State v. Tate

• Decision Date: 20 December 1995
• Citation: 925 S.W.2d 548
• Parties: STATE of Tennessee, Appellee, v. Richard Arthur TATE, Appellant.
• Court: Tennessee Court of Criminal Appeals

Page 548

925 S.W.2d 548

STATE of Tennessee, Appellee, v. Richard Arthur TATE, Appellant.

Court of Criminal Appeals of Tennessee at Knoxville.

Dec. 20, 1995.

Mark E. Stephens, District Public Defender, R. Scott Carpenter, Asst. Dist. Public Defender (at trial), Paula R. Voss, Asst. Dist. Public Defender, Knoxville (on appeal), Brandt W. Davis, Knoxville (at trial), for Appellant.

Charles W. Burson, Attorney General, Sharon S. Selby, Assistant Attorney General, Nashville, Randall E. Nichols, District Attorney General, Robert L. Jolley, Jr., Asst. Dist. Attorney, Knoxville, for Appellee.

OPINION

WADE, Judge.

The defendant, Richard Arthur Tate, was indicted by the Knox County Grand Jury for first degree murder, felony murder, aggravated burglary, aggravated assault, aggravated kidnapping, and theft. Prior to trial, the trial court overruled a defense motion requesting that the Knox County District Attorney General's Office be disqualified from the prosecution. In this interlocutory appeal, the defendant asks this court to reverse the order because of the District Attorney General's prior participation in the case as trial judge.

We hold that in these unique circumstances neither the Knox County District Attorney General nor his staff should participate in the prosecution. The order of the trial court is reversed, the motion to disqualify is granted, and the cause is remanded for trial.

The facts do not appear to be in dispute. On April 5, 1990, Knox County Criminal Court Judge Randall Nichols signed the several indictments returned by the grand jury against the defendant. For a period of two years thereafter, Judge Nichols from time to time presided over pretrial proceedings until he was appointed to the position of District Attorney General for Knox County in August of 1992. Prior to his appointment to the new office, Judge Nichols ruled on several motions, all of which appear to have been routine. A transcript of one of the motion hearings, which was made a part of this record, establishes that on one occasion Judge Nichols questioned the defendant in open court during a hearing on a motion by his counsel to withdraw from representation. The record also includes evidence that defense counsel made several ex parte appearances before Judge Nichols in an effort to obtain the funds necessary for the assistance of expert services. Defense counsel specifically recalled two ex parte communications on motions that had been filed; he remembered several brief ex parte status reports to Judge Nichols. Some of the information revealed by defense counsel in the private hearing had been provided by the defendant or members of his family.

After Judge Nichols resigned his judicial office to become the Knox County District Attorney General, he had as many as four lengthy discussions with the assistant district attorney general assigned to prosecute the defendant. The assistant acknowledged that he had engaged in several other brief conversations with General Nichols about the case; however, both General Nichols and his assistant asserted that they had not discussed any facts not already known to the prosecution prior to the appointment of General Nichols to his new office. Moreover, General Nichols, who presided over hundreds of cases during his tenure as judge, testified that he did not recall receiving any information in the ex parte communications with the defendant which was not otherwise available to the state through other means.

The trial court overruled the defense motion to disqualify on the basis that there was no actual conflict of interest. It held that the participation of General Nichols in the prosecution did not present the appearance of impropriety. The trial court then granted the defendant an interlocutory appeal pursuant to Tenn.R.App.P. 9.

Typically, the decision to disqualify a prosecutor or his office rests in the sound discretion of the trial judge. On appeal, the scope of review is limited. This court may only determine whether there has been an abuse of the discretionary authority afforded the trial court. See State v. Phillips, 672 S.W.2d 427 (Tenn.Crim.App.1984).

The defendant has presented a three-part argument in his claim of disqualification: (1) there is an actual conflict of interest requiring recusal of the office of the district attorney general; (2) even if no actual conflict of interest is present, the appearance of impropriety is so great as to require recusal of General Nichols; and (3) the circumstances here are such that the removal of the entire office is required.

