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SJC-12229

COMMONWEALTH vs. NATHANIEL BROWN.

Norfolk. March 4, 2024. – July 11, 2024.

Present: Budd, C.J., Gaziano, Kafker, Wendlandt, Georges, 

& Dewar, JJ.

Homicide. Practice, Criminal, New trial, Assistance of counsel, 

Motion to suppress, Waiver, Capital case. Constitutional 

Law, Assistance of counsel. Attorney at Law, Conflict of 

interest. Conflict of Interest. Waiver.

Indictment found and returned in the Superior Court 

Department on September 25, 2013.

A motion for a new trial, filed on September 24, 2019, was 

heard by William F. Sullivan, J.

Tracey A. Cusick, Assistant District Attorney (Carolyn L. 

Hely, Assistant District Attorney, also present) for the 

Commonwealth.

John H. Cunha, Jr. (Charles Allan Hope also present) for 

the defendant.

DEWAR, J. In 2016, a jury convicted the defendant, 

Nathaniel Brown, of murder in the first degree on the theory of 

extreme atrocity or cruelty in connection with the stabbing 
2

death of Jordan Baskin. Following his conviction, represented 

by new counsel, the defendant filed a motion for a new trial, 

claiming two violations of his right to counsel under art. 12 of 

the Massachusetts Declaration of Rights. First, the defendant 

argued that his trial counsel failed to provide minimally 

effective representation before and during a police interview in 

which police acquired incriminating evidence later introduced at 

his trial. Second, the defendant claimed that his trial counsel 

suffered from a conflict of interest in her continued 

representation of him following the police interview, because 

filing a motion to suppress the resulting incriminating evidence 

on the ground of ineffective assistance of counsel would have 

been contrary to his trial counsel's own interests. The 

defendant's direct appeal was stayed pending the outcome of the 

motion for a new trial. In 2023, following an evidentiary 

hearing, a Superior Court judge (motion judge) allowed the 

motion for a new trial, finding a new trial warranted under art. 

12 on both of the grounds raised by the defendant. The case is 

now before this court on the Commonwealth's appeal.

Finding no error of law or abuse of discretion in the 

motion judge's conclusion that trial counsel labored under an 

actual conflict of interest in representing the defendant, we 

affirm the allowance of a new trial on this ground and do not 

reach the defendant's other claimed art. 12 violation.
3

1. Background. a. Facts. We first briefly summarize the 

nature of the criminal case against the defendant and then 

recite the facts relevant to his motion for a new trial as found 

by the motion judge in his written decision, supplemented with 

undisputed facts in the record. See Commonwealth v. Velez, 487 

Mass. 533, 535 (2021).

On the evening of April 14, 2013, police responded to a 

report of a stabbing at a home in Milton. Upon arrival, they 

found the victim lying on the enclosed porch of the home he 

shared with his parents, bleeding from multiple stab wounds. 

Medical personnel transported him to the hospital, where he died 

shortly thereafter from his injuries. The victim had struggled 

with addiction and, on the day of his death, had sought 

emergency medical attention for withdrawal symptoms and also 

reportedly sought to purchase drugs with a group of friends. At 

the crime scene, police discovered the victim's cell phone and a 

palm print, which matched that of the defendant, on the 

shattered porch door. On neighboring properties, police found a 

bag of marijuana and heroin that had a fingerprint on it that

matched that of the defendant, another cell phone that was 

associated with a telephone number used by the defendant, and 

one of the victim's shoes.

When police contacted the registered owner of a 2002 

Oldsmobile Bravada (SUV) matching the description of a vehicle 
4

seen on camera leaving Milton and entering Boston around the 

time of the stabbing, they obtained information linking the SUV 

to the defendant. Police learned that the mother of the 

defendant's child had possession of the SUV, and that an 

associate of the defendant reported that he often drove the 

defendant in the SUV around Boston and Milton to sell drugs. 

Police visited various locations seeking to speak with the 

defendant.

Shortly thereafter, the defendant was put in contact with 

the attorney who would go on to serve as the defendant's trial 

counsel (trial counsel). Trial counsel began practicing as an 

attorney in 1996 and had previously served as an assistant 

district attorney prosecuting criminal cases before turning to 

criminal defense.

The defendant retained trial counsel to represent him with 

regard to what trial counsel understood to be an investigation 

by the Milton police department; the defendant disclosed to 

trial counsel that he had learned that the Milton police wanted 

to speak with him and were interested in the SUV. The defendant 

and trial counsel had an initial discussion focused on the SUV, 

which the police were at that point seeking but had not yet 
5

found.1 The defendant told trial counsel that he had purchased 

the SUV within the past month for the mother of his child to use 

to transport the child to and from school and showed counsel a 

receipt for the purchase. Trial counsel advised the defendant 

that any evidence of a crime in the SUV would create a problem 

for him. The defendant repeatedly assured trial counsel that 

nothing in the SUV could implicate him in any crime and stated 

that he never drove the SUV. Trial counsel believed the 

defendant's assurances and believed it would benefit him to turn 

over the vehicle voluntarily.

