Johnson v. State, 61 P.3d 1234 (Wyo. 2003)
The issues
raised by Appellant, Daniel J. Johnson (Johnson), in this case concern the
equal protection and the cruel and unusual punishment protections afforded by
the Wyoming Constitution, as well as the United States Constitution. Specifically, the instant issues and their
implications arise when a defendant is charged with first degree felony murder,
which carries a maximum punishment of death (though in this case a mandatory
life sentence was imposed), and the underlying felony for that charge is a
violation of the child abuse statute, which carries a maximum punishment of
five years' imprisonment, including in those circumstances when the abuse
results in the death of the child. Other issues are urged, including the
necessity of disqualifying the entire district attorney's staff when an
appointed defense counsel accepts employment as an assistant district
attorney; error in instructing the
jury; the failure to have Johnson
present when a supplemental instruction was furnished in response to a question
from the jury; and prosecutorial
misconduct. This Court is satisfied
that the offenses of felony first degree murder and felony child abuse are
distinguishable by different elements and that no constitutional violation
arises from the invocation of the felony child abuse statute as the underlying
felony for first degree felony murder.
We are also satisfied that no reversible error is to be found in
Johnson's other issues and, consequently, we will affirm.
ISSUES
In his brief
and supplemental briefs, Johnson raises these issues:
I. Whether the trial
court abused its discretion by not disqualifying the entire Natrona County
District Attorney's Office from the case at bar due to the appearance of
impropriety?
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INTRODUCTION
By an Information filed on August 29, 1995, Johnson was charged
with first degree felony murder. The
punishment for first degree murder is either life in prison or death. The death penalty was not sought in this
case. In addition, Johnson was charged
with two counts of inflicting injury on a child in violation of Wyo. Stat. Ann. § 6-2-503 (Michie 1988
and Supp.1994). Eventually, one of those
counts was dismissed because the alleged crime was also the predicate felony
for the felony murder charge. The jury
found Johnson innocent of the other count.
The jury found Johnson guilty of first degree felony murder.
FACTS
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DISCUSSION
Disqualification of District Attorney's Office
From August 29,
1995, until the end of November of 1995, H. Steven Brown represented
Johnson. Brown went to work for the
Natrona County District Attorney's Office on December 1, 1995. Brown did not file a motion to withdraw as
Johnson's counsel until January 16, 1996, and the motion was granted on January
18, 1996. In Brown's January 16, 1996
motion to withdraw, an appearance was entered by Virginia Hazen as Johnson's
new counsel.
Only three
activities are shown in the record between November 29, 1995, and Hazen's
withdrawal. First, a request for
setting for a "COP," was filed by the State on January 8, 1996, and
it was served on Jim Raymond, Brown's former law partner. It appears that "COP" means a
change of plea hearing as provided for in W.R.Cr.P. 11(e). A hearing on that
motion was scheduled for January 19, 1996.
However, the record does not reflect that such a hearing took
place. Second, Hazen filed a motion to
compel discovery on March 27, 1996 (because the State had never responded to
Brown's September 18, 1995 demand for discovery). At the same time, she requested that a
hearing be set for that motion, as well as for motions previously filed by
Brown in November, 1995 (the hearing was scheduled for April 19, 1996, but the record
does not reflect that such a hearing took place). Third, on April 18, 1996, Hazen filed a
motion for continuance, and that motion was granted by order entered on April
22, 1996. On April 23, 1996, Hazen
filed a motion to withdraw as counsel for Johnson and requested appointment of
a public defender. Hazen's motion to
withdraw was denied by order entered on April 29, 1996. Hazen renewed her motion to withdraw on May
6, 1996, and filed bare-bones motions to disqualify Judge Sullins
and to disqualify the entire Natrona County District Attorney's Office. The second motion to withdraw was granted by
order entered on May 24, 1996, and the public defender was appointed to
represent Johnson.
