State v. Miller

360 P.3d 508

2015 OK 69

STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant,

v.Stephanie Bradley MILLER, Respondent.

State of Oklahoma ex rel. Oklahoma Bar Association, Complainant,

v.Pamela Jean Kimbrough, Respondent.

SCBD Nos. 6104

6105.

Supreme Court of Oklahoma.

Oct. 20, 2015.

Loraine Dillinger Farabow, Debbie Maddox, Katherine M. Ogden, Oklahoma Bar Association, Oklahoma City, OK, for Complainant.

Gary A. Rife, Rife Walters Stanley & Natarajan, LLP, Oklahoma City, OK, for Respondent Miller.

Dan Murdock, Oklahoma City, OK, for Respondent Kimbrough.

Opinion

WINCHESTER, J.

¶ 1 The complainant, Oklahoma Bar Association, brought separate Rule 6 disciplinary proceedings against the respondents, Stephanie Bradley Miller and Pamela Jean Kimbrough.¹The OBA alleged violations of the Oklahoma Rules of Professional Conduct, including Rules 3.3,²3.4,³3.8(d),⁴4.1,⁵and 8.4(c)-(d),⁶as well as Rule 1.3⁷of the RGDP.

The crux of the allegations is that the two respondents while prosecuting a murder trial failed to disclose to the defense inconsistent information taken during an interview of an eyewitness. Essentially, the Bar Association is alleging a violation of Brady v. Maryland,373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which held that “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.”

¶ 2 Respondent Miller's hearing began May 5, 2014, and lasted until May 8, 2014. Respondent Kimbrough's hearing began June 18, 2014, and ended the next day. The same panel of the Professional Responsibility Tribunal (“PRT”) presided over both hearings. That panel issued two reports, recommending that Respondent Miller receive the disciplinary sanction of public censure. The panel recommended that Respondent Kimbrough receive no form of sanction because the Bar Association had not met its burden of clear and convincing proof of a violation of the Oklahoma Rules of Professional Conduct (ORPC) with regards to her conduct.⁸The matter now comes before this Court for review.

I. FACTS⁹

¶ 3 On August 16, 2010, defendant Billy Michael Thompson (“Defendant”) stabbed Manuel Sanchez during an altercation over a cigar. Also present were Max McIntyre, David Hudspeth, and Jose Padilla. All of them had been drinking outside Defendant's home in Oklahoma City prior to the incident. Mr. Sanchez died from his injuries.

¶ 4 The next day, detectives interviewed Mr. Padilla who stated that Defendant started fighting with everyone during an argument over a cigar. Defendant eventually went into his house and returned with a knife. Padilla stated that he did not know “where the actual puncturing” happened, but that it was “somewhere along Stiles [Street]” (the street on which Defendant lived). Other physical and testimonial evidence also placed the site of the stabbing down the street from Defendant's house. Padilla admitted to the police, however, that he did not see everything and was not sure of the details.

¶ 5 Defendant was charged in State of Oklahoma v. Billy Michael Thompson,Oklahoma County District Court Case No. CF–2010–5654, with Murder in the First Degree and two counts of Assault and Battery with a Deadly Weapon. Defendant was represented by the public defender's office. The respondents, Miller and Kimbrough from the Oklahoma County District Attorney's Office, were assigned the prosecution. Respondent Miller was the lead attorney and Respondent Kimbrough was “second chair,” assisting Miller, who was trying her first murder case.

¶ 6 During the preparation stage, Defendant's attorney, Kent Bridge, indicated to Respondent Miller that Defendant might claim that he acted in self-defense on his own property. Bridge argued that Oklahoma's “Stand Your Ground” law would absolve Defendant of any wrongdoing if he had been repelling an attack against himself on his own property. Respondent Miller made a note in the district attorney's (hereinafter “DA”) file of her conversation with Bridge. She included in her notes, “Bridge stated that he thought ... on [Manslaughter I] was fair & this wouldn't even be a crime if the stabbing happened in the Defendant's driveway. [sic]”

¶ 7 The State's theory of the case was that Defendant, armed with a knife, chased the victim away from Defendant's home and stabbed him in the street, a few houses away.

This theory was consistent with the physical evidence and witness interviews.