After having this conversation with the defendant, trial 

counsel called the Milton police to inform them that the 

defendant was going to surrender the SUV they were seeking. 

Counsel did not inquire about the reason the police were 

interested in the SUV nor the nature of their investigation.

Around the time the police obtained the SUV, police 

investigators became interested in speaking with the defendant 

about the homicide. At that point, trial counsel still did not 

1 Although not addressed expressly by the motion judge, 

there was conflicting testimony at the hearing on the motion for 

a new trial regarding when and how the police obtained the SUV, 

and, in particular, whether trial counsel was responsible for 

turning over the SUV to the police following this conversation 

with the defendant or whether the police independently obtained 

the SUV. This dispute is not material to our decision, and we 

recite the facts as found by the motion judge, which are 

consistent with trial counsel's account.
6

know that the investigation related to a murder and believed 

that the police intended to ask the defendant questions about 

the SUV. Although she believed that the vehicle may have been 

involved in a drug-related crime, she did not know for certain, 

and she knew the defendant was anxious to retrieve the SUV from 

the police as soon as possible. Trial counsel had a 

conversation with the defendant about the possibility of

speaking with the police. She asked him if there was any reason 

why the police would want to speak with him and specifically 

asked if he had "any issues" in Milton or in Quincy. The 

defendant responded that he was not aware of any reason the 

police would want to speak with him, nor of any issue in Milton 

or Quincy in particular, and told trial counsel that he had no 

concerns about speaking with the police. Although she 

maintained lingering suspicions about the SUV's potential 

involvement in drug activities, trial counsel felt that the 

defendant was being honest with her, and she did not believe a 

police interview would put him "in jeopardy." To the contrary, 

believing the defendant's statements that "there was nothing to 

hide," trial counsel thought speaking with the police "would be 

to [the defendant's] benefit, because it would be exculpatory in 

nature if he went and cooperated."

In the course of this conversation about the possible 

police interview, trial counsel told the defendant what she 
7

believed to be the "normal advice that you'd give a client," 

including that he should be truthful with her about whether he 

had anything to hide, because he did not know what the police 

would ask him. Although trial counsel did not recite the 

Miranda warnings, she spoke with the defendant about the dangers 

and ramifications of speaking with the police. She advised him 

that he should not speak with the police if he did have anything 

to hide and further advised him that anything he said to the 

police could be used against him.

The defendant decided to speak with the police. Trial 

counsel called the Milton police and spoke with a detective to 

arrange for an interview at the Milton police station for the 

morning of Sunday, April 21, 2013. As with her prior call to

the Milton police regarding the SUV, trial counsel again did not 

inquire about the nature of the investigation, nor whether her 

client was a suspect, person of interest, or target of the 

investigation. It appears from the record that the conversation 

with the detective involved solely setting up the logistics of 

the interview. Prior to the interview she arranged, trial 

counsel knew only that the investigation "had to do with 

something in Milton" and remained unaware that the police 

investigation related to a homicide.

Present at the Milton police station that Sunday morning 

for the interview were two State police homicide investigators 
8

assigned to the office of the district attorney for the Norfolk 

district, as well as one detective from the Milton police 

department. At the outset of the interview, they explained to 

trial counsel and the defendant that the investigation concerned 

the April 14, 2013, murder of the victim in Milton. After thus 

learning that police sought to question the defendant in 

connection with a homicide investigation, trial counsel did not 

terminate the interview nor request to speak privately with the 

defendant before proceeding, forgoing the opportunity to inquire 

of her client specifically about a homicide or to advise him 

regarding the potential perils of speaking with the officers. 

In keeping with what she testified at the motion hearing was her 

usual practice for police interviews, trial counsel did not 

consent to the interview being recorded. The officers provided 

a Miranda form to the defendant, who signed it with his right 

hand. Trial counsel signed the Miranda form as a witness.

Over the course of the interview, the defendant denied 

knowing the victim after being shown a picture of him, denied 

ever going to the victim's house, denied ever owning a cell 

phone, and denied any association with three specific cell phone 

numbers. At this point, trial counsel became concerned that the 

defendant was making a misrepresentation regarding the cell 

phone numbers. She was aware that the defendant had a cell 

phone and recognized one of the cell phone numbers the police 
9

listed. She then stopped the interview to speak with the 

defendant in the hallway.

The motion judge made no findings as to the content of 

trial counsel's hallway conversation with the defendant. Trial 

counsel's fragmented testimony relating to the content of the 

conversation included that she confronted the defendant about 

his misrepresentations regarding the cell phones; repeated what 

she had told him prior to the interview, that he should not 

speak further to the police if he had anything to hide; and 

informed him of her view that the police likely already knew the 

telephone numbers were his. Trial counsel and the defendant 

then reentered the room and resumed the interview.

