Submitted: September 9, 1992
Filed: October 9, 1992
Elizabeth A. Pyles
Pyles & Auvil
Parkersburg, West Virginia
Attorney for the Petitioner
Annette L. Fantasia
Assistant Prosecuting Attorney
Parkersburg, West Virginia
Attorney for Wood County
The Opinion of the Court was delivered PER CURIAM.
1. "Prosecutorial disqualification can be divided into two major categories. The first is where the prosecutor has had some attorney-client relationship with the parties involved whereby he obtained privileged information that may be adverse to the defendant's interest in regard to the pending criminal charges. A second category is where the prosecutor has some direct personal interest arising from animosity, a financial interest, kinship, or close friendship such that his objectivity and impartiality are called into question." Syllabus Point 1, Nicholas v. Sammons, 178 W. Va. 631, 363 S.E.2d 516 (1987).
In this case, we are presented with two certified
questions. The first raises the issue of whether the office of the
Wood County Prosecuting Attorney is disqualified from representing
the State in a habeas corpus proceeding instituted by the
petitioner by virtue of the fact that the prosecuting attorney and
one of his assistants were formerly employed by the law firm which
represented the petitioner at his criminal trial. The second
certified question concerns whether the petitioner's appointed
counsel is disqualified from representing him in the habeas corpus
proceeding by virtue of her former employment by the prosecuting
The facts are taken from a stipulation agreed to by the parties. The petitioner was convicted of first degree murder without a recommendation of mercy in the Circuit Court of Wood County in 1976 and was sentenced to life imprisonment without possibility of parole. Robert W. Friend, Esquire, represented the petitioner at trial and pursued an appeal of the conviction and sentence to this Court on the petitioner's behalf. By order of this Court dated December 5, 1977, the petition for appeal was refused.
The petitioner filed a petition for a writ of habeas
corpus in the Circuit Court of Wood County in January of 1989. The
petition raised several grounds of trial error, which had been
previously raised in the 1977 petition for appeal to this Court,
and a claim of ineffective assistance of counsel. Elizabeth A.
Pyles, a Parkersburg attorney, was appointed to represent the
petitioner in the habeas proceeding.
At some point in the proceedings, Ms. Pyles apparently
moved to disqualify the prosecutor's office from representing the
State in the habeas proceeding on the ground that the prosecuting
attorney, Jeffrey B. Reed, and one of his assistant prosecutors,
Darren Tallman, had previously worked in Mr. Friend's law firm.
The stipulation of the parties indicates that Mr. Reed was
associated with the law firm from June, 1984, through March, 1986,
and may, at some point, have been a partner in the firm. Mr.
Tallman was associated with Mr. Friend's practice from May of 1986
through 1987. By the time Mr. Reed and Mr. Tallman became
associated with the firm, Mr. Friend no longer represented the
petitioner. Mr. Reed admits, however, that he reviewed photographs
contained in Mr. Friend's file of the petitioner's case for
research in another case on the issue of gruesome photographs. Mr.
Tallman admits that he read the transcript of the petitioner's
trial contained in Mr. Friend's file and discussed the case with
Mr. Friend. Mr. Tallman has not participated in the habeas
Sometime after Ms. Pyles filed the disqualification motion, the prosecuting attorney's office apparently filed a motion to disqualify Ms. Pyles from representing the petitioner on the ground that she had previously worked for the prosecutor's office. The parties' stipulation shows that the prosecuting attorney who obtained the petitioner's original criminal conviction left office on December 31, 1976. Ms. Pyles was employed as an assistant prosecuting attorney in Wood County from May, 1979, through June, 1985. Although the files concerning the petitioner's case were available for her inspection, Ms. Pyles asserts that she never reviewed the petitioner's file while working for the prosecuting attorney's office and had no personal knowledge of where the file was located.
On October 7, 1971, the Circuit Court of Wood County,
upon agreement of Mr. Reed and Ms. Pyles, certified to this Court
the following questions:
"1. Is the office of the Wood County Prosecutor disqualified from participation in the above-styled writ of habeas corpus by virtue of the past employment of Prosecutor Reed and Assistant Prosecutor Tallman by Robert W. Friend, trial counsel for petitioner, when neither Reed nor Tallman were employed by Friend during his representation of petitioner but when Reed and Tallman had access to petitioner's file during their employment with Friend?
"2. Is Elizabeth A. Pyles
disqualified from representation of petitioner
when she was previously employed by the Wood
County Prosecutor's Office under a different
prosecutor than the prosecutor who tried
The lower court answered both questions in the negative.
In Syllabus Point 1 of Nicholas v. Sammons, 178 W. Va. 631, 363 S.E.2d 516 (1987), we stated:
"Prosecutorial disqualification can be divided into two major categories. The first is where the prosecutor has had some attorney-client relationship with the parties involved whereby he obtained privileged information that may be adverse to the defendant's interest in regard to the pending criminal charges. A second category is where the prosecutor has some direct personal interest arising from animosity, a financial interest, kinship, or close friendship such that his objectivity and impartiality are called into question."
The alleged disqualification of Mr. Reed and Mr. Tallman falls
within the first category listed in Nicholas, supra. It is
contended that their association with Mr. Friend's law firm and
access to his files on the petitioner's case create a conflict of
interest which is adverse to the petitioner.
