PUBLISHED
OPINION
Case No.: 95-2352-CR
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
KENNETH JAMES SMITH,
Defendant-Appellant.
Submitted on Briefs: November
13, 1995
Oral Argument:
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: December
5, 1995
Opinion Filed: December 5, 1995
Source of APPEAL Appeal
from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Marinette
(If "Special", JUDGE: Tim A. Duket
so indicate)
JUDGES: Cane,
P.J., LaRocque and Myse, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSFor the
defendant-appellant the cause was submitted on the briefs of Jane Krueger
Smith of Oconto Falls.
Respondent
ATTORNEYSFor the
plaintiff-respondent the cause was submitted on the brief of James D. Doyle,
attorney general and Thomas J. Balistreri, assistant attorney
general.
|
COURT OF APPEALS DECISION DATED AND RELEASED December 5, 1995 |
NOTICE |
|
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2352-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
KENNETH JAMES SMITH,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Marinette County:
TIM A. DUKET, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
MYSE, J. Kenneth James Smith
appeals an order that denied his request to dismiss the criminal information
and complaint filed against him as a result of a conflict of interest involving
the district attorney.[1] Smith argues that because the district
attorney failed to disqualify himself upon discovering the conflict of
interest, all proceedings prior to the date of his ultimate voluntary
disqualification are void. Because
Smith has not alleged that he was prejudiced by the proceedings controlled by
the prosecutor from the time of his discovery of a conflict to the date of his
disqualification, we affirm the trial court's order.
The Marinette County
District Attorney's office filed a criminal complaint charging Smith with
several drug offenses. A few days
following the issuance of this criminal complaint the district attorney was
informed that the informant who allegedly purchased drugs from Smith also
claimed that he purchased drugs from the district attorney's brother. Even though the district attorney discovered
that a critical witness in the case against Smith was also a witness against
his brother for a similar offense, the district attorney's office continued
Smith's prosecution by appearing at the
initial appearance, conducting the preliminary hearing and filing the
information. The district attorney
subsequently petitioned for the appointment of a special prosecutor based upon
the conflict of interest and the press of business. The trial court granted the petition.
Smith then moved to
dismiss the complaint and information based upon his assertion that the
district attorney continued to be involved in the case after he discovered the
conflict of interest. Smith contended
that the conflict was sufficient to void the entire criminal proceeding and
that if the State wished to proceed against him it would have to start with the
first step of the criminal prosecution.
The trial court denied the motion concluding that Smith had not been
prejudiced and therefore the error was harmless.
The issue on this appeal
is whether the proceedings conducted after the district attorney learned of the
conflict and prior to his voluntary disqualification are void without a showing
of prejudice. Because this issue
involves the application of law to undisputed facts, our review is independent
of the trial court. State v.
Hagaman, 133 Wis.2d 381, 385, 395 N.W.2d 617, 618 (Ct. App. 1986).
Smith argues that the
proceedings are void without a showing of any specific prejudice to Smith. We disagree. We conclude that, in the absence of a prima facie showing of
prejudice, the district attorney's failure to disqualify himself upon learning
of the conflict is harmless error.
There are situations in
which the law recognizes that a conflict of interest is so substantial that
fundamental rights would be affected even though no specific allegation of
prejudice is made. The first of these
situations involves a defendant who was represented by an attorney who had a
conflict of interest. Prejudice is
presumed when an attorney's loyalty to his client is compromised by a conflict
of interest because representation by an attorney not fully committed to
protect his client's best interests is a denial of a defendant's fundamental
right to effective assistance of counsel.
State v. Foster, 152 Wis.2d 386, 392-93, 448 N.W.2d 298,
301 (Ct. App. 1989).
Such reasoning, however,
does not apply in this case. First, we
note that it appears the decision to file a criminal complaint was made prior
to the district attorney's discovery of a conflict. His prosecution of an already filed complaint including the
issuance of an information in conformity with the evidence adduced at the
preliminary hearing does not present a substantial risk that fundamental rights
of the defendant will be compromised.
