State v. Bain

292 Neb. 398

872 N.W.2d 777

State of Nebraska, appellee,

v.Tyler C. Bain, appellant.

No. S–14–638

Supreme Court of Nebraska.

Filed January 8, 2016

James Martin Davis, of Davis Law Office, Lincoln, for appellant.

Douglas J. Peterson, Attorney General, and James D. Smith, Lincoln, for appellee.

Heavican, C.J., Wright, Connolly, McCormack, Miller–Lerman, and Cassel, JJ., and Irwin, Judge.

Connolly, J.

I. SUMMARY

A jury found the appellant, Tyler C. Bain, guilty of four felonies stemming from his assaults of his former wife with whom he was living: kidnapping, first degree sexual assault, second degree assault, and making terroristic threats. Regarding the kidnapping conviction, the court found that statutory mitigating circumstances did not exist. It convicted Bain of a Class IA felony for kidnapping and sentenced him to life imprisonment.

Bain contends that the State violated his Sixth Amendment right to counsel because at least five prosecutors had possession of his confidential trial strategy before his trial. We conclude that when Bain's confidential trial strategy was disclosed to prosecuting attorneys, a rebuttable presumption arose that Bain's trial was tainted by a Sixth Amendment violation. Because the court's remedy was insufficient to rebut this presumption and ensure that Bain received a fair trial, we reverse the judgment and vacate Bain's convictions. And because we vacate Bain's convictions, we do not consider his other assignments of error.

II. BACKGROUND

Bain's Sixth Amendment claim stems from a series of prosecutors who saw confidential communications between Bain and his originally retained counsel. The disclosure disqualified them from prosecuting because the communications discussed Bain's trial strategy. The actual communications are not in the record because the court failed to conduct an evidentiary hearing or receive the communications as evidence.

In January 2012, Bain appeared in district court for an arraignment on the State's amended charges. Rodney Palmer, his retained counsel, appeared with him. In March, Bain moved the court to appoint Palmer as his counsel because Palmer was familiar with his case and Bain had depleted his assets. At the hearing, the deputy county attorney, Glenn Clark, objected that Palmer's appointment would force the county to pay Palmer's travel time and expenses. The court overruled the motion because Palmer was currently representing Bain.

About a month later, at an April 2012 hearing on Palmer's motion to withdraw, Clark stated, in response to the court's question, that his office had no objection to Palmer's withdrawal. The court then asked Steven Bowers, an attorney who was present in the courtroom, whether he had any conflict in representing Bain. When Bowers said no, the court appointed him because "[h]e is a local attorney and you [Bain] can meet with him today."

Later, in September 2012, after representing Bain for 5 months, Bowers moved to withdraw as Bain's counsel because he had been hired by the Custer County Attorney's office. At the hearing, Clark informed the court that someone from the Attorney General's office would prosecute the charges. Later that month, the court appointed P. Stephen Potter from Gothenburg, Nebraska, to represent Bain.

About 2 months after Bowers moved to withdraw, in November 2012, the court allowed the county attorney and deputy attorneys to withdraw because of the conflict created by the county attorney's hiring of Bowers. Clark reported that he had given the county attorney's case files to the Attorney General's office. The court appointed attorneys from the Attorney General's office to prosecute.

Eight months later, in August 2013, the court heard a motion from Matt Lierman, an assistant attorney general, to allow that office's attorneys to withdraw as prosecutors because of a conflict of interest. Lierman informed the court that while going through the discovery materials that he had received from the county attorney's office, he saw confidential communications between Bain and Palmer, Bain's original attorney. Lierman reported that he had sealed the confidential documents in a tamper-proof envelope so that no one else could access them, and he asked the court to keep them sealed. The court sustained his motion to withdraw. As stated, the confidential communications are not part of this record.

On August 29, 2013, the court appointed Shawn Eatherton as special prosecutor. But on September 6, the court entered an order stating that it had conducted a telephonic hearing with Eatherton and found that Eatherton had a conflict of interest. It appointed Lynelle Homolka as special prosecutor.

