Court of Appeals of Missouri, Eastern District, Third Division
Appeal
from the Circuit Court of St. Francois County 14SF-CR00918-01
Hon. Timmothy W. Inman
Gary
M. Gaertner, Jr., Presiding Judge
Introduction
This
case addresses the issue of when a trial court must permit an
attorney to withdraw due to a conflict of interest. Appellant
Randy L. McEntire's (Defendant) trial counsel, Kevin
Chase (Chase), sought to withdraw after discovering that his
direct supervisor was representing the confidential informant
(CI), who was one of the State's witnesses against
Defendant, in an unrelated criminal case in another county.
During the one-week time span between the State's
disclosure of the name of the CI to Chase and Chase learning
that his supervisor was the attorney for the CI, a docket
entry in the case against the CI reflects that the State
intended to file a nolle prosequi in the CFs case.
Due to the patent appearance of impropriety in this
situation, we find that the trial court's denial of
Chase's motion to withdraw was an abuse of discretion, We
reverse and remand for a new trial.
Background
The
State charged Defendant with two counts of distribution of a
controlled substance. Eddie Gilliland (Gilliland) is a
confidential informant for the police, and he was involved in
two drug transactions that led to the charges against
Defendant. The State initially endorsed Gilliland as a
witness but had identified him only as "Confidential
Informant #5935." On November 2, 2016, Defendant's
prior counsel filed a motion to disclose the witness'
name and address.
On
December 2, 2016, Chase filed a proposed order to disclose
the identity of the confidential informant. On December 5,
2016, the trial court ordered the State to disclose the name
of the witness that same day. The State filed its answer that
day, disclosing Gilliland's name and also responding to a
prior request by Defendant that the State disclose whether it
had made any deals with any witnesses in exchange for
testimony against Defendant. The State asserted the State had
not made any deals with Gilliland for his cooperation as a
witness in Defendant's case.
Defendant's
trial was set to begin one week later on December 12, 2016.
That morning, prior to the commencement of trial, Chase moved
for leave to withdraw as Defendant's counsel due to a
conflict of interest. Chase explained that he had discovered
the night before that his direct supervisor, Wayne Williams
(Williams), represented Gilliland in an unrelated felony drug
possession case in Madison County. Chase informed the court
that the last docket entry in the case against Gilliland was
from four days earlier, December 8, 2016, and it indicated
that the State intended to file a nolle
prosequi.[1]
Chase
stated that Williams told him Williams had minimal contact
with Gilliland and that Gilliland may have mentioned he was a
confidential informant, but that the case against Gilliland
was set to be dismissed because the Madison County
prosecutor's office had not been able to secure a police
report. However, because the case against Gilliland was
technically still ongoing and therefore Chase's
supervisor's representation of Gilliland had not ended,
Chase moved to withdraw as counsel for Defendant. The State
responded that it would need to call Gilliland as a witness
for both counts against Defendant, and that there could be a
potential problem for Defendant regarding impeachment of
Gilliland if he could not discover the disposition of the
case in Madison County. The trial court took a recess to take
the matter under advisement.
When
proceedings resumed, Chase stated to the trial court that
Defendant was not waiving any conflict of interest that
Chase's office might have with Gilliland. Chase renewed
his request to withdraw. The trial court stated it did not
believe a direct conflict existed given that Chase had no
knowledge of the conflict until the day before and
Gilliland's case was entirely unrelated. The trial court
denied Chase's motion to withdraw.
The
trial court took another recess, after which Chase again
renewed his motion to withdraw and called Gilliland to
testify in support of the motion. Gilliland testified that
Williams appeared with him in court as his counsel on October
10, 2016, and then again on December 8, 2016. Gilliland
testified that his communication with Williams was minimal
and concerned "basically minimizing the bond and getting
[him] out sooner." Gilliland testified that Williams
told him at the court date on December 8 the case against him
would be dismissed due to a lack of evidence. Gilliland
testified that he told Williams he was a confidential
informant, and Williams said that he did not want to hear
anything about it because it could concern one of his
clients.
At the
end of Gilliland's testimony, Chase argued that
Defendant's waiver of a jury trial should mitigate
concerns regarding a waste of time, and Chase again requested
both a continuance of trial and permission to withdraw. The
State responded that "there could be some consequences
if there's an appearance of impropriety regarding the
relationship between my witness and the public defender's
office[.]" The trial court denied Chase's motions,
reasoning that "based upon the earlier record, Mr. Chase
said that he just found out about this yesterday and had no
contact with Mr. Williams with regards to the substantive
matters of this issue."
After a
bench trial, the trial court found Defendant guilty of both
charges and sentenced him to concurrent terms of 15
years' ...