David Calhoun v. Commonwealth of Kentucky , 2016 Ky. LEXIS 249 ( 2016 )

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RENDERED: JUNE 16, 2016
0 ,Suprrint Cxxurf of 7fit
2014-SC-000488-MR
DATE
DAVID A. CALHOUN APPELLANT
ON APPEAL FROM FRANKLIN CIRCUIT COURT
V. HONORABLE PHILLIP J. SHEPHERD, CHIEF JUDGE
NO. 14-CR-00114
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY CHIEF JUSTICE MINTON
AFFIRMING
A circuit court jury convicted David A. Calhoun of first-degree sexual
abuse and first-degree sodomy and recommended thirty years' imprisonment.
Calhoun appeals the resulting judgment as a matter of right,' presenting two
grounds supporting reversal of the judgment.
First, Calhoun argues that he was denied his right to conflict-free
counsel when the trial court denied his motion to disqualify the entire
Commonwealth's Attorney's office from prosecuting the charges against him
after his former counsel withdrew from his representation before trial and took
a job as an assistant prosecutor in the same Commonwealth's Attorney's office.
Second, he argues that the trial court erred when it declined to admonish the
jury to disregard certain questions posed by the Commonwealth in cross
examination of a defense witness. We find no error in either of these rulings by
the trial court and affirm the judgment.
1 Ky.Const. § 110(2)(b).
I. FACTUAL AND PROCEDURAL BACKGROUND.
Six-year-old RacheP was Calhoun's stepdaughter. Her mother left
Rachel at home with Calhoun while she went shopping. Calhoun allegedly took
Rachel into his bedroom where he forced her to perform oral sex on him and
warned her not to tell anyone about the incident.
When Rachel's mother returned home, Rachel told her something had
happened while she was gone. Rachel's mother called Rachel's biological
father. Rachel, her mother, her father and her stepmother all met in in a local
park to discuss the situation. At the park, Rachel took a walk with her
stepmother and told her what happened.
Upon hearing the report from the stepmother, Rachel's mother
immediately informed the police. The account Rachel eventually gave to police
was consistent with the account she had given in the park. Calhoun denied the
allegations and insisted Rachel had fabricated the whole story, claiming that
she was coached by her stepmother.
The original indictment charged Calhoun with first-degree attempted
sodomy, first-degree sexual abuse, and being a second-degree Persistent Felony
Offender. Before trial, Calhoun and the Commonwealth agreed to allow Rachel
to testify by videotape to be presented at trial. Rachel testified that she
actually performed oral sex on Calhoun; Calhoun touched her above her waist,
on her belly, and on her chest; and the computer in Calhoun's room was
displaying pornographic images at the time. After this testimony came to light,
the Commonwealth chose to seek Calhoun's re-indictment on more serious
charges. The grand jury returned a new indictment charging Calhoun with
2 Rachel is a pseudonym for the victim.
2
first-degree sodomy, first-degree sexual abuse, and unlawful use of an
electronic device to induce a minor to engage in sexual acts.
At trial, Rachel's mother testified that she did not think Calhoun
committed the alleged acts. In her view, Rachel was not questioned in a
manner conducive to eliciting accurate information from a child. And Calhoun
denied all allegations. The jury found Calhoun guilty of first-degree sodomy
and first-degree sexual abuse and acquitted him of unlawful use of an
electronic device to induce a minor to engage in sexual acts. The jury
recommended a sentence of thirty years' imprisonment. The trial court entered
judgment accordingly.
II. ANALYSIS.
A. Trial Court's Refusal to Disqualify Entire Commonwealth's Attorney's
Office was not Erroneous.
At the initial arraignment, the trial court appointed Emily Wilkey of the
Department of Public Advocacy to represent Calhoun. And for roughly nine
months, Wilkey represented Calhoun, appearing in court on his behalf eight
times. Wilkey ended her employment with the DPA and accepted employment
with the same Commonwealth's Attorney who was prosecuting Calhoun.
Before trial, Calhoun—with the assistance of new counsel from DPA—filed a
motion to disqualify the entire Commonwealth's Attorney's office. The trial
court denied his motion. Calhoun now alleges this was an error by the trial
court that warrants reversal of the judgment. His argument fails under the
express terms of our rules.
3
Our own case law provides the primary support for Calhoun's
disqualification argument: Whitaker v. Commonwealth. 3 In Calhoun's
estimation, Whitaker not only supports his argument but mandates
disqualification of the entire Commonwealth's Attorney's office. Admittedly,
Whitaker involved similar facts: after beginning a defendant's representation, a
public defender resigned and immediately took a position with the
Commonwealth's Attorney. The trial court denied Whitaker's motion to
disqualify the entire Commonwealth's Attorney's office, relying primarily on the
prosecutor's assurances that no communication about Whitaker's case had
occurred with Whitaker's former counsel. On appeal, while reversing
Whitaker's conviction on other grounds, a majority of this Court rejected the
trial court's handling of Whitaker's former defense counsel's working for the
prosecution.
