Gatewood v. State

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: ⁴⁶² 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 eases, moved for Eastridge’s disqualification. ⁴⁶³ 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 repre ⁴⁶⁴ sentation 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 was a— 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. Gate-wood. 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 coun ⁴⁶⁵ sel.

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. ⁴⁶⁶ 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). 2 ⁴⁶⁷ 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 elientf,]” 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 in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation; or (b) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 [3] would permit with respect to a client or when the information has become generally known.

MRPC 1.9 4 We determine as a matter of law whether the prior representation was in a matter that is the same, or is substantially related to, the instant prosecution, Brown v. District of Columbia Bd. of Zoning Adjustment, 486 A.2d 37, 52 (D.C.1984) (en banc). ⁴⁶⁸ The case law in Maryland on this issue is sparse, see, e.g., Reed v. Baltimore Life Ins. Co., 127 Md.App. 536 , 733 A.2d 1106 (1999), but this is a point of law that crosses jurisdictional lines, and rulings from courts that have addressed similarly worded professional conduct rules are relevant. See Buckley v. Airshield Corp., 908 F.Supp. 299 , 304 n. 5 (D.Md.1995), appeal dismissed, 86 F.3d 1175 (Fed.Cir.1996). See generally Chrispens v. Coastal Refining & Mktg., Inc., 257 Kan. 745, 751-52 , 897 P.2d 104, 111-13 (1995); State v. Hunsaker, 74 Wash.App. 38, 42 , 873 P.2d 540, 542 (1994) (case law from other jurisdictions provides sufficient analytical framework).

The Supreme Court of Kansas has observed: There is widespread agreement that conflict questions involving former clients should be resolved through application of the substantial relationship test. However, there is no standard definition of what the test should compare in determining whether there is a close connection between the conflicting representations. Chrispens, supra, 257 Kan. at 751 , 897 P.2d at 111 (citing ABA/BNA Lawyer’s Manual on Professional Conduct, 51:225). Without adhering to a specific definition, we readily conclude that Eastridge’s prior representation of appellant did not involve matters that were substantially related to the prosecution sub judice.

There is no showing that the facts or circumstances surrounding the previous cases and the present offenses are the same, that the separate events involved the same individuals, or, more importantly, that knowledge that may have been acquired by Eastridge in his earlier role as counsel for appellant would benefit the State five years later in the instant prosecution. Although “switching sides” in the same case requires disqualification as a matter of course, the Texas Court of Appeals has concluded that disqualification of the prosecutor would not be required where his former representation of the defendant was not in the current case. Canady v. State, 100 S.W.3d 28, 32 (Tex.App.-Waco 2002). ⁴⁶⁹ In Cole v. Commonwealth, 553 S.W.2d 468 (Ky.1977), the Supreme Court of Kentucky rejected a challenge to the prosecutor’s involvement where the attorney had represented the defendant 29 years before, although the conviction from that earlier representation would be relevant to Cole’s status as an habitual offender. That court’s observation is relevant to the case sub judice: The Commonwealth’s Attorney acquired no confidential information when he defended Cole 29 years previous to this trial which he could have been used in the case at bar.

The existence of the prior conviction ... was a matter of public record. Thus, there was no conflict of interest so as to disqualify the Commonwealth’s Attorney. Cole, supra, 553 S.W.2d at 472 . In State v. Kalk, 234 Wis.2d 98 , 608 N.W.2d 428 , 2000 WI App. 62 (Wis.Ct.App.2000), a similar conclusion was reached by the Wisconsin Court of Appeals: Even apart from the trial court’s credibility and fact-finding determinations, the record in this case otherwise fails to support Kalk’s claims that [the prosecutor] had an actual conflict of interest or that Kalk was prejudiced.

The 1987 case and the instant case were wholly separate and discrete from each other. The events were unrelated and were separated by an eleven-year period. The victims and the witnesses were different. The trial court expressly found that “[the prosecutor] never derived any information from [the 1987 case] ... which was used in any way to charge, prosecute or convict the defendant.” Thus, [the prosecutor] was not operating under any competing loyalties in his prosecution of this case.

Kalk, 234 Wis.2d at 108 , 608 N.W.2d at 432 , 2000 WI App. 62 at ¶ 20. See also Williams v. State, 278 Ark. 9, 13 , 642 S.W.2d 887 (1982) (proof of prior conviction only; no use of confidential information); United States v. Bolton, 905 F.2d 319, 321 (10th Cir.1990), cert. denied, 498 U.S. 1029 , 111 S.Ct. 683 , 112 L.Ed.2d 674 (1991). ⁴⁷⁰ Our review of the record and the arguments of the parties satisfies us that Eastridge’s former representation of Gate-wood was not in a matter that is “substantially related” to the case sub judice, and we hold, on those facts, that his role as appellant’s former counsel in an unrelated matter did not require his disqualification. According to the Comment to Rule 1.9: The scope of a “matter” for purposes of Rule 1.9(a) may depend on the facts of a particular situation or transaction .... The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question.