We discussed this issue at length in State v. Britton,
157 W. Va. 711, 203 S.E.2d 462 (1974). In Britton, the defendant
had personally, and without the assistance of his retained counsel,
approached the prosecuting attorney to discuss criminal charges
pending against him. In the course of the ensuing conversations,
the prosecutor advised the defendant to enter a plea of guilty or
nolo contendere to the charge. The defendant protested his
innocence and allegedly volunteered information as to how he
intended to prove it. At trial, the court overruled the
defendant's motion to disqualify the prosecuting attorney for
conflict of interest.
We initially recognized in Britton that concomitant with
the prosecutor's duty to convict is his duty to insure justice for
those who are prosecuted. An aspect of this latter duty is the
obligation to see "that no unfair advantage is taken of the
accused." 157 W. Va. at 715-16, 203 S.E.2d at 466. In Syllabus
Point 5 of Britton, we held:
"A prosecuting attorney should recuse himself from a criminal case if, by reason of his professional relations with the accused, he has acquired any knowledge of facts upon which the prosecution is predicated or closely related, though the consultations had with the accused were gratuitous and done in good faith."
We concluded that the trial court committed reversible error in not
disqualifying the prosecutor because it was not certain that the
information provided by the defendant did not give the prosecutor
a possible advantage over the defense which contributed to the
We applied the principles enunciated in Britton in State
ex rel. Moran v. Ziegler, 161 W. Va. 609, 244 S.E.2d 550 (1978).
In Moran, the defendant sought out an attorney to represent him
with regard to a shooting which resulted in the death of one person
and the wounding of another. Although the attorney did not
ultimately undertake representation of the defendant, it was
alleged that during the initial discussion, the defendant revealed
details of the crime to him. The attorney was later hired to
prosecute the case as a private prosecutor. In the Syllabus of
Moran, we stated:
"A lawyer's initial contact with an accused who seeks to retain the lawyer for his defense may give rise to the appearance of a conflict of interest when the same lawyer later appears as a private prosecuting attorney in the criminal prosecution of the accused for the same offense; such appearance of a conflict of interest is ground for the disqualification of the private prosecuting attorney upon timely motion by the accused."
We concluded that the prosecutor's discussions with the accused
gave rise to the appearance of a conflict of interest and held that
the prosecutor should be disqualified.
We do not believe a comparable showing has been made
here. There is no evidence that anyone in the prosecutor's office
worked for Mr. Friend when he was representing the petitioner or
had any discussions with the petitioner during which confidential
or adverse information was exchanged. Mr. Reed did not become
associated with Mr. Friend's law practice until over six years
after the petition for appeal was refused by this Court. Mr.
Tallman did not become associated with Mr. Friend until
approximately two years later. Mr. Reed and Mr. Tallman left Mr.
Friend's office in 1986 and 1987, respectively, long before the
habeas corpus matter arose.
Moreover, although both Mr. Reed and Mr. Tallman looked
at Mr. Friend's file on the petitioner's case, the photographs
viewed by Mr. Reed and the trial transcript read by Mr. Tallman
were matters of public record. Mr. Reed and Mr. Tallman could have
obtained the same information by searching the criminal file
located in the circuit clerk's office. There is no allegation, as
there was in Britton and Moran, that either prosecutor acquired
information adverse to the petitioner by looking through the file
in Mr. Friend's office or by discussing the case with Mr. Friend.
With regard to petitioner's current counsel, Ms. Pyles,
the connection is even more tenuous. She was associated with the
prosecutor's office from 1979 to 1985. She had nothing to do with
the petitioner's criminal trial or appeal and never examined the
Finally, we emphasize that the grounds raised in the
habeas petition do not appear to involve factual matters outside of
the official record except as to the claim of ineffective
assistance of counsel. In this area, we have recognized that an
independent record must be developed. See State v. Wickline, 184
W. Va. 12, 399 S.E.2d 42 (1990); State v. England, 180 W. Va. 342,
376 S.E.2d 548 (1988). Such a claim would be directed at Mr.
Friend's performance at trial and/or on appeal. As earlier noted,
none of the attorneys appearing in the habeas proceeding were
associated with either the prosecution or the defense at the time
of the petitioner's trial or appeal.
We note that in a pro se brief filed with this Court, the
petitioner has protested the certification proceeding on the ground
that it will delay resolution of his case. The petitioner states
that he "has confidence that the past and present complement of
state's attorney[s], and petitioner's attorney is sufficient and
adequate to render a fair and equitable adjudication of the issues
raised in petitioner's habeas corpus petition." Consequently, it
appears that the petitioner himself is willing to waive any
objection to the appearance of the prosecuting attorney and of his
own counsel in the habeas proceedings below.
Accordingly, we conclude that there is insufficient
evidence before us to warrant disqualifying the prosecuting
attorney and his assistants from appearing in the proceedings
below. The same is true as to defense counsel.See footnote 1 On remand, the
circuit court should conduct an inquiry, on the record, to
determine whether the petitioner, after consulting with counsel,
desires to make a knowing and intelligent waiver of any right he
may have to object to the appearance of the prosecuting attorney's
office in the habeas proceeding on behalf of the State. Obviously,
the presentation of further relevant facts concerning the nature of
the information in Mr. Friend's files may alter the circuit court's
disposition of this matter.
The certified questions having been answered, this case is remanded.
Answered and dismissed.
Footnote: 1We take this opportunity, however, to caution the State that motions to disqualify defense counsel in criminal proceedings are not to be used to harass, intimidate, or retaliate against the defense. See Garlow v. Zakaib, 186 W. Va. 457, 413 S.E.2d 112 (1991).