The officers questioned the defendant further. Among other 

responses, and as would become relevant to cell phone evidence 

in the case, the defendant admitted that "Nasty" was a nickname 

that he had had since childhood.

As the questioning continued, one of the officers noted a 

bandage on the defendant's right index finger. The defendant 

complied with an officer's request to remove the bandage, 

revealing a cut. The police then asked to photograph the cut, 

at which point trial counsel denied the request and terminated 

the interview.

Trial counsel and the defendant left the police station. 

Later that day, the defendant through trial counsel informed the 
10

officers that one of the cell phone numbers about which they had 

inquired had been his for the past thirteen years.

A grand jury indicted the defendant for murder in September 

2013.

b. Proceedings. Trial counsel's presence at the 

defendant's police interview gave rise to concerns, raised 

repeatedly by the prosecutor and judges during the pretrial 

proceedings, that trial counsel had a potential conflict of 

interest because she might need to testify at trial if a dispute 

arose regarding what had occurred at the police interview. See 

Commonwealth v. Patterson, 432 Mass. 767, 777 (2000), S.C., 445 

Mass. 626 (2005), overruled on other grounds by Commonwealth v. 

Britt, 465 Mass. 87 (2013) (trial counsel had actual conflict of 

interest once it became apparent trial counsel ought to be 

called to testify at trial to dispute key detail in police 

account of defendant's counseled police interview). 

Notwithstanding trial counsel's repeated representations that 

the defendant would not be disputing at trial what occurred at 

the police interview, the prosecutor placed trial counsel on the 

witness list and later moved to disqualify her. Trial counsel 

was ultimately permitted to continue representing the defendant 

after repeated colloquies to confirm that the defendant 

understood the nature and implications of this potential 

conflict, knew he was entitled to the appointment of counsel 
11

without such a potential conflict, and nevertheless wished to 

continue with her as his counsel.

At a final pretrial conference, the judge asked the parties 

to review Commonwealth v. Celester, 473 Mass. 553 (2016), and 

inform him if the case affected their view of his decision to 

permit trial counsel's continued representation of the 

defendant. Released that morning, Celester, supra at 567-568,

held, as a matter of first impression, that if a person is 

accompanied by counsel at a prearraignment custodial 

interrogation, the person has a right under art. 12 to the 

effective assistance of that counsel. The judge briefly 

commented that he understood the circumstances in Celester

differed in at least one respect from the defendant's case and

deferred further discussion until the parties had a chance to 

review the decision. The judge was unexpectedly unable to 

preside at the defendant's trial the following month, and 

Celester was never addressed on the record again.2

2 Thus, no motion was ever filed pursuant to Celester, nor 

any motion to suppress all of the evidence from the police 

interview. However, at the prompting of the newly assigned

trial judge, trial counsel did file a motion to exclude several 

questions asked by the investigators during the police interview 

and the defendant's corresponding responses, on the ground that 

the defendant's unequivocal denials of police accusations were 

inadmissible for certain purposes. See Commonwealth v. Spencer, 

465 Mass. 32, 50 (2013). Ultimately, the judge and parties 

agreed that the defendant's denial of knowing the victim was 

admissible, and the prosecutor agreed not to elicit testimony 
12

A full accounting of the evidence at the defendant's March 

2016 trial is not necessary to the issue we decide today 

concerning the claimed conflict of interest on the part of trial 

counsel. Most relevant here is simply the fact that the 

Commonwealth, in seeking to prove its theory that the defendant 

had killed the victim after a drug transaction "went wrong,"

introduced evidence obtained during the police interview. The 

Commonwealth introduced, and argued as consciousness of guilt,

testimony that the defendant at his police interview had falsely 

denied knowing the victim, ever going to the victim's house, 

owning a cell phone, and using any of the three cell phone 

numbers identified at the interview. The Commonwealth also 

introduced testimony that, at the time of the interview, the 

defendant had a cut on his right index finger and demonstrated 

his right-handedness when signing the Miranda form. And the 

Commonwealth introduced testimony that the defendant 

acknowledged at the interview that his nickname was "Nasty"; the 

victim had cell phone contacts named "Nasty" and "Nasty New" and 

had sent text messages to "Nasty New" and called that contact in 

the hours and minutes leading up to his death.

The jury convicted the defendant of murder in the first 

degree on the theory of extreme atrocity or cruelty. The

that the defendant denied knowing people associated with the 

victim.
13

defendant noticed an appeal, which was docketed in this court in 

November 2016. In September 2019, the defendant, represented by 

new counsel (defense counsel), filed a motion for a new trial, 

claiming ineffective assistance of counsel. This court remanded 

the motion for a new trial to the Superior Court.

