Commonwealth v. Cousin (Lawyers Weekly No. 10-004-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12252 COMMONWEALTH vs. JOSEPH COUSIN. Suffolk. September 5, 2017. – January 11, 2018. Present: Gants, C.J., Lenk, Gaziano, Lowy, Cypher, & Kafker, JJ. Conflict of Interest. Attorney at Law, Conflict of interest. Practice, Criminal, Assistance of counsel. Indictments found and returned in the Superior Court Department on September 4, 2002. The cases were tried before Nancy Holtz, J., and a motion for a new trial, filed on March 1, 2013, was heard by Janet L. Sanders, J. The Supreme Judicial Court granted an application for direct appellate review. Amanda Teo, Assistant District Attorney (David J. Fredette, Assistant District Attorney, also present) for the Commonwealth. Robert F. Shaw, Jr., for the defendant. LOWY, J. Following a jury trial in the Superior Court, the defendant, Joseph Cousin (Cousin), was convicted of murder in the second degree. Cousin filed a motion for a new trial, claiming that his trial counsel was ineffective because he was burdened by an actual conflict of interest. A Superior Court judge granted Cousin’s motion for a new trial. The Commonwealth appealed, and we allowed its application for direct appellate review.[1] The issue before this court is whether Cousin presented sufficient evidence to establish that his trial counsel was burdened by an actual conflict of interest. Although Cousin has set forth the basis for what may well constitute a potential conflict of interest, we conclude that he failed to meet his burden of demonstrating that his trial counsel was operating under an actual conflict of interest. Therefore, we vacate the allowance of Cousin’s motion for a new trial and remand the case to the Superior Court for further proceedings to determine whether there was a potential conflict causing prejudice that would warrant a new trial. Prior proceedings and background. We briefly indicate the nature of Cousin’s criminal case, followed by a summary of the facts pertinent to Cousin’s conflict claim, as they were found by the judge. We also reserve certain facts for later discussion. Following an investigation by the Boston police department (BPD) homicide division, Cousin and another man were charged with murder for the shooting death of a young girl. In 2004, Cousin and his codefendant were tried jointly for the murder, and the jury acquitted the codefendant. The jury were deadlocked concerning […]