State v. Lemasters

• Decision Date: 24 February 2015
• Docket Number: No. SC 94295,SC 94295
• Citation: 456 S.W.3d 416
• Parties: State of Missouri, Respondent, v. Andrew Luke Lemasters, Appellant.
• Court: Missouri Supreme Court

456 S.W.3d 416

State of Missouri, Respondent

v.Andrew Luke Lemasters, Appellant.

No. SC 94295

Supreme Court of Missouri, en banc .

Opinion issued February 24, 2015

Lemasters was represented by William J. Swift of the public defender's office in Columbia, (573) 777-9977.

The state was represented by Adam S. Rowley of the attorney general's office in Jefferson City, (573) 751-3321.

The Missouri Association of Prosecuting Attorneys, which filed a brief as a friend of the Court, was represented by Boone County Prosecuting Attorney Daniel K. Knight of Columbia, (573) 886-4100, and Jason H. Lamb of the office of prosecution services in Jefferson City, (573) 751-0619.

Opinion

Paul C. Wilson, Judge

Andrew Lemasters was convicted of one count of first-degree statutory sodomy. In this appeal, Lemasters argues that the trial court erred by: (1) denying his motion to disqualify the entire Newton County Prosecuting Attorney's Office (“NCPAO”); and (2) entering a written judgment recording convictions on two counts of first-degree statutory sodomy even though he was tried and convicted of only one count. The Court finds merit in the second point but not the first.

Lemasters' former public defender went to work at the NCPAO prior to Lemasters' trial and, therefore, was disqualified from participating in his prosecution. Her conflict, however, was not imputed to the remainder of the office under the Rules of Professional Conduct, and a reasonable person would have no factual basis to find an appearance of impropriety in this case and doubt the fairness of Lemasters' trial. Accordingly, the Court affirms the judgment on one count of first-degree statutory sodomy but vacates the judgment as to the second count and remands this case to the trial court with instructions to correct the written judgment to reflect what actually occurred.

Background

Lemasters' daughter (“HL”) was born in 1992. In 2001, HL was living with Lemasters and his wife (“Wife”). Wife was not HL's mother, but she raised HL, and the two were very close. Lemasters does not challenge the sufficiency of the evidence in this appeal, and the facts of his crime are not relevant to his appellate claims. Suffice it to say, therefore, that Lemasters subjected HL to acts of statutory sodomy in the spring of 2001 and beyond. HL did not tell anyone of this abuse until much later, however, because she was afraid she would be separated from Wife and the rest of her family. When HL did report Lemasters' conduct, he was charged with two counts of first-degree statutory sodomy under section 566.062, RSMo 2000.

On August 7, 2012, the trial court appointed the Missouri State Public Defender System (“MSPD”) to represent Lemasters on these charges. The following day, the MSPD sent Lemasters an introductory letter stating that an attorney would be assigned to defend him. On August 16, 2012, Ms. Cheney an employee of the MSPD—entered her appearance on behalf of Lemasters.

After receiving telephone calls from members of Lemasters' family, Cheney instructed her secretary to return the calls and inform the family that Cheney could not speak with them about Lemasters' case without his permission. She also instructed her secretary to tell the family that Cheney could not help them obtain a power of attorney from Lemasters because that was a civil matter unrelated to her representation of Lemasters in the criminal case. The language Cheney used in these instructions was derogatory toward Lemasters' family, and the tone of her instructions indicated Cheney's frustration with them.

Cheney had little direct contact with Lemasters. She had one interview with him in August 2012, which lasted approximately 15 minutes. After this visit, Cheney asked one of her investigators to conduct a recorded interview with Lemasters because his extensive use of pronouns made it difficult for Cheney to “keep track of what he's talking about.” Cheney also moved for a reduction of Lemasters' bond. She appeared in court to argue that motion, and it was overruled.

In September 2012, Cheney was hired by the NCPAO. Her last day with the MSPD was September 7, 2012. That day, Cheney wrote an interoffice “transfer memorandum” to the public defenders who were preparing for the preliminary hearing in Lemasters' case. Again, the language of Cheney's memo indicated her frustration with the case, and her memo was derogatory regarding the likelihood that Lemasters could mount a successful defense.

