State v. Miner
| Citation | 258 A.2d 815,128 Vt. 55 |
| Decision Date | 07 October 1969 |
| Docket Number | No. 1271,1271 |
| Parties | STATE of Vermont v. Earl D. MINER, Sr. |
| Court | United States State Supreme Court of Vermont |
James W. Wright, Woodstock, Vt., Special Prosecutor, for the state.
Peter P. Plante, White River Junction, for defendant.
Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.
The respondent has been tried and found guilty of murder in the first degree. The victim of the homicide was the respondent's wife, Bonnie Anderson Miner, who died of multiple gunshot wounds on January 24, 1967, the date of the alleged offense. The case was vigorously tried below. It has been thoroughly presented on appeal.
The indictment was returned March 22, 1967. At the time of arraignment the respondent was represented by Joseph M. O'Neill, Esquire. The respondent pleaded not guilty and not guilty by reason of insanity. Later, on May 5, 1967, Peter P. Plante, Esquire, of the law firm of Black and Plante, was assigned by the Windsor County Court to represent the respondent.
At the time of this assignment, and for a brief period thereafter, Frank G. Mahady, Esquire, a member of the bar of this State, was an associate in the law offices of Black and Plante. While so engaged Mr. Mahady assisted in the preparation of the defense of the respondent under the supervision of his senior associate, Mr. Plante.
On August 14, 1967 Mr. Mahady was appointed an assistant attorney general of Vermont. before that time the attorney general had appeared with the state's attorney of Windsor County representing the State in the preliminary investigation and proceedings before the grand jury, consistent with the provisions of 3 V.S.A. § 157.
On August 25, 1967 the respondent requested a postponement of the trial and moved that the trial court order the disqualification of the attorney general's office from further participation in behalf of the State in the prosecution of this cause. The motion states that Mr. Mahady had worked closely with respondent's counsel in the case, had interviewed the respondent on different occasions at his place of confinement and was completely familiar with the theory of the defense.
Before the trial court ruled on the motion, the attorney general requested permission to withdraw from further participation in behalf of the State. The motion states:
Permission to withdraw was granted to the attorney general's office on September 25, 1967. Shortly before trial the respondent moved to quash and dismiss the indictment because of Mr. Mahady's participation in the defense and his subsequent employment as assistant attorney general.
Following a pretrial hearing on the motion, the trial court filed findings of fact. The facts reported on this aspect of the case are not questioned by the respondent. The court determined that Frank G. Mahady, Esquire, upon entering service in the office of the attorney general, was assigned to the opinion and appeals division. In addition to facts previously stated, the findings report:
5. That upon the employment of Atty. Frank G. Mahady as Assistant Attorney General, all other members of the staff of the Attorney General's office were instructed not to discuss at any time in any manner any case in which the law firm of Black & Plante, or one of their partners, appeared as counsel, and specifically, all members were instructed not to discuss the case of the State of Vermont vs Earl D. Miner, Sr.; and the Court further finds that Attny. Frank G. Mahady has not had access to any file in the Attorney General's office involving any case in which Black & Plante, or one of their partners, appeared as counsel, nor has the said Atty. Frank G. Mahady discussed the case of State of Vermont vs Earl D. Miner, Sr. with any member of the staff of the Attorney General's Office since the date of his employment with that office.
6. That Windsor County States Attorney James W. Wright has worked in close relationship with the Attorney General's office through the person of Assistant Attorney General Hilton H. Dier, Jr., in the preparation of the case for trial; however, at no time has the States Attorney conferred with Atty. Frank G. Mahady relative to the preparation of the case since his employment in the Attorney General's office;
7. That since the date of September 25, 1967, wherein the Court granted the Attorney General office's motion to withdraw from further participation in the case of State of Vermont vs. Earl D. Miner, Sr., that the Windsor County States Attorney James W. Wright has conducted his further investigation and preparation for trial of the case without the assistance of anyone in the Attorney General's office;
8. That at all times material, Atty. Frank G. Mahady has observed the canons of professional ethics as relates to communications between clients and their counsel, and at no time has he divulged any information, which he obtained in the preparation of the case, to the State of Vermont or any member of the Attorney General's office, or the person of the Windsor County States Attorney, James W. Wright.
9. The Court further finds that at all stages of the proceedings the respondent has been represented by able and competent counsel, and that his rights to a fair and impartial trial have been protected at all stages of the proceedings.
On the strength of these factual determinations, the motion to dismiss the indictment was denied. The correctness of this order presents the first question for our review.
It is of first importance, in resolving this claim of error, that there is no indication in the record that the confidential relationship which was established between the respondent and the law firm of Black and Plante was violated in any way. None has been claimed, either at the trial or in this appeal.
Nonetheless the respondent contends-'(t)he fact that the confidential information was not used and the absence of any adverse instances on the part of the attorney accepting such employment or the person employing him is immaterial.' He lays claim to the assumption that the sequence of Mr. Mahady's employment by adverse interests encroached upon his right to a fair trial. And the respondent point out that only he can waive the privilege of his communications with his counsel and the fact that the attorney general's office withdrew from the prosecution does not affect the privilege.
The precept that an attorney scrupulously avoid representing conflicting interests and hold inviolate the confidence and secrets entrusted to him by his client are not open to question. The attorney's obligation in this respect has been defined by former Chief Justice Cleary, writing for the Court in In re Themelis, 117 Vt. 19, 23, 83 A.2d 507, 510;
Fidelity to these standards prohibits an attorney from engaging in a criminal proceeding against an accused he has formerly represented in the subject matter of the prosecution. But a conflict of this consequence will not bar the State, as distinguished from a disqualified representative, from protecting the public interest. Other counsel who have not been subject to any conflict may appear for the State where the prosecutor's function can be performed impartially and free from any breach of privileged communications. See People ex rel. Livers v. Hanson, 290 Ill. 370, 125 N.E. 268, 270.
The shield of privilege sometimes runs counter to the law's great purpose to ascertain the truth. Baird v. Koerner, 9 Cir., 279 F.2d 623, 95 A.L.R.2d 303, 314. The application of the rule should not exceed the reason for the privilege nor the policy which brought it into being. Foster v. Hall, 29 Mass. (12 Pick.) 89, 97 (Shaw, C. J.); In re Selser, 15 N.J. 393, 105 A.2d 395, 402.
The design and force of the rule is against disclosure. On that issue, all are agreed that the seal of secrecy has not been broken; no confidence has been betrayed and the privilege is observed. In this situation, the State is entitled to proceed, free from the disqualifying interest of one of its employees.
Mr. Mahady's appointment to the attorney general's staff occurred several months after the indictment was returned, and there is no suggestion that he had any part in its procurement. The denial of the motion to dismiss the presentment was without error. And since there is no question that the respondent's privileged communications with Mr. Mahady were faithfully observed and kept throughout the trial, the claim that his right to a fair trial has been impaired by Mr. Mahady's employment by the State of Vermont is without merit.
When the case went to trial, the state's attorney called Joseph Holiday, an agent of the Federal Bureau of Investigation. He testified that in the evening of January 24, 1967 he received a telephone call at his home in Brattleboro, Vermont. Over the respondent's objection the court received...
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