It is necessary to digress momentarily. Before withdrawing as Johnson's attorney,
Brown negotiated a plea agreement with the district attorney's office. The terms of that agreement, as set out in a
letter dated November 29, 1995, from the district attorney to Brown were these:
You [Brown] and I [Kevin Meenan]
have discussed a settlement of this matter several times. I am willing at this time to extend the
following offer to resolve this matter short of trial:
1. Your client is
currently charged with one count of first degree felony murder and two counts
felony child abuse;
2. The State of
Wyoming would move to amend Count I (the felony murder) to a count of
involuntary manslaughter charging that your client did unlawfully kill a human
being, to wit: Thomas Johnson, without
malice, expressed or implied, involuntarily but recklessly, in violation of W.S. §
6-2-105. In exchange for a plea of guilty to that
amended count, the State would also move to dismiss Counts II and III.
3. The State would
join with the Defendant in a recommended sentence to the Court that Mr. Johnson
be sentenced to the Wyoming State Penitentiary for a
term of not less than seven nor more than ten years. That prison term would be suspended, your
client placed on a period of supervised probation for the minimum seven years
on the condition that he successfully complete three years at the CAC program.
4. Additionally,
your client would successfully complete any and all counseling, alcohol, child
abuse treatment, or other usual conditions of probation.
5. This offer is
premised on the assumption that your client has no prior felony offenses. If he has previously been convicted of a
felony, then the offer is withdrawn.
Given the physical evidence in this case, the fact that the
death of Thomas did appear to come about by criminal recklessness rather than
an anger-driven assault, and the lack of any prior criminal offenses by your
client, I believe this disposition to be fair and appropriate.
If you and your client agree with this proposed
disposition, please sign in the indicated portions below. I understand that another lawyer from your
firm will be present with Mr. Johnson at the change of plea which we will
schedule later in the month of December.
That
agreement was signed by Johnson and Attorney Brown as "APPROVED AND
ACCEPTED." However, the record
does not reflect that a change of plea proceeding ever materialized, and, of
course, Brown left his defense of Johnson and began working for the district
attorney two days after the letter was signed.
Although there is no corresponding transcript, by order entered on
January 23, 1996, the district court indicated that Johnson and his counsel
appeared before him, and it was the trial court's determination that a presentence investigation should be completed, even though
no plea had been entered which would trigger such a request. Other than ordering a presentence
investigation, none of the procedures governing plea agreements were
followed. W.R.Cr.P. 11(e).
A presentence investigation was completed and filed with the
district court on February 27, 1996. By
letter dated February 27, 1996, the district court informed counsel for the
parties of this:
Based upon
my current review of the Plea Agreement Letter that was provided to me in
connection with the referenced case, I would advise that I would reject the
proposed plea agreement. I would be
willing to accept the proposed amendment of the charges in the case to a charge
of involuntary manslaughter under Wyo. Stat.1977, as amended, Section 6-2-105, but feel I must reject the proposed
joint recommendation for sentencing.
Exactly
what happened to that plea agreement is not reflected in the record. The closest we get to some sense of what
might have happened is during an exchange between the trial court and Johnson
that occurred when Hazen was permitted to withdraw as Johnson's attorney and
the public defender was appointed. It
went like this:
THE COURT: You
understand that obviously this is a most difficult case for any attorney. In part, that may be a good reason to allow
you to, with a new attorney, have a fresh start?
THE DEFENDANT: Yes.
THE COURT: Is that
part of your thinking and your reasoning in wanting a switch?
THE DEFENDANT: No,
not a new start, just some way to get fairness. The way I feel it would be fair--
(Discussion held off the record between Miss Hazen and the
Defendant.)
THE DEFENDANT: It is
my desire to go to trial rather than plead guilty to charges that--
THE COURT: And you
have that right under the law.
