Jones v. Commonwealth

• Decision Date: 24 February 2022
• Docket Number: 2021-SC-0009-MR
• Citation: 641 S.W.3d 162
• Parties: Deverious JONES, Appellant v. COMMONWEALTH of Kentucky, Appellee
• Court: United States State Supreme Court — District of Kentucky

641 S.W.3d 162

Deverious JONES, Appellant

v.COMMONWEALTH of Kentucky, Appellee

2021-SC-0009-MR

Supreme Court of Kentucky.

FEBRUARY 24, 2022

COUNSEL FOR APPELLANT: Kathleen Kallaher Schmidt, Erin Hoffman Yang, Department of Public Advocacy.

COUNSEL FOR APPELLEE: Daniel J. Cameron, Attorney General of Kentucky, Emily Bedelle Lucas, Assistant Attorney General, Kenneth Wayne Riggs, Assistant Attorney General, Christina Lauren Romano, Assistant Attorney General.

OPINION OF THE COURT BY JUSTICE KELLER

In this matter of right, Appellant, Deverious Dajewon Jones, appeals a Fayette Circuit Court judgment against him for a series of robberies, an assault, and a burglary. See KY. CONST. § 110 (2)(b). Jones alleges the trial court erred by failing to provide him with conflict-free counsel and by admitting statements in violation of Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). For the reasons stated below, we affirm the judgment of the trial court.

I. BACKGROUND

Deverious Dajewon Jones, the Appellant, and his co-defendant, Tahjee Winters, were indicted for a string of robberies that occurred in Lexington between September 7, 2016 and September 17, 2016. Five separate incidents gave rise to Jones's indictment on thirteen counts of robbery in the first degree, one count of assault in the first degree, and one count of burglary in the first degree. Because many of the details are not necessary to the resolution of the legal issues before us today, we only briefly describe each incident.

The first incident occurred on the night of September 7, 2016 at a residence at 712 Lucile Drive. Nakia Talbert and her boyfriend Byron Smith, as well as their two children, lived in the home. Two men with guns forced Talbert, Smith, and the two children into the home's master bedroom. The men searched the home and went through Smith's pockets. A third armed man also came into the home for a period of time. Apparently not finding what they were looking for, the men left, stealing Talbert's car as they departed. Talbert eventually identified Jones and Winters as two of the men who entered her home.

The second incident occurred at Hibbett Sports on Winchester Road on September 8, 2016. Two armed men forced Chase Mullins, an employee at Hibbett Sports, to open the cash register and give them the money inside the register. Mullins identified Jones as one of the men.

The third incident occurred at Hibbett Sports on Richmond Road on September 13, 2016. Three men entered the store and shopped for a short time before drawing guns and demanding money from the register. Two employees, James Blackburn and Cameron Montgomery, along with one customer, Medra Vanzayn, were forced into the stockroom and made to lie face down on the ground. Vanzayn was also robbed at gunpoint. Two additional customers, Katie Campbell and Eddie Franklin, entered the store while Blackburn, Montgomery, Vanzayn, and the three men were in the stockroom. The three men then left the stock room and forced Campbell to give them her purse and forced Franklin to give them everything in his pockets. The men then left the store. Montgomery and Campbell both identified Jones as one of the armed men in the store. Blackburn was initially unsure but, in a follow up interview, stated Jones looked like one of the men.

The fourth incident occurred at a Shell gas station on September 17, 2016. Two men walked into the gas station and pulled guns on the gas station employee, Cody Hoban. They took all of the money out of the register. Hoban was not able to identify either of the men.

The final incident occurred at a Marathon gas station just a short time after the Shell gas station incident. Three employees, Seth Atkerson, Heather Dickenson, and Charles Moore, were in the store at that time, but only Dickenson and Moore were on-duty. Two armed men entered the store, and one of them pointed a gun at Moore's head, demanding money. The man eventually shot Moore multiple times, paralyzing him from the waist down and causing other significant health issues. None of the employees could identify the two men, although they were wearing similar clothes and driving a similar car as the two men from the Shell gas station incident.

Jones was arrested on September 22, 2016. At the time of his arrest, he was wearing clothing similar to those worn by one of the suspects from the gas station incidents. He was in possession of a gun which was later determined to have fired bullets at the Marathon. Winters was not arrested until September 26, 2016. He was arrested in Bowling Green after police received information that he was returning to his home state of Mississippi.

