State v. Kinkennon
| Decision Date | 24 April 2008 |
| Docket Number | No. S-07-654.,S-07-654. |
| Citation | 275 Neb. 570,747 N.W.2d 437 |
| Parties | STATE of Nebraska, appellee, v. Chad KINKENNON, appellant. |
| Court | Nebraska Supreme Court |
Mitchel L. Greenwall, of Yeagley, Swanson & Murray, L.L.C., Kearney, for appellant.
Jon Bruning, Attorney General, and George R. Love for appellee.
Chad Kinkennon was convicted in a bench trial of one count of possession of methamphetamine with the intent to deliver1 and one count of possession of cocaine.2 Kinkennon argues on appeal that the district court erred in denying his motion for appointment of a special prosecutor, based on an alleged conflict of interest. Kinkennon also argues that the district court erred in imposing excessive sentences, and in the manner in which the court instructed a witness regarding that witness' Fifth Amendment rights. For the following reasons, we affirm the judgment of the district court.
Kinkennon was charged by amended complaint in the district court for Buffalo County with one count of possession of meth-amphetamine with intent to deliver, one count of possession of a controlled pharmaceutical substance without a prescription, one count of possession of a controlled substance other than marijuana without a valid prescription, and possession of cocaine. The charges against Kinkennon were based on evidence seized in a search of Kinkennon's residence. That evidence included, among other things, a digital scale and several small baggies containing methamphetamine and cocaine residue.
On August 4, 2006, the court appointed Heather Swanson-Murray, of the law firm Yeagley Swanson Murray, L.L.C., to serve as counsel for Kinkennon. Yeagley Swanson Murray rep resented Kinkennon from that date forward, through his May 10, 2007, sentencing and the filing of the present appeal on June 8. Mandi Schweitzer was employed as an associate attorney with Yeagley Swanson Murray at the time Swanson-Murray was appointed to represent Kinkennon. Schweitzer remained an employee of the firm through January 19, 2007; on January 22, she began employment with the Buffalo County Attorney's office as a deputy county attorney.
On February 26, 2007, Kinkennon filed a motion for appointment of a special prosecutor. In his motion, Kinkennon alleged that "[a] conflict of interest exist[ed] within the Buffalo County Attorney's office by virtue of ... Schweitzer's previous association with Yeagley Swanson Murray ... and current association with [the] Buffalo County Attorney's office."
At the hearing on the motion for appointment of a special prosecutor, three affidavits relating to Schweitzer's knowledge of and participation in Kinkennon's case were offered and received into evidence. Swanson-Murray, in her affidavit, averred, among other things, that she "recall[ed] discussing ... Kinkennon's case, including pretrial motions and trial strategy[,] with all of the attorneys in the office, including ... Schweitzer prior to January 19, 2007." Swanson-Murray also averred that she specifically recalled "discussing with ... Schweitzer the propriety of filing a motion to suppress in ... Kinkennon's case, as well as discussing legal issues surrounding the use of a confidential informant." Similarly, another associate attorney with Yeagley Swanson Murray averred that he "recall[ed] discussions regarding ... Kinkennon's case within the office that took place prior to January 19, 2007," and that "Schweitzer, ... Swanson-Murray and [he] were present at the office during these discussions."
Schweitzer, in her affidavit, denied ever discussing Kinkennon's case with any attorney while she was employed with Yeagley Swanson Murray. Schweitzer averred that she had no contact with Kinkennon, did not review or examine his file, and did not even know his file existed. Schweitzer further averred that she "was not consulted by any other attorneys in the firm with regard to ... Kinkennon in any way" and that "[a]ny other representations by anyone else to the contrary are false." Finally, Schweitzer averred that since joining the Buffalo County Attorney's office, she had not participated in the prosecution of Kinkennon's case, and that she did not have any knowledge of the matter.
The district court denied Kinkennon's motion for appointment of a special prosecutor, and the case proceeded to trial.
At trial, Kinkennon called as a witness Caroline Callaghan, a woman who was living with Kinkennon at the time the police executed the search. Prior to Callaghan's testimony, the trial judge instructed Callaghan that if she believed the testimony she was about to give would incriminate her, she was "at liberty not to testify" and could "invoke her Fifth Amendment right." She was further instructed that her testimony could be used against her and that if she chose to begin testifying, she would have to complete her testimony. Callaghan stated that she understood and chose to testify.
Callaghan then testified and admitted on direct examination to, among other things, using methamphetamine. On cross-examination, the State asked Callaghan how long she had been an intravenous drug user. Callaghan responded by stating, "I plead the Fifth on that." The State moved to have all of Callaghan's testimony stricken. After briefly discussing the issue with counsel, the court asked Callaghan if she would like to talk to a lawyer before continuing with her testimony, at which point Callaghan responded, "Yes, sir."
