State v. Smith, 07-1041.
| Citation | 761 N.W.2d 63 |
| Decision Date | 13 February 2009 |
| Docket Number | No. 07-1041.,07-1041. |
| Parties | STATE of Iowa, Appellee, v. Jeffrey D. SMITH, Appellant. |
| Court | United States State Supreme Court of Iowa |
Robert P. Montgomery of Parrish, Kruidenier, Dunn, Boles, Gribble, Cook, Parrish, Gentry & Fisher, L.L.P., Des Moines, and Michael Lanigan, Waterloo, for appellant.
Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Charity McDonell, Assistant County Attorney, for appellee.
The State moved to disqualify defendant's privately-retained counsel of choice on the ground that counsel faced an "actual conflict of interest." Despite the defendant's express waiver of the conflict, and notwithstanding the availability of co-counsel to handle all matters related to the State's witness whose involvement in the case was the subject of the claimed conflict, the district court ordered counsel to withdraw. We stayed further proceedings in the district court and granted interlocutory discretionary review of the order disqualifying the defendant's counsel. We now reverse and remand with instructions.
Tonyeah Jackson was murdered at a Waterloo bar in July of 2006. Waterloo police identified the defendant, Jeffrey Smith, as a prime suspect in the murder. On July 10, Smith met with Attorney Robert Montgomery of Parrish, Kruidenier, Dunn, Boles, Gribble, Cook, Parrish, Gentry & Fisher, L.L.P. (Parrish Firm) in Des Moines. Montgomery advised Smith to voluntarily turn himself in to the police, and Smith complied. Smith was initially charged with a drug offense, and he hired Montgomery to represent him.
On August 3, 2006, Smith was charged with first-degree murder in connection with the Jackson homicide. He hired Montgomery to represent him on this new charge, as well.1 Montgomery appeared with Smith at the arraignment on the murder charge, and was given a copy of the trial information. A list of potential witnesses for the State and minutes of testimony were not attached to or provided with the information delivered to Montgomery and Smith at the arraignment.2
After making a formal appearance as Smith's counsel on the murder charge, Montgomery filed an application for the appointment of a court-appointed co-counsel to assist in Smith's defense. The court appointed attorney Mike Lanigan of Waterloo to serve as Montgomery's co-counsel. Montgomery and Lanigan had no personal or professional association prior to their mutual representation of Smith in this case.
Montgomery traveled to the clerk of court's office in Waterloo on a number of subsequent occasions and reviewed the State's list of witnesses, consisting of approximately one hundred names, and the minutes of testimony. While reviewing the State's witness list in December 2006, Montgomery discovered Marlon Earsery was among the persons named on the State's list of potential witnesses. Earsery was at that time represented by Eric Parrish, Montgomery's colleague in the Parrish Firm, on an unrelated criminal charge.
The minutes of testimony revealed the State planned to call Earsery to testify about two tape-recorded telephone conversations he had with Shylandra Dunn, his girlfriend, and Larhandrae Dunn, her brother.3 The original minutes of testimony summarized Earsery's expected testimony as follows:
[Earsery] will testify and identify and introduce into evidence a recording from the jail pod with Shylandra Dunn and Larhandrae Bud Dunn. [Earsery] will testify and identify his voice and those voices on said conversation. [Earsery] will testify and describe the events as they transpired during the phone conversation, mainly hearing shots and to Bud Dunn telling him that J-Rich just came in and started shooting up Crystyles. [Earsery] will further testify, identify, and introduce into evidence said recorded phone call from the jail. [Earsery] will testify and identify the voices on it. [Earsery] will testify to the nature of the conversations. [Earsery] will testify as to the shots being recorded.
After learning Earsery was represented by Parrish, Montgomery immediately discussed the matter with Lanigan. Montgomery and Lanigan again reviewed the minutes of testimony and concluded Earsery's role as a witness would be to provide foundational testimony supporting the introduction of the audiotape in evidence.4 Their understanding of Earsery's expected role as a witness was corroborated in conversations with the prosecuting attorneys who suggested they saw no actual conflict presented by Montgomery's continued representation of Smith.
Montgomery and Lanigan believed Earsery's expected testimony would not be accusatory in nature because Earsery was not present at the scene of the crime, and therefore had no personal knowledge of the matter. Neither Montgomery nor Lanigan anticipated a need to impeach Earsery's foundational testimony through cross-examination.
