Gatewood v. State

857 A.2d 590

158 Md. App. 458

Troy Arness GATEWOOD v. STATE of Maryland.

No. 3063, Sept. Term, 2002.

Court of Special Appeals of Maryland.

September 8, 2004.

Bradford C. Peabody (Stephen E. Harris, Public Defender, on brief), for appellant.

Zoe Gillen White (J. Joseph Curran, Jr., Atty. Gen., on brief), for appellee.

Panel SALMON, BARBERA, SHARER, JJ.

SHARER, J.

Appellant, Troy Arness Gatewood, appeals from his convictions on three counts of distribution of cocaine, after a jury trial in the Circuit Court for Cecil County. In his timely appeal, appellant presents for our consideration four issues, which, as recast and reordered, are:

1. Did the trial court abuse its discretion by refusing to disqualify the prosecutor?

2. Did the trial court err in denying appellant's motion to suppress?

3. Did the trial court abuse its discretion in refusing to permit appellant to represent himself?

4. Did the trial court err in the imposition of sentence?

Finding neither error nor an abuse of discretion, we shall affirm the judgments, but shall remand for correction of the docket entries and sentencing documents.

BACKGROUND

As appellant does not challenge the evidentiary basis for his convictions, we need not dwell on the underlying facts except as they become relevant to our discussion of the issues. See Craig v. State, 148 Md.App. 670, 674 n. 1, 814 A.2d 41 (2002), cert. denied, 374 Md. 83, 821 A.2d 370 (2003).

The grand jury indictment charged appellant with six offenses, three counts each of possession and distribution of a controlled dangerous substance (cocaine). The case went to trial before a jury, which, on February 3, 2002, returned guilty verdicts on three counts of distribution of cocaine. Appellant was sentenced to 20 years in prison on each count, with the sentences on two counts suspended. Additionally, terms of probation were imposed to commence upon his release from confinement. This appeal followed.

THE ISSUES

1. Did the trial court abuse its discretion by refusing to disqualify the prosecutor?

The assistant State's Attorney who was assigned to try this case, Christopher J. Eastridge, had previously represented appellant in other cases while serving as an assistant public defender. Appellant, concerned that Eastridge might try to impeach him with convictions in those prior cases, moved for Eastridge's disqualification.

At a bench conference following jury selection and opening statements, defense counsel challenged Eastridge's continued participation in the case, based on the former representation. Responding to questions by the court, Eastridge said that he remembered Gatewood "but ... [had] no specific recollection of a specific case with [him]." The following dialogue was had:

THE COURT: Do you have any knowledge that would in any way be useful to — in this case?

[PROSECUTOR]: No, I do not.

THE COURT: Even if you did have such knowledge is there any way you could get it into this case?

[PROSECUTOR]: Your Honor, none that I know of. I have apprised the court and [defense counsel] as well with regard [ ] all the impeachment convictions upon which the state would be relying. They are of record ... they came me to me through a presentence report that I found in another file in the State's Attorney's Office.

After hearing additional argument, the trial judge denied the defense motion to disqualify:

I understand the defendant's concern. There is no way that I can think of, even if he had any knowledge, that he could get it in, that he would use it. His questions have to be relevant to this case and this case only. The only impeachment information he has is those three, which are a matter of record, theft, robbery that anybody can learn, which are a matter of record. It doesn't make any difference who the prosecutor was....

* * *

That there is no way that can in any way hurt Mr. Gatewood.

Motion is denied.

Following opening statements, defense counsel again raised the issue:

[DEFENSE COUNSEL]: Your Honor, I have one more preliminary matter actually in conjunction with the prior motion I had made about the state's attorney's prior representation of Mr. Gatewood. I went back through our electronic records in our office, and just with respect to proffering for the record, it appears that Mr. Eastridge did represent this defendant on at least two cases, both of which apparently ended or closed in '98. One wasa — looked like it started out a burglary charge... which appeared to me to end up in a nol pros pursuant to our records.

And the other one was a ... drug distribution case, which ended up as a plea ... to a conspiracy to possess. We closed it in March of '98. It appears sentencing took place March 16th of 1998.