Since the trial judge had retired, a different judge held 

an evidentiary hearing over the course of three days in 2021 and 

2022. Defense counsel called three witnesses to testify at the 

hearing: trial counsel, a lead investigator on the case who was 

present at the defendant's police interview, and attorney 

Charles Rankin as an expert witness.

In June 2023, the motion judge allowed the motion for a new 

trial on both of the grounds urged by the defendant. First 

addressing the defendant's claim of ineffective assistance of 

counsel under Commonwealth v. Saferian, 366 Mass. 89 (1974), the 

motion judge found that the defendant had received ineffective 

assistance of counsel at the police interview based on trial 

counsel's failure to terminate the interview or "at least" speak 

further with the defendant once the police stated that they were 

investigating a homicide, as well as her subsequent failure to 

terminate the interview immediately upon "realiz[ing] that [the 

defendant] was lying to police about his phone number." The 

motion judge held that a new trial was required because trial 

counsel's deficient performance had caused the defendant to make 
14

a statement to the police, resulting in consciousness-of-guilt 

and other inculpatory evidence used by the Commonwealth at trial

that likely influenced the jury's verdict. Turning to the 

defendant's second claim of ineffective assistance of counsel, 

the judge found that trial counsel labored under an actual 

conflict of interest with respect to a potential motion to 

suppress the evidence from the police interview, based on her 

own ineffective assistance of counsel at the interview. The 

motion judge held that a new trial was therefore required on 

this additional basis, without a further showing of prejudice, 

because the defendant had not made a voluntary, knowing, and 

intelligent choice to waive the actual conflict of interest. 

The Commonwealth appealed.

2. Discussion. The defendant's direct appeal from his 

conviction of murder in the first degree pursuant to G. L. 

c. 278, § 33E, is not currently before this court. Before us 

now is solely the Commonwealth's appeal from the motion judge's 

allowance of the defendant's motion for a new trial. We 

therefore review the motion judge's decision under our usual 

standard of review following the grant of a new trial. See 

Commonwealth v. Yat Fung Ng, 489 Mass. 242, 247-248 (2022).

We review the allowance of a new trial "to determine 

whether there has been a significant error of law or other abuse 

of discretion" and reverse the motion judge's decision only "if 
15

it is manifestly unjust" (quotations and citation omitted). Yat 

Fung Ng, 489 Mass. at 248. We may affirm on "grounds different 

from those relied upon by the motion judge, so long as the 

correct or preferred basis for the affirmance is supported by 

the record and the findings" (quotation and citation omitted). 

Id. Where, as here, the motion judge did not preside at trial, 

we defer to the motion judge's assessment of the credibility of 

witnesses who testified at the hearing on the motion but regard 

ourselves in as good a position as the motion judge to assess 

the trial record. Id. at 248-249. We accept the motion judge's 

findings of fact if they are supported by the record, which we 

examine in its entirety. Id. at 248.

"The Sixth Amendment to the United States Constitution and 

art. 12 of the Declaration of Rights entitle a defendant to the 

effective assistance of counsel." Commonwealth v. Perkins, 450 

Mass. 834, 850 (2008), quoting Commonwealth v. Martinez, 425 

Mass. 382, 387 (1997). While a defendant's right to counsel 

under the Sixth Amendment "attaches only at the initiation of 

adversary criminal proceedings," a defendant also has a right 

under the Fifth Amendment to "consult with an attorney and to 

have counsel present during questioning" in a custodial 

interrogation. Davis v. United States, 512 U.S. 452, 456-457 

(1994), citing Miranda v. Arizona, 384 U.S. 436, 469-473 (1966). 

The United States Supreme Court has recognized these Miranda 
16

rights as "indispensable to the protection of the Fifth 

Amendment privilege" against self-incrimination. Miranda, supra

at 469. Interpreting the distinct right against selfincrimination in art. 12, this court has placed even "greater" 

emphasis on ensuring that the right to speak with an attorney 

during a custodial interrogation is "'actualize[d]' and 

'substantively meaningful.'" Celester, 473 Mass. at 567, 

quoting Commonwealth v. Mavredakis, 430 Mass. 848, 860 (2000). 

The court in Celester, supra at 567-568, held that "the right to 

the assistance of counsel that art. 12 provides in connection 

with a prearraignment, custodial interrogation is a right to the 

effective assistance of counsel," because "a person's right to 

speak with counsel is not 'actualize[d]' or 'substantively 

meaningful' if counsel fails to provide at least minimally 

competent advice" (emphasis added).

