As Amended November 27, 2013.
Review of the judgment of the Court of Appeals in an unpublished opinion filed April 2, 2010.
[Copyrighted Material Omitted]
Appeal from Shawnee District Court; Jan W. Leuenberger, judge.
BY THE COURT
1. The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to effective assistance of counsel; the right to counsel encompasses the right to representation that is free from conflicts of interest. It is the task of the district judge to insure that a defendant's right to counsel under the Sixth Amendment to the United States Constitution is honored.
2. When the district court is confronted with a potential conflict of interest issue, it is required to make an appropriate inquiry into the conflict. If an appropriate inquiry is made, the district court's decision is reviewed under an abuse of discretion standard. But the district court abuses its discretion if it fails to inquire further after becoming aware of a potential conflict between an attorney and his or her client.
3. Judicial discretion is abused if judicial action is (1) arbitrary, fanciful, or unreasonable, i.e., no reasonable person would take the view adopted by the trial court; (2) based on an error of law, i.e., the discretion is guided by an erroneous legal conclusion; or (3) based on an error of fact, i.e., substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based. The defendant bears the burden of showing the court abused its discretion.
4. The Kansas Rules of Professional Conduct are designed to provide guidance to lawyers and to provide a structure for regulating the conduct of lawyers through the office of the Disciplinary Administrator. The Kansas Rules of Professional Conduct are not designed or intended to provide substantive or procedural law for criminal proceedings in district court. A district court is not a disciplinary agency responsible for determining the ethical nature of an attorney's conduct; rather, a district court's duty is to protect the bona fides of the proceedings before it, including protecting a criminal defendant's constitutional rights to due process and to effective assistance of counsel.
5. Where the State has not claimed that another test is applicable to the determination of whether a defense counsel's conflict of interest violated a defendant's right to effective assistance of counsel under the Sixth Amendment to the United States Constitution, a criminal defendant who claims that his or her attorney had a conflict of interest that affected the adequacy of his or her counsel's representation need not demonstrate prejudice in the traditional sense, i.e., need not establish that the error affected the outcome of the proceeding.
6. A district court does not fulfill its obligation to insure a criminal defendant's right to effective assistance of counsel under the Sixth Amendment to the United States Constitution at sentencing or at a hearing on a motion for new trial by merely providing the defendant with an opportunity to make a pro se statement in lieu of affording him or her the opportunity to have adequate representation from an informed, prepared, and effective attorney.
Gerald E. Wells, of Lawrence, argued the cause and was on the brief for appellant.
Jacqueline J. Spradling, assistant district attorney, argued the cause, and Jason E. Geier, assistant district attorney, Chadwick J. Taylor, district attorney, and Steve Six, attorney general, were on the brief for appellee.
Johnson, J. Luckert, J., concurring. Rosen, J., joins in the foregoing concurrence. Biles, J., dissenting in part and concurring in part. Nuss, C.J., and Moritz, J., join the foregoing dissenting and concurring opinion.
[298 Kan. 363] Johnson, J.
Ricky J. Stovall seeks review of the Court of Appeals' decision affirming his rape convictions despite its finding that the district court " ignored the defendant's right to counsel" in its handling of appointed counsel's three motions to withdraw as Stovall's attorney. State v. Stovall, 227 P.3d 1010, 2010 WL 1379512, at *5 (Kan. App. 2010) (unpublished opinion). In the first two motions, defense counsel sought to withdraw because of conflicts of interest. After the district court forced the conflicted counsel to represent Stovall at trial, the attorney/client relationship deteriorated to the point that all communication ceased, prompting the [298 Kan. 364] third motion to withdraw to be filed after the conviction but before the sentencing.
The Court of Appeals determined that Stovall had waived any challenge to the denials of defense counsel's motions to withdraw based upon conflicts of interest because he did not argue prejudice in his appellate brief. 227 P.3d 1010, 2010 WL 1379512, at *5. With respect to the district court's denial of the third motion to withdraw, the panel found no abuse of discretion because it opined that Stovall was at fault for the total breakdown of communication between attorney and client. 227 P.3d 1010, 2010 WL 1379512, at *6. Disagreeing with the Court of Appeals on both points, we find that the district court's complete disregard for Stovall's constitutional right to effective assistance of counsel at all critical stages of his criminal prosecution is reversible error.
