State ex rel. Kinder v. McShane
| Decision Date | 22 October 2002 |
| Docket Number | No. SC 84082.,SC 84082. |
| Citation | 87 S.W.3d 256 |
| Parties | STATE ex rel. Adrian KINDER, Relator, v. The Honorable Maura B. McSHANE, Judge, Circuit Court of St. Louis County, Missouri, Respondent. |
| Court | Missouri Supreme Court |
Arthur G. Muegler, Jr., St. Louis, for Relator.
S. Bart Calhoun, Asst. Prosecuting Atty., Clayton, for Respondent.
This Court issued a preliminary writ of prohibition to determine whether the trial judge abused her discretion in refusing to accept Adrian Kinder's attempted waiver of a potentially serious conflict of interest. This issue arose when Adrian's attorney, Arthur Muegler, represented Adrian's father, Kevin Kinder, at a deposition in this very case, a deposition at which Kevin gave testimony that the prosecution says will be key to its prosecution of Adrian for the murder of his mother. The prosecutor then moved to require Muegler to withdraw from representing Adrian because of this potential conflict. The trial court granted the motion over the objection of Adrian and his father, Kevin.
While a defendant's knowing and intelligent waiver of a potential conflict of interest should and will in most instances be respected, on the facts of this case Adrian's purported waiver was not valid. More specifically, the record does not show that either Adrian or his father, Kevin, gave a knowing waiver of the potential conflict of interest prior to Kevin's deposition, or even that they really understood that the potential for a conflict would result if Muegler undertook to represent Kevin at the state's deposition of him.
Moreover, where the potential for a conflict of interest at trial is of the magnitude shown on this record, the trial court must look beyond a defendant's purported waiver to determine whether continued representation will deprive the defendant of the right to a fair trial. Here, the trial court determined that the potential for conflict was too great and refused to accept Adrian's attempt to retroactively validate his counsel's dual representation. This ruling was not an abuse of discretion on the facts of this case. For these reasons, this Court's preliminary writ of prohibition is quashed.
On the evening of September 9, 2000, the body of Sherri Kinder was discovered after police and firefighters responded to a fire at the residence she shared with her husband, Kevin Kinder, their 16-year old son, Adrian Kinder, and their toddler son. After the fire was contained, authorities located Sherri, shot to death, in an upstairs room. Adrian was outside the residence when authorities first reached the scene. Kevin was not at home, reportedly having left the house around 1:30 p.m. to spend the night at a local motel to catch up on work.
Adrian was taken into custody and charged with a violation of the juvenile code. Kevin hired Muegler to represent Adrian in the juvenile proceedings. On November 2, 2000, the juvenile division certified Adrian to stand trial as an adult, and he was subsequently charged with first-degree murder, armed criminal action, and first-degree arson related to the death of his mother, Sherri. Muegler continued to represent Adrian in the criminal case.
On July 19, 2001, the State deposed Adrian's father, Kevin, after endorsing him as a prosecution witness. Muegler attended the deposition as counsel for both Kevin and Adrian, advised Kevin in answering the prosecutor's questions, and objected to various questions. One of those questions was whether Kevin had waived any conflict of interest in retaining Muegler to represent both him and Adrian, a question that. Muegler instructed him not to answer.
