Kirkland v. Com., No. 1998-SC-0934-MR.

CourtUnited States State Supreme Court (Kentucky)
Writing for the CourtWintersheimer
Citation53 S.W.3d 71
Docket NumberNo. 1998-SC-0935-MR.,No. 1998-SC-0934-MR.
Decision Date24 May 2001
PartiesCharles Michael KIRKLAND, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Preston Elliott McKee, Appellant, v. Commonwealth of Kentucky, Appellee.
53 S.W.3d 71
Charles Michael KIRKLAND, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.
Preston Elliott McKee, Appellant,
v.
Commonwealth of Kentucky, Appellee.
No. 1998-SC-0934-MR.
No. 1998-SC-0935-MR.
Supreme Court of Kentucky.
May 24, 2001.
As Modified on Denial of Rehearing September 27, 2001.

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COPYRIGHT MATERIAL OMITTED

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Thomas L. Conn, Lexington, Counsel for Appellant Kirkland.

Karen Maurer, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Counsel for Appellant McKee.

Albert B. Chandler III, Attorney General, Gregory C. Fuchs, Assistant Attorney General, Samuel J. Floyd, Jr., Assistant Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.

WINTERSHEIMER, Justice.


These appeals are from a judgment based on a jury verdict which convicted Kirkland and McKee of murder and robbery in the first degree after a joint trial. Kirkland was sentenced to life without parole for 25 years on the murder charge and a concurrent sentence of 25 years on the robbery charge. McKee was sentenced to 25 years on the murder charge and 20 years on the robbery charge to run consecutively for a total of 45 years.

The principal issue is whether it was reversible error for the trial judge not to instruct McKee of a possible conflict of interest. Other questions raised by McKee are whether the trial judge should have granted a request for mistrial based on prosecutorial misconduct and whether it was error to overrule a request for jury instructions on attempted robbery.

Kirkland questions whether it was improper not to direct a verdict on the first degree robbery charge and whether expert testimony about rehabilitation in an institutional setting was improperly excluded.

Kirkland and McKee entered a Lexington liquor store intending to rob the owner. Both defendants knew the owner kept a pistol behind the counter. McKee, unarmed, entered first, while Kirkland, armed with a 9 millimeter handgun, followed. The store surveillance camera showed that as McKee ran around the counter presumably to obtain money from the cash register, Kirkland fired a shot which passed through the cash register and struck the owner. Both Kirkland and McKee fled the store without taking any money. The owner died from his wounds. After being questioned by police, McKee confessed and Kirkland made various inconsistent statements to the police.

At trial, Kirkland testified in his own defense and admitted he was the shooter, but claimed that the shooting was accidental. He admitted that he had previously told others that the victim was shot when he went for his gun. He also testified that McKee had hollered "gun" right before the fatal shot was fired. McKee did not testify. A jury determined that both Kirkland and McKee were guilty of murder and robbery in the first degree and sentenced Kirkland to life without parole for 25 years on the murder charge, and a concurrent sentence of 25 years on the robbery charge

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and sentenced McKee to 25 years on the murder charge and 20 years on the robbery charge to run consecutively. This appeal followed.

I. Conflict of Interest

McKee argues that the trial judge committed reversible error when she did not instruct him about a possible conflict of interest because his counsel and Kirkland's attorney were both employed by the Fayette County Legal Aid, Inc.

RCr 8.30(1) prohibits dual representation of persons charged with the same offenses unless:

(a) the judge of the court in which the proceeding is being held explains to the defendant or defendants the possibility of a conflict of interest on the part of the attorney in that what may be or seem to be in the best interests of one client may not be in the best interests of another, and

(b) each defendant in the proceeding executes and causes to be entered in the record a statement that the possibility of a conflict of interests on the part of the attorney has been explained to the defendant by the court and that the defendant nevertheless desires to be represented by the same attorney.

In Peyton v. Commonwealth, Ky., 931 S.W.2d 451 (1996), a majority of this Court held that "Noncompliance with the provisions of RCr 8.30 is presumptively prejudicial and warrants reversal." The majority acknowledged that prior to Peyton. supra, a defendant needed to show that a real conflict of interest existed. In so holding, the majority overruled a line of cases that stood for the proposition that a violation of RCr 8.30 simply opened the door for a case-by-case evaluation to determine whether a defendant had in fact been prejudiced by such a violation. See Coon v. Commonwealth, Ky, 791 S.W.2d 723 (1990); Smith v. Commonwealth, Ky., 669 S.W.2d 527 (1984). Peyton, also reinstated the Court of Appeals decision in Trulock v. Com moawealth. Ky.App., 620 S.W.2d 329 (1981), so as to eliminate the necessity to preserve the issue by defense objection. Trolock supra, held that objection was not required because the rule does not impose such a duty on the defendant, but on the contrary the duty to comply with the rule is imposed solely on the trial judge.

