State Of Kan. v. Gonzalez

Citation234 P.3d 1
Decision Date18 June 2010
Docket Number400.,No. 102,102
PartiesSTATE of Kansas, Plaintiff/Appellee,v.Valerie GONZALEZ, Defendant/Appellee,andSarah Sweet-McKinnon, Contemner/Appellant.
CourtKansas Supreme Court

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

[234 P.3d 747]

Syllabus by the Court

1. K.S.A. 20-1205 and K.S.A. 60-2102(a)(4) provide appellate jurisdiction to address a civil contempt order as well as the district court judge's underlying decisions on the issuance of a subpoena and a motion to quash.

2. An appellate court reviews a determination that conduct is contemptuous under a de novo standard; contempt sanctions are reviewed for abuse of discretion.

3. A district court judge's decision on a motion to quash a subpoena is reviewed on appeal for abuse of discretion. Discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. Still, an appellate court has unlimited review of legal conclusions upon which a district court judge's discretionary decision is based. Moreover, even if a decision is entrusted to the discretion of a district court judge, and he or she correctly understands and applies the controlling legal standards, the facts upon which the discretionary decision must depend may still be challenged on appeal as unsupported by substantial competent evidence in the record.

4. If the underlying facts concerning the applicability of a privilege are not in dispute, appellate review is plenary.

5. A privilege is a rule of evidence that allows a person to shield a confidential communication or information from compelled disclosure during litigation. The Kansas attorney-client privilege protects from compelled disclosure certain confidential communications made between an attorney and client in the course of their professional relationship. In contrast, an attorney's ethical duty of client confidentiality arises under the Kansas Rules of Professional Conduct and is broadly applicable to all information related to representation of a client and in all situations other than those where evidence is sought from the lawyer through compulsion of law.

6. A prosecutor who seeks to have criminal defense counsel testify about a current or former client's confidential information must file a

[234 P.3d 748]

motion for issuance of a subpoena. On hearing the motion, Kansas Rule of Professional Conduct 3.8(e) is the analytical rubric for a district court judge. Under it, the district judge may not issue such a subpoena unless the prosecutor establishes that (1) the information sought is not protected from disclosure by any applicable privilege; (2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and (3) there is no other feasible alternative to obtain the information. The grounds for quashing such a subpoena may include the nonexistence of any of the three KRPC 3.8(e) (2009 Kan. Ct. R. Annot. 564) factors, as well any of the other factors listed in K.S.A. 60-245(c). The initial determinations made on the KRPC 3.8(e) factors in order to issue the subpoena have no preclusive effect, as those determinations were made without the participation of the attorney subject to the subpoena. Thus the State retains the burden of demonstrating the existence of each of the KRPC 3.8(e) factors, with one modification: If the attorney invokes the attorney-client privilege, the attorney has the burden to show the privilege applies; if, on the other hand, the State contends an exception to the privilege applies, the State has the burden of establishing the existence of the exception.

7. On the record of this case as developed so far, the attorney-client privilege applies to prevent disclosure of the identity of the former client of criminal defense counsel. The attorney's summary of the client's expression of an intention to commit perjury is the only evidence, and merely reed-thin circumstantial evidence, that the former client sought legal services to facilitate a future crime. K.S.A. 60-426(b)(1) requires additional evidence before the crime-fraud exception to attorney-client privilege will arise.

8. Although the attorney-client privilege usually does not extend to a client's name or identity, when the content of a confidential communication has already been revealed by the attorney without the client's permission, the client's name or identity must be protected from disclosure to achieve the purpose of the privilege.

9. On the record of this case as developed so far, the State has failed to establish that it has no feasible alternative to obtain the information it seeks through a subpoena to criminal defense counsel.

Roger L. Falk, of Law Office of Falk and Cotton, P.A., of Wichita, argued the cause and was on the briefs for appellant.

