State v. Chambers

• Decision Date: 19 June 1974
• Docket Number: No. 1194,1194
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Michael Edward CHAMBERS and Joseph X. White, Defendants-Appellants.
• Court: Court of Appeals of New Mexico

Page 999

524 P.2d 999

86 N.M. 383

STATE of New Mexico, Plaintiff-Appellee, v. Michael Edward CHAMBERS and Joseph X. White Defendants-Appellants.

No. 1194.

Court of Appeals of New Mexico.

June 19, 1974.

Certiorari Denied July 25, 1974.

[86 NM 383] William S. Martin, Jr., Silver City, Michael J. Brown, Brown & Finn, Tucson, Ariz., for defendants-appellants.

David L. Norvell, Atty. Gen., Dee C. Blythe, Andrea Buzzard, Asst. Attys. Gen., Santa Fe, for plaintiff-appellee.

OPINION

SUTIN, Judge.

Defendant was convicted and sentenced for unlawful delivery of marijuana. Section 54--9--3, N.M.S.A.1953 (Repl.Vol. 8, pt. 2, 1971 Supp.). He appeals. We reverse.

(A) Failure of Trial Court to Disqualify Grant County District Attorney's Office

On November 14, 1972, at 9:15 a.m., in court chambers, before trial commenced, defendant moved 'that the District Attorneys' of Grant County be disqualified from prosecuting this case on the grounds that there now exists a conflict of interest because of Mr. (Asa) Kelly's employment in the District Attorney's Office and he was formerly employed as counsel for the defendants in this case.'

The record shows that on November 11, 1971, the information was filed against defendant. On November 15, 1971, Asa Kelly, attorney for defendant, accepted service of the criminal information on behalf of defendant. On March 20, 1972, Asa Kelly and Michael J. Brown represented defendant at the arraignment and plea. On this date, defendant was served with an amended information. (The amended information does not appear in the record.) On June 19, 1972, Brown and Kelly filed a motion to quash the jury array. At the time of the first trial, June 20, 1972, Kelly and Brown proceeded through the trial. It ended in a mistrial.

On August 16, 1972, three months before trial, Asa Kelly was appointed an Assistant District Attorney for the Sixth Judicial District. On November 10, 1972, Kelly filed a motion to withdraw as attorney for defendant and with permission of defendant, stating 'That he is no longer able to act due to adverse interests which have arisen during the pendency of the above action.' Permission to withdraw was approved effective November 14, 1972, the date of the second trial. Shortly before trial, William S. Martin, Jr. was appointed to represent defendant.

The trial court ruled that Mr. Kelly would not be permitted to associate as counsel for the State. Defendant did not contend that Mr. Kelly divulged any privileged communications. He contended that whether or not Kelly communicated with the assistant district attorney prosecuting the case, 'The appearances give rise to suspicion that he may have, the appearances do not look good, * * * that the law must be above suspicion in the prosecution of criminal cases where individual liberty is involved. The appearance of evil in prosecution of cases is perhaps just as bad as evil itself.'

The trial court denied the motion to disqualify the district attorneys of Grant County because he saw nothing in any ground advanced that would cause him to feel that there is any impropriety on the part of the district attorney's office to continue in this case, nor anything that is prejudicial to the rights of the defendant.

Defendant now contends on appeal that the failure of the trial court to disqualify the Grant County district attorney's office on the basis of conflict of interests was reversible error.

This is a matter of first impression in New Mexico.

We are faced with the situation where an attorney has represented the defendant in his first trial, later becomes a member of the district attorney's staff, and then recuses himself from participation in the second trial. Does the district attorney's office have to divorce itself from the prosecution of the second trial? The authorities are divided.

'It is at once self-evident we deal here not with a technical error, but rather with a delicate subject relating to conduct of the bar, the administration of justice, and basic rights of an accused.' State v. Orozco, 202 N.W.2d 344, 345 (Iowa 1972).

State v. Latigue, 108 Ariz. 521, 502 P.2d 1340 (1972) directly supports defendant. A deputy public defender had acted as co-counsel for the defendant in a criminal case. He received confidential communication from the defendant, and he had access to all records and information pertaining to the defense. Subsequently, he became chief deputy county attorney but took no part in the prosecution. The question at issue was whether the county attorney's office was precluded from prosecuting the defendant. The court held it was.

