Humphrey v. State, A00A0630.

• Decision Date: 06 July 2000
• Docket Number: No. A00A0630.,A00A0630.
• Parties: HUMPHREY v. The STATE.
• Court: Georgia Court of Appeals

537 S.E.2d 95

244 Ga. App. 808

HUMPHREY v. The STATE.

No. A00A0630.

Court of Appeals of Georgia.

July 6, 2000.

Gilbert J. Murrah, Bainbridge, for appellant.

Ben Kirbo, Solicitor, for appellee.

POPE, Presiding Judge.

Daniel Humphrey appeals his convictions for driving under the influence, attempting to elude an officer, and driving on the wrong side of the road. He asserts the trial court made four errors.

1. Humphrey contends the court erred in granting the State's motion for mistrial

when the case was first tried and that, therefore, he should not have been tried a second time. After the jury had been impaneled, the State moved for a mistrial on the grounds that it could not get a fair trial because two necessary witnesses who were under subpoena did not appear at trial. Humphrey objected to the motion, and he filed a plea in bar before the second trial arguing that the second trial violated the constitutional prohibition against double jeopardy on the grounds that there was no manifest necessity for the mistrial. See Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); Abdi v. State, 249 Ga. 827, 828(2), 294 S.E.2d 506 (1982); Terrell v. State, 236 Ga.App. 163, 165, 511 S.E.2d 555 (1999); Banks v. State, 230 Ga. App. 258(1), 495 S.E.2d 877 (1998).

The trial court's decision to grant a mistrial and reject lesser alternatives is entitled to great deference. Terrell v. State, 236 Ga.App. at 165, 511 S.E.2d 555; Cooke v. State, 230 Ga.App. 326, 328-329, 496 S.E.2d 337 (1998). But, because of the "opportunity for overreaching, ... [i]f the prosecutor proceeded to trial aware that a key witness was not available to testify and a mistrial was granted for that reason, a second prosecution is barred." Spencer v. State, 192 Ga.App. 822, 823-824(1), 386 S.E.2d 705 (1989). In Davis v. State, 170 Ga.App. 748, 318 S.E.2d 202 (1984), we held that there was a manifest necessity for a mistrial where the victim ran away from an unsecured juvenile shelter the night before she was to testify and after the jury had been impaneled. See also Spencer, 192 Ga.App. at 824, 386 S.E.2d 705 (subpoenaed witness appeared at morning session but not at afternoon session).

Here, there was no evidence that the prosecutor knew prior to trial that the two necessary witnesses would refuse to obey the subpoena. Both witnesses were under subpoena, both had appeared in court two days earlier, and both were still under subpoena on the morning of the trial. When the two witnesses failed to appear, a deputy sheriff was sent to find them. He eventually found one at about 10:30 a.m. but could not locate the second. The court declared a mistrial. The second witness was not found until several days later. Both witnesses were subsequently ordered to show cause why they should not be held in contempt. One of the two was sanctioned. Both witnesses were necessary to identify Humphrey as the defendant and to rebut Humphrey's defense that he was not driving the truck that was involved in the incident. We find no abuse of discretion.

2. Humphrey argues that the court should have disqualified the prosecutor, Ben Kirbo, who worked part-time as the State Court Solicitor-General in Decatur County. Kirbo also maintains a general civil practice.

In June 1998, during a preliminary hearing in this case, Ben Kirbo announced to the court that he was disqualified "because of a civil conflict; other members of my firm represent Mr. Humphrey in some other matters." The case was continued so as to allow Kirbo a reasonable opportunity to arrange special, i.e., alternative, prosecution.

In February 1999, when the case was again called for trial and Ben Kirbo was still assigned as the prosecutor, Humphrey objected. He explained that Bruce Kirbo, one of Ben's law partners, represented him in divorce proceedings that had ended in September 1998 and in real estate transactions in December of the same year. Humphrey argued that not only had Ben Kirbo already disqualified himself, but he should be disqualified because he could have learned something about Humphrey from the client file or from Bruce. Further, the divorce and the criminal case both involved Humphrey's alleged drinking habits. Humphrey, however, had no direct evidence of any communication between the two partners.

Ben Kirbo denied any knowledge of the divorce except being aware that Bruce represented Humphrey. And he denied discussing the criminal matter with his partners or other members of the firm. The court held that Kirbo was not disqualified primarily because Humphrey had no evidence that the two Kirbos ever discussed either matter.

This case raises concerns about both multiple representation as regulated by Canon 5 and Directory Rule 5-105 of the Canons of Ethics of the State Bar of Georgia and successive representation as regulated by Canon 4. Each has a different focus and a different standard for disqualification. The primary focus of the rules against multiple representation is to ensure that a lawyer exercises independent professional judgment on behalf of his clients. See Canon 5. The primary focus of rules against successive representation is the preservation of client confidences and secrets. See Canon 4.

A lawyer is required to decline multiple representation, i.e., representation of a second client where the representation may affect his or her representation of an existing client, unless it is "obvious that he can adequately represent the interest of each." Directory Rule 5-105(C). And, even then, where there is any possible effect on the other, he must secure from each client their consent after "full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each." Directory Rule 5-105(C). A lawyer breaches this duty by taking a second client if his independent judgment may reasonably be affected; "there is no requirement of actual harm." In re Allison, 267 Ga. 638, 645, n. 13, 481 S.E.2d 211 (1997). Finally, "[i]f a lawyer is required to decline employment or to withdraw from employment under DR 5-105, no partner or associate of his or her firm may accept or continue such employment." Directory Rule 5-105(D).

A lawyer is required to decline successive representation, i.e., representing a party in a matter adverse to a former client, where the second matter is "substantially related" to the lawyer's representation of the former client. Crawford W. Long Mem. Hosp. &c. v. Yerby, 258 Ga. 720, 721(1), 373 S.E.2d 749 (1988). This rule is based on an irrebuttable presumption that confidences have been disclosed. "If such a substantial relationship between the cases is shown, the court will then irrebuttably presume that during the course of the former representation confidences were disclosed to the attorney bearing on the subject matter of the representation." (Citations omitted.) Summerlin v. Johnson, 176 Ga.App. 336, 338(1), 335 S.E.2d 879 (1985). See also Carragher v. Harman, 220 Ga.App. 690, 691-692(1), 469 S.E.2d 443 (1996). The party seeking disqualification is not required to point to specific confidences revealed to his attorney that are relevant to the pending case; rather, his burden is only to show a substantial relationship between the two cases. Summerlin, 176 Ga.App. at 338(1), 335 S.E.2d 879.

In this case, Kirbo was faced with both types of representation problems. The criminal case was pending at the same time as the divorce case, i.e., multiple representation, and Humphrey pointed that out to the court. Indeed, Kirbo knew he had a multiple representation problem while the divorce case was pending; he told the court so when the case first came up for trial. There can be little doubt that it is improper for one attorney in a firm to prosecute his partner's client...