State ex rel. Romley v. Gottsfield

• Decision Date: 13 February 1992
• Docket Number: CA-SA,No. 1,1
• Citation: 829 P.2d 1241,171 Ariz. 195
• Parties: The STATE of Arizona, ex rel., Richard M. ROMLEY, Maricopa County Attorney, Petitioner, v. The Honorable Robert L. GOTTSFIELD, judge, the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent. Oreste FULMINANTE, Real Party in Interest. 91-181.
• Court: Arizona Court of Appeals

Page 1241

829 P.2d 1241

171 Ariz. 195

The STATE of Arizona, ex rel., Richard M. ROMLEY, Maricopa County Attorney, Petitioner, v. The Honorable Robert L. GOTTSFIELD, judge, the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent.

Oreste FULMINANTE, Real Party in Interest.

No. 1 CA-SA 91-181.

Court of Appeals of Arizona,

Division 1, Department B.

Feb. 13, 1992.

As Corrected Feb. 14, 1992.

Review Denied June 2, 1992.

Grant Woods, Atty. Gen. by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section, and Richard M. Romley, Maricopa County Atty. by Jessica Gifford Funkhouser, Deputy County Atty., Phoenix, for petitioner.

Dennis C. Jones, Phoenix, for real party in interest.

OPINION

CLABORNE, Judge.

The State of Arizona petitioned this court for special action relief from a superior court order disqualifying the entire Maricopa County Attorney's office from prosecuting Oreste Fulminante for first-degree murder. We took jurisdiction and granted relief and reversed the trial court's order disqualifying the office of the Maricopa County Attorney from prosecution of Mr. Fulminante. We indicated that a written opinion would follow. This is that opinion.

This special action again raises the specter of disqualification of a prosecutor's entire office because of the actions of one of its deputies.

On May 1, 1991, Oreste Fulminante ("Fulminante"), who was charged with first-degree murder by the Maricopa County Attorney, moved to disqualify the entire office of the Maricopa County Attorney because a member of that office, Lyn Kane ("Kane"), had been associated with the defense attorney, Francis Koopman ("Koopman"), when Koopman represented the defendant Fulminante through his first criminal trial on the same charge. At the time the motion to disqualify was filed, Kane was employed in the vehicular crimes division of the Maricopa County Attorney's office. At a hearing on the motion to disqualify, both Koopman and Kane testified.

The trial court gave the following reasons for its decision.

By way of explanation, the Court believes that the Office of the Maricopa County Attorney should be disqualified because Mr. Koopman admitted that he talked about witnesses and the weaknesses and strengths of witnesses in general with Mr. Kane (T.30); that he may have "discussed certain facts concerning the case but in a conversational type thing and not in seeking advice or revealing anything that Mr. Fulminante had said to me" (30); that he shared his mental impressions and thoughts about certain witnesses in the case with Mr. Kane (33); and accordingly, the Court is of the view there was a "potential for the use of privileged and confidential information"; and, furthermore, that there is an appearance of impropriety in this matter sufficient to require the office of the Maricopa County Attorney to be disqualified. This Court specifically rejects the State's view that the Office of the Maricopa County Attorney should only be disqualified if Mr. Kane, who is now with that office and who was formerly in a professional affiliation with Mr. Koopman, personally or substantially represented the Defendant. See Gomez, Turbin, Latigue, and Bicas.

It appears from the entire record that the legal relationship between Kane and Koopman was one of sharing office space, letterhead, receptionists, and the like. There is no evidence that Kane, although a partner of Koopman's for a short time, gained any information concerning the Fulminante case from the association.

There is no question that Kane did not file or sign pleadings concerning the case, did not interview or talk to witnesses who were or might be involved in the case, knew nothing about trial strategy concerning the prosecution or defense of the case, did not share confidences with Koopman about the case, and knew nothing about what Fulminante might have told Koopman about the case. A fair reading of Koopman's testimony would indicate that the most that could be said is that Koopman may have talked with Kane about his trip to interview a witness in New York and may have talked very generally about Koopman's impressions of that witness.

The record reflects that Kane's testimony was unequivocal. He said he never discussed anything concerning strategy, witnesses or confidences concerning either the Fulminante defense or any other "contract" case that Koopman was defending as part of his public defender contract.

The Maricopa County Attorney's office has about 150 deputies, and Kane was the chief of the vehicular crimes unit supervising from ten to twenty attorneys. He had nothing to do with the prosecution of homicides and was not the supervisor of the prosecutor in charge of Fulminante's case. The record does not reflect that Fulminante suffered any prejudice as a result of the contact between Kane and Koopman.

The...