A criminal defendant's right to the effective assistance of 

counsel under art. 12 is a right to "the untrammeled and 

unimpaired assistance of counsel free of any conflict of 

interest." Commonwealth v. Hodge, 386 Mass. 165, 167 (1982), 

quoting Commonwealth v. Michel, 381 Mass. 447, 453 (1980). See 

Strickland v. Washington, 466 U.S. 668, 688 (1984) (counsel's 

"basic duties" include "a duty to avoid conflicts of interest," 

because "[c]ounsel's function is to assist the defendant, and 

hence counsel owes the client a duty of loyalty"). "A defense 
17

counsel makes countless choices, on and off the record, to 

protect a defendant's rights, and we rely on counsel's zealous 

advocacy, unimpeded by a conflict of interest, to ensure that no 

person is punished without fair proceedings; when a counsel's 

professional judgment is impaired by an actual conflict of 

interest, every action, and inaction, is called into question, 

and we cannot be confident that the outcome of the proceedings 

is fair and just." Commonwealth v. Dew, 492 Mass. 254, 264 

(2023). Article 12 therefore entitles a defendant to "the 

undivided loyalty of his counsel to present the defense case 

with full force and zealousness." Perkins, 450 Mass. at 850, 

quoting Commonwealth v. Downey, 65 Mass. App. Ct. 547, 552

(2006).

Thus recognizing that "the assistance of legal '[c]ounsel 

is vital to the adversary process,'" we have long held that, 

where a defendant has shown that counsel was laboring under an 

actual conflict of interest, art. 12 does not require "a showing 

that the conflict had an adverse impact on the defendant." 

Martinez, 425 Mass. at 387-388, quoting Commonwealth v. Connor, 

381 Mass. 500, 503 (1980). Rather, "the conflict alone . . .

renders assistance ineffective," because "[t]he conflict 

engendered in the attorney's own mind may have unmeasurable 

adverse effects on the client's interests." Commonwealth v. 

Rondeau, 378 Mass. 408, 416 n.7 (1979). By contrast, under the 
18

Sixth Amendment, a defendant must show that an actual conflict 

adversely affected counsel's representation. See Cuyler v. 

Sullivan, 446 U.S. 335, 349-350 (1980). Our "more protective 

course" under art. 12 "avoid[s] putting a defendant in the 

untenable position where he would otherwise 'be put to the 

burden, perhaps insuperable, of probing the resolve and the 

possible mental conflict of counsel,'" a burden difficult to 

prove, "particularly as to things that may have been left not 

said or not done by counsel." Martinez, supra at 388, quoting 

Hodge, 386 Mass. at 169-170. Thus, under art. 12, "[o]nce an 

actual conflict of interest has been established, the 

defendant's conviction must be reversed unless . . . the client 

has waived the conflict." Perkins, 450 Mass. at 853.

"An 'actual' or 'genuine' conflict of interest arises where 

the 'independent professional judgment' of trial counsel is 

impaired, either by his [or her] own interests, or by the 

interests of another client." Perkins, 450 Mass. at 852, 

quoting Commonwealth v. Shraiar, 397 Mass. 16, 20 (1986). An 

actual conflict is "one in which prejudice is 'inherent in the 

situation,' such that no impartial observer could reasonably 

conclude that the attorney is able to serve the defendant with 

undivided loyalty" (citation omitted). Commonwealth v. Mosher, 

455 Mass. 811, 819-820 (2010). A defendant bears the burden to 

"detail[] the precise character of the alleged conflict." 
19

Patterson, 432 Mass. at 774, quoting Martinez, 425 Mass. at 389. 

"In determining whether such a conflict exists we look to the 

standards set forth in the applicable codes of professional 

ethics." Commonwealth v. Cousin, 478 Mass. 608, 617 (2018), 

S.C., 484 Mass. 1042 (2020), citing Mass. R. Prof. C. 1.7, as 

appearing in 471 Mass. 1335 (2015). "The critical inquiry is 

whether the lawyer has a competing interest or responsibility 

that 'will materially interfere with the lawyer's independent 

professional judgment in considering alternatives or foreclose 

courses of action that reasonably should be pursued on behalf of 

the client.'" Perkins, supra at 851-852, quoting comment 4 to 

Mass. R. Prof. C. 1.7, 426 Mass. 1330 (1998). Our analysis 

hinges on the particular "attendant facts and circumstances 

surrounding the claimed actual conflict." Cousin, supra at 618.

Here, the defendant claimed, and the motion judge found, 

that trial counsel was burdened by an actual conflict of 

interest in representing the defendant because the 

representation required deciding whether to move to suppress the 

evidence derived from the defendant's counseled police interview 

based on ineffective assistance of counsel by trial counsel 

herself. We discern no error in the motion judge's conclusion 

that the circumstances here did present an actual conflict of 

interest.
20

Under Mass. R. Prof. C. 1.7, as amended, 490 Mass. 1303 

(2022), "a lawyer shall not represent a client if the 

representation involves a concurrent conflict of interest." 

