Nunn v. Commonwealth

SPAIN, Justice,

concurring in part and dissenting in part.

Respectfully, I dissent from the reversal of the conviction and sentence. I nevertheless agree wholeheartedly that the Commonwealth’s Attorney, in good conscience, should have recused from prosecuting this indictment because of his prior representation of the defendant in her bankruptcy case in his private practice. I am persuaded, however, that his failure to do so, under the circumstances of this case, was not sufficiently prejudicial to require reversal of the conviction and sentence.

First of all, the appellant made no pretrial motion to have the prosecutor recused, nor was there even an objection to his representation of the Commonwealth in the proceeding until his cross-examination of the appellant. Nothing had been introduced about the appellant’s 1989 bankruptcy proceedings during the Commonwealth’s case, nor until the appellant testified about it on direct examination. When an objection was raised during cross-examination, the Commonwealth’s Attorney responded to the court that the information was all a matter of public record. As such, there was no violation by the prosecutor of any attorney-client privilege, nor any misuse of privileged information by the prosecutor against his former client.

Considering these facts, and the strong ease against the appellant, particularly through the testimony of her accomplice, Eugene Richardson, I would affirm the conviction and sentence.

WINTERSHEIMER, J., joins this concurring and dissenting opinion.