On appeal, McKee raises the issue of conflict in representation, but Kirkland does not. As to McKee, the record does not contain an executed copy of a waiver of dual representation as authorized by RCr 8.30. However, Kirkland did execute such a waiver.

The narrow issue before this Court is whether there is a presumption of a conflict of interest when an RCr 8.30 waiver is not executed and each defendant has his or her attorney, but those two attorneys work for the same legal aid or public defender's office. We find no case precedent in Kentucky answering this question where there are two different attorneys from the same legal aid or public defender's office, who represent two different defendants in a joint trial, and one of those defendants is not advised by the trial judge about a potential conflict, that the defendant's conviction must automatically be reversed. It must be remembered that the question of conflict of interest was not asserted by either defendant at trial.

We find the decision of the United States Supreme Court in Cuyler v. Szillivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), instructive when it determined in a federal habeas corpus case that actual, as distinguished from potential, conflict of interest was necessary in order to afford any relief. That court has recognized, in regard to multiple representations,

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that defense counsel has an ethical obligation to advise the trial judge of conflicts of interest, and if defense counsel does not so advise the court, the court may...

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59 practice notes
  • Radford v. Lovelace, No. 2005-SC-1024-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • June 15, 2006
    ...1523, 6 L.Ed.2d 901 (1961). Gosser v. Commonwealth, 31 S.W.3d 897, 906 (Ky.2000) (emphasis added); see also Kirkland v. Commonwealth, 53 S.W.3d 71, 76 (Ky.2001) ("For the purpose of appellate review, the trial judge is always recognized as the person best situated to properly evaluate ......
  • Partin v. Com., No. 2003-SC-0596-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • August 25, 2005
    ...that there was no manifest necessity for a mistrial. Shabazz v. Commonwealth, 153 S.W.3d 806, 810-11 (Ky.2005); Kirkland v. Commonwealth, 53 S.W.3d 71, 75-76 (Ky. Accordingly, the judgment of convictions and sentences imposed by the McCracken Circuit Court are affirmed. LAMBERT, C.J.; GRAVE......
  • Brunson v. State, No. CR 01-1172.
    • United States
    • Arkansas Supreme Court
    • June 13, 2002
    ...psychologist" to diagnose defendant as one likely to engage in predatory of acts of sexual violence); Kirkland v. Commonwealth, 53 S.W.3d 71 (Ky.2001) (licensed clinical social worker not qualified to testify defendant could be rehabilitated in an institutional setting); State v. Willi......
  • Bartley v. Commonwealth, No. 2011–SC–000683–MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • June 20, 2013
    ...of interest to the defendant, and the defendant waives in writing any objection thereto. SeeRCr 8.30(1). In Kirkland v. Commonwealth, 53 S.W.3d 71 (Ky.2001), we assumed without discussion that representation of co-defendants by two attorneys from the same public defender's office implicates......
  • Request a trial to view additional results
59 cases
  • Radford v. Lovelace, No. 2005-SC-1024-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • June 15, 2006
    ...1523, 6 L.Ed.2d 901 (1961). Gosser v. Commonwealth, 31 S.W.3d 897, 906 (Ky.2000) (emphasis added); see also Kirkland v. Commonwealth, 53 S.W.3d 71, 76 (Ky.2001) ("For the purpose of appellate review, the trial judge is always recognized as the person best situated to properly evaluate ......
  • Partin v. Com., No. 2003-SC-0596-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • August 25, 2005
    ...that there was no manifest necessity for a mistrial. Shabazz v. Commonwealth, 153 S.W.3d 806, 810-11 (Ky.2005); Kirkland v. Commonwealth, 53 S.W.3d 71, 75-76 (Ky. Accordingly, the judgment of convictions and sentences imposed by the McCracken Circuit Court are affirmed. LAMBERT, C.J.; GRAVE......
  • Brunson v. State, No. CR 01-1172.
    • United States
    • Arkansas Supreme Court
    • June 13, 2002
    ...psychologist" to diagnose defendant as one likely to engage in predatory of acts of sexual violence); Kirkland v. Commonwealth, 53 S.W.3d 71 (Ky.2001) (licensed clinical social worker not qualified to testify defendant could be rehabilitated in an institutional setting); State v. Willi......
  • Bartley v. Commonwealth, No. 2011–SC–000683–MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • June 20, 2013
    ...of interest to the defendant, and the defendant waives in writing any objection thereto. SeeRCr 8.30(1). In Kirkland v. Commonwealth, 53 S.W.3d 71 (Ky.2001), we assumed without discussion that representation of co-defendants by two attorneys from the same public defender's office implicates......
  • Request a trial to view additional results

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