Against
this backdrop, on June 19, 1996, Johnson's new attorneys filed a comprehensive
motion asking that the district court disqualify the entire Natrona County
District Attorney's Office because the attorney who had initially represented
Johnson had withdrawn as his counsel in order to accept employment with the
district attorney. Both the district
attorney's office and Brown took some precautions to ensure that Brown would
not have any further contact with Johnson's case. Brown informed Johnson in November 1995,
about his change of office. The district
attorney verbally informed Brown to have "no access to the file, that if
there's any meetings or anything, standard procedures, then no one else [was]
to raise it while I'm there. I have to
leave the room." Nobody attempted
to discuss the case with him, nor did he approach anyone in the office or
divulge information about the case.
Brown left the courtroom when the case was called during docket
call. He further explained that any
discussion about Johnson was placed at the end of the Friday morning staff
meeting agenda and when Johnson's name was called, he left the room.
Further,
Brown testified that he never revealed confidential matters to the district
attorney, even while negotiating for his position at the district attorney's
office. When he learned of his new
position, he withdrew, the court appointed another attorney, and he provided
her all the original records which he never copied. The new attorney then met privately with
Johnson, although Brown did indicate that he may have attended a Saturday
meeting between Johnson and Hazen after joining the district attorney's staff.
Although Brown did not withdraw immediately from Johnson's case when starting
his employment at the district attorney's office, the plea agreement had been
worked out previously, and he was waiting for a hearing in front of the judge
to finalize it.
Johnson
maintains that the district court abused its discretion in refusing to
disqualify the entire Natrona County District Attorney's Office. As an issue of first impression in Wyoming,
we turn to other jurisdictions for guidance.
The proceedings
outlined above are, indeed, quite unusual and understandably raise serious
questions about the handling of Johnson's case at a crucial stage of the
proceedings. However, we hasten to add
that the only issue raised with regard to these circumstances, is whether or
not the trial court abused its discretion in denying Johnson's motion to disqualify
the entire Natrona County District Attorney's Office. Johnson's contention is that the appearance
of impropriety is so great that it is error per se, and reversal of
Johnson's conviction is mandated. He
also contends that even under a case-by-case evaluation approach, the
appearance of impropriety demonstrated here is so great as to require reversal.
As the first
step in providing guidance to trial courts in handling such a question, we will
adopt the standard that a trial court has substantial latitude in deciding if
counsel must be disqualified. See United States v. Frega, 179 F.3d 793, 799 (9th Cir.1999) (citing United States v. Stites, 56 F.3d 1020, 1024 (9th Cir.1995)).
We decline to adopt an "appearance of impropriety" standard
and adopt instead a "function approach," which focuses on preserving
confidentiality and avoiding positions adverse to the client. See State v. Dimaplas, 267 Kan. 65, 978 P.2d 891, 893-94 (1999). We are persuaded that much more needs to be
done in future cases where such a conflict as that identified above arises, but
we will set down no bright-line rules.
Utilizing the standards adopted above, we hold that Johnson was not
substantially prejudiced by the Natrona County district attorney's handling of
adding Brown to his staff, however ill-considered it might appear on the
surface. We are satisfied that Brown's
testimony was frank and direct and that his personal efforts to ensure that no
prejudice would result to his former client outbalance any lack of attention to
this vital issue. From the case, Matter of R.B., 583 N.W.2d 839, 841-42 (S.D.1998), we have distilled the following
additional guidelines, which must be followed in future cases:
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.
These, or
comparable procedures, should remain in place until the need for them has
passed.
[FTNT - Obviously, there
will be a need to "improvise" based on local conditions. A procedure such as that set out above
should suffice in most large prosecuting attorneys' offices. We are aware that there are prosecutorial
offices where there is only a single prosecutor and many may be no larger than
two or three persons. Two universal
guidelines should apply: (1) The
essential goal is to avoid actual conflicts, as well as the appearance of
impropriety; and
(2) the record should clearly reflect what precautions were used to attain that
goal.]
In
addition, prosecuting attorneys should be familiar, or
as necessary become familiar, with applicable ABA standards relating to the
prosecution function, as well as with pertinent case law, as may be required by
circumstances such as those which arose here.
Ignorance of the law is no less a defense for a prosecuting attorney
than it is for a criminal defendant.
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