Moore v. Hinkle

Present: Carrico, C.J., Compton, 1 Lacy, Hassell, Keenan, Koontz,
and Kinser, JJ.

SYLVESTER MOORE
OPINION BY
v. Record No. 990912 JUSTICE LAWRENCE L. KOONTZ, JR.
March 3, 2000
GEORGE M. HINKLE, WARDEN

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
F. Bruce Bach, Judge

In this appeal from the denial of a petition for writ of

habeas corpus in the trial court, we primarily consider whether

an attorney’s failure to prepare adequately for trial because of

professional and personal concerns constitutes a “conflict of

interest” with respect to his representation of the client,

resulting in a presumption of prejudice to the client, and

requiring that the conviction of the client be vacated.

BACKGROUND

On March 18, 1996, the grand jury of the Circuit Court of

Fairfax County (the trial court) returned an indictment against

Sylvester Moore for the abduction of Nina C. Heckler with intent

to defile in violation of Code § 18.2-48. On July 30, 1996, the

trial court conducted a jury trial on the indictment. Moore was

represented by his retained counsel, Dominick A. Pilli. Moore

elected not to testify or put on any other evidence at this

1
Justice Compton participated in the hearing and decision of
this case prior to the effective date of his retirement on
February 2, 2000.
trial. The jury was unable to reach a unanimous verdict and,

consequently, the trial court declared a mistrial. The case was

continued for retrial on September 9, 1996.

In the six weeks between the mistrial and the scheduled

retrial, Pilli devoted his time exclusively to other

professional matters, travelling out of state on business “for

another practice” during the first half of August. While Pilli

was out of state, his grandmother died. Pilli delayed his

return to Virginia for another two weeks, returning to Virginia

on September 5, 1996.

During Pilli’s absence, Moore repeatedly contacted Pilli’s

office by telephone, leaving messages for Pilli. In these

messages, Moore indicated that he believed he had a “valid

defense” and that he wanted Pilli to prepare a motion to

suppress a statement Moore had made to the police and a motion

to exclude Moore’s prior criminal record. Moore further

expressed a desire to present “his side of the story” through

his own testimony.

On Friday, September 6, 1996, Pilli filed a motion for a

continuance, asserting that he had not had time to prepare the

motions Moore had requested or to discuss with Moore his desire

to testify. In arguing for the continuance, Pilli was candid in

stating that his “family was more important” to him than his

duty to Moore. The Commonwealth opposed any continuance because

2
Heckler had moved to Texas and had to make special arrangements

with her employer to return for trial.

The trial court denied the motion for a continuance,

indicating that a written motion to suppress could be heard on

the morning of trial. Pilli then stated that he would not be

able to adequately represent Moore and requested to withdraw as

Moore’s counsel. The trial court indicated that his motion to

withdraw could also be considered on the day of trial and that

Pilli should “spend a good deal of the weekend working on the

case.”

On Monday, September 9, 1996, Pilli arrived late for court

and again requested a continuance, asserting that he had not had

time to prepare the suppression, exclusion, and withdrawal

motions and had not been able to consult with Moore except

briefly the previous day. Pilli further asserted that if the

trial court would not grant the continuance, he would ask the

trial court to permit him to withdraw because “Mr. Moore is not

going to want me as his counsel.” The trial court denied both

the motion for a continuance and the motion to withdraw. Pilli

then responded, “Your Honor, I’m not going to be able to do a

trial today. I think it would be ineffective assistance of

counsel for Mr. Moore.” Pilli further stated that “emotionally

and mentally, . . . I’m not prepared.”

3
 Thereafter, Moore, who was wearing jail clothing, was

brought to the courtroom. The trial court asked if he had been

given the opportunity to dress in street clothes, and Moore

responded that he “would like to address the court.” Moore

contended that he had not dressed in street clothes because “Mr.

Pilli wasn’t all for my case.” Moore then asked the trial court

to permit Pilli to withdraw and appoint new counsel because “I

ain’t getting no fair trial, cause he’s not ready.”

The trial court asked Pilli to explain again why he was not

prepared for trial. Pilli reiterated that his “unique practice”

required him to travel and that following the death of his

grandmother he had focused his attentions on his personal life.

Pilli indicated that when Moore had contacted him about the

case, Pilli had told Moore, “Mr. Moore, at this time I just

don’t care.” Pilli further told the trial court that “I still

don’t [care] right now . . . . I cannot sit down right now and

just concentrate on this case.”