The majority in Whitaker began its analysis by acknowledging that our
precedent supported the trial court's denial of blanket disqualification.
Whitaker had failed to show any actual prejudice stemming from his counsel's
transitioning to the Commonwealth's Attorney's office, and this failure alone
was sufficient to sustain the trial court's decision. This was true, the Court
reasoned, because under Summit v. Mudd 4—relatively new precedent at the
time of Whitaker—the movant must demonstrate actual prejudice for a blanket
disqualification. And Mudd held that more than the mere appearance of
impropriety was required to disqualify an entire prosecuting office: "actual
prejudice must be shown before the Commonwealth['s] Attorney's entire staff is
3 895 S.W.2d 953 (Ky. 1995).
4 679 S.W.2d 225 (Ky. 1984).
4
disqualified. The mere possibility of the appearance of impropriety is not
sufficient to disqualify the entire staff of the Commonwealth['s] Attorney's office
From further prosecution of the case." 5 But the majority in Whitaker found the
Mudd standard inadequate.
According to the majority in Whitaker, our rules governing the ethical
practice of law and the Sixth Amendment to the United States Constitution
required a departure from Mudd. In particular, Supreme Court Rule (SCR)
3.130-1.11(c)(1) 6 required that the public defender transitioning to the
prosecution be disqualified from working on Whitaker's case.? But the
Commentary to SCR 3.130-1.11 specifically rejected the notion that this
individual disqualification should be imputed to the entire office: "Paragraph
(c) does not disqualify other lawyers in the agency with which the lawyer in
question has become associated."8 The majority in Whitaker, dismissing the
Commentary as nonbinding, decided to ignore this language.
After "consider[ing] this matter at length," the Court—with no citation of
authority—credited the Sixth Amendment for the principle that "careful inquiry
by the trial court and disqualification of the entire office of the
Commonwealth's Attorney" was required "if the attorney . . . engaged in a
substantial and personal participation in the defendant's case." 9 The majority
5 Id. at 225.
6 Later amendments have changed the numbering of SCR 3.130-1.11. What
was once SCR 3.130-1.11(c)(1) is now found in SCR 3.130-1.11(b).
7 While not before the Court, we should be clear: Wilkey—the attorney who
formerly represented Calhoun—is certainly disqualified from any participation, no
matter the degree, in Calhoun's prosecution.
8 Whitaker, 895 S.W.2d at 956 (quoting SCR 3.130-1.11 cmt. 9 (1989))
(emphasis added).
9 Whitaker, 895 S.W.2d at 956.
5
in Whitaker, in essence, announced a per se rule of disqualification of not just
the attorney who transitioned from defense counsel to prosecution, but the
entire staff of the prosecutor's office as well. With the holding in Whitaker, we
stand alone among the states in our interpretation of SCR 3.130-1.11, which,
like similar rules in the majority of states, was modeled closely after the
American Bar Association's Model Rules.'° And the Sixth Amendment does not
support Whitaker's conclusion. 11
In the end, Whitaker ended Mudd's plain standard and limited its
precedential value. But we amended SCR 3.130-1.11 in 2009 and eliminated
much of the confusion spawned by Whitaker regarding wholesale imputation of
disqualification to entire government offices. SCR 3.130-1.11(b), in its current
form provides:
[A] lawyer who has formerly served as a public officer or employee
of the government . . . shall not otherwise represent a client in
connection with a matter in which the lawyer participated
personally and substantially as a public officer or employee, unless
the appropriate government agency gives its informed consent,
confirmed in writing, to the representation.
When a lawyer is disqualified from representation under paragraph
(a), no lawyer in a firm with which that lawyer is associated may
knowingly undertake or continue representation in such a matter
10 See United States u. Huff, 2002 WL 1856910 at *3 (W.D.Ky. Aug. 13, 2002)
(compiling cases); see also John Wesley Hall, Jr., Professional Responsibility in
Criminal Defense Practice, § 13:12 n.9 (3d ed.) ("The majority rule, however, does not
require disqualification of the entire prosecutor's office if the screening measures can
be adequate.").