Comment, Rule 1.9. Eastridge’s current representation cannot “be justly regarded as a changing of sides in the matter in question.” The trial court did not abuse its discretion in refusing to disqualify the prosecutor. While we shall affirm the trial court’s exercise of discretion in this matter, we emphasize that the better course would be to ascertain potential conflicts before trial, and substitute counsel where appropriate. This approach is consistent with the Comments to Rule 1.7 of the Maryland Rules of Professional Conduct (MRPC), which in part provides that “resolving questions of conflict of interest is primarily the responsibility of the lawyer undertaking the representation.” Comment, MRPC 1.7.

An important principle for a lawyer’s ethical responsibility in such matters has been well articulated by a federal district court: A lawyer’s duty of absolute loyalty to his client’s interests does not end with his retainer. He is enjoined for all time, except as he may be released by law, from disclosing matters revealed to him by reason of the confidential relationship. Related to this principle is the rule that where any substantial relationship can be shown between the subject matter of a former representation and that of a ⁴⁷¹ subsequent adverse representation, the latter will be prohibited. T.C. Theatre Corp. v. Warner Bros.

Pictures, 113 F.Supp. 265, 268 (S.D.N.Y.1953) (footnote omitted), aff'd, 216 F.2d 920 (2d Cir.1954). 5 2. Did the trial court err in denying appellant’s motion to suppress? Before trial, Gatewood moved to suppress the pre-trial identification of his photograph by Trooper Stan Wilson, who chose appellant’s photograph from an array of six pictures. We discern no error on the part of the circuit court.

Detective William Wadsworth, assigned to the drug enforcement unit of the Elkton Police Department, was an investigating detective when police conducted a controlled buy of narcotics from appellant on April 25, 2002. He recounted that Trooper Wilson acted as an undercover drug buyer as part of this investigation, in which the police set up a video surveillance of the transaction. Wadsworth testified that while Wilson was seated in a car, police filmed appellant engaged in the controlled transaction as he stood beside the trooper’s vehicle. Gatewood was not arrested that day.

Instead, police returned to the Cecil County narcotics task force office to review the video tape. Wadsworth scanned the tape to locate the transaction in question. As appellant appeared on the screen, Wilson pointed to him, describing him as “the person who sold ⁴⁷² me the crack cocaine.” Wadsworth identified appellant as a person whom he recognized from prior contacts. Using a law enforcement software program that is designed to select, from the videotape, still pictures for photo arrays, Wadsworth prepared a six-person array to show Wilson a few days later.

He recalled: [DETECTIVE]: When I prepared the lineup I printed it out onto ... printer paper. The next day I then presented it to Trooper Wilson, handed it to him and he went directly to Mr. Gatewood’s picture, said, “That’s the person that sold me the CDS,” circled it, signed his name, dated it and put the time down. [PROSECUTOR]: You didn’t point out any pictures or say anything with regard to a subject when you presented that to him? [DETECTIVE]: That’s correct. On cross-examination, Wadsworth recalled that after the April 25 transaction, the officers who made up the narcotics investigation “team” convened at the Elkton police station, and Wilson and he reviewed the videotape. Wilson, who recounted his prior experience with appellant, recognized Gatewood from the videotape.

After the screening, Wads-worth began the process of creating a photo array. He said nothing to Wilson at the time. The array was due to be shown on April 29. Prior to that time, however, Wadsworth contacted Wilson about the photographs: [DEFENSE COUNSEL]: ... [D]oes that refresh your recollection about whether, in fact, before the time that you met with Trooper Wilson to show him the photo lineup you contacted him about that lineup? [DETECTIVE]: Yes.

That I had the lineup prepared, yes. [DEFENSE COUNSEL]: And did you indicate to him that you had put together a lineup and you believed that you knew who it was that had sold him the cocaine? [DETECTIVE]: I indicated that I believed I knew who it was but he had to make the final I.D. ⁴⁷³ Wadsworth then described how he used the computer program to create a list of names that met criteria and characteristics most similar to the suspect, a list from which he made the final selection. Counsel argued that the identification procedures were unduly suggestive, first, because there was insufficient similarity between appellant’s photograph and those of the others in the array and, alternatively, that the contacts between Wadsworth and Wilson prompted the latter to choose appellant’s photograph from the array. The circuit court first addressed the argument that Wadsworth prompted the identification. THE COURT: Actually what he said was he thought he knew the identity, Wilson would have to make the final I.D. [DEFENSE COUNSEL]: Right.

Exactly. THE COURT: But what that implies is 1 know the identity and I put it in the lineup. I don’t know. Didn’t say that.

I think I know the identity. What I’m thinking about is this, let’s take your argument and think it through. If we are going to leave out what I think is patent logic that a police officer is not going to show a photo array to somebody for I.D. that does not include at least one photo that he thinks is the guy, let’s assume that he’s going to or that it would be accurate or proper police procedure. Okay.

The actual testimony we have here is Wadsworth said he thought he knew the identity. He doesn’t say I think I know the identity and I’m putting it in the array. If it’s proper police procedure and maybe even a standard of police conduct that you might show him an array that doesn’t have it in there just to check him and then maybe show him another one that has it in there or not tell him which one you think it’s in or whatever ... if that’s your thinking, then how is it prejudicial to say I think I know the identity? If they are police officers and that’s the standard I think I know the identity doesn’t mean I’m going to put the identity in, does it? ⁴⁷⁴