State v. McEntire

• Decision Date: 13 March 2018
• Docket Number: ED 105371
• Citation: 551 S.W.3d 481
• Parties: STATE of Missouri, Respondent, v. Randy L. MCENTIRE, Appellant.
• Court: Missouri Court of Appeals

551 S.W.3d 481

STATE of Missouri, Respondent,
v.
Randy L. MCENTIRE, Appellant.

ED 105371

Missouri Court of Appeals, Eastern District, DIVISION THREE.

Filed: March 13, 2018
Rehearing and/or Transfer to Supreme Court Denied April 17, 2018
Application for Transfer to Supreme Court Denied August 21, 2018

Casey A. Taylor, 1000 West Nifong, Bldg 7, Suite 100, Columbia, MO. 65203, for appellant.

Joshua D. Hawley, Daniel N. McPherson, P.O. Box 899, Jefferson City, MO. 65102, for respondent.

Gary M. Gaertner, Jr., Presiding Judge

Introduction

This case addresses the issue of when a trial court must permit an attorney to withdraw due to a conflict of interest. Appellant Randy L. McEntire’s (Defendant) trial counsel, Kevin Chase (Chase), sought to withdraw after discovering that his direct supervisor was representing the confidential informant (CI), who was one of the State’s witnesses against Defendant, in an unrelated criminal case in another county. During the one-week time span between the State’s disclosure of the name of the CI to Chase and Chase learning that his supervisor was the attorney for the CI, a docket entry in the case against the CI reflects that the State intended to file a nolle prosequi in the CI’s case. Due to the patent appearance of impropriety in this situation, we find that the trial court’s denial of Chase’s motion to withdraw was an abuse of discretion. We reverse and remand for a new trial.

Background

The State charged Defendant with two counts of distribution of a controlled substance. Eddie Gilliland (Gilliland) is a confidential informant for the police, and he was involved in two drug transactions that led to the charges against Defendant. The State initially endorsed Gilliland as a witness but had identified him only as "Confidential Informant #5935." On November 2, 2016, Defendant’s prior counsel filed a motion to disclose the witness' name and address.

On December 2, 2016, Chase filed a proposed order to disclose the identity of the confidential informant. On December 5, 2016, the trial court ordered the State to disclose the name of the witness that same day. The State filed its answer that day, disclosing Gilliland’s name and also responding to a prior request by Defendant that the State disclose whether it had made any deals with any witnesses in exchange for testimony against Defendant. The State asserted the State had not made any deals with Gilliland for his cooperation as a witness in Defendant’s case.

Defendant’s trial was set to begin one week later on December 12, 2016. That morning, prior to the commencement of trial, Chase moved for leave to withdraw as Defendant’s counsel due to a conflict of interest. Chase explained that he had discovered the night before that his direct supervisor, Wayne Williams (Williams), represented Gilliland in an unrelated felony drug possession case in Madison County. Chase informed the court that the last docket entry in the case against Gilliland was from four days earlier, December 8, 2016, and it indicated that the State intended to file a nolle prosequi.¹

551 S.W.3d 484

Chase stated that Williams told him Williams had minimal contact with Gilliland and that Gilliland may have mentioned he was a confidential informant, but that the case against Gilliland was set to be dismissed because the Madison County prosecutor’s office had not been able to secure a police report. However, because the case against Gilliland was technically still ongoing and therefore Chase’s supervisor’s representation of Gilliland had not ended, Chase moved to withdraw as counsel for Defendant. The State responded that it would need to call Gilliland as a witness for both counts against Defendant, and that there could be a potential problem for Defendant regarding impeachment of Gilliland if he could not discover the disposition of the case in Madison County. The trial court took a recess to take the matter under advisement.

When proceedings resumed, Chase stated to the trial court that Defendant was not waiving any conflict of interest that Chase’s office might have with Gilliland. Chase renewed his request to withdraw. The trial court stated it did not believe a direct conflict existed given that Chase had no knowledge of the conflict until the day before and Gilliland’s case was entirely unrelated. The trial court denied Chase’s motion to withdraw.