Factual and Procedural Overview
In April 2006, the State charged Stovall with rape and other crimes for sexual acts with his underage daughter, N.D.S., that had allegedly occurred several years earlier. The district court appointed an attorney from the public defender's office to represent Stovall. The district court's denials of that appointed attorney's three motions to withdraw as Stovall's counsel form the basis of this appeal.
After the appointment of counsel, motions were filed and heard, continuances were granted, and the matter was pending for over a year, with both the State and the defense contributing to the delay. Eventually, a trial date was set for September 10, 2007.
First Motion to Withdraw
On August 28, 2007, about 2 weeks prior to the scheduled trial, Stovall's attorney moved to withdraw as defense counsel based on what the Court of Appeals called " an obvious conflict of interest." Stovall, 227 P.3d 1010, 2010 WL 1379512, at *1. At the hearing on that first withdrawal motion, Stovall's attorney related that she was constrained by the attorney/client privilege from disclosing the nature of her conflict, but she had proffered hypothetical facts to the Disciplinary Administrator and elicited an opinion that she did have a conflict. [298 Kan. 365] Stovall's attorney further related that " in addition," she had also just been subpoenaed by the State to testify at a hearing in a separate case, State v. Fulton, in which her former client, Ian Hudson, was recanting his trial testimony that had implicated Fulton. The connection with this case was that Stovall was corroborating Hudson's recantation, so an impeachment of Hudson's
testimony would likewise impugn Stovall's credibility.
The district court did not inquire further into the existence of an actual conflict of interest; rather, it simply declared that it would " assume that there is good cause" for defense counsel to ask to withdraw. The court recited the procedural history of the case in painstaking detail, apparently to make the point that the case had been pending too long, albeit the court acknowledged that the State had created some of the delay and the defendant had unconditionally waived his right to a speedy trial. The court also referred to the anticipated length of trial as creating scheduling problems. Without any mention of the defendant's right to counsel or due process rights, the district court resolved the attorney's ethical problem by ordering her to continue representing Stovall under the ostensible authority of Kansas Rule of Professional Conduct (KRPC) 1.16(c) (2012 Kan. Ct. R. Annot. 558), which provides that " [w]hen ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation." Moreover, notwithstanding the prosecutor's argument that Stovall could waive the conflict of interest, the district court made no attempt to ascertain whether Stovall had knowingly and voluntarily waived his constitutional right to effective assistance of counsel by accepting his attorney's conflicts of interest.
Second Motion to Withdraw
On the morning of the jury trial, prior to voir dire, defense counsel made an oral motion to withdraw as Stovall's counsel. In an in camera hearing without the prosecutor's presence, Stovall's attorney related that she believed Stovall would want to call Troy Pascha as a witness, which was a problem because the attorney had represented Pascha on child sex abuse charges within the previous 6 months. Pascha was N.D.S.'s uncle; he had babysat the child victim; [298 Kan. 366] and he had been convicted for sexually abusing another child. The defense would imply that it was Pascha who had abused the victim, thus causing the child to act out sexually. Stovall's attorney attempted to explain the conflict by stating, " I think any time you have to point the finger at another client saying this client didn't do it, this other client did," but the judge cut her off.
In that same hearing, Stovall's attorney endeavored to further explain part of the basis for her first motion to withdraw. Specifically, she related that Stovall had stated that he had heard Hudson admit that he made up the whole story he told at Fulton's murder trial in order to get a deal from the State on Hudson's own criminal charges. Stovall's attorney had also represented Hudson when the deal was made for Hudson to testify against Fulton. The attorney believed that she had been subpoenaed in the Fulton case to support the credibility of Hudson's trial testimony, which would refute or impeach Stovall's testimony about hearing Hudson recant his trial testimony. The attorney felt that she was being placed in direct conflict with her current client.
The district court denied the second motion to withdraw, questioning whether the inference to be drawn about Pascha was enough to find good cause for the attorney to withdraw under KRPC 1.16(b)(5). Specifically, the judge said:
" I can appreciate the fact that it would raise a question in counsel's mind that there is cause for withdrawal, but I'm not sure that at this date with the jury waiting in the other room and the fact that the case has gone from June . . . that it is good cause to rise to the level that the withdrawal should be granted."
Relying again on its perceived authority under KRPC 1.16(c) to force a conflicted attorney to continue to represent a criminal defendant, the district court denied the motion to withdraw. Pascha did not testify at trial. The jury convicted Stovall of all charges.