At the deposition, Kevin acknowledged that shortly after learning of the events surrounding the fire at his home, he informed the police that he thought Adrian had killed his wife. He stated that everyone told him that Adrian committed the murder and, so, he "made an assumption that I guess he did it." He also indicated that he believed if he had been home Adrian would have killed him, too. Kevin further testified that:
• When Adrian was living at home and not in juvenile custody, his behavioral problems were such that his parents had problems controlling him;
• Sometime before the events of September 9, 2000, Kevin requested the juvenile division to remove Adrian from his home "because he was hanging around with the wrong people and I wanted him to go to the military when he was 17 and I didn't want anything to preclude him from being able to get in;"
• Kevin did not think being grounded was a severe enough punishment for Adrian's behavior problems, so he usually reported him to the juvenile authorities instead;
• Once when Kevin and Adrian were in the house and both were angry, Kevin swung his walking stick like he was going to hit Adrian, who ran out of the house and kicked his father's windmill to pieces. Kevin then called the police and had Adrian sent to juvenile detention;
• On another occasion, Adrian was involved in a physical altercation with Sherri, during which he grabbed her wrist and refused to release her;
• Kevin only trusted Adrian "to a point" because Adrian had lied in the past about stealing things from his father and selling them to a pawn shop;
• Adrian only admitted stealing when he was caught red-handed;
• Kevin kept a variety of handguns in the house in locked safes, but he kept the keys on his key ring and left the key ring on the top step with the family's other keys whenever he came home;
• Kevin also kept "long guns," including a .16-gauge shotgun, which mysteriously had a .20-gauge shell jammed into it, in a safe adjacent to the master bedroom;
• Sherri called Kevin one day at work because, when she came home, Adrian was in the computer room with a shotgun and "was going to shoot his head off;"
• In January 2000, Kevin decided to take an inventory of his guns due to the thefts around the house, in order to make sure that neither Adrian nor any of his friends had stolen a gun;
• Kevin never visited Adrian in jail;
• Kevin confirmed that two items found in Adrian's possession at the time of his arrest were the keys to Sherri's car and Kevin's checkbook and that Adrian did not have permission to drive the car (nor did he have a driver's license) or permission to possess the checkbook.
On August 2, 2001, the State filed a motion to disqualify Muegler as Adrian's attorney due to a conflict of interest based on Muegler's representation of both the defendant, Adrian, and a key prosecution witness, Kevin. At a hearing on the motion, both Adrian and Kevin testified that Muegler did not discuss any conflict of interest issue with them prior to the deposition, but both stated that there was no such conflict of interest. The motion court disagreed, stating, "I don't see how you can represent a key witness to the case, to the state's case, and at the same time represent the defendant in the case." The motion court then granted the state's motion to disqualify Muegler due to the "appearance of a conflict of interest" and the "potential conflict of interest ... [that] could arise in the middle of the trial." To challenge the ruling, Adrian filed a petition for writ of prohibition in the Court of Appeals, Eastern District, which was denied. He then sought a writ in this Court. This Court issued its preliminary writ of prohibition.
Prohibition is a discretionary writ that lies only to prevent "an abuse of judicial discretion, to avoid irreparable harm to a party, or to prevent exercise of extra-jurisdictional power." State ex rel. Linthicum v. Calvin, 57 S.W.3d 855, 857 (Mo. banc 2001). The general rule is that, if a court is "entitled to exercise discretion in the matter before it, a writ of prohibition cannot prevent or control the manner of its exercise, so long as the exercise is within the jurisdiction of the court." State ex rel. K-Mart Corp. v. Holliger, 986 S.W.2d 165, 169 (Mo. banc 1999).
The leading Missouri case addressing conflicts of interest that may arise when an attorney represents both a criminal defendant and a prosecution witness in the same case is Ciarelli v. State, 441 S.W.2d 695 (Mo.1969). Ciarelli was accused of receiving golf equipment stolen from a country club by Victor Osborne and another. While Ciarelli and Osborne were originally represented by different counsel, due to illness Ciarelli's prior attorney withdrew and attorney Robert Harrington represented Ciarelli at trial. Either Harrington or one of his partners also represented Osborne. Osborne gave testimony adverse to Ciarelli as a witness for the state at the trial. Ciarelli was convicted.
On appeal, Ciarelli argued that Harrington's representation of both him and a prosecution witness created an actual conflict of interest and that conflict in turn denied him his Sixth Amendment right to counsel. This Court agreed with defendant that:
It has been ruled in numerous federal cases that a defendant in a criminal trial is denied his constitutional right to counsel if his attorney represents conflicting interests without his knowledge and assent.
Id., 441 S.W.2d at 697. This Court then held that, given this Sixth Amendment right to counsel, "An attorney who represents both the defendant and a prosecution witness in the case against the defendant is representing conflicting interests." Id.
As this Court noted, recognition that a conflict of interest exists does not end the inquiry, for a conflict of interest may in many circumstances be waived. The waiver must be knowing, of course, for, "[t]here can be no doubt that, insofar as this problem [of a conflict of interest] is concerned, the fact that an attorney is of the defendant's own choosing is of no significance, absent knowledgeable consent of the accused". Id. at 697. But, Ciarelli found that defendant had gone to trial aware of the conflict...
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