Even after concluding Earsery's testimony was solely foundational, Montgomery took various cautionary steps to ensure the situation would not develop into an actual conflict. First, Montgomery and Lanigan agreed Montgomery would not participate in deposing nor questioning Earsery should either later become necessary. Lanigan would handle those duties.5 Additionally, Montgomery took steps within the Parrish Firm to avoid all contact with Earsery's defense. Montgomery gained no knowledge of Earsery's client confidences, and he never discussed Earsery's case or Smith's case with Parrish.
Having fully disclosed the situation to Lanigan and to the prosecutors, Montgomery proceeded as lead counsel from the time he was hired in September 2006 until May 2007 on the understanding that no actual conflict existed which would require his voluntary withdrawal or his involuntary disqualification. During that time, Montgomery deposed over fifty witnesses and spent substantial time and energy preparing Smith's defense. Smith's defense was planned and organized with Montgomery as lead counsel, and consistent with Montgomery's strategies and theories.
On May 7, 2007, the State filed an "Additional Minute of Testimony" for Earsery. The additional minute of testimony stated:
In addition to testifying to matters contained in Minutes of testimony previously filed in this case, [Earsery] will testify, identify and introduce into evidence recordings of two (2) phone conversations which originated with himself from the Black Hawk County Jail on 7/9/2006 between the hours of 9:00 and 9:30 PM. [Earsery] will testify and identify the voices on said phone conversations. [Earsery] will testify that said voices are those of Shylandra Dunn (aka: Lan Lan) and Shytari Dunn (aka: TD or TT). [Earsery] will testify as to conversations with Bud Dunn.... [Earsery] will testify, identify and introduce into evidence said two (2) phone calls. [Earsery] will testify as to the foundation for said phone calls.
Thus, the additional minute clarified Earsery's expected testimony, but did not change the substance of the original minutes of testimony. In fact, the additional minute did nothing to alter the foundational nature of Earsery's testimony.
As trial approached, the district court's deadline for filing pre-trial motions came and passed. On May 9, 2007, after the deadline for filing pre-trial motions had passed, the State filed a "Motion For Watson Hearing To Determine Conflict of Interest."6 The State's motion asserted, for the first time, that Montgomery should be disqualified as Smith's counsel because of an actual conflict of interest arising from the Parrish Firm's concurrent representation of Smith and Earsery.
A hearing on the State's motion was held on May 18, 2007 approximately two weeks before Smith's trial was scheduled to begin. The State contended Earsery would be an important witness for the State, and asserted the actual conflict required the total disqualification of Montgomery from any further representation of Smith on the murder charge. Montgomery and Lanigan disputed the State's claims, contending (1) Earsery was merely a foundational witness, (2) no actual conflict existed precluding Montgomery's continuing representation of Smith, and (3) partial disqualification would be an adequate response to the perceived potential conflict of interest. Montgomery informed the district court of the protective measures taken to mitigate the potential conflict, including the decision to have Lanigan handle all matters related to Earsery. Smith acknowledged and voluntarily waived the possible conflict on the record during the hearing, and expressed to the district court his desire that Montgomery should continue to serve as defense counsel.
The district court found Earsery is a "key prosecution witness," and concluded an "actual conflict of interest" requiring Montgomery's total disqualification arose from the Parrish Firm's concurrent representation of Smith and Earsery. Smith filed a motion urging the district court to reconsider its ruling, and requesting an opportunity to make an offer of proof.7 The district court denied the motion.8
Smith sought and we granted interlocutory discretionary review of the district court's order. We stayed all further proceedings in the district court pending this appeal.
"A determination of whether a conflict exists is a mixed question of fact and law." Pippins v. State, 661 N.W.2d 544, 548 (Iowa 2003) (citing Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S.Ct. 1708, 1715, 64 L.Ed.2d 333, 342 (1980)); see also State v. Vanover, 559 N.W.2d 618, 627 (Iowa 1997) ().
When a defendant claims a violation of his Sixth Amendment rights, our review is generally de novo. Pippins, 661 N.W.2d at 548 (citing State v. Watson, 620 N.W.2d 233, 235 (Iowa 2000); Vanover, 559 N.W.2d at 627). At the same time, "[w]hether the facts show an actual conflict of interest...
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