The initial response of the state is that this is not an appropriate matter for interlocutory review and that this court should reconsider its grant of permission for interlocutory appeal. Alternatively, the state argues that there is no actual conflict of interest and that neither the district attorney nor his staff should be disqualified on grounds of the appearance of impropriety. We first hold that this matter is appropriate for interlocutory review; adequate grounds appear in our order of May 20, 1994. Thus, we must address the merits of the claim.

BACKGROUND

There was almost no legal authority available to guide the trial court, the district attorney, or defense counsel. While a few cases pertain to conflicts involving private counsel or assistant district attorneys, the issue of whether a district attorney general may prosecute a case after having been involved as a judicial officer is one of first impression in Tennessee. In determining whether the district attorney should have been disqualified in a particular instance, this court first must consider whether the circumstances establish an actual conflict of interest; if so, there must be a disqualification. If there is no actual conflict, we must next consider whether there is an appearance of impropriety that would warrant disqualification. That would also result in a disqualification. If disqualification is required under either theory, the final consideration is whether the entire staff of the district attorney general's office must also be disqualified.

Our extensive research has yielded few cases in which there were similar facts. In Ross v. State, 8 Wyo. 351, 57 P. 924, a case decided in 1899, the trial court refused to reverse a conviction based upon the trial court's failure to disqualify a former district judge, whose only prior contact was that he had previously denied the defendant bail sometime after his arrest, from later assisting in the prosecution. The decision was based solely upon the lack of prejudice to the defendant: the "conclusion [did not follow] that [the former judge] was prejudiced against the defendant except in the sense that from the evidence examined by him he may have formed an opinion that the defendant was guilty of the offense charged." The decision in Ross is an example of the most lenient approach to a possible conflict of interest.

In Commonwealth v. Ford, 539 Pa. 85, 650 A.2d 433 (Pa.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1970, 131 L.Ed.2d 859 (1995), the defendant claimed that a conflict of interest existed because the trial judge assigned his case had become the district attorney of the county after the verdict but before post-verdict proceedings had been initiated. ¹ The defendant, however, failed to establish any conflict of interest because the district attorney "disqualified and screened herself from any participation in this matter, and in fact, in any matter in which she [had] presided as a jurist." Id. at 106, 650 A.2d at 443. This case illustrates a more standard approach to possible conflicts of interest.

The general conduct of attorneys is governed by the Code of Professional Responsibility. While the disciplinary rules "do not fully equate with the body of law governing courts, trials and the administration of the justice system," the Code often provides guidance in our determinations. State v. Willie Claybrook, No. 3, 1992 WL 17546 (Tenn.Crim.App., at Jackson, Feb. 5, 1992), perm. to appeal denied, (Tenn.1992); see State v. Jones, 726 S.W.2d 515, 519 (Tenn.1987)- ; State v. Mosher, 755 S.W.2d 464 (Tenn.Crim.App.1988). Thus some consideration is warranted.

Our code is made up of three separate but interrelated parts: (1) Canons, (2) Ethical Considerations, and (3) Disciplinary Rules.

The Canons are statements of axiomatic norms, expressing in general terms the standards of professional conduct expected of lawyers in their relationships with the public, with the legal system, and with the legal profession. They embody the general concepts from which the Ethical Considerations and the Disciplinary Rules are derived.

The Ethical Considerations are aspirational in character and represent the objectives toward which every member of the profession should strive. They constitute a body of principles upon which the lawyer can rely for guidance in many specific situations.

The Disciplinary Rules, unlike the Ethical Considerations, are mandatory in character. The Disciplinary Rules state the minimum level of conduct below which no lawyer can fall without being subject to disciplinary action....

Tenn.Sup.Ct.R., Preliminary Statement.

Canon 9 of the Code provides that "A Lawyer Should Avoid Even the Appearance of Professional Impropriety." Tenn.Sup.Ct.R. 8, Canon 9. Ethical Consideration 9-3 more specifically addresses what an attorney can do when he or she leaves judicial office or other public employment. EC 9-3 provides as follows:

After a lawyer leaves judicial office or other public employment, the lawyer should not accept employment in connection with any matter in which the lawyer had substantial responsibility prior to leaving, since to accept employment would give rise to the appearance of impropriety even if none exists.

(Emphasis added). The general language of EC 9-3 provides that district attorneys must determine whether their prior participation in an action as a judicial...