State v. Johnson, 67093
Decision Date | 17 December 1985 |
Docket Number | No. 67093,67093 |
Citation | 702 S.W.2d 65 |
Parties | STATE of Missouri, Respondent, v. Samuel S. JOHNSON, Appellant. |
Court | Missouri Supreme Court |
Sean D. O'Brien, Asst. Public Defender, Kansas City, for appellant.
Honorable William L. Webster, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
Defendant Samuel S. Johnson was convicted of forcible rape in violation of § 566.030, RSMo Supp.1983 and was sentenced as a persistent offender to life imprisonment without possibility of parole for 30 years. We granted transfer of the case from the court of appeals to consider defendant's contention that the entire prosecuting attorney's office was disqualified from prosecuting him because a nonparticipating assistant prosecutor was a witness for the State. We affirm.
The victim in this case, E.A., was the seventh woman raped in a short period of time in the Westport area of Kansas City. She was raped in her apartment during the early morning hours of August 29, 1982. E.A.'s account of the crime detailed how the rapist, before repeatedly raping her, held his knife to her throat and threatened her with death unless she acceded to his demands.
E.A. was able to give police a detailed description of the rapist. Her description closely paralleled the descriptions that the police had obtained earlier from the other rape victims in the area. The rapist was described as a "black male, late 20's to 40 years of age, five feet eight inches to six feet in height, approximately 160 pounds, with a strong body odor, sweats profusely, wears a baseball cap on which appears a logo and carries a silver-handled pocket knife with rusted blades."
At about one o'clock a.m., on September 4, 1982, four Kansas City Police Reserve Unit officers, 1 Shaffer, Irvin, Sarver and Komoroski, set out to patrol the Westport area. Shaffer and Irvin rode together in one car while Sarver and Komoroski were in another car.
Accompanying Komoroski and Sarver on patrol was Patricia McGarry, an assistant prosecutor with the Jackson County Prosecuting Attorney's Office. She wanted to observe a standard police patrol operation.
About two hours after they had begun patroling, Komoroski, along with Ms. McGarry, left the vehicle and proceeded on foot while Sarver continued to patrol in the car. Komoroski and Ms. McGarry entered an alley and exited onto a street. At that time they saw defendant standing on the side of the street near some bushes. Komoroski moved closer toward defendant and saw defendant was wearing a baseball cap with a logo and that he appeared to match the description of the Westport rapist. The police officer also detected a body odor on defendant.
Komoroski identified himself as a police officer and told defendant that he would like to speak with him. Before doing so, however, the officer conducted a pat-down frisk of defendant and felt a hard object in one of defendant's rear pockets. This object turned out to be a silver-handled pocket knife with rusted blades--similar to the one the rapist was thought to carry. Komoroski asked defendant a number of questions concerning his identity and residence. With the assistance of Sarver, who by this time had arrived with the vehicle, the two officers contacted police headquarters to run a computer check on defendant. The computer check revealed that defendant had previously been convicted of rape and burglary. Defendant was informed of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and was placed under arrest for the rape of E.A.. He was then transported to the police station where he was later placed in a lineup and was positively identified by E.A. as the man who raped her on August 29, 1982. 2
We turn first to the question of whether the entire prosecutorial staff of the Jackson County Prosecuting Attorney's Office should have been disqualified from prosecuting defendant because sometime after defendant's arrest on September 4, 1982, reserve police officer Komoroski, who was to testify as a witness for the State, passed the Missouri Bar Examination and joined the prosecuting attorney's staff as an assistant prosecuting attorney. 3 Defendant assigns reversible error to the trial court's failure to appoint a special prosecutor and advances three reasons in support of his argument. He contends the Jackson County Prosecuting Attorney's Office should have been disqualified because the office had a personal interest in the outcome of the case which might have influenced his prosecution; allowing the prosecutor's office to continue in the case created an impermissible appearance of impropriety; and failure to appoint a special prosecutor deprived him of a fair trial.
