Whitaker v. Com.

• Citation: 895 S.W.2d 953
• Decision Date: 16 February 1995
• Docket Number: No. 93-SC-822-MR,93-SC-822-MR
• Parties: Bernard WHITAKER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court (Kentucky)

Page 953

895 S.W.2d 953

63 USLW 2591

Bernard WHITAKER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 93-SC-822-MR.

Supreme Court of Kentucky.

Feb. 16, 1995.

Rehearing Denied May 11, 1995.

G. Thomas Mercer, Appellate Public Advocate of counsel, Louisville, for appellant.

Chris Gorman, Atty. Gen., Michael L. Harned, Lana Grandon, Asst. Attys. Gen., Crim. Appellate Div., Frankfort, for appellee.

STUMBO, Justice.

Bernard Whitaker appeals from his murder conviction which resulted in a sentence of life imprisonment. On appeal, he raises four errors, two of which we find sufficient to merit reversal of this conviction.

Whitaker was charged with the murder of his estranged wife. The evidence presented was that he came to her place of employment, asked her to sign some tax documents, and then shot her in the head at close range. At trial he claimed not to recall the actual shooting and sought, but did not receive, instructions on extreme emotional disturbance and the lesser included offense of first-degree manslaughter. Additionally, he argues as error the admission into evidence of a photograph taken of the victim's head showing the wound caused by the shooting. Whitaker alleged that the shaving of his wife's head constituted an alteration of the evidence and thus rendered the photograph inadmissible.

As to the denied instructions, we find there was no error in the trial court. As we stated in Morgan v. Commonwealth, Ky., 878 S.W.2d 18 (1994), "[t]here was no evidence to suggest that he was acting under the influence of extreme emotional disturbance, or that there were any circumstances existing at the time of the killing to provoke or stimulate such a disturbance." Id. at 20. Evidence of extreme emotional disturbance must be definite and nonspeculative. Henley v. Commonwealth, Ky., 621 S.W.2d 906, 909 (1981). There must be an event triggering the explosion of violence on the part of the defendant. Foster v. Commonwealth, Ky., 827 S.W.2d 670, 678 (1992), cert. denied, --- U.S. ----, 113 S.Ct. 337, 121 L.Ed.2d 254 (1992). Thus, we find no error in the failure to give the requested instructions.

While the complained of photograph was certainly unpleasant to look at, we do not find it to be overly inflammatory so as to arouse the passions of the jury. Indeed, the photograph had relevant evidentiary value because it assisted the Commonwealth in proving that the gunshot which killed the victim was a contact wound. This was important since the evidence established that Whitaker was the only person standing near the victim when she was shot. Though there were witnesses, none actually saw the gun at the time of the shooting. Thus, we hold that while the photograph was perhaps gruesome, it was both relevant and probative evidence and was not improperly admitted. Geary v. Commonwealth, Ky., 503 S.W.2d 505 (1972); Gall v. Commonwealth, Ky., 607 S.W.2d 97 (1980), cert. denied, 450 U.S. 989, 101 S.Ct. 1529, 67 L.Ed.2d 824 (1981).

The next issue presented by Whitaker is more troubling. Whitaker was initially represented by a member of the public defender's office, Carolyn Keeley. Approximately two and one-half months later, Keeley resigned from the public defender's office and took a position in the office of the Commonwealth's Attorney. Prior to the beginning of the trial, the following exchange took place:

MR. EATON: JUDGE, AT THIS TIME MY CLIENT WISHES TO MAKE AS A POINT OF RECORD HIS OBJECTION TO THE OFFICE OF TOM OSBORNE PROSECUTING THIS CASE, SINCE CAROLYN KEELEY IS NOW EMPLOYED IN THAT OFFICE AND CAROLYN KEELEY ONCE REPRESENTED HIM.

THE COURT: YOU'VE MADE YOUR MOTION OF RECORD AND THE MOTION'S DENIED, AND YOU'VE PROTECTED THE RECORD FOR YOUR CLIENT.

MR. OSBORNE: YOUR HONOR, I WOULD LIKE TO ADD FOR THE RECORD THAT I WAS AWARE MRS. KEELEY HAD REPRESENTED HIM FROM THE PLEADINGS IN THE FILE. MRS. KEELEY NOR I HAVE DISCUSSED THIS MATTER DIRECTLY OR INDIRECTLY, AND SHE HAS PERFORMED NO WORK AND TAKEN NO PART IN THE PROSECUTION. SHE MAY NOT KNOW IT'S EVEN BEING TRIED TODAY. I CERTAINLY HAVEN'T TOLD HER.

THE COURT: THAT MAY BE AN OVERSTATEMENT, MR. OSBORNE, AND IT MAY BE CORRECT, SIR.

