State v. Phillips

• Decision Date: 22 February 1984
• Citation: 672 S.W.2d 427
• Parties: STATE of Tennessee, Appellee, v. Kendall PHILLIPS, Appellant. 672 S.W.2d 427
• Court: Tennessee Court of Criminal Appeals

Page 427

672 S.W.2d 427

STATE of Tennessee, Appellee, v. Kendall PHILLIPS, Appellant.

672 S.W.2d 427

Court of Criminal Appeals of Tennessee at Knoxville.

Feb. 22, 1984.

Permission to Appeal Denied

April 30, 1984.

Robert R. Simpson, Knoxville (On appeal only), Douglas R. Beier, Morristown (At trial only), for appellant.

William M. Leech, Jr., Atty. Gen., Wayne E. Uhl, Asst. Atty. Gen., Nashville, Charles Berkeley Bell, Dist. Atty. Gen., Jim Pryor, Asst. Dist. Atty. Gen., Greeneville, for appellee.

OPINION

SCOTT, Judge.

The appellant was convicted of murder in the second degree and was sentenced to serve twenty-five years in the state penitentiary. On appeal he has presented two issues for our consideration.

In the first issue the appellant contends that he was denied due process of law and effective assistance of counsel, because his former defense counsel actively participated in the prosecution of the case on behalf of the state. In the second issue he challenges the sufficiency of the convicting evidence, specifically the sufficiency of the evidence that he was sane at the time of the crime.

In a motion to dismiss, the appellant asserted that the case should be dismissed because his former defense counsel, Edward R. Sempkowski, is now an Assistant District Attorney General, and that, after having served as his counsel, Mr. Sempkowski worked on the appellant's case for the prosecution.

The appellant killed his wife on August 30, 1981, and was arrested immediately thereafter at the scene. His family retained Mr. Sempkowski to represent the appellant.

On September 30, 1981, Mr. Sempkowski filed a motion for mental evaluation to determine the appellant's mental capacity at the time of the offense and his competency to stand trial. In support of this motion, defense counsel filed an affidavit wherein he stated, "I have interviewed the defendant in the county jail on numerous occasions and have ascertained that the defendant was undergoing treatment at the Cherokee Mental Health Center several weeks prior to August 30, 1981". He further swore that, "I have interviewed the defendant and other sources and have learned that defendant wrote a series of letters or notes which may be classified as 'suicide notes' on or about the day of the shooting". He further asserted that "I have interviewed the defendant and other sources and have ascertained that the defendant attempted suicide on the day of the shooting". Finally, he swore that "I have interviewed the defendant and other sources and have ascertained that defendant has talked of suicide since his incarceration at the Hamblen County Jail".

On October 7, 1981, the motion came on for hearing and the trial judge ordered the evaluation of the appellant. Mr. Sempkowski represented the appellant at the hearing and approved the order for entry.

On the same date the grand jury returned an indictment against the appellant charging him with murder in the first degree.

A week later Mr. Sempkowski filed a motion for discovery, a motion for a continuance, a motion for the release of all medical evaluations, reports and notes in the possession of the Cherokee Mental Health Center, and a notice that the appellant intended to rely on the defense of insanity.

On October 26, 1981, Mr. Sempkowski filed a motion for further mental health evaluation, and this matter was heard two days later, at which time the trial judge ordered the appellant transferred to the Middle Tennessee Mental Health Institute for further evaluation. According to the record, Mr. Sempkowski participated in this hearing and approved the order for entry.

Subsequently, on December 19, 1981, Mr. Sempkowski filed a petition for the appellant's judicial hospitalization. Then, on December 29, 1981, he filed a motion seeking a transfer of the appellant to the Lakeshore Mental Health Institute pending a hearing. In support of this motion, he filed another affidavit, wherein he related that the appellant had told him that "his medication is becoming less effective", and further that "since the defendant returned to the Hamblen County Jail, I have observed that Mr. Phillips has developed increasing anxiety and nervousness".

On December 30, 1981, another notice was filed by Mr. Sempkowski that the appellant would rely on an insanity defense. That same day he also filed a waiver of trial by jury on the issue of whether the appellant should be judicially hospitalized.

A hearing was held the next day on the issue of judicial hospitalization of the appellant, and the trial judge committed him to the Forensic Services Division of the Middle Tennessee Mental Health Institute pending his recovery. Mr. Sempkowski participated in this hearing and approved the order for entry.