The trial court denied Moore’s motion, stating that neither

Moore nor Pilli had adequately explained why Pilli would not be

able to represent Moore in a retrial of a case Pilli had tried

only six weeks before. Pilli again asserted that “I cannot have

a trial today . . . I just can’t do a trial today.” The trial

court indicated that Pilli was “verging right on the border of

contempt.” After another extended colloquy between Pilli and

4
the trial court, Pilli concluded by stating “Mr. Moore does not

want me to represent him.” The trial court indicated that it

would not change its prior ruling and that the matter would have

to be resolved on appeal.

After Moore entered a plea of not guilty, he again told the

trial court that he was not satisfied with Pilli’s

representation and that he was not ready for trial. The trial

court proceeded with the trial. Pilli actively participated in

the voir dire of the potential jurors and made an opening

statement. The Commonwealth called Heckler as its first

witness. During the direct examination of Heckler, Pilli raised

an objection to certain aspects of her testimony. The trial was

recessed for the day before the conclusion of the Commonwealth’s

direct examination of Heckler.

The following morning, Pilli was again late for court.

When the trial court requested an explanation, Pilli asserted

that he “had five cases to get continued this morning” and

complained that the trial court was not sympathetic to his

circumstances, stating, “I’m about at the edge with you. I’m

trying to be proper. I know I’m stepping on the bounds, but I

did . . . .” At that point, the trial court interrupted Pilli

and held him in summary contempt of court.

The trial continued, with Pilli again actively

participating in cross-examination of Heckler and the

5
Commonwealth’s other witnesses. The evidence as developed at

trial showed that Moore, a stranger to Heckler, had entered her

vehicle while she was stopped at a gasoline station. Although

Heckler screamed for him to get out of the car, Moore refused.

Heckler drove for several blocks hoping that Moore would then

leave the car. Heckler stopped at another gasoline station, got

out of her car, and demanded that Moore leave the vehicle.

Moore responded that she should “[g]et back in the car, or I’m

going to kill you.” Heckler obeyed and after driving several

more blocks, Moore grabbed Heckler’s thigh and told her that he

planned to engage in sexual activity with her.

Heckler was ultimately able to escape from Moore by

feigning acquiescence and then taking refuge in the home of a

stranger who assisted her in calling the police. Moore

attempted to follow Heckler inside this home, but was arrested

outside the home by police responding to Heckler’s call. In a

statement to police, Moore admitted that he had “been smoking

marijuana and drinking and that he just got into the car to get

himself together.” Moore denied touching Heckler and making

sexually suggestive comments to her.

At the conclusion of the Commonwealth’s evidence, Pilli

made a motion to strike the Commonwealth’s evidence, which was

denied. Pilli then indicated that the defense would not present

any evidence. Pilli offered jury instructions, opposed the

6
Commonwealth’s instructions, and made a closing statement to the

jury. After the jury returned a verdict against Moore, the

Commonwealth, without objection, presented evidence of Moore’s

prior criminal record. Pilli presented no evidence during the

sentencing phase, but did argue to the jury that Moore was a

“productive citizen” and that the jury should impose a lenient

sentence.

The jury returned a verdict for life imprisonment. The

trial court confirmed the verdict and sentenced Moore to a term

of life imprisonment, suspending all but ten years of the

sentence.

Moore filed an appeal in the Court of Appeals of Virginia

asserting, inter alia, that the trial court erred in denying the

two motions for continuances and that Pilli had been ineffective

as counsel. The Court of Appeals refused Moore’s petition with

respect to the continuances issue, holding that “[d]espite

[Pilli’s] assertion that he was unprepared for trial, he never

demonstrated how the circumstances had changed after having

represented [Moore] at trial six weeks earlier . . . [Pilli] did

not proffer the evidence he claimed [Moore] wanted him to

present at the second trial, nor did he vouch how that evidence

might affect his representation of [Moore].” The Court further

noted that claims of ineffective assistance of counsel may not

be raised on direct appeal. Although Moore was awarded an

7
appeal on another issue, he subsequently sought to withdraw his

appeal, and the appeal was ultimately dismissed for failure to

file an opening brief.

