Petition of Hoang

• Decision Date: 27 October 1989
• Docket Number: No. 63388,63388
• Citation: Petition of Hoang, 781 P.2d 731, 245 Kan. 560 (Kan. 1989)
• Parties: In The Matter of the Petition of Thai Do HOANG for a Writ of Habeas Corpus.
• Court: Kansas Supreme Court

Page 731

781 P.2d 731

245 Kan. 560

In The Matter of the Petition of Thai Do HOANG for a Writ of Habeas Corpus.

No. 63388.

Supreme Court of Kansas.

Oct. 27, 1989.

Syllabus by the Court

1. Habeas corpus is an appropriate remedy for challenging a trial court's pretrial denial of a claim of double jeopardy.

2. In a criminal case where a question of conflict of interest is raised relative to defense counsel, the court must balance all interests involved, including defendant's rights to counsel of choice and a fair trial, rights of witnesses which might be violated, and the preservation of the integrity of the system for the administration of justice. The court has broad discretion in making its decision as to conflict of interest and disqualification of counsel, all as is more fully set forth in the opinion.

3. Where particular circumstances manifest a necessity for so doing, the trial court may, in its sound discretion, declare a mistrial, discharge the jury, and require a defendant to stand trial before another jury. Under such circumstances the second trial does not constitute double jeopardy as prohibited by the Fifth Amendment to the United States Constitution.

G. Craig Robinson, of Wichita, argued the cause, for petitioner.

Debra S. Byrd, Asst. Sedgwick County Dist. Atty., argued the cause, for respondent.

McFARLAND, Justice:

In this habeas corpus proceeding the petitioner, Thai Do Hoang, contends a mistrial was improperly declared and a retrial would violate his constitutional right not to be placed in jeopardy twice for the same offense.

Hoang was charged with two counts of first-degree felony murder (K.S.A. 21-3401), one count of arson (K.S.A. 21-3718), and one count of burglary (K.S.A. 21-3715). The charges arose from an incident occurring during the early morning of October 8 1986, wherein two men died in an after-hours fire at a restaurant. The State contended Hoang had been hired to set the fire, and the two dead men had been hired by Hoang to assist him in completing his arson contract. The district court held that felony murder was inapplicable to deaths of accomplices and dismissed the felony-murder charges. The State appealed therefrom, and we reversed the dismissals (State v. Hoang, 243 Kan. 40, 755 P.2d 7 [1988]. A more detailed account of the facts from which the charges arose and the rationale utilized in reversing the dismissals are set forth in this earlier opinion.

On remand, the case was called for jury trial commencing December 19, 1988. Hoang was represented by Richard Ney of the Sedgwick County Public Defender's Office. On the day preceding trial, Mr. Ney discovered his office had represented Binh Van Tran who was a key prosecution witness against Hoang. The Tran case had been handled while Hoang's case was on appeal. Ney advised the prosecutor, Mark Sevart, of the Tran representation on the opening day of the Hoang trial. Sevart advised that if Ney had a problem with the situation, he (Ney) should so advise the court. The following morning (December 20, 1988), Sevart made a motion in limine to prohibit defense counsel from bringing out the prior representation. The trial court was thus alerted, immediately after opening statements had been made, that a possible conflict of interest existed with defense counsel. The trial court was concerned with Ney's anticipated cross-examination of Tran. Ney advised that Tran had been represented by another attorney in his office, and he did not believe he had a conflict as a result thereof. The court initially stated that if Sevart and Hoang, personally, agreed on the record that Ney could properly continue as defense counsel then the trial could proceed, otherwise he would declare a mistrial. This point was never reached as Sevart objected on the basis he had no way of determining what confidential communication had been received by Ney's office during its representation of Tran. The court held that a conflict of interest existed, disqualified Ney as defense counsel, and declared a mistrial. New counsel was appointed.

A motion was filed in the district court by defense counsel seeking dismissal of the charges on the grounds the mistrial had been granted improperly and that a trial would result in Hoang being twice placed in jeopardy contrary to the Fifth Amendment of the United States Constitution. The hearing on this motion was held on February 10, 1989. The motion was denied. Trial was scheduled for March 6, 1989. On February 21, 1989, this original habeas corpus proceeding was filed in our court which was accompanied by a request for a stay of the scheduled trial. The stay was granted and a response was requested.