Third Motion to Withdraw
Stovall's attorney filed her third motion to withdraw in October 2007, about a month after trial but before sentencing. The motion related that Stovall had sent the attorney several letters demanding that she file a motion for new trial on his behalf based upon her own ineffectiveness. Stovall specifically asserted that a new trial [298 Kan. 367] was warranted " on
the ground of prejudice, and biasness [sic] which affect[ed] the performance of defense counsel." Stovall also wrote a posttrial letter to the court, in which he noted that his attorney had twice requested to be removed from the case and the court's " arrogance and unwillingness to accept defense counsel Cindy Sewell['s] request to remove herself from my case allowed said counsel to assassinat[e] and sabotage any chance of me getting a fair and unprejudicial trial." Stovall also told the court that its refusal to allow his attorney to withdraw allowed her to " reck [ sic ] her vengeance on me for testifying on another of her clients befor[e] trial" and the court should have allowed her to withdraw the first two times due to her conflict.
Stovall also listed what he perceived to be errors his attorney committed at trial, including: purposely allowing the jury to hear he had previously been in prison; purposely failing to tell a witness to not mention that Stovall had previously been in prison; and questioning him about his Islamic religion 2 days after September 11. He also enumerated actions that he believed his attorney had failed to do that could have helped the trial defense, including using the victim's preliminary hearing testimony to impeach her with the inconsistencies in her story. He also complained that his attorney had not permitted him to see the discovery items.
The district court did not hear the withdrawal motion until the sentencing hearing. Stovall's attorney told the court that her communication with Stovall had deteriorated to the point that, except for 5 minutes before the hearing, the two had not spoken since the jury's verdict 2 months prior. The attorney advised the court that Stovall had asked her to file an ineffective assistance of counsel claim on herself, which she would not do. She asked to withdraw so that the court could appoint Stovall new counsel who could effectively address his new trial and sentencing concerns, i.e., who could mount a legitimate challenge to the effectiveness of trial counsel.
Despite that articulation of a patently obvious reason for the defendant to have conflict-free counsel at that stage of the proceedings, the district court voiced a query as to how trial counsel's withdrawal at such a late stage in the process would serve Stovall's [298 Kan. 368] interests. Further, the court recited the non sequitur that it had denied the two prior motions to withdraw because the court did not believe the attorney had shown the conflict " arose [ sic ] to the level that was so material that it would cause a conflict." Inscrutably, the court also declared that the attorney should have known about and raised her issues much sooner, notwithstanding that the third motion, based on a total breakdown in communication, was filed within a month of the last attorney/client communication.
Stovall personally addressed the court at the sentencing hearing and stated that he had not been communicating with his attorney and that he believed that the court's refusal to grant his attorney's earlier motions to withdraw had adversely affected his trial defense. He specifically referred to his attorney's admonishment that he " should have kept [his] mouth closed" in regard to the recantation of Hudson. Stovall also related that he had conferred with his attorney about his defense, but that she had deviated from the plan at trial, effectively sabotaging his defense. As an example, he pointed out that his attorney had asked him about being a Muslim just after 9/11, which he asserted that " no competent lawyer" would have done. He further mentioned the Pascha dilemma, saying, " [T]hen we come to find out that there is another client that she had dealt with, who was the baby-sitter of the alleged victim that she again asked you to be removed, and you wouldn't let her for the same reasons." Stovall's attorney responded that her client's personal attack against her had put her in a
" position to where my position is contrary to his, so I feel like I have to cover my own, my own position rather than his, and I don't think that's fair to Ricky. Any time that I am put in a position where I have to defend myself versus defending him, I think there is a conflict."
The district court again invoked its perceived authority under KRPC 1.16(c) to order the conflicted attorney to continue representing Stovall, apparently to effect judicial economy.
Motions for New Trial and Continuance
The district court denied Stovall's motion for new trial based on his ineffective assistance of trial counsel claim. Stovall's attorney then asked for a continuance in order to fulfill her duty to zealously [298 Kan. 369] represent her client, given that she had not spoken to Stovall about sentencing or the witnesses he would like to call at that hearing. The district court denied the continuance request, noting that it would instead permit Stovall ample time to make any statements he might have in support of a mitigation of his sentence. Accordingly, the district court permitted Stovall to make a lengthy statement during the sentencing ...