David R. Karr, Sr., Esq.
Ripley, West Virginia
Counsel for Petitioner
Chauncey H. Browning, Esq.
Charleston, West Virginia
Counsel for Respondent, Helen J. Honaker
James B. McIntyre, Esq.
McIntyre, Haviland & Jordan
Charleston, West Virginia
Counsel for Respondent,
The Honorable Charles E. McCarty
This Opinion was delivered PER CURIAM.
"Disciplinary Rule 5-102 of the Code of Professional Responsibility and current Rule 3.7 of the Rules of Professional Conduct state that it is unethical for a lawyer representing a client to appear as a witness on behalf of the client except under very limited conditions." Syl. Pt. 1, Smithson v. United States Fidelity & Guar. Co., 186 W. Va. 195, 411 S.E.2d 850 (1991).
David R. Karr, Jr., Prosecuting Attorney for Jackson County,
West Virginia, has petitioned this Court for a writ of prohibition
against the Honorable Charles E. McCarty, Judge of the Circuit
Court of Jackson County. The petitioner contends that he was
improperly disqualified from participating in the capacity of
prosecuting attorney in a trial to be conducted before Judge
McCarty. We disagree with the contentions of the petitioner and
deny the writ of prohibition.
The underlying criminal prosecution, presently pending before the Circuit Court of Jackson County, is styled State of West Virginia v. Helen J. Honaker, Criminal Case Number 91-F-20. On June 26, 1991, a Jackson County Grand Jury returned an eight-count indictment against the defendant, Ms. Honaker.See footnote 1 Evidence to be offered at trial against Ms. Honaker included tape recordings of phone conversations allegedly held between Ms. Honaker and other
individuals.See footnote 2 The defendant filed a motion in limine questioning
the admissibility of the tapes on several grounds, including their
integrity. Mr. Howard Russell, an audiologist, was retained by the
defendant to examine the tapes. Mr. Russell testified that he
found several anomalies or peculiarities in the copies he had
listened to and concluded that their integrity was questionable.
During a November 21, 1991, hearing on the motion in limine,
the petitioner was called as a witness for the defendant. The
petitioner testified that he had been in exclusive possession of a
small number of the 108 original tapes for a brief period of time.
He had received the tapes from Ms. Kathy Judge, one of the
individuals who had made the recordings. The petitioner had
participated in making copies of the originals at the home of an
owner of a speed tape copying machine. He had also transported
some of the tapes to a Charleston, West Virginia, electronics shop
to be copied. Additionally, the petitioner had personally made
copies of some of the original tapes and had instructed Ms. Judge
regarding the making of copies of other tapes. Thus, the
petitioner had been in exclusive possession of some of the tapes at
his residence, in his office, in his car,
and at his father's residence.
The lower court ruled that the tapes were admissible but that
the issue of their integrity could be presented for consideration
by the jury. Based upon the petitioner's personal possession,
handling, and copying of the original tapes, the defendant moved to
disqualify the petitioner from further participation as an attorney
for the State. That motion was granted by the lower court.
Rule 3.7(a) of the West Virginia Rules of Professional Conduct
provides as follows:
(a) A lawyer shall not act as advocate
at a trial in which the lawyer is likely to be
a necessary witness except where:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or,
(3) disqualification of the lawyer would work substantial hardship upon the client.
The petitioner recognizes that due to the defendant's contention that the recordings lack integrity, the issue of such integrity will become a contested issue before the jury. The petitioner attempts to make a distinction, however, between the broad issue of the integrity of the tapes and the more narrow issue of whether the petitioner's own testimony "relates to an uncontested issue" within the meaning of Rule 3.7. The petitioner
contends that the defendant has no specific evidence directly
disputing the petitioner's credibility or his testimony indicating
that the tapes were not altered while in his possession.
Therefore, the petitioner reasons, while the general issue of
integrity may be contested, his own individual statement with
regard to the brief period during which the tapes were in his
custody is not contested.
