Ford v. State

• Decision Date: 24 February 1982
• Docket Number: No. CA,CA
• Citation: 4 Ark.App. 135,628 S.W.2d 340
• Parties: Leo David FORD, Appellant, v. STATE of Arkansas, Appellee. CR 81-121.
• Court: Arkansas Court of Appeals

Page 340

628 S.W.2d 340

4 Ark.App. 135

Leo David FORD, Appellant, v.STATE of Arkansas, Appellee.

No. CA CR 81-121.

Court of Appeals of Arkansas.

Feb. 24, 1982.

John W. Settle, Fort Smith, for appellant.

Steve Clark, Atty. Gen. by Alice Ann Burns, Asst. Atty. Gen., Little Rock, for appellee.

COOPER, Judge.

The appellant was charged with aggravated robbery and being an habitual criminal.He was convicted and sentenced to thirty years in the Arkansas Department of Corrections.The sole issue raised on appeal is that the trial court erred in refusing to require the appointment of a special prosecutor because of the involvement of the prosecuting attorney in the apprehension of the appellant.

On February 28, 1981, the prosecuting attorney for the Twelfth Judicial District, the Honorable Ron Fields, was riding with Officer Garrett on his regular patrol duty in the late hours of February 27, and the early morning hours of February 28, 1981.They received a call concerning a fight at the Regal Eight Motel and proceeded to that location.The prosecutor and the officer observed what appeared to be a fight and the prosecutor observed a knife in the appellant's hand.The appellant was arrested and charged with aggravated robbery and being an habitual criminal.Counsel for the appellant filed a motion to appoint a special prosecutor because of the involvement of the prosecuting attorney.The prosecuting attorney participated in appellant's trial as a witness.The trial and, as it appears from the record, all pre-trial matters were handled by a deputy prosecuting attorney, who was acting under the authority of the prosecuting attorney.

Essentially, the appellant argues that the prosecuting attorney in this case was unable to act in a proper capacity regarding possible negotiations and other matters in the handling of this particular case.

A special prosecutor may be appointed where the elected prosecutor is indicted for a criminal offense Ark.Stat.Ann. § 24-108(Repl.1962), and where the prosecuting attorney is implicated in the investigation of a criminal offense (Weems v. Anderson, 257 Ark. 376, 516 S.W.2d 895(1974)).In the event the prosecutor is unable to perform his duties because of illness or disability, Ark.Stat.Ann . § 24-117 (Repl.1962) provides the authority for appointment of a prosecutor in that situation.In Weems, supra, the Arkansas Supreme Court stated:

The absence of specific statutory authority for the appointment of a special prosecuting attorney under the circumstances of this case does not mean that the court is without authority to do what justice, reason and common sense dictate must be done.In other jurisdictions where there was the same lack of statutory authority for the appointment of a special prosecuting attorney under circumstances such as those here presented, the courts have held that there is an inherent power in the courts to make such an appointment.We hold that the Arkansas Circuit Courts also have such an inherent power.

The Weems case dealt with the investigation of the prosecuting attorney rather than his prosecution after indictment.We believe that the logic of that case compels us to conclude that the circuit court did have the authority to appoint a special prosecuting attorney in the case at bar.However, the court did not choose to do so, and the issue before us is whether the trial court abused its discretion in failing to appoint a special prosecuting attorney.The exercise of the inherent authority to appoint a special prosecutor must of necessity be discretionary.

The Arkansas Code of Professional Responsibility¹, 33 Ark.L.Rev. 605(1980) provides as follows:

DR 5-101 Refusing Employment When the Interests of the Lawyer May Impair His Independent Professional Judgment.

(B) A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness, except that he may undertake the employment and he or a lawyer in his firm may testify:

(1) If the testimony will relate solely to an uncontested matter .

(2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony.

(3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client.

(4) As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case.

DR 5-102 Withdrawal as Counsel When the Lawyer Becomes a Witness .

(A) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR5-101(B)(1) through (4).

The general rule is that an attorney should not act as both trial counsel and a material witness for his client.Boling v. Gibson, 266 Ark. 310, 584 S.W.2d 14(1979);Enzor v. State, 262 Ark. 545, 559 S.W.2d 148(1977);Jones v. Hardesty, 261 Ark. 716, 551 S.W .2d 543(1977);Dingledine v. Dingledine, 258 Ark. 204, 523 S.W.2d 189(1975);Watson v. Alford, 255 Ark. 911, 503 S.W.2d 897(1974).

There are several reasons for this general rule.First, because of interest or the appearance of interest in the outcome of the trial, the advocate who testifies at trial may be subject to impeachment and the evidentiary effect of his testimony will be weakened, thus harming his client.Second, opposing counsel may be handicapped in cross-examining and in arguing the credibility of trial counsel who also acts as a witness.Third, an advocate who becomes a witness may be in the unseemly position of arguing his own credibility.Fourth, the role of advocate and witness are inconsistent and should not be assumed by one individual.²Last, the attorney should not act as both trial counsel and a material witness because of the appearance of impropriety.³

Although the prosecuting attorney in this case did not participate in the prosecution of the appellant, the information was filed under his name and authority by a deputy prosecuting attorney and the case was tried by another deputy.The issue in this case narrows to a question of whether, on the facts, the trial court abused its discretion in failing to disqualify the entire staff of a prosecuting attorney who was to appear as a witness in a criminal trial.

The authority of a deputy prosecuting attorney is derived from the prosecutor, and it is clear that the deputy prosecuting attorney has no authority independent of that possessed by the prosecutor.Ark.Stat.Ann. § 24-119(Repl.1962);Sheffield v. Heslep, 206 Ark. 605, 177 S.W.2d 412(1944).

From the adoption of the American Bar Association's Canons of Professional Ethics in 1908 until their replacement in 1970 by the Code of Professional Responsibility, no provision existed which required the withdrawal of an entire law firm from representation of a client because one attorney in the firm was to be a material witness at trial.Recusal of the entire law firm is required by DisciplinaryRule 5-102(A).Boling v. Gibson, supra.The obvious reason for the rule is the common interest of the attorney/witness with his law firm in the outcome of the litigation and the appearance of impropriety.These reasons have validity where the attorney/witness has a financial interest in the outcome of the litigation, although the soundness of the rule has been questioned by some legal commentaries.See6 Wigmore, Evidence, § 1911, pp. 775-780(Chadbourn rev. 1976).

However valid the reasons underlying the disciplinary rules may be, as applied to attorneys or firms engaged in practice for remuneration, they do not appear to have any validity in the case of a prosecuting attorney's office which consists of the prosecutor and several deputies.The relationship between the prosecutor, his deputies, and the State, their sole client, is fundamentally different from...