Such a conflict exists where, among other circumstances, "there 

is a significant risk that the representation of one . . . 

client[] will be materially limited . . . by a personal interest 

of the lawyer." Id. While a lawyer's personal interests may 

take many forms, comment 10 to rule 1.7 expressly contemplates 

the species of conflict at issue in this case: "[f]or example, 

if the probity of a lawyer's own conduct in a transaction is in 

serious question, it may be difficult or impossible for the 

lawyer to give a client detached advice." Id. at comment 10.3

We have previously recognized an analogous actual conflict 

arising from a criminal defense lawyer's personal interests 

where the lawyer was in a position to serve as an alibi witness

for his client. In Rondeau, 378 Mass. at 410, a lawyer 

testified at a hearing on the defendant's motion for a new trial 

that the lawyer had sought, and was denied, permission to 

3 While rule 1.7 was amended during the period trial counsel 

represented the defendant, the changes are not material here. 

The version of Mass. R. Prof. C. 1.7 in effect in 2013 stated, 

in relevant part, that "[a] lawyer shall not represent a client 

if the representation of that client may be materially 

limited . . . by the lawyer's own interests." Mass. R. Prof. C. 

1.7 (b), as amended, 430 Mass. 1301 (1999). The sentence 

regarding "the probity of a lawyer's own conduct" contained in 

the current version of comment 10 was formerly in comment 6 of 

the version of rule 1.7 in effect in 2013.
21

withdraw from representing his client so that he could testify 

at trial that he had seen his client at regular intervals at a 

court house on the morning of the armed robbery at issue. The 

motion judge, who was also the trial judge, denied the motion 

for a new trial because the judge did not believe the lawyer's 

account. Id. Declining to disturb the motion judge's 

credibility assessment, this court upheld the denial of the 

defendant's motion for a new trial to the extent it was based on 

the lawyer's "mere failure . . . to testify." Id. at 413. We 

nevertheless ordered a new trial based on the "insoluble 

dilemma" created by the lawyer's "decision to remain as 

counsel," where "appearing as a witness would have placed him 

'in the unseemly and ineffective position of arguing his own 

credibility.'" Id. at 415, quoting American Bar Association 

Code of Professional Responsibility and Canons of Judicial 

Ethics, Ethical Consideration 5-9. We found that "[s]trong 

personal pressures would inevitably counsel against" the 

attorney choosing to testify, while "failure to testify might 

foreseeably deprive the defendant of relevant alibi evidence 

that the jury could weigh together with other evidence." 

Rondeau, supra at 416. "In short," we concluded, "testifying 

would likely embarrass the advocate, whereas not testifying 

would embarrass the client." Id. Accord Commonwealth v. 

Delnegro, 91 Mass. App. Ct. 337, 345-347 (2017) (rule 1.7
22

required counsel's withdrawal due to actual conflict of interest

where counsel had "significant involvement as a participant and 

witness in both incidents leading to the defendant's arrests," 

police testimony "portray[ed] her in a less than flattering 

light," and probity of her conduct was in question).4

Here, trial counsel faced a conflict in which prejudice was 

similarly "'inherent in the situation,' such that no impartial 

observer could reasonably conclude that the attorney [was] able 

to serve the defendant with undivided loyalty" in working to

obtain an acquittal on his behalf (citation omitted). Mosher, 

455 Mass. at 819-820. The circumstances here necessitated, at a 

minimum, a strategic decision by trial counsel regarding whether 

to pursue a motion to suppress on grounds of ineffective 

assistance of counsel. Trial counsel did not immediately 

terminate the defendant's police interview once she first 

learned that it pertained to a homicide investigation, nor pause 

at that time to speak with her client about the risks of 

proceeding. Instead, the interview went forward, and trial 

4 In addition to raising conflict concerns under rule 1.7, 

the prospect of a lawyer appearing as a witness at his or her 

client's trial also implicates Mass. R. Prof. C. 3.7, as 

amended, 490 Mass. 1309 (2022) ("A lawyer shall not act as 

advocate at a trial in which the lawyer is likely to be a 

necessary witness," subject to certain exceptions). See, e.g., 

Delnegro, 91 Mass. App. Ct. at 343-345 (lawyer was necessary 

witness and therefore could not represent defendant at trial 

under rule 3.7).
23

counsel again did not terminate the interview, nor in their 

hallway conversation5 convince the defendant to terminate the 

interview, when the defendant made statements -- that he did not 

own a cell phone nor use a telephone number that trial counsel 

recognized to be his -- that trial counsel immediately 

recognized as untruthful. Cf. Celester, 473 Mass. at 571-572, 

quoting American Bar Association Standards for Criminal Justice, 

Defense Function, Standard § 4-3.7(a) (4th ed. 2015) ("Defense 

counsel should inform the client of his or her rights in the 

criminal process at the earliest opportunity, and . . . take 

necessary actions to vindicate such rights"). The defendant's 

misstatements not only were potential evidence of consciousness 

of guilt but also independently risked criminal liability; 