Following a short recess, the court reconvened. Callaghan was instructed that the State had a right to cross-examine her as to the testimony she had already given and that she had to answer, but that on unrelated issues, she might be allowed to assert her Fifth Amendment right. Callaghan was told she could confer with her counsel before answering questions. She was also told that if she was instructed to answer a question, but refused, she could be remanded to custody until she complied, or her related testimony could be stricken.
Neither the State nor counsel for Kinkennon raised any objection to this procedure. Callaghan was cross-examined and did not assert her Fifth Amendment privilege, nor did counsel for Kinkennon object during cross-examination of Callaghan.
Following the bench trial, the district court convicted Kinkennon of one count of possession of methamphetamine with the intent to deliver and one count of knowingly or intentionally possessing cocaine. The matter proceeded to sentencing. The pre-sentence investigation report indicated that Kinkennon has a lengthy criminal history including, among other things, multiple convictions for assault and possession of marijuana. Kinkennon was sentenced to 8 to 12 years' imprisonment for possession of methamphetamine with the intent to deliver and to a concurrent term of 20 months' to 5 years' imprisonment for possession of cocaine. Kinkennon appealed.
Kinkennon assigns, restated, that the district court erred in (1) failing to appoint a special prosecutor, (2) improperly informing Callaghan of the manner and scope of her right to assert her Fifth Amendment privilege, and (3) imposing excessive sentences.
A motion for the appointment of a special prosecutor is addressed to the discretion of the trial court, and absent an abuse of discretion, a ruling on such a motion will not be disturbed on appeal.3
A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion by the trial court.4
Kinkennon contends that the district court erred in denying his motion for appointment of a special prosecutor. Specifically, Kinkennon argues that when the Buffalo County Attorney's office hired Schweitzer, a conflict of interest arose because Schweitzer, before joining the county attorney's office, was formally employed as an associate for Yeagley Swanson Murray, the firm that is presently representing Kinkennon. Kinkennon claims that to avoid the "appearance of impropriety,"5 this conflict of interest should be imputed to the other prosecutors in the office, thus disqualifying the entire Buffalo County Attorney's office.
We have not previously addressed whether an entire prosecutor's office should be disqualified when one attorney, after joining the prosecutor's office, is alleged to have been involved in the representation of a defendant on charges being prosecuted at the time the attorney joined that office. Several other jurisdictions, however, have considered this issue. A few courts have followed a per se rule of disqualification where the mere appearance of impropriety is enough to warrant disqualification of an entire prosecuting office.6 In cases where such rule was followed, screening the attorney at issue to remedy the imputed conflict is generally not allowed and disqualification of the office is required, irrespective of whether confidences were breached or prejudice to the defendant resulted.7 Courts that employ this approach reason that a per se rule is required because it eliminates any appearance of impropriety and preserves public confidence in the criminal justice system.8
However, the overwhelming majority of courts to have considered this issue have rejected this type of per se rule. Instead, most courts have adopted a less stringent rule, pursuant to which the trial court evaluates the circumstances of a particular case and then determines whether disqualification of the entire office is appropriate.9 Under this approach, courts consider, among other things, whether the attorney divulged any confidential information to other prosecutors or participated in some way in the prosecution of the defendant.10 The prosecuting office need not be disqualified from prosecuting the defendant if the attorney who had a...
To continue reading
Request your trial
-
People v. Davenport
...of defendant's trial, disqualification of the entire office would not be automatic under Doyle. 4. See also State v. Kinkennon, 275 Neb. 570, 576 n. 9, 747 N.W.2d 437 (2008), citing United States v. Goot, 894 F.2d 231 (C.A.7, 1990); United States v. Caggiano, 660 F.2d 184 (C.A.6, 1981); Har......
-
Awnings v. Fullerton
...this court refers to the Nebraska Rules of Professional conduct."). In this case, the magistrate judge cited State v. Kinkennon , 275 Neb. 570, 747 N.W.2d 437 (2008), as the basis for denying Awnings's motion to disqualify the entire CLAO. The district court subsequently affirmed the magist......
-
State v. Nadeem
...waives the right to assert prejudicial error on appeal. See, State v. Collins, 281 Neb. 927, 799 N.W.2d 693 (2011); State v. Kinkennon, 275 Neb. 570, 747 N.W.2d 437 (2008). When an issue is raised for the first time in an appellate court, it will be disregarded inasmuch as a lower court can......
-
State v. Collins
...Id. at 231–32, 287 N.W.2d at 58. FN28. Id. at 230, 287 N.W.2d at 57. FN29. Id. at 230–31, 287 N.W.2d at 57. FN30. State v. Kinkennon, 275 Neb. 570, 747 N.W.2d 437 (2008). FN31. State v. Ford, 279 Neb. 453, 778 N.W.2d 473 (2010). FN32. State v. Harms, 263 Neb. 814, 643 N.W.2d 359 (2002). FN3......