11 The Sixth Amendment guarantees a defendant will have conflict-free counsel.
But it does not entitle a defendant to blanket disqualification of the prosecutor's office
absent a showing of actual prejudice. See Huff, 2002 WL 1856910 at *3 ("Federal
courts have uniformly concluded that where an attorney leaves private practice for
service in government, absent a showing of actual prejudice the Sixth Amendment
does not mandate the disqualification of other government lawyers in the new office
from handling matters in which that attorney was involved in his former practice."). In
any event, Calhoun was not represented by counsel with a conflict of interest nor
prosecuted by one.
6
unless: (1) the disqUalified lawyer is timely screened from any
participation in the matter and is apportioned no part of the fee
therefrom.
More directly, a former government attorney must be disqualified from matters
involving a prior representation. But the entire office in which that attorney
works is not disqualified as long as the disqualified attorney is appropriately
screened. Disqualification of the entire prosecuting office is not necessary
absent special facts, such as a showing of actual prejudice; or, perhaps the
screening procedures are ineffective.
Under our current rules, a government attorney who transitions from
defense to prosecution may be screened from the case in which she was
formerly involved. We should note that, especially in situations such as
presented here, great pains should be taken to ensure no confidential
information is gathered from a defendant's former counsel 12 and the former
counsel is not given any opportunity, no matter how small, to participate in the
action.
We hesitate to offer any bright-line rule for such situations as Calhoun
presents. But, we should clarify the proper analysis. The majority in Whitaker
held the trial court's focus should be on whether the attorney sought to be
12 The release of confidential information obtained through previous
representation would, first and foremost, violate a defendant's attorney-client privilege;
a privilege that is at the very heart of the legal profession. But, more than that,
dissemination of such information would also be an ethical violation subjecting the
attorney to discipline. SCR 3.130-1.9 prohibits disclosure of information obtained in
prior representation: "A lawyer who has formerly represented a client in a matter or
whose present or former firm has formerly represented a client in a matter shall not
thereafter: (1) use information relating to the representation to the disadvantage of the
former client except as these Rules would permit or require with respect to a client, or
when information has become generally known; or (2) reveal information relating to
the representation except as these Rules would permit or require with respect to a
client."
7
disqualified played a personal and substantial role in the defendant's
representation. Perhaps that is correct when determining whether to disqualify
that attorney. But that focus offers little with regard to whether an entire
prosecutor's office should be disqualified. In making that determination, a trial
court should instead focus on whether the screening procedures are
appropriate and adequate. The Wyoming Supreme Court offered a series of
guidelines for what appropriate screening procedures may look like in these
circumstances, and we find them illustrative going forward:
1. Oral and written directions must be given to all staff
members that the attorney will not participate in any
matter in which the attorney participated as a public
defender or criminal defense attorney. A written
screening policy must be put in place to ensure this
requirement is met.
2. A letter should be directed to every former client of the
attorney announcing the new employment relationship.
This letter may be sent to the client, care of the client's
current attorney. Ideally, this letter should appear in the
court record of an affected criminal case.
3. The prosecuting attorney's screening policy should be
sent to every judge in the district, circuit, and/or county
affected.
4. A copy of the screening policy should be placed in every
active case file in which the attorney participated.
5. All office employees should be advised both orally and in
writing that any violation of the screening process must
be reported immediately and that inattention to the
screening policy will result in discipline.
6. In a prominent location near case files, post a list of all
cases from which the attorney is to be screened. 13
There is no evidence that Wilkey participated at all in Calhoun's
prosecution. So evidence of actual prejudice is absent. We cannot say Calhoun
was substantially prejudiced by Wilkey's employment with the
Commonwealth's Attorney's office. There has not even been an appearance of
13 Johnson v. State, 61 P.3d 1234, 1243 (Wyo. 2003).
8
impropriety presented. The trial court was correct in not disqualifying the
entire Commonwealth's Attorney office.
Calhoun's case fits neatly within the language of SCR 3.130-1.11. All
indications are that Wilkey was appropriately screened from Calhoun's
prosecution. The trial court did not abuse its discretion in allowing the
prosecution to proceed. Neither the earlier or current version of SCR 3.130-
1.11 supports a per se rule of disqualification for an entire prosecution office
after a simple showing of substantial and personal participation in the
defendant's case. What little that remained of the rule in Whitaker after our
2009 amendment to SCR 3.130-1.1 is now overruled. The trial court here did
not act erroneously.
B. The Commonwealth's Cross Examination of Rachel's Mother Was Not
Error.
Calhoun argues his conviction should be reversed because the trial court
erroneously refused to admonish the jury on a series of questions posed by the
Commonwealth to Rachel's mother regarding a heated exchange she had with
police. This encounter led to Rachel's mother's arrest. In Calhoun's view, this
line of questioning was improper, and the trial court should have admonished
the jury to disregard the exchange.