A petition for a writ of habeas corpus is an appropriate method for challenging a trial court's pretrial denial of a claim of double jeopardy. In re Habeas Corpus Petition of Mason, 245 Kan. 111, Syl. p 1, 775 P.2d 179 (1989); In re Berkowitz, 3 Kan.App.2d 726, Syl. p 2, 602 P.2d 99 (1979). See Kamen v. Gray, 169 Kan. 664, 669, 220 P.2d 160 (1950).

A claim of double jeopardy is the issue before us, but its resolution involves determination of three related questions. Did the trial court abuse its discretion in:

(1) holding Ney had a conflict of interest;

(2) disqualifying Ney from serving as defense counsel; and

(3) declaring a mistrial.

The trial court is placed in an extremely difficult situation when confronted with facts indicating that defense counsel in a criminal case may have a conflict of interest due to prior representation of a prosecution witness. The judge must consider the whole picture not just the desires of the parties. The balancing of interests becomes extremely involved. If a defense attorney's scope of cross-examination of a key prosecution witness is restricted to avoid possible violation of the attorney-client privileges of the witness, then the defendant has major claims of ineffective assistance of counsel and lack of a fair trial. If the examination is not restricted, then the witness' attorney-client privilege may be violated. It is a significant public policy that individuals be free to disclose confidential information to their attorneys without fear of subsequent examination on and disclosure of those communications. The judge has a duty to maintain the integrity of the administration of the justice system.

A similar dilemma was presented in U.S. v. Cheshire, 707 F.Supp. 235 (M.D.La.1989), wherein the government sought to disqualify two defense attorneys. One of the attorneys had represented an individual who was now a key government witness against the attorney's present client. An "associate" of this attorney represented a second defendant. The attorneys proposed to hire an independent attorney to cross-examine the witness in question. The court rejected this arrangement and disqualified both attorneys. The court noted the "associate" merely officed with the other attorney and kept separate files, but they operated under the letterhead which stated they were "an Association of Attorneys at Law." The public, it was noted, could conclude the two attorneys were in a law firm. In its holding, the court stated:

"This court has concluded that these attorneys must be disqualified. Such a motion requires the court to undertake an examination of the facts and to carefully balance the right of each defendant, guaranteed by the Sixth Amendment, to the effective assistance of counsel against the potential harm to the integrity of the administration of justice arising out of the conflict of interest of counsel. This court is fully aware of the very sensitive nature of the attorney-client relationship and fully aware that a defendant's choice of counsel should be presumed correct and should be honored in the absence of strong reasons to the contrary.

"This court is also aware of the 'catch 22' situation that a trial judge finds himself in as a result of such a motion. As the Supreme Court recently commented in Wheat v. United States, 486 U.S. 153, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988):

" '[T]rial courts confronted with multiple representations face the prospect of being "whipsawed" by assertions of error no matter which way they rule. If a district court agrees to the multiple representation, and the advocacy of counsel is thereafter impaired as a result, the defendant may well claim that he did not receive effective assistance. See, e.g., Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987). On the other hand, a district court's refusal to accede to the multiple representation may result in a challenge such as petitioner's in this case ... 108 S.Ct. at 1698.' " 707 F.Supp. at 236-37.

In U.S. ex rel. Stewart on Behalf of Tineo v. Kelly, 870 F.2d 854 (2d Cir.1989), defense counsel had represented a key prosecution witness, a confidential informant, in the past. The attorney offered to limit his cross-examination of the witness to information contained on the witness' "rap sheet." The court stated:

"This appeal presents the question whether the district court was correct in holding that the trial court denied Tineo's Sixth Amendment right to counsel of his choice because of a potential for conflict of interest. We conclude that the district court, relying on a magistrate's report issued prior to the decision in Wheat v. United States, 486 U.S. 153, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988), reached the wrong result. In Wheat, a federal court defendant requested substitution of counsel approximately one week prior to the start of his trial. The attorney he wanted was representing two other defendants involved in various aspects of the defendant's case. The government raised the issue of conflict of interest. The Supreme Court held that the district court correctly denied defendant's request for substitution. It described the competing interests as 'the extent to which a criminal defendant's right under the Sixth Amendment to his chosen attorney is qualified by the fact that...