Kristafer R. Ailslieger, assistant solicitor general, argued the cause, and Stephen D. Maxwell, senior assistant district attorney, Keith E. Schroeder, county attorney, and Steve Six, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by BEIER, J.:

[234 P.3d 749]

Sarah Sweet-McKinnon, the Chief Public Defender for the Reno County Public Defender's office, appeals a judgment finding her guilty of direct civil contempt and imposing a $1,000 per day coercive sanction. The contempt judgment and sanction arose out of McKinnon's refusal to testify under subpoena by the State concerning a statement made by a former client, who expressed an intent to commit perjury in the prosecution of defendant Valerie Gonzalez. We transferred the appeal from the Court of Appeals on McKinnon's motion pursuant to K.S.A. 20-3017.

Factual and Procedural Background

In early 2007, McKinnon was appointed to represent defendant Gonzalez on a charge of first-degree murder. McKinnon or one of the attorneys she supervised in the Reno County Public Defender's Office represented another defendant on an unrelated case who was in custody at the Reno County Jail at the same time as Gonzalez. At some point, the other client informed her counsel that she intended to commit perjury in Gonzalez' case. The public defender's office filed a motion to withdraw from the other client's case. The case against Gonzalez was dismissed in June 2007.

In January 2009, the State refiled the case against Gonzalez, and McKinnon was again appointed to represent her. The new complaint listed several endorsed witnesses who had not been listed on the 2007 complaint, seven of which were former clients of the public defender's office who had been housed at the Reno County Jail at the same time as Gonzalez in 2007. Among them was the former client who had expressed the intent to commit perjury in Gonzalez' case.

Given the seven newly endorsed witnesses, McKinnon filed a motion to withdraw as Gonzalez' attorney. The motion included the following statements:

“3. In all of the prior representations of the seven prior Public Defender clients, the movant has actual information by virtue of the prior representation that would

[234 P.3d 750]

severely restrict the scope of cross-examination of these prosecution witnesses to avoid possible violation of the attorney client privileges of the state's witnesses, including, but not limited to:
‘a. A statement by a former client of the Public Defender's office that was made during representation that the prior client intended to commit perjury in Ms. [Gonzalez’] case, who is now a prosecution witness.'

The district judge granted McKinnon's motion to withdraw and appointed new counsel for Gonzalez.

The State then filed a motion to issue a subpoena for McKinnon to appear and testify at Gonzalez' preliminary hearing. The motion was based on Kansas Rule of Professional Conduct (KRPC) Rule 3.8(e) (2009 Kan. Ct. R. Annot. 565), which prohibits a prosecutor from subpoenaing a lawyer in a criminal proceeding “to present evidence about a past or present client unless the prosecutor reasonably believes” the evidence is not protected by privilege, is essential to the successful completion of the prosecution, and “there is no other feasible alternative to obtain the information[.] In its motion, the State requested that the district judge make findings on each of the KRPC 3.8(e) factors. The State explained it was using this unusual procedure out of an “abundance of caution and in light of the serious nature of causing a subpoena [to issue] for a criminal defense attorney[.]

At the hearing on the motion, the State called Reno County Police Detective John Moore. Moore had conducted the investigation to determine which of the State's endorsed witnesses might have made the statement referenced in McKinnon's motion to withdraw. Moore's testimony about those efforts is as follows:

“Q: [Prosecutor] And did you, as part of this investigation in the case, did you attempt to ... locate and interview the witness endorsed by the State that could possibly be the witness that Ms. McKinnon indicated may intend to commit perjury?
“A: [Moore] Yes.
“Q: Okay. And when you interviewed these particular witnesses, how many total was there?
“A: Sixteen.
....
“Q: Okay. And were you able to, during the interviews of these witnesses, find any witness who would support or agree with the statement made by Ms. McKinnon in the motion?

[234 P.3d 751]

“A: No.
“Q: In fact did some of the witnesses indicate that they never even heard of Ms. McKinnon?
“A: I have at least five who had never heard of her.
“Q: Okay. And the ones who had heard of her, did those witnesses indicate whether or not they had ever discussed the Gonzalez case with Ms. McKinnon?
“A: Not one of the witnesses ever said that they had discussed this case with Ms. McKinnon.
“Q: Okay. Based on this particular investigation, were you able to find any support in the witnesses, or evidence to support the allegation that was made?
“A: No.
“Q: Did you have any other avenues in the investigation to undertake other than doing this particular interview of these witnesses? Did you have any other ways you could go
...