At the time of defendant's arrest, Komoroski had recently completed law school and had been working as a legal intern at the prosecuting attorney's office. Contrary to defendant's frustrating obfuscation of the facts surrounding Komoroski's professional status and involvement in this case, the record is clear that at the time of defendant's arrest Komoroski was neither an assistant prosecuting attorney nor even an attorney, and during the prosecution of defendant he had absolutely no prosecutorial duties or responsibilities in connection with the case.
Defendant contends that a number of prior Missouri appellate decisions require disqualification under the facts of this case and that specific provisions 4 of Missouri's Code of Professional Responsibility govern the facts of this case and clearly call for disqualification.
Our initial task is to determine whether Disciplinary Rules 5-101(B) and 5-102, 5 which address the matter of disqualification of a private law firm when one of its members is or ought to be a witness in a case in which the firm has undertaken representation, governs with equal force and purpose the conduct of a prosecuting attorney's office when a member of the staff, not assigned to the particular case, is scheduled to appear as a witness for the State.
Disciplinary Rules 5-101(B) and 5-102 stand for the general proposition that an attorney should not simultaneously serve as trial advocate and witness. See Enker, The Rationale of the Rule That Forbids a Lawyer to be Advocate and Witness in the Same Case, American Bar Foundation Research Journal (Spring 1977); Sutton, The Testifying Advocate, 41 Tex.L.Rev. 477; H Brown & L. Brown, Disqualification of the Testifying Advocate--A Firm Rule?, 57 N.C.L.Rev. 597 (1979). The reasons underlying this rule are set forth in Ethical Consideration 5-9 of Missouri's Code of Professional Responsibility. First, a lawyer who serves as both trial counsel and witness is open to impeachment on the basis of an apparent interest in the outcome of the trial and is thus rendered less effective as a witness. Second, a lawyer who assumes both of these roles in a single case makes it more difficult for opposing counsel to conduct effective cross-examination and creates an awkward scenario in which one advocate must challenge the credibility of his legal adversary. Third, the lawyer who assumes the role of a witness must argue his own credibility, which may serve to weaken his credibility and effectiveness as an advocate. Finally, the two roles are said to be simply inconsistent. These reasons, though, have greatest purpose when the witness and advocate are one and the same. However, the general rule set forth in Disciplinary Rules 5-101(B) and 5-102 also applies where the trial attorney is not the witness himself, but is only a member of the same firm as the attorney appearing as a witness.
Though the application of the general rule to multi-member firms has come under fire by commentators in recent years, the arguments advanced most frequently for its continued application are that it guards against the appearance of impropriety and that every member of a firm continues to have a common interest in the financial outcome of a case in which the firm is involved. See People ex rel. Younger v. Superior Court, 86 Cal.App.3d 180, 150 Cal.Rptr. 156 (1978). However valid these rationales may be in connection with a multi-member private firm, we believe they have no application when the facts involve a multi-member prosecuting attorney's office.
In contrast to a private firm, a prosecuting attorney's office has no financial interest in the outcome of a case. Ford v. State, 4 Ark.App. 135, 628 S.W.2d 340 (1982). This distinction between a private law firm and the office of a prosecuting attorney is but only one of many ways in which the duties and obligations of the latter differ in kind and degree from the duties and obligations of the former.
Canon 7, in general terms, directs that a lawyer should zealously represent his client within the bounds of the law. In terms of day to day practice, this language means that a private practioner's primary role as an advocate is to secure the legal objectives of his client. Shed of its euphemistic garb, this language means that his job is to win for his client. The duties and responsibilities of a prosecuting attorney, however, extend beyond the immediate task-oriented goal of winning a case. Ethical Consideration 7-13 points out that "the responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict." This ethical consideration, though admittedly only aspirational in nature, is given greater weight and meaning by the substance of Disciplinary Rule 7-103(A) and (B), which in combination prohibit a prosecuting attorney from instituting criminal charges without probable cause and require him to disclose to a criminal defendant any evidence that tends to negate guilt, mitigate the degree of the offense or serves to reduce the punishment. Thus, it becomes apparent that the "partisan" interest normally attributed to the private practitioner who serves as trial advocate differs in a...
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