDGE: "Now, do you also understand -- we can't 

guarantee what people are going to say, we are often surprised 

and something may come up during the course of the trial we 

can't anticipate and we'll have to deal with at that point. 

However, at this time both counsel believe that this will not be 

an issue in the case; do you understand that?"

THE DEFENDANT: "Yes, your Honor."

THE JUDGE: "Given all this information, do you wish to 

proceed with Atty. Curtiss representing you in this matter?"

THE DEFENDANT: "Yes, your Honor, absolutely."

THE JUDGE: "I take it from reading the file he has 

represented you right from the beginning in this case?"

THE DEFENDANT: "That's right."
3

THE JUDGE: "So that the record is clear, the arraignment 

was on December 17th, 2009, so for almost a year and a half he 

has represented you; is that correct?"

THE DEFENDANT: "That is correct, your Honor."

THE JUDGE: "And you wish to have him continue to represent 

you in this case?"

THE DEFENDANT: "Yes, your Honor."

THE JUDGE: "Are you making this decision freely and 

voluntarily?"

THE DEFENDANT: "Yes, your Honor."

THE JUDGE: "Has anyone forced you to make this decision?"

THE DEFENDANT: "No."

THE JUDGE: "Are you under the influence of any drugs, 

medication or alcohol at this time?"

THE DEFENDANT: "No, your Honor."

THE JUDGE: "Do you think it's in your best interests to 

have Atty. Curtiss continue to represent you in this case?"

THE DEFENDANT: "Yes, your Honor, I do."

THE JUDGE: "Do you have any questions of me?"

THE DEFENDANT: "Not at this time."

THE COURT: "Thank you. You may sit down."

THE DEFENDANT: "Thank you."

THE COURT: "I find that the Defendant is fully apprised of 

the situation, has been provided the information with respect to 

this potential conflict and our solution concerning this 

conflict, and that the Defendant has voluntarily agreed and 

believes it's in his best interests to have Atty. Curtiss 

represent him, so I'm going to allow Atty. Curtiss to continue 

to represent the Defendant with respect to this case."