On October 26, 1998, Moore filed a pro se petition for a

writ of habeas corpus in the trial court. In a supporting

brief, Moore asserted that Pilli’s representation of Moore had

been adversely affected by a “conflict of interest” as a result

of Pilli’s having devoted his time between Moore’s first and

second trial to other professional and personal matters. 2 Moore

contended that Pilli’s efforts on Moore’s behalf in the second

trial fell below the acceptable standard for effective

assistance of counsel, and, since the ineffective representation

arose from a conflict of interest, no showing of actual

prejudice to his case was required to establish that he had not

received a fair trial. Moore further contended that if a

showing of prejudice was required, Pilli’s failure to counsel

Moore about his right to testify or to prepare him to testify,

Pilli’s failure to prepare and present the motions to suppress

Moore’s statement to the police and to exclude his prior

2
In the petition, Moore also made reference to the fact that
on January 9, 1998, in response to a complaint filed by Moore,
the Virginia State Bar took disciplinary action in the form of a
private reprimand with terms against Pilli. We note, however,
that a determination that a disciplinary rule has been violated
does not in itself establish that the conduct in question fell
below the constitutional standard for effective assistance of
counsel. Jones v. Barnes, 463 U.S. 745, 753 n.6 (1983).

8
criminal record, Pilli’s failure to conduct “meaning[ful] cross-

examination of the complaining witness,” and Moore’s loss of

opportunity to appear before the jury in street clothes, were

all inherently prejudicial to Moore’s case. 3

The Commonwealth responded to Moore’s petition by filing a

motion to dismiss. Without conceding that Pilli’s

representation of Moore was ineffective, the Commonwealth

contended that there was no “conflict of interest” in Pilli’s

representation of Moore since both were united in their request

for a continuance and Moore voiced no objection to Pilli’s

continuing representation if that continuance were granted. The

Commonwealth further contended that if Pilli’s representation

was nonetheless ineffective, Moore had failed to demonstrate

actual prejudice by showing that the motions to suppress Moore’s

statement to the police and to exclude his prior criminal record

were meritorious. Similarly, the Commonwealth contended that

Moore failed to proffer the evidence he would have given if

allowed to testify, or what other evidence Pilli might have

developed on cross-examination of the Commonwealth’s witnesses

or by direct examination of witnesses not called. The

3
Throughout these proceedings, Moore did not proffer any
evidence to support his requested motions to suppress his
statements to the police or to exclude his prior criminal record
or in support of his “valid defense” that had not been advanced
during the first trial.

9
Commonwealth did not address Moore’s contention that appearing

in jail clothing was prejudicial to his case.

On February 9, 1999, the trial court granted the

Commonwealth’s motion to dismiss. In doing so, the trial court

conducted an independent review of the trial record, but did not

hold an evidentiary hearing. In the order dismissing the

petition, the trial court incorporated into the record by

reference the record of Moore’s second trial. This appeal

followed.

DISCUSSION

In order to prove a claim of ineffective assistance of

counsel, the defendant must first demonstrate that his

attorney’s conduct “fell below an objective standard of

reasonableness.” Strickland v. Washington, 466 U.S. 668, 688

(1984). Furthermore, the defendant bears the burden of showing

not only that his counsel’s performance was deficient but also

that he was actually prejudiced as a result. Murray v.

Griffith, 243 Va. 384, 388, 416 S.E.2d 219, 221 (1992). In

order to establish prejudice, the evidence must show that “there

is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different.” Strickland, 466 U.S. at 694. However,

prejudice will be presumed where “an actual conflict of interest

adversely affected [the] lawyer’s performance.” Cuyler v.

10
Sullivan, 446 U.S. 335, 350 (1980). An actual conflict of

interest exists when the attorney’s interests and the

defendant’s interests “diverge with respect to a material

factual or legal issue or to a course of action.” Id. at 356

n.3.

A. Pilli’s Conduct as an Attorney

When a petition for a writ of habeas corpus raises the

question of ineffective assistance of counsel, the initial

inquiry must be whether the attorney’s representation was so

deficient as to fall below the minimum acceptable standard of

care and skill which a reasonably competent attorney would

exercise under the factual circumstances of the particular case. 4

The Commonwealth contends that under the standard discussed in

Strickland, Moore has failed to establish that Pilli’s

representation was deficient. We disagree.

4
The Commonwealth contends that Moore failed to raise the
issue of whether Pilli’s representation of Moore constituted
ineffective assistance of counsel in the absence of a conflict
of interest within the question presented by his petition for a
writ of habeas corpus. However, Moore’s claim of prejudice
arising from a conflict of interest necessarily includes a claim
of ineffective assistance of counsel generally. Moreover, the
thrust of Moore’s argument in his supporting memorandum clearly
implicates the alternative theories of prejudice arising from a
conflict of interest and actual prejudice, the Commonwealth
responded to both of these arguments in its motion to dismiss,
and the trial court ruled on each theory when granting the
motion to dismiss. Accordingly, we hold that Moore adequately
preserved both issues for appeal, and we will address both
issues in this opinion.