To continue reading

Request your trial
115 cases
  • State v. Warrior
    • United States
    • Kansas Supreme Court
    • May 11, 2012
    ...373 U.S. at 87; see Giglio v. United States, 405 U.S. 150, 153, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972); accord State v. Gonzalez, 290 Kan. 747, 766, 234 P.3d 1 (2010); State v. Francis, 282 Kan. 120, 150, 145 P.3d 48 (2006); see also United States v. Bagley, 473 U.S. 667, 678-81, 105 S. Ct.......
  • State v. Miller
    • United States
    • Kansas Supreme Court
    • October 28, 2011
    ...(same). Generally, a trial court's factual findings are reviewed under the substantial competent evidence standard. State v. Gonzalez, 290 Kan. 747, 756–57, 234 P.3d 1 (2010). Ultimately, however, the question of “[w]hether a particular criminal defendant's protection against double jeopard......
  • Kloster v. Hancock (In re Rockhill Pain Specialists, P.A.)
    • United States
    • Kansas Court of Appeals
    • December 22, 2017
    ...a person ‘to shield [a] confidential communication or information from compelled disclosure during litigation.’ " State v. Gonzalez , 290 Kan. 747, 757, 234 P.3d 1 (2010) (quoting Imwinkelried, The New Wigmore: Evidentiary Privileges § 1.1, p. 2 [2d ed. 2009] ). Unless otherwise limited by ......
  • State v. Gaona
    • United States
    • Kansas Supreme Court
    • March 2, 2012
    ...of discretion, based as it was on an erroneous legal interpretation of K.S.A. 60-456(b) and our prior case law. See State v. Gonzalez, 290 Kan. 747, 755-56, 234 P.3d 1 (2010) (legal error can lead to abuse of discretion). Having determined there was error, we move to the question of harmles......
  • Request a trial to view additional results
4 books & journal articles
  • § 38.05 COMMUNICATIONS DEFINED
    • United States
    • Carolina Academic Press Understanding Evidence (CAP) Title Chapter 38 Attorney-client Privilege
    • Invalid date
    ...a privilege when the disclosure of the information would be tantamount to revealing a confidential communication."); State v. Gonzalez, 234 P.3d 1, 17-18 (Kan. 2010) ("In this unusual situation, when the content of the confidential communication has already been revealed without the former ......
  • § 38.05 Communications Defined
    • United States
    • Carolina Academic Press Understanding Evidence (2018) Title Chapter 38 Attorney-Client Privilege
    • Invalid date
    ...a privilege when the disclosure of the information would be tantamount to revealing a confidential communication."); State v. Gonzalez, 234 P.3d 1, 17-18 (Kan. 2010) ("In this unusual situation, when the content of the confidential communication has already been revealed without the former ......
  • § 38.02 Professional Responsibility Distinguished
    • United States
    • Carolina Academic Press Understanding Evidence (2018) Title Chapter 38 Attorney-Client Privilege
    • Invalid date
    ...proceedings, while the ethical rule applies outside them as well.13 --------Notes:[11] Model Rule 1.6, Comment. See State v. Gonzalez, 234 P.3d 1, 11 (Kan. 2010) ("In contrast to the attorney-client privilege, which is a rule of evidence and applies only when the attorney 'may be called as ......
  • § 38.02 PROFESSIONAL RESPONSIBILITY DISTINGUISHED
    • United States
    • Carolina Academic Press Understanding Evidence (CAP) Title Chapter 38 Attorney-client Privilege
    • Invalid date
    ...legal proceedings, while the ethical rule applies outside them as well.13--------Notes:[11] Model Rule 1.6, Comment. See State v. Gonzalez, 234 P.3d 1, 11 (Kan. 2010) ("In contrast to the attorney-client privilege, which is a rule of evidence and applies only when the attorney 'may be calle......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT