Banton v. State
| Decision Date | 26 March 1985 |
| Docket Number | No. 2-884-A-267PS,2-884-A-267PS |
| Citation | 475 N.E.2d 1160 |
| Parties | David S. BANTON, Appellant (Defendant), v. STATE of Indiana, Appellee (Plaintiff). |
| Court | Indiana Appellate Court |
David S. Banton, pro se.
Linley E. Pearson, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.
David S. Banton (Banton) appeals 1 from two judgments convicting him of first degree burglary 2 and conspiracy to commit a felony, 3 claiming the court erred by denying his motion to disqualify the prosecutor, by denying his motion for change of venue from the judge, by denying his motion for discharge, by denying his motion to compel election, and by rejecting a plea agreement. Banton also asserts the court committed fundamental error by denying his belated motion to correct error and by accepting the State's response to that motion.
We reverse.
On September 23, 1975, William Harrison (Harrison), a police informant, and Donald Chadwell (Chadwell) broke into the Tippecanoe County home of the Dana-Bashian family and absconded with a coin collection. This perfidious undertaking resulted from instructions given and information provided by Banton. They then delivered the coin collection to Banton's home, where he paid them for their services. This same duo had executed a similar operation the previous evening at the home of Henry Silver (Silver). Chadwell was arrested after leaving Banton's house on September 26, 1975. Banton's home was searched later the same evening or in the early morning hours of September 27, 1975, resulting in the recovery of the booty from the Dana-Bashian and Silver burglaries.
Banton and Chadwell were both charged, on September 29, 1975, with two counts each of burglary and conspiracy to commit burglary, docketed under cause number C-4030 in the Tippecanoe Circuit Court, the same cause which is the subject of this appeal.
Beginning October 27, 1975, the State was represented in this case by a special prosecuting attorney; although, the reason for this arrangement is unclear from the record. Chadwell was represented by the office of the Tippecanoe County Public Defender, John Meyers (Meyers). On November 26, 1975, Meyers effected a plea agreement for Chadwell, which resulted in the dismissal of the burglary and conspiracy charges in this cause, C-4030, before the Tippecanoe Circuit Court, an executed sentence on a charge pending before the Tippecanoe Superior Court, transactional immunity, and an agreement to testify on behalf of the State when required. Record at 477.
The record indicates Banton was not arrested until December 17, 1975, and the first of several private counsel entered an appearance for Banton the next day.
Counsel filed a plea agreement on Banton's behalf on February 11, 1976, record at 62-63, and a sentencing date of March 12, 1976 was set. Banton, however, failed to appear on the appointed date and did not reappear until April 30, 1979, after he was rearrested. Also on April 30, 1979, the special prosecutor in this cause withdrew his appearance, and Meyers, who had never represented Banton, entered his appearance on behalf of the State as the Tippecanoe County Prosecutor.
On May 14, 1979, a public defender was appointed to represent Banton, even though his private counsel indicated a willingness to continue representation. Also on that date, the court rejected the plea agreement, which predated Banton's failure to appear, and entered pleas of not guilty on Banton's behalf to all charges. Record at 74.
Banton's counsel filed a verified motion for change of venue from the judge on June 28, 1979, but following an August 3, 1979 hearing the motion was denied. On December 18, 1979, Banton's trial counsel, Nile Stanton (Stanton), entered his appearance.
Banton orally moved the court to disqualify Meyers as prosecutor on March 20, 1980, and filed a written motion to the same effect on March 26, 1980. After the State responded on November 25, 1980, the court overruled Banton's motion.
Trial began with jury selection on June 29, 1981. The next morning, June 30, 1981, Banton moved for discharge alleging a denial of his right to speedy trial. After conducting a hearing, the court overruled Banton's motion; likewise, Banton's motion to compel the State to elect between the burglary and the conspiracy charges was, after a hearing, denied. Banton's motion in limine relative to a custodial statement was granted. However, his attempt to exclude Chadwell's testimony was rejected.
During the trial's second day, July 1, 1981, Banton sought to exclude Chadwell's testimony when the State indicated he would be called as a witness. At a hearing, both Chadwell and Meyers testified as to their earlier attorney-client relationship when Meyers, as Tippecanoe County Public Defender, represented Chadwell in this case. Chadwell stated he had discussed Banton's activities with Meyers and had provided Meyers information he would not have provided the prosecuting attorney. Record at 446. Meyers testified that he could identify Banton on sight and that, during Meyers's representation of Chadwell, Banton had spoken with him over the phone to indicate Chadwell was innocent. Meyers contended this was the extent of his contact with Banton. Record at 480-82. Meyers admitted that, as Tippecanoe County Prosecutor, he was in overall charge of and worked on this case despite his recusal in favor of one of his deputies after the denial of Banton's motion to disqualify him as prosecutor. Record at 480. Banton's objection was overruled, and Chadwell proceeded to testify on behalf of the State. He was subject to cross-examination by Banton's counsel. On July 2, 1981, the trial concluded. The jury returned verdicts of guilty on the four counts against Banton. Banton remained free on bond pending sentencing.
Banton's sentencing was reset several times; however, on January 25, 1982, an arrest warrant was issued because of his failure to appear. Banton was again apprehended, and he was finally sentenced on December 22, 1982.
Banton filed his belated motion to correct error, pro se, on April 18, 1984. The State responded on July 23, 1984, and the trial court denied the motion that same day.
Although Banton alleges numerous errors, one issue is dispositive:
Did the court err by denying Banton's motion to disqualify Meyers?
PARTIES' CONTENTIONS--Banton's argument is that Meyers represented Chadwell, a codefendant in the same case concerning the same acts and set of facts and therefore, acquired vital information from Chadwell relating to Banton's defense.
In response, the State observes that Meyers, after the court denied Banton's motion to disqualify him, assigned this case to a deputy prosecutor which the State contends is sufficient under Walker v. State (1980), Ind.App., 401 N.E.2d 795. The State further argues that Banton did not object to other members of the prosecutor's office proceeding with the case, that Chadwell was extensively cross-examined about his relationship with Meyers, and that at no time did Meyers directly represent Banton.
CONCLUSION--Under the particular facts of this case, the court erred by not granting Banton's motion to disqualify Meyers from serving as the prosecutor.
It is fundamental that an attorney may not engage in conduct adverse to a client's interest. See Wilson v. State (1861), 16 Ind. 392; Shuttleworth v. State (1984), Ind.App., 469 N.E.2d 1210. Here, we address a corollary of that proposition: May an attorney who represented a codefendant in the same matter later prosecute the other codefendant on behalf of the State? Because of the unique circumstances of this case, the answer must be no. The factual underpinnings of the charges against Banton and the charges against Chadwell are indistinguishable.
The cases on this subject are bifurcated. The first approach is to declare a per se prohibition against such prosecution on the theory that an irreconcilable conflict of interest exists. See Martin v. United States (9th Cir.1964), 335 F.2d 945. The second approach, apparently utilized by the majority of courts, is to assess the propriety of the representation on a case by case basis. This approach was used by the Nevada Supreme Court in Collier v. Legakes (1982) 98 Nev. 307, 646 P.2d 1219, when the court remanded the case to the trial court for a determination of the specific facts and circumstances of the individual case in order to determine the necessity of disqualification. Among the factors considered by courts which utilize a case by case methodology are whether the trials of the codefendants are separate proceedings, Thoreson v. State (1940), 69 Okl.Crim. 128, 100 P.2d 896, whether any harm accrues by allowing an attorney to be adverse to the interests...
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