Jones and Winters were indicted by a Fayette County grand jury as co-defendants. At a jury trial, Jones was found guilty of one count of complicity to assault in the first degree, one count of burglary in the first degree, six counts of robbery in the first degree, three counts of complicity to robbery in the first degree, and four counts of principal or complicitor to robbery in the first degree. He was sentenced to twenty-four years’ imprisonment. He appeals his conviction on the grounds that he did not have conflict-free representation and that his Miranda rights were violated. We consider each argument in turn.

II. ANALYSIS

A. Successive Representation Conflict

Jones first claims error due to an alleged conflict of interest in his representation. Jones's attorney realized, in the middle of trial, that one of the victim witnesses called to testify against Jones was the attorney's former client. Jones's attorney represented the witness, Smith, ten years prior in an unrelated matter. Smith was the Commonwealth's witness and a victim from the home invasion burglary and robbery. Upon discovering the potential for a conflict of interest, Jones's attorney approached the bench and sought advice. He ultimately called the Ethics Hotline, a call center responsible for counselling attorneys with issues regarding professional responsibility, which counseled him not to cross-examine the witness. As a result, the Commonwealth offered to withdraw the witness entirely so as not to prejudice Jones and proceed with other witnesses. Jones's attorney agreed to the solution, and Smith never testified.

On appeal, Jones claims that the successive representation prejudiced him. Specifically, he alleges that if his attorney was able to cross-examine Smith zealously, Smith may have divulged some exculpatory evidence and weakened the Commonwealth's case against him. Jones also argues that even if Smith had been able to testify, Jones still would have been prejudiced by his attorney sacrificing zeal in order to keep Smith's confidentiality. In a final alternative, Jones argues that even if Smith had testified and Jones's attorney had cross-examined him zealously, the attorney would have had to breach Smith's confidentiality, violating his professional duty to a former client.

We review successive conflicts of interest under the Strickland standard. Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; see also, e.g., Steward v. Commonwealth , 397 S.W.3d 881, 883 (Ky. 2012). If there is error, because it was unpreserved, we must determine if the error is palpable.¹ Palpable error must be both obvious and serious. Brock v. Commonwealth , 947 S.W.2d 24, 28 (Ky. 1997). The error must be so severe as to "seriously affect the fairness, integrity or public reputation of the judicial proceedings." Id. (citation omitted). Palpable error is therefore a higher standard than mere reversible error, since palpable error must result in "manifest injustice." Id.

To determine whether manifest injustice was wrought upon Jones's trial, we must first decide whether a conflict existed. If there is no conflict, then there is no error. Joint or concurrent representation amounts to a conflict and is impermissible (subject to some exceptions). SCR 3.130 (1.7). Successive representation by contrast is less of a threat to the integrity of an attorney-client relationship, since an attorney's duties to former clients differ from those to current clients. See Steward , 397 S.W.3d at 883 n.3. For this reason, successive representation does not carry a presumption of prejudice. Mickens v. Taylor , 535 U.S. 162, 122 S.Ct. 1237, 1246, 152 L.Ed.2d 291 (2002). Under SCR 3.130 (1.9)(a),

A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.

On the terms of this rule, we do not need to reach the Sixth Amendment question and Strickland analysis. In this case, the matters were not substantially related, as noted in SCR 3.130 (1.9)(a). Jones was being represented for multiple robberies. Smith, by contrast, was represented in a drug trafficking case a decade before the events occurred for which Jones was charged. Furthermore, because the Commonwealth withdrew its witness, there was no opportunity for information gained from the prior client to affect representation of the current client. Even if there would have been overlap in the subject of the matters, any chance of that overlap affecting Jones's representation dissipated with the Commonwealth's decision not to call the witness. Because the matters were not substantially related, and because the Commonwealth's solution was effective in nullifying any risk of conflict, there is no error.

Jones also argues that he did not waive his right to conflict-free counsel as required by statute. However, since we hold that no conflict exists, such a waiver was ultimately unnecessary. We therefore also find no error on this argument.

B. Pre-Miranda Statements

Jones next argues that his Miranda rights were violated by impermissible questioning prior to being Mirandized. Before trial, ...