Rachel's mother testified that she thought Rachel had concocted the
story of the sexual encounter with Calhoun. She believed the questioning by
the police was improper, particularly the failure of the interrogator to repeat
the questions to allow inconsistencies in Rachel's account to surface. Rachel's
mother herself was sexually abused as a child. On cross-examination, the
Commonwealth asked Rachel's mother about her own abuse and whether that
9
abuse had resulted in a hostility toward social-service workers investigating
Rachel's claims. Rachel's mother claimed she was not now nor had she been
hostile toward social-service workers. Rachel's mother proclaimed she did not
believe in hostility.
Following up on her renunciation of hostility, the Commonwealth asked
Rachel's mother if she recalled when the police came to serve a subpoena on
her and she threatened to sic the dog on them. Before Rachel's mother could
answer the question, the Commonwealth added: "That resulted in you being
arrested and charged with a crime that day?" Calhoun timely objected to the
question and argued the testimony was irrelevant and prejudicial. In the end,
the trial court sustained Calhoun's objection and told the Commonwealth to
refrain from questioning Rachel's mother about her arrest. The Commonwealth
was permitted to inquire about the events that led to the arrest. The trial court
also agreed to Calhoun's request for an admonition, but, for reasons unknown,
failed to admonish the jury. Calhoun alleges both the questioning and the
failure to admonish are reversible error.
As a general rule, our evidentiary rules prohibit the use of an individual's
prior conduct or character to support his current conduct. "Evidence of other
crimes, wrongs, or acts . . . to prove the character or a person in order to show
action in conformity therewith." 14 Evidence of this nature can be admitted,
however, if used for "another purpose" such as "proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or
,
accident." As we have mentioned numerous times, this list of other purposes is
14 Kentucky Rule of Evidence (KRE) 404(b).
10
not exhaustive. The point is the prior-bad-acts evidence must be offered for
some reason other than simply to say that because an individual's past
conduct determines present guilt.
As for character evidence: "Evidence of a person's character or a trait of
character is not admissible for the purpose of proving action in conformity
therewith on a particular occasion." The relevant exceptions to this rule can be
found in provisions KRE 607, 608, and 609—in other words, character or
credibility of a witness or a defendant can be impeached. Under these
provisions, like prior bad acts, character evidence is admissible for various
other purposes. Particularly relevant here, specific acts of conduct are
contemplated as a permissible means of impeaching the credibility of a
witness .
15
We say this to highlight that Calhoun's challenge to the Commonwealth's
questioning falls flat. Rachel's mother claimed she was not hostile toward
authority or social-service workers, despite her belief that they mishandled not
only Rachel's investigation, but hers as well. In an attempt to impeach
Rachel's mother's credibility, the Commonwealth presented evidence that
indicated she was, in fact, hostile toward authority. Rachel's mother denied
the altercation. That was the end of the questioning. This is, in essence,
routine cross-examination. The Commonwealth was not permitted to introduce
extrinsic evidence of the alleged interaction or if a conviction had resulted.
Instead, the Commonwealth simply inquired about an alleged incident that
contradicted a witness's statement; the witness denied it; and testimony
15 See KRE 608.
11
proceeded on a different path. The Commonwealth was not introducing
evidence of a prior bad act or poor character to prove that Rachel's mother
acted in conformity therewith; the evidence was offered to show that perhaps
Rachel's mother's truthfulness was questionable.
The primary message of Rachel's mother's testimony was that she did not
believe Rachel was truthful and she discounted the way the official
investigation and questioning was handled. Evidence that Rachel's mother was
hostile toward authority or had a deep mistrust of social-service workers was
relevant to indicate a potential bias for her testimony.
The trial court agreed to admonish the jury about the Rachel's mother's
arrest and criminal charge. We can appreciate the prudence. Calhoun now
argues that the trial court did not deliver the admonition and his trial was
severely tainted as a result. But Calhoun fails to mention why he did not
remind the trial court of the admonition. In any event, we are not sure how the
trial court would have admonished the jury. Rachel's mother never answered
the question about her arrest or criminal charge, so there was no evidence on
which an admonition could be based. To the extent there was any error,' it was
harmless. The verdict was not swayed by this line of questioning.
III. CONCLUSION.
Finding no error, we affirm the judgment of the trial court.
All sitting. All concur.
12
COUNSEL FOR APPELLANT:
Steven Jared Buck
Assistant Public Advocate
COUNSEL FOR APPELLEE:
Andy Beshear
Attorney General of Kentucky
Kenneth Wayne Riggs
Assistant Attorney General of Kentucky
13