Com. v. Kilgore
| Decision Date | 12 February 1993 |
| Docket Number | No. 1588-92-3,1588-92-3 |
| Citation | 426 S.E.2d 837,15 Va.App. 684 |
| Parties | COMMONWEALTH of Virginia v. Joe Douglas KILGORE. Record |
| Court | Virginia Court of Appeals |
Frederick W. Adkins, Norton (Patrick Cline, Cline, Adkins, Cline & Rogers, on brief), for appellee.
Present: BAKER, COLEMAN and BENTON, JJ.
In this appeal by the Commonwealth from an order of the Circuit Court of Wise County (trial court), the sole issue presented is whether the trial court erred when it sustained the motion of Joe Douglas Kilgore (Kilgore) to suppress evidence of a tape recording of his conversation with two informants obtained through the combined efforts of Timothy McAfee (McAfee), Wise County Commonwealth Attorney, and David Mullins (Mullins), a Wise County deputy sheriff. Finding no error, we affirm the judgment of the trial court.
We state the evidence in the light most favorable to the prevailing party in the trial court. On or about June 19, 1985, Richard Allen Jones was murdered in Wise County, apparently pursuant to a "killing for hire" scheme. Shortly thereafter, Kilgore learned that he was included among the police suspects being investigated. Although at that time Kilgore was not charged, 1 he sought the assistance and advice of the law firm of which McAfee was a member. At some time in 1987, prior to November 11, the Commonwealth received new evidence that Kilgore may have been involved in a scheme to murder Jones. In November 1987, McAfee was elected Commonwealth Attorney for Wise County for a term to begin January 1, 1988. Russell M. Large, the Commonwealth Attorney in office at the time, was informed that the new evidence being considered, if true, would be cause to prosecute Kilgore; however, as of November 12, 1987, the new information had not been confirmed. Because McAfee's law firm had been consulted by Kilgore while McAfee was a member, at the request of Large, the Circuit Court of Wise County entered the following order:
Comes now the Commonwealth, by its Commonwealth's Attorney and moves the Court pursuant to Virginia Code Section 19.2-155 to appoint a competent attorney-at-law to represent the interest of the Commonwealth in the case involving the death of Rick Jones.
In support of this motion the Commonwealth avers that new evidence has been presented upon which a decision must be made as to whether or not to pursue this evidence; and further that the Commonwealth's Attorney-Elect has a conflict in that his law partner represented a potential suspect in the case; and further that the ends of justice require the Court to appoint a substitute to act in place of, and otherwise perform the duties and exercise the powers of, the Commonwealth Attorney in regard to the above case.
It is therefore, ADJUDGED, ORDERED and DECREED that Gerald Gray and Gregory Kallen, competent attorneys-at-law, is [sic] hereby appointed to perform the duties and exercise the power of the Commonwealth's Attorney in regard to the above case and such substitute Commonwealth's Attorney [sic] shall receive compensation and expenses as this Court deems reasonable, such compensation and expenses to be paid by the Commonwealth.
The Court further orders that this Order be sealed until further order of the Court.
Enter this Order this 12th day of November, 1987.
s/ Timothy McAfee
Pursuant to that order, Gerald Gray and Gregory Kallen qualified as special prosecutors. They did not present an indictment against Kilgore until October 1990.
At all times relevant to this appeal, Mullins was the chief investigator for the Wise County Sheriff's Department. Notwithstanding that Danny Anderson had been convicted for Jones' murder, Mullins continued his investigation. In May 1990, "on a whim," Mullins called Donald Anderson (Danny's brother/informant) and was told that Kilgore had been involved in the murder. Mullins contacted McAfee, who in turn directed Mullins to have Ronald Anderson (Danny's other brother/informant) contact him. Thereafter, Ronald Anderson, along with his attorney Berlin Skeen, met with McAfee in McAfee's office. 2 During that meeting, Skeen "worked out a deal" with McAfee and McAfee 3 gave Mullins "the go ahead" to talk with the informants. Mullins told Donald what McAfee had told him to say, which was to engage Kilgore in a conversation, to get him to talk about his involvement in the Jones murder, "[s]pecifically ... to talk about why he had had Rick Jones killed, how much money he paid and if there would be any other people involved in it." Mullins further provided Donald with a tape recorder supplied by McAfee. It is the tape recording procured by both Donald and Ronald, pursuant to those instructions, that is the subject of the suppression ordered by the trial court.
