STATE OF MISSOURI, Plaintiff-Respondent v. ANDREW LUKE LEMASTERS

STATE OF MISSOURI, )
)
Plaintiff-Respondent, )
)
vs. ) No. SD32883
)
ANDREW LUKE LEMASTERS, ) Filed: June 16, 2014
)
Defendant- Appellant. )
APPEAL FROM THE CIRCUIT COURT OF NEWTON COUNTY
Honorable Timothy W. Perigo, Circuit Judge
AFFIRMED IN PART; REVERSED AND REMANDED IN PART
Andrew Luke Lemasters ("Defendant") appeals from his conviction of
first-degree statutory sodomy. See § 566.062.1 He raises two points on appeal:
(1) the trial court erred in denying his motion to disqualify the Newton County
Prosecuting Attorney's Office and (2) the trial court erred in entering a written
judgment showing convictions for two counts of first-degree statutory sodomy
when Defendant was in fact convicted of only one count. We disagree with the
arguments raised in Defendant's first point but find merit in Defendant's second
point. Consequently, for the reasons explained below, we affirm Defendant's
1 Unless otherwise indicated, all statutory references are to RSMo 2000.
conviction for first-degree statutory sodomy but reverse and remand the case for
entry of an amended judgment.
Factual and Procedural Background
Defendant's daughter, H.L. ("Victim"), was born in 1992. Pamela
Lemasters ("Lemasters") married Defendant in July 1992 and raised Victim as
her own child. During the spring of 2001 when the family lived in Newton
County, Defendant called Victim into his bedroom one day, told her to take her
clothes off, and put his finger in her vagina. Other incidents of sexual abuse
continued throughout Victim's childhood, but she did not tell anyone at the time
because she was afraid of Defendant and afraid she would be separated from
Lemasters and other members of the family. Victim eventually disclosed
Defendant's acts of sexual abuse.
Defendant was charged with two counts of first-degree statutory sodomy.
Initially he was represented by Melia Cheney ("Cheney") who was employed by
the Missouri State Public Defender System ("MSPD"). Cheney subsequently left
the MSPD and joined the Newton County Prosecuting Attorney's Office. While
the case was pending, Defendant filed a motion to disqualify the Newton County
Prosecuting Attorney's Office because Cheney had previously represented
Defendant in this case.
The trial court held a hearing regarding the motion to disqualify. The
testimony and court documents reveal the trial court ordered the MSPD to
represent Defendant on August 7, 2012. The MSPD then sent a form letter to
Defendant on August 8, 2012, advising him an attorney would subsequently visit
him as well as giving other information. On August 16, 2012, Cheney entered her
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written appearance in Defendant's case. Her office received telephone calls from
Defendant's family members, but Cheney asked her secretary to call them back
and inform them she could not speak with them about Defendant's case.
Cheney attempted to get a bond reduction for Defendant. Cheney believed
the bond reduction request involved a court appearance, but she "did not
participate in a bond reduction hearing where witnesses were called to the
stand." Cheney met with Defendant briefly on August 19 or 20, 2012. After this
fifteen minute interview ended, Cheney asked one of her investigators to conduct
a recorded interview with Defendant because Defendant had "a problem using
too many pronouns" such that Cheney had difficulty "keep[ing] track of what he's
talking about." Finally, Cheney completed an inter-office transfer memorandum
on September 7, 2012, indicating other public defenders were working on the
case for preliminary hearing. She left the MSPD on September 7, 2012, and
began work at the Newton County Prosecuting Attorney's Office on September
10, 2012.
Cheney testified that once she began work at the Newton County
Prosecuting Attorney's Office she did not have any participation "in the
prosecution of any individuals where [she] previously represented them."
Additionally, she did not discuss any of those cases with her colleagues at the
Newton County Prosecuting Attorney's Office except to say she had previously
represented the individuals involved. Cheney worked only with cases where the
defendants were represented by private attorneys or where the defendants
represented themselves.
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After the hearing, the trial court denied Defendant's motion to disqualify
the Newton County Prosecuting Attorney's Office.
Defendant was tried by a jury on June 4 - 5, 2013. During the instruction
conference, the trial judge noted "[t]he state has elected to dismiss one of the two
counts." The jury then found Defendant guilty of one count of first-degree
statutory sodomy. The judge sentenced Defendant to 31 years in the Missouri
Department of Corrections. Defendant appeals.
Discussion
Point I: Alleged Disqualification
In his first point, Defendant argues the trial court erred in denying his
motion to disqualify the Newton County Prosecuting Attorney's Office. This
argument is without merit because Cheney was appropriately screened from the
prosecution once she joined the Newton County Prosecuting Attorney's Office.
"Generally, the court's decision on a motion to disqualify is reviewed based
on the abuse of discretion standard." State v. Walters, 241 S.W.3d 435, 437
(Mo. App. W.D. 2007). "Abuse of discretion only occurs if a 'ruling is clearly
against the logic of the circumstances then before the court and is so arbitrary
and unreasonable as to shock the sense of justice and indicate a lack of careful
consideration.'" State v. Hawkins, 328 S.W.3d 799, 808 (Mo. App. S.D. 2010)
(quoting State v. Taylor, 134 S.W.3d 21, 26 (Mo. banc 2004)). "If reasonable
persons can differ as to the propriety of the trial court's action, then it cannot be
said that the trial court abused its discretion." Id. (quoting Taylor, 134 S.W.3d
at 26). The facts of this case show no abuse of discretion.
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At the time of trial, Cheney was an attorney representing a government
agency, the Newton County Prosecuting Attorney's Office. She had previously
represented Defendant in the same criminal case as his public defender. Cheney
did not participate in the prosecution of Defendant's case while she worked for
the Newton County Prosecuting Attorney's Office and disclosed no information
regarding his case. Consequently, this case involves imputation of a conflict
involving a government attorney. The applicable rule is Rule 4-1.11(d).2 Rule 4-
1.10(d); Rule 4-1.11 cmt. 2. That rule provides as follows:
Except as law may otherwise expressly permit, a lawyer currently
serving as a public officer or employee:
(1) is subject to Rules 4-1.7 and 4-1.9; and
(2) shall not:
(i) participate in a matter in which the lawyer
participated personally and substantially while in
private practice or nongovernmental employment,
unless the appropriate government agency gives its
informed consent, confirmed in writing[.]
Rule 4-1.11(d).
Rule 4-1.7 governs concurrent conflicts, so is not relevant to the
disposition of this case. Rule 4-1.9, governing duties to former clients, provides
that "[a] lawyer who has formerly represented a client in a matter shall not
thereafter represent another person in the same or a substantially related matter
in which that person's interests are materially adverse to the interests of the
former client unless the former client gives informed consent, confirmed in
writing." Rule 4-1.9(a).
2 Unless otherwise indicated, all rule references are to Missouri Court Rules (2013).
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These rules prohibit the government attorney's participation in a matter
where the attorney participated personally and substantially prior to joining the
government agency, but, contrary to the practice involving private attorneys, see
Rule 4-1.10, they do not impute the attorney's conflict to the entire agency. As
the comments to the rules explain, "[b]ecause of the special problems raised by
imputation within a government agency, Rule 4-1.11(d) does not impute the
conflicts of a government lawyer currently serving as an officer or employee of
the government to other associated government officers or employees, although
ordinarily it will be prudent to screen such lawyers." Rule 4-1.11 cmt. 2.
In the present case, Cheney did not participate in any way in Defendant's
case once she joined the Newton County Prosecuting Attorney's Office. Thus,
Cheney complied with Rule 4-1.9(a) which prevented her participation in
Defendant's case because she had participated in the case during her employment
with the MSPD. Furthermore, Cheney did not talk to other attorneys in the
Newton County Prosecuting Attorney’s Office about the case or appear in court
on any MSPD dockets. Thus, the Newton County Prosecuting Attorney's Office
complied with Rule 4-1.11. Cheney's individual conflict was not imputed to the
government office as the procedures implemented to screen Cheney were
appropriate. See Rule 4-1.11 cmt. 2. The trial court did not abuse its discretion
when it denied Defendant's motion to disqualify.
In reaching this conclusion, we have not overlooked our previous decision
in State v. Reinschmidt, 984 S.W.2d 189 (Mo. App. S.D. 1998). Rather, we
believe Reinschmidt was incorrectly decided.
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In Reinschmidt, one of the attorneys associated with the prosecutor's
office represented the defendant for two years while she worked as an assistant
public defender. Id. at 192. After the former defense attorney started working
for the prosecutor's office, the defendant filed a motion to disqualify the
prosecutor's office. Id. at 191. The former defense attorney submitted an
affidavit assuring the trial court she was not involved in the defendant's
prosecution, and the trial court overruled the motion. Id. at 190-91. The
defendant was subsequently tried and convicted. Id. at 191.
On appeal, the defendant again argued the prosecutor's office should have
been disqualified. Id. This Court found the situation created "such suspicions
and appearances of impropriety" that disqualification of the entire prosecutor's
office was required. Id. at 191-92.
That conclusion was incorrect because it did not apply Rule 4-1.11.
Nowhere in the Reinschmidt opinion did the Court cite to the applicable rule.
Furthermore, the phrase the Court did use—"appearance of impropriety"—echoes
the former rules of professional conduct which stated lawyers should strive to
avoid "the appearance of impropriety." Rule 4, EC 9-6, Missouri Court Rules
(1983) (repealed 1986). However, those rules were repealed when the current
rules were adopted in 1986. State ex rel Horn v. Ray, 138 S.W.3d 729, 732
(Mo. App. E.D. 2002). Thus, Reinschmidt applied a rule that was no longer in
force. Consequently, it was improperly decided and should no longer be
followed.
Defendant's reliance on State v. Croka, 646 S.W.2d 389 (Mo. banc
1983), is unpersuasive for a similar reason. Croka was decided in 1983. Thus,
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Croka applied the prior set of disciplinary rules which stated lawyers should
avoid an "appearance of impropriety." Rule 4, EC 9-6, Missouri Court Rules
(1983) (repealed 1986). As explained above, those rules were repealed in 1986.
Since Croka did not apply the rule that is currently in force, it has no bearing on
the proper result in this case.
Finally, Defendant also cites State v. Ross, 829 S.W.2d 948 (Mo. banc
1992), in support of his argument for reversal. Ross is different from the present
case because it involved a different type of conflict. In Ross, the prosecuting
attorney's office charged the defendant with assault in connection with a fight.
829 S.W.2d at 949. The defendant subsequently consulted with a private law
firm in the hope of filing a civil lawsuit arising out of the same transaction. Two
of the attorneys with that private law firm were also part-time prosecuting
attorneys and received confidential information regarding the civil case at the
same time the criminal prosecution was taking place. Id. The Supreme Court of
Missouri discussed prior case law and the text of Rule 4-1.7 and Rule 4-1.11 before
deciding the concurrent conflict created an appearance of impropriety. Id. at
951.
Here, unlike in Ross, the conflict was not created by a concurrent
representation but by Cheney's duties to a former client. A concurrent conflict of
interest creates more potential dangers to the affected client. Since Ross
involved a concurrent conflict of interest and the present case does not, Ross is
not controlling.
Cheney was properly screened from the prosecution of Defendant’s case
when she joined the Newton County Prosecuting Attorney's Office. This
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procedure complied with Rule 4-1.9(a) and Rule 4-1.11(d). Defendant has not
alleged that Cheney's prior employment affected his trial in any way. The mere
fact that an assistant prosecuting attorney who was properly screened previously
represented a defendant in the same criminal matter should not automatically be
imputed to require a prosecuting attorney and his entire staff to be disqualified.
Consequently, the trial court did not abuse its discretion in denying Defendant's
motion to disqualify the entire Newton County Prosecuting Attorney's Office.
Defendant's first point is denied.
Point II: Error in the Written Judgment
In his second point, Defendant argues the trial court erred in entering a
written judgment which reflects convictions for two offenses when in fact
Defendant was convicted of only one offense. The State concedes this was error,
and we agree.
Clerical errors in the sentence and judgment in a criminal case may be
corrected by an order nunc pro tunc where the written record does not reflect
what was actually done. State v. Carroll, 207 S.W.3d 140, 142 (Mo. App. E.D.
2006); Rule 29.12(c). "When the decision of the trial court as announced in open
court was inaccurately memorialized, it is clear there was a clerical error." State
v. Kerns, 389 S.W.3d 244, 248 (Mo. App. S.D. 2012).
Here, it is clear the written judgment does not reflect what actually
occurred during trial and sentencing. Defendant was initially charged with two
identical counts of first-degree statutory sodomy. During the instruction
conference, the judge stated the State had dismissed one of the charges. Only one
verdict director was submitted to the jury, and the jury returned only one guilty
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verdict. Then, the trial court specifically imposed one sentence of 31 years
incarceration.
Nevertheless, the judgment states Defendant was found guilty of two
counts of first-degree statutory sodomy. Under this record, the trial court's
intentions are clear—Defendant was convicted of one count and was sentenced to
serve one term of 31 years incarceration—and a nunc pro tunc order is
appropriate. See State v. Allison, 326 S.W.3d 81, 95 (Mo. App. W.D. 2010).
Defendant's second point is granted.
Decision
Defendant's conviction for first-degree statutory sodomy is affirmed. The
case is remanded for entry of an amended judgment reflecting only one
conviction for that offense.
Sheffield, J. - Opinion Author
Francis, C.J. - CONCURS
Rahmeyer, J. - CONCURS
Bates, J. - CONCURS
Lynch, J. - CONCURS
Scott, J. - CONCURS
Burrell, J. - CONCURS
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