Lux v. Com.

• Decision Date: 22 April 1997
• Docket Number: No. 1304-96-2,1304-96-2
• Parties: Herbert W. LUX, Jr. v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 145

484 S.E.2d 145

24 Va.App. 561

Herbert W. LUX, Jr. v. COMMONWEALTH of Virginia.

Record No. 1304-96-2.

Court of Appeals of Virginia,

Richmond.

April 22, 1997.

Muriel-Theresa Pitney, Senior Assistant Public Defender, for appellant.

John K. Byrum, Jr., Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: COLEMAN, ELDER and FITZPATRICK, JJ.

ELDER, Judge.

Herbert W. Lux, Jr. (appellant) appeals an order of the trial court revoking his suspended jail sentence from a previous conviction. He contends that the trial court erred when it denied his motion to disqualify the Commonwealth's attorney. For the reasons that follow, we reverse and remand.

I. FACTS

In January, 1994, a jury convicted appellant of "grand larceny by false pretenses" and "grand larceny--mechanic's lien fraud" and acquitted him of "construction lien fraud." Appellant represented himself pro se at his trial but received assistance from a public defender assigned to his case. After he was convicted but before he was sentenced, appellant dismissed the public defender as his counsel. In March, 1994, the trial court sentenced appellant to nine months in jail but suspended this sentence on the condition that appellant pay restitution to the victims of his larcenies. Appellant appealed his convictions to both this Court and the Virginia Supreme Court, and his petitions were denied. Appellant then filed notice of his intent to appeal to the United States Supreme Court.

On July 1, 1995, the public defender who assisted appellant at his trial was hired to work in the Commonwealth's Attorney's office. The office purportedly established a "chinese wall" procedure that prohibited the public defender from participating in any of the proceedings against appellant. The Commonwealth's attorney made this assertion during his argument at the hearing on appellant's motion to disqualify but offered no evidence proving the existence or nature of the screening procedures utilized.

On January 4, 1996, before the time had expired for the filing of appellant's appeal to the United States Supreme Court, the Commonwealth moved the trial court to revoke appellant's suspended jail sentence. At a show cause hearing, the trial court found that appellant had violated the conditions of his suspended sentence by not paying restitution to his victims. The trial court continued the matter for sentencing at a date after the conclusion of appellant's appeal to the United States Supreme Court.

On January 11, 1996, appellant, acting pro se, filed a civil action in federal court against the Commonwealth's attorney and one of the victims of his larcenies. In his civil complaint, appellant alleged that the Commonwealth's attorney and the victim had violated 42 U.S.C. § 1983 by conspiring to maliciously prosecute him for construction lien fraud, the charge of which he was acquitted at his trial in 1994.

On January 25, 1996, the time period expired for appellant to file his petition for a writ of certiorari to the United States Supreme Court pertaining to his 1994 convictions. Appellant had failed to perfect his appeal.

On April 15, 1996, while appellant's federal civil action was pending, appellant moved the trial court to disqualify the Commonwealth's attorney and appoint a special prosecutor. Appellant argued that the Commonwealth's attorney's status as a party in civil litigation involving appellant and the employment by the Commonwealth's Attorney's office of appellant's former trial counsel created an unconstitutional conflict of interest. The trial court denied appellant's motion and continued the revocation proceeding until June 5. On June 5, the trial court concluded that appellant was still in contempt of its restitution order and ordered him to serve the remaining seven months of his jail sentence.

II. DISQUALIFICATION OF COMMONWEALTH'S ATTORNEY

Appellant contends that the trial court committed reversible error when it denied his motion to disqualify the Commonwealth's attorney. Appellant argues that the Commonwealth's attorney was disqualified by virtue of his personal interest in appellant's federal civil action and by the conflicting interest imputed to him by the employment in the Commonwealth's Attorney's office of appellant's former counsel. We hold that appellant's § 1983 action against the Commonwealth's attorney did not create an unconstitutional conflict of interest but that the trial court abused its discretion when, under the circumstances presented, it failed to disqualify the Commonwealth's attorney based upon the Commonwealth's Attorney's employment of appellant's former counsel.

A.

Prosecuting attorneys have broad discretionary power over criminal defendants at several stages of the criminal process. See Wayte v. United States, 470 U.S. 598, 607, 105 S.Ct. 1524, 1530, 84 L.Ed.2d 547 (1985). Within limits, prosecutors decide whether or not to prosecute an individual, determine the exact charges for which an individual will be tried, and, if the individual is convicted, recommend the magnitude and nature of the individual's sentence. Id. (citing Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1978)). "There is no doubt that the breadth of discretion that our country's legal system vests in prosecuting attorneys carries with it the potential for individual and institutional abuse." Bordenkircher, 434 U.S. at 365, 98 S.Ct. at 669.