11
 In Strickland, the Supreme Court said that “the defendant

must show . . . that counsel made errors so serious that counsel

was not functioning as the ‘counsel’ guaranteed the defendant by

the Sixth Amendment.” Strickland, 466 U.S. at 687. The Court

cautioned, however, against second-guessing counsel’s

representation through hindsight. Instead, the Court stated

that “a court deciding an actual ineffectiveness claim must

judge the reasonableness of counsel’s challenged conduct on the

facts of the particular case, viewed as of the time of counsel’s

conduct.” Id. at 690. Furthermore, the Court recognized that

“[t]he reasonableness of counsel’s actions may be determined or

substantially influenced by the defendant’s own statements or

actions.” Id. at 691.

Here, the record clearly demonstrates that Pilli’s conduct

prior to the retrial fell well below any acceptable standard of

reasonable and adequate preparation for trial. Although Pilli’s

desire to attend to his other area of practice and the

unforeseen family responsibilities that arose thereafter were

understandable impediments to his ability to give his full

attention to Moore’s case, the fact remains that until four days

prior to the retrial Pilli had no direct communication with

Moore and had done nothing to prepare for the retrial.

Moreover, despite the trial court’s willingness to allow Pilli

to prepare the suppression and withdrawal motions over the

12
intervening weekend and to argue them prior to trial, Pilli made

no effort to take advantage of this opportunity. These tasks

are clearly within the ability of a reasonably competent

attorney. Pilli’s explanation for his lack of conscientiousness

does not excuse his failure to comport with minimal professional

standards.

Similarly, despite the fact that Pilli actively

participated in the trial as it developed, the record

demonstrates that Pilli did not represent Moore in accordance

with Moore’s wishes. Nothing in the record suggests that

Pilli’s failure to present the requested motions or to call

Moore to testify on his own behalf resulted from strategic

decisions made by Pilli. Rather, as Pilli’s and Moore’s own

comments demonstrate, Pilli simply had no regard for Moore’s

requests and no desire to do more than “go through the motions”

of representing Moore during the trial.

Based on the foregoing facts, we conclude that Pilli’s

actions were not acceptable conduct for an attorney and amounted

to a deficient representation of Moore during his second trial.

B. The “Conflict of Interest” Issue

As noted above, to prevail on the constitutional claim of

ineffective assistance of counsel, Moore must demonstrate that

Pilli’s deficient conduct resulted in prejudice to him, either

because it arose from an actual conflict of interest or because

13
the failure to present evidence or to prevent the Commonwealth

from presenting evidence would have altered the jury’s verdict.

Moore first contends that Pilli’s attention to other matters,

professional and personal, constitutes a “conflict of interest”

which gives rise to the presumption of prejudice. We disagree.

An actual conflict of interest exists where counsel has

responsibilities to other clients or personal concerns that are

actively in opposition to the best interests of the defendant.

See Strickland, 466 U.S. at 692; Cuyler, 446 U.S. at 349-50. An

actual conflict may arise, for example, in the circumstance of

counsel’s representation of more than one defendant in

connection with the same criminal charge, see, e.g., Cuyler, 446

U.S. at 348; Holloway v. Arkansas, 435 U.S. 475, 482 (1978), or

where a defendant’s counsel has a professional relationship with

the prosecution. See, e.g., United States v. Goot, 894 F.2d

231, 236-37 (7th Cir.), cert. denied, 498 U.S. 811 (1990).

Nothing in the record suggests that Pilli’s other practice

obligation or his family responsibilities conflicted with his

representation of Moore in the sense that these matters were in

opposition to the best interests of Moore. Rather, these were

matters that simply competed for Pilli’s time. In this respect,

Pilli is no different from any other attorney who must manage

professional and personal responsibilities. The mere fact that

an attorney fails to properly manage his time, resulting in the

14
interests of some clients being addressed to the detriment of

others or the interests of all being subordinated to the

attorney’s personal concerns, does not give rise to an “actual

conflict of interest” in the context of a claim of ineffective

assistance of counsel.

Moreover, while such mismanagement may give rise to a

possible disciplinary complaint against the attorney, an

attorney’s desire to protect himself against a later charge of

ineffective assistance of counsel, standing alone, does not

constitute a per se conflict of interest. See O’Dell v.

Commonwealth, 234 Va. 672, 688, 364 S.E.2d 491, 500, cert.

denied, 488 U.S. 871 (1988); Carter v. Commonwealth, 16 Va. App.