MR. OSBORNE: I'M SAYING I DON'T KNOW IF SHE KNOWS IT'S GOING ON. I KNOW SHE'S NOT PARTICIPATED IN THE TRIAL.

THE COURT: I ACCEPT THE ACCURACY OF YOUR STATEMENT AND THE INTEGRITY OF YOUR OFFICE, SIR. PLEASE GIVE AN OPENING STATEMENT.

MR. OSBORNE: OKAY.

The Commonwealth contends that the trial court's action was proper and should not be overturned on appeal, citing Summit v. Mudd, Ky., 679 S.W.2d 225 (1984). In Summit, a Jefferson County Public Defender was appointed to represent the defendant. At some point during the course of the prosecution, the lawyer moved to the office of the Jefferson County Commonwealth's Attorney, the prosecutors in the case. The Office of the Public Defender moved to disqualify the entire office of the Commonwealth's Attorney on ethical grounds. The trial court denied the motion. On appeal, this Court directed a remand, ordering the trial court to hold a hearing:

[T]o determine if there has been any actual prejudice as a result of a breach of the attorney/client confidentiality. In the circumstances of this case actual prejudice must be shown before the Commonwealth Attorney's entire staff is disqualified. The mere possibility of the appearance of impropriety is not sufficient to disqualify the entire staff of the Commonwealth Attorney's office from further prosecution of the case.

Id. at 225, 226.

In Summit, the focus of the hearing was to be "the ethics of the attorneys involved which must protect any client from a prejudice to his right by a breach of confidentiality." Id. at 226. Therein, we stated that we would not assume that counsel who changes his or her employment would violate the strong ethical considerations of attorney/client confidentiality, and that we did not believe the mere possibility of the appearance of impropriety was sufficient ground to disqualify the entire staff of a prosecutor. Thus, we merely remanded for an evidentiary hearing on the issue.

Having considered this matter at length, we have decided that a remand is the appropriate step to take on this issue, but we believe the focus of the evidentiary hearing must be slightly different than as was set forth in Summit v. Mudd. We begin our consideration with Supreme Court Rule 3.130 (Kentucky Rules of Professional Conduct, Rule 1.11), which is applicable to successive government and private employment:

(c) Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not:

(1) Participate in a matter which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer'[s] stead in the matter....

It is clear from the language of this rule that it is the relationship between the lawyer and client that must be the focus of the conflict examination. The trial court must examine the depth to which the attorney/client relationship was established. An appointed counsel whose contact with his client has been brief and perfunctory without an exchange of confidential information in the form of planning trial strategy, or discussions of potential witnesses to be called on the defendant's behalf, or avenues of investigation to be undertaken by defense counsel would not be considered to have had personal and substantial participation.

An attorney may not be permitted to participate in the prosecution of a criminal case if by reason of his professional relations with [the] accused he has acquired a knowledge of the facts ... which are closely interwoven therewith ... nor should he be allowed to prosecute if he has been previously employed by defendant in relation to the same transaction.

27 C.J.S., District and Prosecuting Attorneys, § 12(6)(c) (1959 and Supp.1993). Thus, we hold that if Keeley participated personally and substantially in the preparation of a defense of Whitaker, she would certainly be disqualified from the prosecution of Whitaker.

We are mindful that the commentary to SCR 3.130 (Rule 1.11) specifically states that: "Paragraph (c) does not disqualify other lawyers in the agency with which the lawyer in question has become associated." Kentucky Rules of Professional Conduct Rule 1.11 cmt. (1989). However, commentary provides merely a guide to interpretation of the rules as set forth, but does not have the force of law. Cf., KRE 1104; KRS 500.100. Given that the case at bar involves the very delicate and important issue of client confidentiality in the context of a criminal trial, we believe that the Sixth Amendment to the United States Constitution requires a careful inquiry by the trial court and disqualification of the entire office of the Commonwealth's Attorney if the attorney has engaged in a substantial and personal participation in the defendant's case, for to do otherwise would be to ignore the potentially chilling effect of any future attorney/client relationships.

We do not believe that there must be a showing of prejudice by the defendant in a case such as this in order to bar the Commonwealth's Attorney from prosecuting this matter. As noted in State v. Allen, 539 So.2d 1232 (La.1989):

[T]he former client need show no more than the matters embraced within the pending suit wherein the former attorney appears on behalf of his adversary are substantially related to the matters or cause of action [where] the attorney previously represented him, the former client. The Court will assume that during the course of the former representation confidences were disclosed to the attorney bearing on the subject matter of the representation.

Id. at 1234. The standard we adopt today is slightly different from that discussed in Allen, because our focus is on the degree of the relationship established between attorney and client...