Cheney started work in the NCPAO on September 10, 2012. On February 7, 2013, Lemasters moved to disqualify the entire prosecutor's office due to Cheney's prior representation of him. The trial court held a hearing on Lemasters' motion the following day. Cheney testified that she did not participate “in the prosecution of any individuals where [she] previously represented them” and that she did not discuss any of those cases with others in the prosecutor's office except to identify the defendants she previously represented. The trial court overruled Lemasters' motion, and, in June 2013, the case was tried to a jury.

During the instruction conference, the trial judge noted that the “state has elected to dismiss one of the two counts.” As a result, only one count of first-degree statutory sodomy was submitted to the jury. The jury found Lemasters guilty of only one count, and the trial court sentenced Lemasters to 31 years in prison for only one count. Nevertheless, the written judgment reflects that Lemasters was convicted of two counts of first-degree statutory sodomy. Lemasters appeals, and this Court has jurisdiction under article V, section 10, of the Missouri Constitution.

I. Disqualifying the Newton County Prosecuting Attorney's Office

Lemasters claims the trial court erred in overruling his motion to disqualify the entire NCPAO from participating in his case notwithstanding that Cheney did not participate or divulge to the other prosecutors any information she learned while representing Lemasters. Lemasters contends that he is entitled to a new trial because Cheney's conflict disqualified all of the other lawyers in the NCPAO, and that—even if her conflict is not imputed to the remainder of the prosecutor's office—Cheney's conflict created an appearance of impropriety that denied him a fair trial. The Court rejects this argument.

A trial court's ruling on a motion to disqualify is reviewed for abuse of discretion. See State v. Smith, 32 S.W.3d 532, 543 (Mo. banc 2000). “A trial court abuses its discretion when its ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” State v. Taylor, 134 S.W.3d 21, 26 (Mo. banc 2004). “If reasonable persons can differ as to the propriety of the trial court's action, then it cannot be said that the trial court abused its discretion.” Id. The facts of this case show no abuse of discretion.

A. The Rules of Professional Conduct

There is no doubt that Cheney had a conflict that prohibited her from participating in the prosecution of Lemasters after she joined the NCPAO. She was a “public officer or employee” when she worked with MSPD; therefore, she was a “former” governmental attorney for purposes of Rule 4–1.11(a).¹ As a result, under Rule 4–1.11(a)(2), Cheney's defense of Lemasters while employed by the MSPD prohibited her from representing the state while employed in the NCPAO because it was the “same or a substantially related matter” and because the MSPD and Lemasters did not consent to Cheney's participation in the prosecution.

As a “former” governmental lawyer with MSPD, not only did Rule 4–1.11(a)(2) prohibit Cheney from participating in Lemasters' prosecution, Rule 4–1.11(a)(1) required her to comply with Rule 4–1.9(c) in her new position. Rule 4–1.9(c),² in turn, prohibited Cheney (except in circumstances not pertinent here) from revealing any information relating to her representation of Lemasters or using such information to his disadvantage.

The evidence shows that Cheney complied with her obligations under Rules 4–1.11(a)(2) and 4–1.9(c). She did not participate in Lemasters' prosecution after joining the prosecutor's office, and she did not divulge any information gleaned from her prior representation of him. Though not conceding these points, Lemasters fails to point to any evidence that Cheney violated Rule 4–1.9(c) or Rule 4–1.11(a).

The heart of Lemasters' claim focuses not on Cheney's conduct but on the real or perceived impact of that conduct on the remainder of the NCPAO. Lemasters argues that Cheney's conflict must be imputed to the entire prosecutor's office so that none of the other prosecutors could prosecute his case. Even if her conflict is not imputed, Lemasters argues that the failure to disqualify the entire NCPAO created an appearance of impropriety and deprived him of his right to a fair trial. Lemasters' claim is not based on the Rules of Professional Conduct. Instead, he argues that it stems from his constitutional right to a fair trial and this Court's decision in State v. Ross, 829 S.W.2d 948, 949 (Mo. banc 1992).

Lemasters may not rely on the Rules of Professional Conduct, but the Court's analysis of his claim must begin with those rules. Rule 4–1.9(a) is the general rule regarding conflicts arising from prior representations, but that rule does not apply to prior representations by current or former “public officers or employees.” Instead, those conflicts are addressed in Rule 4–1.11(a), which deals with conflicts arising from prior representations by former public officers or employees, and Rule 4–1.11(d), which deals with conflicts arising from prior representations by current public officers or employees. Both provisions must be consulted in this case because Cheney was both a former employee of MSPD and a current employee of NCPAO.

By the same token, even though Rule 4–1.10³ is the general rule regarding when a lawyer's conflicts...