The court pointed out that a county attorney's chief deputy had supervisory powers and duties over the assistant county attorney who was prosecuting; that the county attorney's office, if efficient, has frequent staff meetings to discuss cases, and even without meetings, staff members often talk about their cases with one another. The court said:

We do not rest our decision only on the fact that the attorney involved here is the County Attorney's chief deputy; even if he were not, that office would have to divorce itself from the prosecution in this case, because even the appearance of unfairness cannot be permitted. What must a defendant and his family and friends think when his attorney leaves his case and goes to work in the very office that is prosecuting him? Even though there is no revelation by the attorney to his new colleagues, the defendant will never believe that. Justice and the law must rest upon the complete confidence of the thinking public and to do so they must avoid even the appearance of impropriety. Like Caesar's wife, they must be above reproach.

Caesar's wife also found her way into State v. Burns, 322 S.W.2d 736, 741, 742 (Mo.1959). Here, the prosecutor, prior to taking office, had represented defendant and had acquired from the defendant full and complete knowledge of the merits of his case. The prosecutor had turned the case over to his assistant who tried the case. In reversing, the court said:

It is impossible to tell precisely how active Mr. Colson may have been in the prosecution, or whether the information he procured from the defendant played any part therein, directly or indirectly. But the very fact that he had acquired that information as counsel for the defendant, and that he might use it, renders his subsequent position wholly untenable. (Emphasis added).

We do not mean to attribute intentional misconduct to Mr. Colson; but prosecuting officials, like Caesar's wife, 'ought to be above suspicion.' (Roman Apophthegms, Caesar.)

The State relies on Annot. 31 A.L.R.3d 953 entitled 'DISQUALIFICATION OF PROSECUTING ATTORNEY ON ACCOUNT OF RELATIONSHIP WITH ACCUSED' and State v. Brazile, 231 La. 90, 90 So.2d 789 (1956), recited therein.

In State v. Brazile, supra, 'Prior to the third trial of defendant for murder, his counsel filed a motion to recuse the district attorney and his assistants for the reason that the second assistant district attorney * * * had served as one of defense counsel at the first trial, this occurring before (his) appointment as an assistant district attorney. In advance of the hearing, (he) filed a motion that he be recused in view of his previous participation in the first trial. The court granted this motion. * * *' The court also sustained the motion to recuse the district attorney and his assistant. The Supreme Court reversed, but on the basis of the Code of Criminal Procedure which provided grounds for recusation of the district attorney. The court said:

Neither the district attorney nor his first assistant has ever been employed or consulted as attorney for defendant at any time and the fact that Mr. Ware, who has recused himself, is presently employed as the second assistant district attorney affords no ground at all for the recusation of either the district attorney or his first assistant, as they can only be recused for one of the grounds prescribed by law. * * * (Emphasis added).

Nor is there basis for recusation in the charge that there is a possibility that Mr. Ware has violated the confidential relationship existing between attorney and client. Indeed, it is to be presumed that he, as a member of the bar in good standing, has and will respect the defendant's confidence.

New Mexico has no statute on recusation of district attorneys.

Brazile, supra, was followed in State v. Brown, 274 So.2d 381 (La.1973), one judge dissenting. The court also held that failure to recuse the district attorney was not a violation of the Louisiana Bar Association Code of Professional Responsibility.

Brazile, supra, was also followed in Hannon v. State, 48 Ala.App. 613, 266 So.2d 825 (Ct.Crim.App.1972). Here, at the first trial, defendant was represented by the public defender's office. However, he was defended only by a Mr. Harper. Mr. Butler was a member of the public defender's office. At the time of the second trial, Mr. Butler was district attorney. The actual prosecution would be conducted by a member of the district attorney's staff. Upon motion made by the defendant to dismiss the charges, 'A full blown hearing was had and testimony taken,' of Mr. Butler, the district attorney. The Court of Criminal Appeals said:

The record in this case clearly shows that the District Attorney did not divulge the confidential information he gained from Hannon while he was a member of the Public Defender's Office. He had not been elected District Attorney when the grand jury indicted Hannon and had no connection therewith. He inherited for prosecution all indictments returned by grand juries in Mobile County not disposed of while his predecessor was in office. The public interest demanded that the prosecution go forward. There has been no breach of the attorney-client relationship, the privilege against disclosure has been preserved, and professional ethics, painstakingly observed, and the constitutional guarantee of a fair and impartial...