Brown v. Com., 2005-SC-000078-DG.

• Decision Date: 21 June 2007
• Docket Number: No. 2005-SC-000078-DG.,2005-SC-000078-DG.
• Citation: 226 S.W.3d 74
• Parties: Karlos BROWN, Appellant v. COMMONWEALTH of Kentucky, Appellee.
• Court: Supreme Court of Kentucky

226 S.W.3d 74

Karlos BROWN, Appellant v. COMMONWEALTH of Kentucky, Appellee.

No. 2005-SC-000078-DG.

Supreme Court of Kentucky.

June 21, 2007.

Kathleen K. Schmidt, Appeals Branch Manager, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.

Gregory D. Stumbo, Attorney General, Todd D. Ferguson, Assistant Attorney General, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice NOBLE.

Appellant Karlos Brown was convicted of possession of a controlled substance in the first degree, operating a motor vehicle on a learner's permit without a licensed operator, and being a persistent felony offender in the first degree. He was sentenced to eighteen years' imprisonment. Prior to the presentation of the defense's case, defense counsel told the trial court he had an ethical conflict with his client and implied that his client intended to offer perjured testimony. Defense counsel was then allowed to withdraw and leave the courtroom while his client testified by way of a narrative statement, was cross-examined by the prosecution, and made his own closing statement. The Court of Appeals affirmed the conviction. Despite the ethical dilemma that defense counsel faced, because his withdrawal and exit from the courtroom amounted to a denial of Appellant's right to counsel, the judgment of the Court of Appeals is reversed.

I. Background

The trial in this case progressed normally until the trial court took a break before the cross-examination of a witness, Officer King. The prosecutors and defense counsel approached the bench after the break, and defense counsel informed the court that after several discussions with his client, he had concluded that a conflict had arisen which he wanted to address to the court outside the presence of the prosecution. The court allowed the ex parte discussion, during which defense counsel informed the court that the Appellant wanted to present through his testimony a theory that was not consistent with counsel's investigation of the case. Counsel told the court that his client wanted to testify, and had the right to do so, but that counsel felt his ethical limitations created a conflict with the client. He stated that he did not believe he could deliver his planned opening statement or elicit the testimony Appellant now wanted to give.

The trial court and defense counsel then took a break to consult the Rules of Professional Conduct, specifically Rule 3.3¹ and its commentary. On returning, they again conferred on the record but outside the presence of the prosecutors on possible options for proceeding. Appellant was brought to the bench, and the trial court conducted a lengthy and thorough colloquy with him, setting forth the situation and presenting options, and directing him to consult further with his attorney before making a final decision on how he was going to proceed. The court did, however, at one point tell Appellant and his counsel that, in addition to allowing Appellant to make a limited narrative statement of his own testimony and a closing argument, Appellant could choose to have counsel remain in the courtroom or to excuse counsel, who would then leave the courtroom. Defense counsel offered to cross-examine the final two prosecution witnesses and informed the court that he would then be stepping out of the courtroom. On hearing this, Appellant told the court that counsel could remain, but the court said that counsel did not want to do that. The court also asked Appellant if he wanted her to explain to the jury that he would be representing himself from that point forward, and Appellant told the court she did not have to tell the jury anything. Defense counsel indicated that he had discussed with his client that it might make things worse if he remained seated at counsel table while his client proceeded.

At no point during these discussions were specific statements as to the nature of the alleged perjury put on the record. In fact, the most that was disclosed was that Appellant was prepared to testify in a manner inconsistent with defense counsel's investigation, and that he was about to proceed on a theory of the case that was not in his best interest. The trial court, however, appears to have read these disclosures as implying that Appellant was set to commit perjury, as she repeatedly informed Appellant of the dangers of untruthful testimony and how it created a conflict with his attorney.

After the prosecutors completed their case, they and defense counsel approached the bench and made motions. Defense counsel then shook hands with the prosecutors and left the courtroom, but remained on call nearby. The trial court determined that if there were a guilty verdict, he would return for the sentencing phase because the Appellant's testimony would no longer matter. The court then told the jury that the defendant had chosen to represent himself from that point forward.

Appellant then testified in narrative fashion to his version of events and was cross-examined by the prosecution. He was the only defense witness. He gave his own closing argument, and was found guilty by the jury. Defense counsel returned and represented Appellant in the sentencing phase of the trial. The trial court subsequently entered a judgment of conviction and sentence of imprisonment.

On direct appeal, the Court of Appeals affirmed Appellant's conviction, holding that he had waived his right to counsel when he proceeded against his attorney's advice, and that his attorney had acted properly in not assisting him to present false testimony. This appeal followed on a grant of discretionary review.

Appellant now argues that he was unconstitutionally forced to proceed without counsel during his testimony and in closing argument. He also claims he was prevented from adequately impeaching a prosecution witness, Officer King, to show bias.

II. Analysis

An attorney in circumstances such as these finds herself trying to balance the client's constitutional rights and the duty to keep the client's confidences with the duty of candor to the court. When the situation arises during trial, as it did in this case, determining the correct course of action is difficult, to say the least. Of equal difficulty is the trial judge's decision on how to proceed once the problem is revealed. Fortunately, the scenario presented by this case does not happen frequently, but this also means that the correct procedures are not well-settled by court decisions.

Under Rule 3.3,² a lawyer is prohibited from offering evidence known to be false, may refuse to offer evidence that she reasonably believes to be false, and shall inform the tribunal of all material facts known to her so that the tribunal can make an informed decision whether the facts are adverse. The plain language of this rule contemplates that a lawyer will not advance false testimony of any witness, and that she will inform the court if such testimony is imminent and what facts support that belief. However, Rule 1.6³ creates a duty of confidentiality that prohibits a lawyer from revealing information related to the representation of a client. Moreover, the client has a right to testify in his own defense and a right to counsel. This creates an apparent conflict when an attorney knows that a client intends to offer false testimony. (No such conflict exists when the witness is not a client.)

Despite the tension between Rules 1.6 and 3.3 and the rights to testify and to counsel, when the false testimony involves the client, Rule 3.3(b) requires disclosure, even if otherwise protected by Rule 1.6. As the Commentary to Rule 1.6 points out, the duty of confidentiality is not absolute and other provisions of the Rules of Professional Conduct, such as Rule 3.3, require a lawyer to disclose information relating to the representation in some circumstances.

When a lawyer determines that her client is about to offer false testimony, all sources agree that the lawyer should first seek to persuade the client that such evidence should not be offered. Sometimes this is successful, and any conflict is resolved. There is no duty to inform the court of the problem in such a situation.

When the client is adamant about proceeding, however, the lawyer's dilemma arises. In civil cases, the general rule is that the deception must be disclosed to the court to avoid having the lawyer coerced into being a party to fraud on the court. But in a criminal case, as we have here, other rights of the accused are also impacted, such as the right to counsel, the right to testify, and the right not to incriminate oneself.

There are substantially different opinions on how a lawyer should proceed when she knows or has reason to believe that a criminal defendant is about to commit perjury and the client insists on testifying. If the lawyer knows before trial, she may usually be allowed to withdraw without revealing the specifics of the conflict. But if the trial is imminent, or in progress, as here, there are problems with any course of action.

If the lawyer attempts to address the situation, this may increase the likelihood that the client will be convicted or charged subsequently with perjury. By informing the court, the lawyer brings a third party into the equation who must make rulings in regard to the disclosure. The effect of those rulings may be to tip off the prosecution that perjury is about to be committed, or to cause the jury to suspect that the client is lying, both of which are prejudicial to the client and may not be correct. If the attorney is to proceed in this manner, she must then determine how much to tell the court, in order to ensure that these steps are taken with good reason. In contrast, failure to inform the court may lead the lawyer to at least passively assist in deception of the tribunal, which could subsequently lead to disciplinary charges or criminal complicity charges against the lawyer. See KRS 502.080 (liability for the conduct of...