willfully misleading a police officer "with the intent to or 

with reckless disregard for the fact that it may . . . impede, 

5 Trial counsel's testimony at the motion hearing did not 

include a detailed account of the substance of this hallway 

conversation with her client, and accordingly the motion judge 

did not make factual findings regarding what was said. The 

record contains contradictory evidence regarding whether trial 

counsel paused the interview at that time: an officer testified 

at the motion hearing that he did not recall the defendant and 

trial counsel leaving the room at any time prior to the exchange 

regarding the cut on the defendant's finger; the police report 

recounting the interview does not mention this pause; and the 

defendant's affidavit submitted with his motion for a new trial 

denies that counsel paused the interview or spoke with him at 

this juncture. The motion judge nevertheless found that a pause 

occurred, a finding we do not disturb because it is supported by 

testimony from trial counsel that the motion judge evidently 

credited. See Yat Fung Ng, 489 Mass. at 248.
24

obstruct, delay, prevent or otherwise interfere with[] a 

criminal investigation" is a felony. G. L. c. 268, § 13B (b). 

The circumstances of the interview thus raised, at the least, a 

serious question regarding trial counsel's performance 

sufficient to warrant considering pursuit of a motion to 

suppress on ineffective assistance of counsel grounds.6

Yet trial counsel also had an obvious "competing interest" 

of her own that "materially interfere[d] with [her] independent 

professional judgment in considering" whether to file a motion 

to suppress on the defendant's behalf: such a motion would 

inherently call into question her own professional competence. 

Perkins, 450 Mass. at 851-852, quoting comment 4 to Mass. R. 

Prof. C. 1.7, 426 Mass. 1330 (1998). In the circumstances of 

this case, "the probity" of trial counsel's "own conduct" would 

be put "in serious question" by the motion to suppress, where, 

amidst a homicide investigation, trial counsel failed to end the 

defendant's police interview even after the defendant made 

6 We express no view concerning whether such a motion to 

suppress would or should have been granted if it had been filed, 

nor concerning the Commonwealth's argument, in disputing the 

motion judge's grant of a new trial on the separate ground that 

the defendant received ineffective assistance of counsel under

Saferian, 366 Mass. at 96, that declining to file such a motion 

to suppress was not a manifestly unreasonable strategic decision 

by trial counsel. Our concern here is "the conflict alone." 

Rondeau, 378 Mass. at 416 n.7. See Patterson, 432 Mass. at 780 

n.18 ("The very problem with an attorney's conflict of interest 

is that the attorney's judgment about strategic choices is 

clouded by conflict").
25

statements to the police that counsel immediately recognized to 

be falsehoods, and the interview instead went on to yield 

additional inculpatory evidence. Comment 10 to Mass. R. Prof. 

C. 1.7 (a), as amended, 490 Mass. 1303 (2022). For this reason, 

the motion judge correctly found that trial counsel's own 

personal interests as a practicing attorney would materially 

interfere with her independent professional judgment in 

considering whether to file such a motion to suppress, and that, 

burdened by this actual conflict, she could not pursue any such 

motion with the "full force and zealousness" we require of 

criminal defense counsel (quotation omitted). Perkins, supra at 

850. Such a motion would, moreover, place trial counsel in the 

inherently ineffectual position of arguing to the court that she 

herself performed deficiently. See Rondeau, 378 Mass. at 415. 

We therefore see no error in the motion judge's conclusion that 

"no impartial observer could reasonably conclude that" trial 

counsel would be "able to serve the defendant with undivided 

loyalty" in the circumstances of this case. Mosher, 455 Mass.

at 819-820.

While our conclusion that trial counsel did labor under an 

actual conflict of interest is founded upon the particular 

factual circumstances here, this conclusion is consistent with 

the holdings of a number of other courts that "'forcing trial 

counsel to prove [counsel's] own ineffectiveness' create[s] a 
26

conflict of interest." Lesko v. Secretary Pa. Dep't of 

Corrections, 34 F.4th. 211, 226 (3d Cir. 2022), quoting United 

States v. Del Muro, 87 F.3d 1078, 1080 (9th Cir. 1996) (per 

curiam) (surveying additional such decisions). In Lesko, supra, 

for example, the United States Court of Appeals for the Third 

Circuit concluded that the defendant's trial counsel had 

operated under a conflict of interest that effectively prevented 

him from raising in the defendant's earlier State and initial 

Federal habeas proceedings a potential claim that trial counsel 

had interfered with the defendant's right to testify. Raising 

such a claim "'would have required [counsel] to denigrate [his] 

own performance' -- something he 'cannot reasonably be expected 

to' do." Lesko, supra, quoting Christeson v. Roper, 574 U.S. 