From that point on all pleadings are signed by other counsel. First, Beverly C. Sullivan represented the appellant until she discovered an ethical problem which required her to move for and be granted the right to withdraw. Douglas R. Beier was then appointed to represent the appellant. Yet, as late as June 21, 1982, the Middle Tennessee Mental Health Institute sent a copy of correspondence with the trial judge to Mr. Sempkowski as defense counsel. No order relieving Mr. Sempkowski as counsel appears in the record, and apparently he was never relieved.

When the motion to dismiss was heard, it was admitted that Mr. Sempkowski was then employed by the District Attorney General and that he had worked on the appellant's case for his new employer. His work was termed "clerical" by the trial judge who denied the motion and allowed the District Attorney General and his staff to proceed with the prosecution.

Although counsel were not sworn to testify at the hearing on the motion, the District Attorney General, Berkley Bell, announced that Mr. Sempkowski had participated in the obtaining of a medical expert to testify on behalf of the state. Mr. Sempkowski admitted that he did this and also that he let the expert look through the state's file. Mr. Bell further announced that Mr. Sempkowski had told him that the state had found the appellant insane while he represented him. Mr. Sempkowski admitted that he filed a motion asking the Court to direct that the appellant be examined by the state's expert and that he signed Mr. Bell's name to the motion.

Copies of the Federal Bureau of Investigation Ballistic Report and the autopsy report revealed that Mr. Sempkowski had worked on the case for the prosecution by penciling notes on both reports.

Mr. Sempkowski told Ms. Sullivan as she was reviewing the appellant's employment records from the Tennessee Valley Authority that the employment records would be used to show that the appellant handled dynamite. Mr. Sempkowski admitted that he had looked at the appellant's employment records one time. On behalf of the state, Mr. Sempkowski complied with discovery by giving various items to Ms. Sullivan. He also talked to an employee of the Cherokee Mental Health Center regarding a subpoena duces tecum which, according to Mr. Sempkowski, a secretary had had issued. He further admitted that he may have told the secretary to subpoena the hospital records from Nashville.

After the motion to dismiss was overruled, an application for an interlocutory appeal was filed under Rule 9, T.R.A.P. The record does not reveal that the motion was ever presented to the trial judge as required by Rule 9(a), T.R.A.P.

Subsequently, the case proceeded to trial and the appellant was convicted. A timely motion for a new trial was filed. Attached to the motion for a new trial was an affidavit from the appellant's brother concerning a fee dispute which arose with Mr. Sempkowski after he discontinued his representation of the appellant. In addition, a letter from the Chief Disciplinary Counsel of the Board of Professional Responsibility and a copy of Mr. Sempkowski's response to the complaint filed against him was attached to the affidavit. The motion for a new trial made a general reference to the affidavit and letter, but they were not introduced as evidence at the hearing on the motion. A brief reference was made to the documents at the hearing. The trial judge did not specifically state that he considered the affidavit, but stated that he was sure that Mr. Sempkowski spent a lot of time and did a lot of work on the case when he was defense counsel.

In denying the motion for a new trial, the trial judge reiterated his earlier finding that Mr. Sempkowski only performed "clerical" tasks. However, he reversed his previous finding that Mr. Sempkowski deserved a "rebuke and a reprimand" and found that Mr. Sempkowski "remained aloof from the case and ... his presence has been one of an honorable position in the case". He further found that "every precaution was taken that could be taken, and that the defendant wasn't prejudiced thereby".

Both the appellant and the state rely on Autry v. State, 1 Tenn.Cr.App. 95, 430 S.W.2d 808, 809 (1967). In that case this Court stated:

It has long been firmly established, both in the Canons of Professional Ethics and by judicial opinions, that attorneys cannot represent conflicting interests or undertake to discharge inconsistent duties. When an attorney has once been engaged and received the confidences of his client, he cannot enter the services of those whose interests are adverse to that of his client or former client. The rule is a rigid one, and it is well that it is so. An attorney cannot be permitted to participate in the prosecution of a criminal case if, by reason of his professional relation with the accused, he has acquired knowledge of facts upon which the prosecution is predicated, or which are closely interwoven therewith.

In Autry, the question was whether the special prosecutor was disqualified because the relation of attorney and client had existed between him and the defendant, and whether he had received confidential communications from the defendant. In that case, defense coun...