In order to protect prosecutorial impartiality, a trial court has the power to disqualify a Commonwealth's attorney from proceeding with a particular criminal prosecution if the trial court determines that the Commonwealth's attorney has an interest pertinent to a defendant's case that may conflict with the Commonwealth's attorney's official duties. See People v. Hamilton, 46 Cal.3d 123, 141, 249 Cal.Rptr. 320, 328, 756 P.2d 1348, 1357 (Cal.1988), cert. denied, 489 U.S. 1040, 109 S.Ct. 1176, 103 L.Ed.2d 238 (1989); 63A Am.Jur.2d Prosecuting Attorneys § 30-32 (1984); 27 C.J.S. District and Prosecuting Attorneys § 12(6) (1959); see generally T.J. Griffin, Disqualification of Prosecuting Attorney on Account of Relationship with Accused, 31 A.L.R.3d 953 (1970). A Commonwealth's attorney's duties include the impartial prosecution of those accused of crime and the duty to see that an accused is accorded a fair trial. See Commonwealth v. Kilgore, 15 Va.App. 684, 693, 426 S.E.2d 837, 842 (1993); Cantrell v. Commonwealth, 229 Va. 387, 393, 329 S.E.2d 22, 26 (1985).

Criminal defendants are afforded constitutional protection against prosecutors who are partial to interests beyond their official duties. The due process rights of a criminal defendant under both the Virginia and United States Constitutions are violated when the defendant is prosecuted by a Commonwealth's attorney who has a conflict of interest relevant to the defendant's case. ¹ See Cantrell, 229 Va. at 394, 329 S.E.2d at 26-27 (holding that "[a] conflict of interest on the part of the prosecution" violates the Due Process Clause of the Virginia Constitution); Ganger v. Peyton, 379 F.2d 709, 714 (4th Cir.1967) (holding that an attempt by a prosecuting attorney to serve two masters violates the Due Process Clause of the Fourteenth Amendment). The specific due process right implicated when a Commonwealth's attorney has a conflict of interest is the defendant's right to the "fair minded exercise of the prosecutor's discretion." Ganger, 379 F.2d at 712.

The decision whether to disqualify a Commonwealth's attorney in a particular case is committed to the sound discretion of the trial court. Hamilton, 46 Cal.3d at 140, 249 Cal.Rptr. at 328, 756 P.2d at 1356. The issue generally arises in at least two situations:

[t]he first is where the prosecutor has had some attorney-client relationship with the parties involved whereby he obtained privileged information that may be adverse to the defendant's interest in regard to the pending criminal charges.... A second [situation] is where the prosecutor has some direct personal interest arising from animosity, a financial interest, kinship, or close friendship such that his objectivity and impartiality are called into question.

Nicholas v. Sammons, 178 W.Va. 631, 633, 363 S.E.2d 516, 518 (1987). A trial court should grant a criminal defendant's motion to disqualify under circumstances where it can be reasonably inferred that the Commonwealth's attorney has either a personal interest in the outcome of the prosecution or an interest arising from his or her former representation of the defendant that conflicts with the fair minded exercise of his or her prosecutorial discretion. See Kilgore, 15 Va.App. at 694-95, 426 S.E.2d at 843; State v. Knight, 168 W.Va. 615, 625, 285 S.E.2d 401, 407 (1981); Ganger, 379 F.2d at 712-13, 714. ²

We hold that the trial court did not abuse its discretion when it determined that appellant's § 1983 action against the Commonwealth's attorney failed to warrant the Commonwealth's attorney's disqualification. At the time appellant filed the civil action on January 11, the revocation proceeding had already been initiated and partially litigated. Thus, the danger posed by appellant's lawsuit was the possible conflict between the Commonwealth's attorney's interest in avoiding financial loss and damage to his professional reputation and the impartial exercise of his discretion in recommending a sentence.

We cannot say that the trial court abused its discretion because appellant's § 1983 action did not create an actual conflict of interest for the Commonwealth's attorney. The Commonwealth's attorney was absolutely immune from any liability for the actions complained of by appellant in his civil suit. In suits against executive officials under § 1983, these officials are afforded either qualified immunity or absolute immunity. See Buckley v. Fitzsimmons, 509 U.S. 259, 268-69, 113 S.Ct. 2606, 2613, 125 L.Ed.2d 209 (1993). ...