¶ 8 On October 21, 2011, Judge Donald Deason set the matter for jury trial on March 12, 2012. In January, the defense was reassigned to Assistant Public Defender Shea Smith. In the weeks leading up to the Thompson trial, Respondent Kimbrough, an experienced prosecutor, finished a murder trial in which she was the lead attorney. During this time she was also dealing with health issues surrounding her parents, who lived in Lawton, Oklahoma. On January 14th, both respondents conducted the preliminary hearing, during which McIntyre and Hudspeth testified, but Padilla did not.

¶ 9 Padilla had moved since the stabbing occurred and both the State and the Defense had difficulty finding him. As a result, Padilla did not testify at the preliminary hearing. On February 28th, an investigator for the DA located him in a nursing home. Respondent Miller filed the State's Witness and Exhibit List two days later, on March 1, 2012,¹⁰listing Padilla as a witness and giving his incorrect, former address and contact information. In the Witness and Exhibit List, Respondent Miller indicated that Padilla would testify that he saw Defendant pursue the victim with knives. She did not indicate he would testify where the stabbing occurred.

¶ 10 On March 5th, the two respondents interviewed Padilla at the nursing home. During the meeting, Padilla gave statements that were inconsistent with his earlier statements in the police report, and he recounted events that were chronologically out of order. The notes taken by both respondents record that Padilla stated the victims were stabbed either in a driveway or at the end of a driveway. However, none of those notes indicate that Padilla ever described the stabbing as having occurred specifically in Defendant's driveway, nor did they indicate that the stabbing occurred in the street away from Defendant's house. Respondent Kimbrough's notes did reflect that Padilla recalled the victim and others “left and went toward 41st toward home.”

¶ 11 The notes taken by the respondents were not intended to be complete recitations of Padilla's statements, but after realizing Padilla's story was full of inconsistencies, both Kimbrough and Miller stopped taking notes. He had contradicted himself during the interview multiple times. His memory of the events was vague and unreliable, and he referred back generally to whatever he told the police as being more accurate.

¶ 12 After they stopped taking notes, the respondents tried to clarify Padilla's statements by showing him crime scene photographs taken at Defendant's house and along Stiles Street. Eventually, Padilla affirmed the facts he told the police detectives immediately after the stabbing, which facts were consistent with the State's case.

¶ 13 Following the interview with Padilla, Respondent Kimbrough stated to Respondent Miller, “Well, we're not calling him as a witness.” Kimbrough did not think that Padilla would be a witness that the jury would “pay attention to” because of his demeanor, his inability to communicate and his chronologically challenged version of events. They did not discuss whether Padilla had made inconsistent statements that could be considered Bradymaterial. Then Kimbrough went home.

¶ 14 After the interview Respondent Miller returned to the district attorney's office and spoke to assistant district attorney Merydith Easter Lusk. Miller was frustrated and stated that the interview did not go well. She stated that Padilla was confused from too much drug or alcohol use (“perma-fried”) and was inconsistent. She continued that Padilla thought the murder happened in the driveway. She added that he would not be called as a witness. She also told Lusk that she would provide Padilla's location to defense counsel, but if counsel wanted to know what Padilla would say, counsel would have to go see him.

¶ 15 On March 7th, the respondents met with defense counsel Smith to view physical evidence of the upcoming trial. Respondent Miller told Smith the correct address of Padilla, that he had been located at a nursing home in Jones, Oklahoma. She also gave Lusk the phone number of the nursing home, and told her that the State would not be calling Padilla as a witness because he was confused and unable to remember much of anything, had taken too many drugs, and was unfit or unable to testify in a coherent way.

¶ 16 Based in part on these references to Padilla's competency, Smith suggested that the parties stipulate to Padilla's testimony. Kimbrough drafted the stipulation, which did not indicate that Padilla had ever stated that the stabbing occurred in a driveway or near the end of a driveway. Rather, it noted that Padilla would have testified that the stabbing happened in the street. It also stated that Padilla was “medically unable to appear to testify” because of his physical condition.

¶ 17 Smith questioned the accuracy of the stipulation. As a result, all three attorneys listened to the detective's tape-recorded interview of Padilla where he stated that the stabbing occurred “somewhere along Stiles [Street].” Smith then approved the stipulation, based in part on the representations of the two respondents. Smith wanted the stipulation because she thought it was important that the jury hear that the witnesses and Defendant were fighting over a cigar. The stipulation also stated that Padilla was “medically unable to appear to testify” because of his physical condition. Although the director of the nursing home...