42, 47, 427 S.E.2d 736, 740 (1993). Here, the record

demonstrates that Pilli was fully cognizant of the possibility

that he might be subject to a charge of ineffective assistance

of counsel by Moore, and, accordingly, there can be no

presumption that Pilli would have acted to conceal his alleged

misbehavior to Moore’s detriment. See Carter, 16 Va. App. at

47, 427 S.E.2d at 740. To the contrary, Pilli was wholly

forthcoming to both Moore and the trial court in expressing his

belief that he was not able adequately to represent Moore.

Accordingly, we hold that Moore has failed to demonstrate

that Pilli had an actual conflict of interest that would give

15
rise to a presumption of prejudice to the outcome of Moore’s

second trial.

C. Actual Prejudice

Finally, Moore contends that, even if Pilli’s deficient

representation did not arise from an actual conflict of

interest, the record supports a finding that Moore was actually

prejudiced by Pilli’s representation. We disagree.

Moore’s burden in the trial court was to show that there

was a “reasonable probability” that but for Pilli’s deficient

representation the outcome of the trial would have been

different. In order to demonstrate this reasonable probability,

a petitioner must not simply indicate what actions a competent

attorney would have taken on his behalf, but also show that the

impact of those actions would almost certainly have resulted in

the reduction of the charge against him or in his acquittal.

Moore first points to Pilli’s failure to prepare for trial

and to meet with him at length. As discussed above, this lack

of diligence on Pilli’s part contributed to his inability to

provide Moore with effective representation. However, these

failures do not in and of themselves demonstrate prejudice to

Moore’s case. The record must show what a reasonably competent

attorney would have accomplished by avoiding them.

Moore contends that had Pilli adequately prepared for trial

and consulted with Moore, Moore would have been able to testify

16
in his own behalf. However, the record is devoid of any

evidence or proffer of what Moore would have testified had he

decided to do so. The record contains only the bare assertion

that Moore believed he had a “valid defense” and wanted to tell

the jury “his side of the story.”

During oral argument, Moore’s counsel conceded that the

record was insufficient to establish that Moore might have given

credible testimony to rebut the Commonwealth’s evidence.

Counsel asserted, however, that a reasonable inference from the

record would be that Moore would have, at a minimum,

affirmatively stated his innocence and that this testimony might

have influenced the jury in his favor. However, the wholly

speculative nature of what effect such testimony might have had

on the jury, being nothing more than a reiteration of Moore’s

plea of not guilty, is so remote as to fall well short of the

standard of “reasonable probability” needed to find actual

prejudice to the outcome of Moore’s trial.

Moore further contends that he was prejudiced by appearing

in jail clothing rather than in street clothes. Moore asserts

that having lost confidence in his attorney, his decision to

forego appearing in street clothes arose from Pilli’s

ineffective representation. Although the Commonwealth failed to

address this issue at trial or on appeal, the record is clear

that Moore was afforded the opportunity to change into street

17
clothes, but voluntarily declined to do so. Regardless of his

motivation for so doing, under the “invited error” doctrine

Moore may not benefit from his voluntary choice to place himself

at a disadvantage. See, e.g., Saunders v. Commonwealth, 211 Va.

399, 400, 177 S.E.2d 637, 638 (1970); Clark v. Commonwealth, 202

Va. 787, 791, 120 S.E.2d 270, 273 (1961); Hundley v.

Commonwealth, 193 Va. 449, 454, 69 S.E.2d 336, 339 (1952).

In the concluding paragraph of his brief, Moore recounts

without elaboration Pilli’s other failures as counsel, including

the failure to file the suppression motion, the lack of

“meaningful cross-examination” of the victim, and the failure to

present any evidence during the sentencing phase of the trial.

In each of these instances, the record contains nothing from

which we can determine what the content or import of these

actions would have been had Pilli carried through with Moore’s

instruction to oppose the introduction of his statement, pursue

a more vigorous cross-examination, or put on evidence relevant

to sentencing. In short, Moore relies on the facts that

establish Pilli’s deficient representation, rather than pointing

to any meaningful evidence that he was prejudiced by that

representation.

The Commonwealth’s evidence at trial fully supports the

jury’s verdict, and nothing in the record of the subsequent

habeas corpus proceeding contradicts that evidence.

18
Accordingly, we hold that Moore has failed to establish that

Pilli’s deficient representation prejudiced his case such that

there was a “reasonable probability” that the outcome of the

trial would have been different.

CONCLUSION

For these reasons, we hold that the trial court did not err

in dismissing Moore’s petition for writ of habeas corpus.

Accordingly, the judgment will be affirmed.

Affirmed.

19