Again, just to reiterate my argument, I think that those are fairly significant charges, which I believe, regardless of the state's attorney's ability to recollection [sic] independently right now, would have clearly involved some significant contact with the defendant, in preparation of those matters and also in the resolution of the one drug case.

Again, I would ask that the state's attorney be disqualified from prosecuting personally in the matter of Mr. Gatewood.

The prosecutor responded:

[PROSECUTOR]: I have no recollection of either case. Frankly [counsel] had shared that information with me briefly before he offered it to the court. Let me say too, I've been with the P.D. Office from 1986 through 1998, a period of about twelve years, represented hundreds if not thousands of individuals. I really have no recollection of hardly any one. In fact there may be one that will stick out. It's certainly not Mr. Gatewood.

In my current role obviously I can't disqualify myself in each and every case [.] ... I have no recollection of it.

As we discussed earlier, should Mr. Gatewood elect to testify, obviously it's his choice[.] ... If he does testify, I'd like to cross-examine him. Any cross-examination will be limited to the facts of the case; and any impeachment information that's not secret to Mr. Gatewood or his counsel. We've just discussed that already, as well as in chambers at an earlier proceeding in this case.

THE COURT: I do not see any unfair prejudice or any prejudice at all to the defendant[.] I've listened carefully to the question. There is some discussion suggesting there may be something there. [defense counsel], raise it again at that time, and we'll see.

[DEFENSE COUNSEL]: Yes, sir.

Mr. Gatewood did testify, and he was cross-examined briefly:

[PROSECUTOR]: And, Mr. Gatewood, you recall having been convicted on two occasions in 1989 on two separate occasions for theft, is that correct.

[APPELLANT]: Yes, sir.

On cross-examination, neither case in which Eastridge had represented appellant was specifically referred to. Defense counsel did not again raise the issue.¹

It is important that counsel carefully scrutinize their records for the potential for conflicts from successive representations. The likelihood of such conflicts, it would seem, is greater among those who practice criminal law, for it is not uncommon for defense counsel, both private and public defender, to have been formerly employed as prosecutors. It is also likely that the converse would occur. Although the better practice would be to avoid such situations whenever possible, disqualification is not mandated in all cases.

Although Eastridge could not recall having represented appellant, defense counsel had little difficulty in determining, through a check of records in the Office of the Public Defender after the question arose at trial, that Eastridge had previously represented Gatewood.

We reiterate that the decision to disqualify counsel is committed to the sound discretion of the trial court, and should appropriately be judged on a case-by-case basis. Disqualification is not per se required in every instance of successive representation. Judge Smith pointed out for the Court of Appeals:

We hold that the proper action to be taken by a trial judge, when he encounters circumstances similar to those in the case at bar which he determines to be so grave as to adversely affect the administration of justice but which in no way suggest the bringing of a prosecution for improper motives ..., is to supplant the prosecutor, not to bar the prosecution. Of course, a trial judge may determine that the facts presented to him are not sufficiently grave to require even this action. Normally, the evaluation of such circumstances is left to the sound discretion of the trial judge who is upon the scene and able to sense the nuances of that before him.

Lykins v. State, 288 Md. 71, 85, 415 A.2d 1113 (1980) (emphasis added).

This Court has reinforced the view that successive representation does not require the disqualification of counsel in every instance:

The mere fact that as a private attorney the prosecutor had once represented appellant in an unrelated case did not, standing alone, result in a conflict of interest such as to disqualify that attorney from acting as prosecutor in the instant case.... Nor is there any claim or indication that in investigating or prosecuting the present case the prosecutor made use of any confidential information he may have received from the appellant in the prior case. In short, we perceive no error to be corrected, "plain" or otherwise.

Green v. State, 49 Md.App. 1, 5, 430 A.2d 1122, cert. denied, 291 Md. 775 (1981).²

We now examine whether the trial court correctly ruled that disqualification was not warranted in this case. It is not disputed that Eastridge, while a public defender, represented appellant in other criminal cases. The salient point in this case is whether the former representation was "in the same or a substantially related matter."

MRPC Rule 1.9, entitled "Conflict of interest: former client[,]" provides:

A lawyer who has formerly represented a client in a matter shall not thereafter;

(a) represent another person in the same or a substantially related matter

...