After the tape recording was made, Mullins advised McAfee that the tape recording part of the investigation was complete. Gray and Kallen had prepared an indictment and were "ready to present" it to the grand jury when McAfee "called off the grand jury." McAfee then telephoned his former partner, Mr. Hugh Cline, and asked that Mr. Cline and Kilgore agree that he could prosecute Kilgore. His request was refused. Kilgore was indicted October 15, 1990.
When Kilgore's counsel learned of the November 12, 1987 sealed order, he immediately filed motions to quash the indictment and/or suppress the tape-recorded evidence. Subsequent hearings on those motions revealed that Skeen had dealt with McAfee seeking immunity for Ronald Anderson if he cooperated. Skeen and Walt Rivers (Donald's attorney) testified that McAfee had granted immunity to Ronald Anderson. McAfee admitted discussing the matter with Skeen but denied that he had granted immunity. 4 Neither of the special prosecutors was involved in the discussions concerning immunity or the taping of the conversation with Kilgore.
At the conclusion of the hearings, arguments and review of the authorities, on July 29, 1992, the trial court made the following factual findings:
I. On November 12, 1987 the Circuit Court of Wise County entered an Order appointing Gerald Gray and Gregory Kallen as acting attorneys for the Commonwealth to act in the place and instead of the outgoing Commonwealth's Attorney, Marty Large, and the newly elected Commonwealth's Attorney, Timothy W. McAfee, in the case of the death of Rick Jones. A copy of that order is attached as Exhibit "A".
II. The reason the newly elected Commonwealth's Attorney, Mr. McAfee, was disqualified was because he was previously a member of the law firm of Cline, McAfee and Adkins, which after the murder of Rick Jones, in 1985, represented Joe Douglas Kilgore, who was a suspect at that time, and in 1987, when the Order was entered.
III. In May, 1990, as a result of investigation by Investigator David Mullins of the Wise County Sheriff's Department, in which Ronald Anderson and Donald Anderson were involved, Mullins contacted Mr. McAfee. Mr. McAfee directed Mr. Mullins to have Anderson contact him.
IV. Ronald Anderson retained attorney Berlin Skeen, who told Mr. McAfee that his client possibly had information about the involvement of Kilgore in the murder of Rick Jones, but that his client wanted a full grant of immunity before he would cooperate.
V. Mr. Skeen obtained a grant of immunity from Mr. McAfee, and Ronald Anderson subsequently gave a statement to Mullins, and he and his brother Donald Anderson agreed to wear a tape recorder, provided by Mr. McAfee, and to record incriminating statements from Kilgore.
VI. After the recording of the defendant was made, Mr. McAfee did not listen to the recording, but called attorney Hugh Cline, a partner of Mr. McAfee's former firm, and advised Mr. Cline that Kilgore was under investigation for the capital murder of Rick Jones, and requested that Mr. Cline obtain Kilgore's consent to permit Mr. McAfee to prosecute him. Kilgore refused to consent.
VII. The Court believes that Mr. McAfee did not intentionally engage in misconduct.
XI. The decision to obtain a warrant and proceed with the case against Kilgore was made by Mr. Gray and Mr. Kallen.
The order also contained the following:
The Court is convinced that the tape recording of Kilgore was obtained in violation of his constitutional rights, specifically his 5th Amendment under the United States Constitution, and accordingly
that the tape recording of Kilgore be suppressed.
During an initial hearing on January 7, 1992, the trial court tentatively concluded that the motion to quash the indictment should be sustained. The acting Commonwealth's attorney then advised the trial court that the Commonwealth could not appeal an order quashing the indictment and made the following suggestion: "I think the suppression of evidence is what we can appeal and not the quashing of the indictment." The trial court responded:
Very well. I'll grant the motion to suppress the evidence then and allow the Commonwealth to reserve its right of appeal on that issue.
In response to that statement of the court, the acting Commonwealth's attorney made the following inquiry of the court:
Your honor also for our grounds to preserve our rights, is this being quashed under a due process 5th and 14th Amendment grounds?
The trial court responded: "Under due process" and directed the Commonwealth's attorney to prepare an order.
Nothing further was done until June 1992, when the Commonwealth moved the trial court "to reconsider its oral ruling rendered January 9 [sic], 1992...." For the first time, "self-incrimination" was injected in the hearings, and then only by the Commonwealth. The Commonwealth's motion included the following:...
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