About a month later, the court conducted a recorded telephonic hearing with Homolka, Bain, and Potter after Homolka notified the court that she might also have a conflict. Homolka said that while reviewing the materials provided by the Custer County Attorney, she had found "what I suspected to be confidential statements and general communications that could reveal among other things that I believe would be the defendant's trial strategy." Potter said he had seen the materials and agreed that Homolka had seen confidential information and had a duty to withdraw.

The court sustained Homolka's motion to withdraw, but it appointed her as an expert and directed her to separate the privileged information in her possession so that "this doesn't occur again." The court further directed that after sorting the materials, Homolka should give them to Potter so that he and Bain could "make sure that nothing gets into the State's hands this time that shouldn't be." The court directed Potter to consult with Homolka and to ask for an in camera hearing if any further disputes arose over the State's materials. After reviewing the State's materials, the court directed Potter to forward the case file to the new prosecutor, minus any confidential or privileged information. On September 27, 2013, the court appointed John Marsh as special prosecutor.

In October 2013, the court heard Marsh's motion for a continuance. At the hearing, Potter told the court that he had received a box of materials from Homolka and had gone through the box and the packet of "excluded evidence." He had removed the excluded packet and intended to deliver the remaining materials to Marsh that day.

About 4 months later, with Marsh representing the State and Potter representing Bain, the court impaneled a jury. The State tried Bain on the following charges: kidnapping, first degree sexual assault, second degree assault, terroristic threats, and use of a deadly weapon to commit a felony. The jury found Bain guilty of kidnapping, first degree sexual assault, second degree assault, and making terroristic threats. It acquitted him of using a deadly weapon to commit a felony.

After accepting these verdicts, the court found that no mitigating circumstances existed to reduce a kidnapping conviction from a Class IA felony to a Class II felony. It sentenced Bain to life imprisonment for kidnapping. Consecutive to his life sentence, the court sentenced Bain to aggregate concurrent sentences of 20 to 25 years' imprisonment for first degree sexual assault, second degree assault, and making terroristic threats.

III. ASSIGNMENTS OF ERROR

Bain assigns that the State violated his Sixth Amendment right to effective assistance of counsel—including his right to confidential communications with his counsel and the right to have appointment of trial counsel without the interference of the prosecutor. He also assigns that the court erred in failing to find the presence of mitigating factors under the kidnapping statute, Neb.Rev.Stat. § 28–313(3) (Reissue 2008), and convicting him of a Class IA felony under § 28–313(2). He contends the evidence was insufficient to support that conviction.

IV. STANDARD OF REVIEW

We are asked to decide whether a prosecutor's undisputed possession of a defendant's confidential trial strategy should constitute a per se violation of the Sixth Amendment—even if the court later appointed a different attorney to prosecute. Whether a state intrusion into the attorney-client relationship should constitute a per se violation of the Sixth Amendment and the action that a court should take when it becomes aware of such an intrusion present questions of law that we review de novo.

V. ANALYSIS

1. PARTIES' CONTENTIONS

Bain contends that the State's intrusion into his confidential communications with his defense counsel is a Sixth Amendment violation that is presumptively prejudicial and requires dismissal of the charges. He argues that the court's order that required a disqualified prosecutor to sort through the case file to identify and remove privileged communications did not cure the presumed prejudice. He argues that the State has the burden to prove the absence of prejudice from this type of violation and that it would be impossible for a court to determine whether prosecutors had planned their strategies, gathered evidence, and prepped witnesses from their knowledge of Bain's defense strategies.

The State argues that Bain's Sixth Amendment claims fail because (1) he never raised a Sixth Amendment violation to the trial court; (2) the prosecution did not intentionally obtain Bain's confidential information; (3) Marsh, the special prosecutor who tried the case, never received any communication of Bain's defense strategy; and (4) the State used no tainted evidence in the trial.

2. AN APPARENT SIXTH AMENDMENT VIOLATION BASED ON THE STATE'S INTRUSION INTO THE ATTORNEY–CLIENT RELATIONSHIP CAN BE PROPERLY RAISED ON APPEAL

Initially, we reject the State's argument that Bain's Sixth Amendment claim fails because he did not raise it to the trial court. The Sixth Amendment to the U.S. Constitution guarantees every criminal defendant the right to effective assistance of counsel.¹ The right to counsel exists to protect the fundamental right to a fair trial.²

Courts have recognized that two unrelated Sixth Amendment violat...