The trial court took another recess, after which Chase again renewed his motion to withdraw and called Gilliland to testify in support of the motion. Gilliland testified that Williams appeared with him in court as his counsel on October 10, 2016, and then again on December 8, 2016. Gilliland testified that his communication with Williams was minimal and concerned "basically minimizing the bond and getting [him] out sooner." Gilliland testified that Williams told him at the court date on December 8 the case against him would be dismissed due to a lack of evidence. Gilliland testified that he told Williams he was a confidential informant, and Williams said that he did not want to hear anything about it because it could concern one of his clients.

At the end of Gilliland’s testimony, Chase argued that Defendant’s waiver of a jury trial should mitigate concerns regarding a waste of time, and Chase again requested both a continuance of trial and permission to withdraw. The State responded that "there could be some consequences if there’s an appearance of impropriety regarding the relationship between my witness and the public defender’s office[.]" The trial court denied Chase’s motions, reasoning that "based upon the earlier record, Mr. Chase said that he just found out about this yesterday and had no contact with Mr. Williams with regards to the substantive matters of this issue."

After a bench trial, the trial court found Defendant guilty of both charges and sentenced him to concurrent terms of 15 years' imprisonment on each count. This appeal follows.

Discussion

Defendant does not challenge the sufficiency of the evidence to support his convictions. Rather, he argues that the trial court abused its discretion in denying Chase’s motion to withdraw due to a conflict of interest, which constituted a violation of Defendant’s Sixth Amendment right to conflict-free counsel. We agree.

We review a trial court’s decision on a motion to withdraw for an abuse of discretion. State v. Christeson, 50 S.W.3d 251, 261 (Mo. banc 2001). "Judicial discretion

551 S.W.3d 485

is abused when the trial court’s 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." Id.

The Sixth Amendment to the United States Constitution guarantees defendants "the right to ... have the Assistance of Counsel for [their] defence."² U.S. Const. amend. VI. This includes the right to be represented by counsel that is free from conflicts of interest. Wood v, Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981) ; State ex rel. Fleer v. Conley, 809 S.W.2d 405, 408 (Mo. App. E.D. 1991).

When a potential conflict of interest comes to the trial court’s attention, the trial court has an affirmative duty to inquire into the conflict. Cuyler v. Sullivan, 446 U.S. 335, 346, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) (discussing Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978) : " Holloway requires state trial courts to investigate timely objections to multiple representation"); see also Caban v. U.S., 281 F.3d 778, 781 (8th Cir. 2002) (duty to conduct inquiry applies "regardless of the nature of the conflict") (citing Wood, 450 U.S. at 272 n.18, 101 S.Ct. 1097 ). When the trial court finds no conflict, its inquiry ends. However, if the court finds an actual conflict or serious potential for conflict, the court has a subsequent obligation to either disqualify counsel or to inquire regarding the defendant’s waiver of the conflict. See U.S. v. Edelmann, 458 F.3d 791, 807 (8th Cir. 2006) ; see also State ex rel. Kinder v. McShane, 87 S.W.3d 256, 263 (Mo. banc 2002) (discussing trial court’s duty to investigate waiver when actual conflict or serious potential for conflict exists).

Here, Chase made the trial court aware of the potential conflict of interest before trial began, and the trial court conducted an inquiry into the conflict by hearing from Chase, the State, and Gilliland. Chase notified the court that his direct supervisor, Williams, represented Gilliland, a witness against Defendant. The representation had not yet terminated, but during the week in between the State’s disclosure of Gilliland’s name and the start of Defendant’s trial, a docket entry in Gilliland’s case indicates the Madison County prosecutor intended to dismiss the case against Gilliland. Williams' representation of Gilliland had not yet terminated at the time of trial. Chase made clear that Defendant did not waive any conflict.

The Missouri Supreme Court has held that "[a]n attorney who represents both the defendant and a prosecution witness in the case against the defendant is representing conflicting interests," State ex rel. Kinder v. McShane, 87 S.W.3d 256, 260 (Mo. banc 2002) (quoting Ciarelli v. State, 441 S.W.2d 695, 697 (Mo. 1969) ). Moreover, "[t]hat different lawyers from the same office are...