373, 378 (2015). In so holding, the court likewise relied in 

part on the principle that, "if the probity of a lawyer's own 

conduct in a transaction is in serious question, it may be 

difficult or impossible for the lawyer to give a client detached 

advice." Lesko, supra, quoting American Bar Association Model 

Rules of Professional Conduct 1.7 comment 10. See, e.g.,

Christeson, supra at 378-379 (petitioner entitled to new 

substitute counsel where counsel could not "reasonably be 

expected to" denigrate counsel's own performance in arguing for 

tolling of statute of limitations based on counsel's 

miscalculation of deadline); State v. Taylor, 1 S.W.3d 610, 612 
27

(Mo. Ct. App. 1999) ("An accused is entitled to representation 

which is uncluttered by counsel's efforts to vindicate his own 

conduct" [citation omitted]).

Concluding for this same reason that trial counsel had an 

actual conflict of interest in representing the defendant in 

this prosecution, we need not reach the additional 

considerations mentioned by the motion judge and disputed by the 

Commonwealth, that trial counsel had an actual conflict because 

the filing of such a motion to suppress risked harming her 

professional reputation and future financial interests. The 

question whether a hypothetical motion to suppress filed by 

trial counsel posed sufficient threat to her reputational or 

financial interests as to create an actual conflict of interest 

is academic, where it is otherwise so plain that trial counsel 

could not ethically represent the defendant in connection with 

such a motion. In our view, the actual conflict burdening trial 

counsel in the circumstances of this case stemmed from the 

difficulty or impossibility of giving her client the benefit of 

a lawyer's detached and independent advice and the zealous 

defense to which he was entitled, where her client's defense 

required considering whether and how to attack the adequacy of 

her own professional performance at his police interview. 

Nothing further is required to establish the existence of an 

actual conflict of interest here.
28

We discern no error in the motion judge's further 

conclusion that the defendant did not validly waive this actual 

conflict of interest. Even "where an actual conflict of 

interest is established, the defendant 'may consent to continued 

representation by his attorney so long as his consent is 

voluntarily, knowingly, and intelligently made'" (quotation 

omitted). Perkins, 450 Mass. at 853, quoting Martinez, 425 

Mass. at 392. "Because [c]ounsel's undivided loyalty to the 

client is crucial to the integrity of the entire adversary 

system, . . . this waiver by the defendant must be clear and 

unambiguous" (quotation omitted). Id. While the parties did 

extensively discuss before trial a potential conflict of 

interest arising from trial counsel's presence at the 

defendant's police interview, that conflict was distinct: a 

risk that, depending on the evidence admitted at trial, trial 

counsel ought to be called as a witness to dispute another 

witness's account of the interview. See Patterson, 432 Mass. at 

777-779. Although trial counsel took the position that this 

eventuality was unlikely, the defendant underwent repeated 

colloquies confirming his wish to be represented by trial 

counsel notwithstanding her status as a potential trial witness.7 

7 In addressing this potential conflict, the judges involved 

in this case appropriately acknowledged the defendant's right to 

choose his own counsel under art. 12 and the Sixth Amendment. 
29

While these colloquies thoroughly plumbed the defendant's 

understanding of the Patterson issue, none addressed or even 

mentioned a conflict of interest pertaining to the adequacy of 

counsel's performance at the police interview.

Nor can we find a waiver of the actual conflict here based 

on the fact that one judge, shortly before trial, did briefly 

question whether our decision in Celester, 473 Mass. at 567-568,

had a bearing on his earlier decision that trial counsel could 

continue to represent the defendant. In an exchange with the 

prosecutor and trial counsel on the morning Celester was 

decided, the judge mentioned the decision; noted that, unlike in 

this defendant's case, in Celester a murder warrant had been 

issued for the defendant at the time of the police interview; 

and suggested that further discussion of Celester could occur at 

a later date once the prosecutor and trial counsel had a chance 

to review the decision. However, no subsequent conversation 

related to Celester ever occurred on the record, nor did any 

colloquy with the defendant concerning an actual conflict 

arising from trial counsel's performance at the police 

interview. The record thus does not reflect that the defendant 

provided a voluntary, knowing, and intelligent waiver of trial 

counsel's actual conflict of interest.

See Commonwealth v. Francis, 485 Mass. 86, 95-97 (2020), cert. 

denied, 141 S. Ct. 2762 (2021).
30

The defendant is therefore "entitled to a new trial under 

art. 12 without a further showing of prejudice." Commonwealth

v. Tate, 490 Mass. 501, 518 (2022). Affirming the grant of a 

new trial on this basis, we do not reach the question whether 

the motion judge committed an error of law or abused his 

discretion in further concluding that, even aside from counsel's 

actual conflict requiring reversal without consideration of 

prejudice, a new trial was also warranted on the basis of 

ineffective assistance of counsel under our usual standard for 

assessing such claims set forth in Saferian, 366 Mass. at 96. 

Rather, we remand for a new trial at which the defendant shall 

be represented by unconflicted counsel.

Order allowing motion for a 

new trial affirmed.