The district attorney's conflict of interest does not affect Smith's
right to the effective assistance of counsel and does not otherwise present an
infringement on Smith's fundamental rights that prejudice should be
presumed.
The second area where
courts have presumed prejudice is when an attorney who has an obvious conflict
of interest is selected to prosecute the very case in which he is known to have
a conflict of interest. For example,
when an attorney who at some point represented the defendant as counsel becomes
the prosecutor in the same proceedings, no showing of prejudice is necessary
because the conflict of interest is of such a nature as to taint the fairness
of the entire proceeding. United
States v. Schell, 775 F.2d 559, 566 (4th Cir. 1985).
In this case, however,
the nature of the conflict was far less fundamental and fails to suggest that
Smith's fundamental rights have been compromised as a result of the existence
of the conflict. In Schell,
the district attorney had an attorney-client relationship with the defendant
and thus had knowledge that he could use against the defendant. That is not the situation here. Further, the decision to file the complaint
was made prior to the existence of the conflict and the steps taken by the
district attorney after discovering the conflict were consistent with the
charging decision already made.
The conflict in this
case involves a situation where the same informant who claimed to purchase
drugs from Smith also said he purchased drugs from the district attorney's
brother. There is no evidence in the
record that the district attorney did anything inappropriate after discovering
the conflict. Both sides, however,
concede that a conflict existed and that the district attorney's
disqualification was necessary. If the
district attorney had a personal interest in preventing his brother from being
convicted of a crime, the conflict would only produce an incentive to discredit
the informant. Smith would not have
been harmed had the district attorney improperly attempted to discredit his
principal witness and thus no fundamental right is implicated. The district attorney's reliance on the
informant in these steps of the proceedings is not the product of the conflict
and is not influenced by the district attorney's natural feelings of loyalty to
assist his brother to escape similar criminal charges. Further, a disinterested special prosecutor
has been assigned to the case prior to the trial and has the authority to
dismiss the case if appropriate.
We find no authority to
suggest that in the absence of a prima facie showing of prejudice those steps
taken by the district attorney after learning of a conflict to the date of his
disqualification must be invalidated.
In fact, courts that have dealt with this type of issue have generally
required some showing of prejudice before invalidating prior proceedings. See United States v. Heldt,
668 F.2d 1238, 1276-77 (D.C. Cir. 1981).
In Heldt, the court required the defendants to prove
actual prejudice when the defendants appealed their convictions because of
prosecutors' conflict of interest. The
court stated: "We must reconcile
the govermental interests in conserving judicial and prosecutorial resources
and in preserving the appearance of impartiality with the interest of the
defendant in receiving fair and evenhanded treatment from his
accusers." Id. at
1277 (footnote omitted).
The governmental
interests are not as compelling in this case because this is a pretrial
appeal. Nonetheless, because Smith is
requesting that prior proceedings be invalidated, the same considerations
apply. We conclude that the costs and
delay of repeating the same steps are unwarranted unless there is a danger that
the defendant's rights have been compromised.
Because Smith does not contend that he has been prejudiced, there is no
reason to invalidate the prior proceedings.
See § 805.18, Stats. We will not presume prejudice in a fact
situation where prejudice is unlikely to exist or where the fundamental rights
of a defendant are unlikely to have been affected by the conflict of
interest.
We caution, however,
that the existence of a conflict of interest may create prejudice that would
necessitate invalidating the entire proceedings. If Smith had made a prima facie showing that the charging decision
was in some way influenced by the existence of a conflict of interest or that
plea negotiations were distorted because of the conflict, it would be incumbent
upon the State to prove beyond a reasonable doubt that the conflict did not
affect the proceedings. See State
v. Eison, 194 Wis.2d 160, 178, 533 N.W.2d 738, 745 (1995); State
v. Britton, 203 S.E.2d 462, 467 (W. Va. 1974). In this case, Smith does not allege any
prejudice and made no prima facie showing that the conflict in any way affected
his criminal prosecution. We therefore
conclude that the trial court properly denied the motion to dismiss.
By the Court.—Order
affirmed.