The defendant contends that the petitioner's involvement in
the chain of custody of the originals of the tapes, the integrity
of which is now called into question, justifies Judge McCarty's
determination that disqualification was appropriate. The defendant
also expresses a concern that the testimony of the individual who
is actually prosecuting the case will be interpreted by the jury as
extremely prejudicial to the defendant. Moreover, the defendant
emphasizes that the petitioner had a more direct, personal
involvement with the custody of the tapes than would normally be
expected of a prosecuting attorney. As early as April 4, 1991, the
petitioner had knowledge of the existence of the original tapes.
As discussed above, he participated in making copies of the
originals and had some of them in his exclusive possession for
brief periods of time.
In United States v. Trapnell, 638 F.2d 1016 (7th Cir. 1980), a prosecutor testified regarding a chain of custody of certain letters received by that prosecutor in the course of the
investigation. That issue, however, was uncontested and was simply
a matter of formality. Id. at 1025. Consequently, the Court held
that, despite the general impropriety of counsel as witness,
testimony on an uncontested issue was permissible. Id.
The petitioner's reliance upon our recent decision in Smithson
v. United States Fidelity & Guar. Co., 186 W. Va. 195, 411 S.E.2d
850 (1991), is somewhat misplaced. In Smithson, we dealt with a
situation wherein the defendant had called the plaintiff's attorney
as a witness to be questioned on matters adverse to his client's
interests. In syllabus point 1 of Smithson, we explained that
"Disciplinary Rule 5-102 of the Code of Professional Responsibility
and current Rule 3.7 of the Rules of Professional Conduct state
that it is unethical for a lawyer representing a client to appear
as a witness on behalf of the client except under very limited
conditions." 411 S.E.2d at 852. Further, we stated the following
in syllabus point 3 of Smithson:
When an attorney is sought to be
disqualified from representing his client
because an opposing party desires to call the
attorney as a witness, the motion for
disqualification should not be granted unless
the following factors can be met: First, it
must be shown that the attorney will give
evidence material to the determination of the
issues being litigated; second, the evidence
cannot be obtained elsewhere; and, third, the
testimony is prejudicial or may be potentially
prejudicial to the testifying attorney's
Id. (emphasis added); see also Garlow v. Zakaib, ___ W. Va. ___,
413 S.E.2d 112 (1991).
In dealing with the issue of an attorney's testimony against
his client in Smithson, we relied upon Cottonwood Estates, Inc. v.
Paradise Builders, Inc., 128 Ariz. 99, 624 P.2d 296 (1981). In
Cottonwood Estates, the Arizona court recognized the potential
abuses involved in a party's attempt to disqualify opposing counsel
on the ground that he may be called as a potential witness. The
court held that a lawyer is not automatically disqualified when he
is to be "called other than on behalf of his client[.]" 624 P.2d
at 302. Consequently, the Arizona court developed limitations for
disqualification of an attorney called as a witness on behalf of an
opposing party which we essentially adopted in syllabus point 3 of
Smithson. Thus, our intent in Smithson was to address the issue of
an attorney's testimony on behalf of an opposing party; in the
present case, however, the prosecutor is more appropriately
characterized as a witness for his own client in the State's
establishment of a chain of custody. Thus, the principles
announced in Smithson regarding an opposing party's attempt to call
the attorney as a witness do not strictly apply.
A scenario more similar to the present case was encountered in Pease v. District Court in and for Ninth Judicial Dist., 708 P.2d 800 (Col. 1985). In Pease, two district attorneys were scheduled to testify as material witnesses at the petitioner's trial. One of
those attorneys was to testify as a witness for the state regarding
incriminating statements the petitioner had allegedly made to him.
The Colorado court noted that it had "repeatedly held that a
district attorney must be disqualified in a criminal case where he
or a member of his staff will appear as a witness and give
testimony of sufficient consequence to prevent a fair trial." Id.
at 802. The Colorado court's "rationale for disqualification is
that the defendant has a right 'to prevent the prosecutor from
adding to the weight or credibility of the evidence by acting as
both witness and officer of the court.'" Id. (citing People v.
District Court, 192 Colorado 480, 481, 560 P.2d 463, 464.
Concluding that the rule of imputed disqualification should be
applied, the Colorado court held that disqualification of the
entire staff of the district attorney's office was appropriate.
Id. at 803.
Similarly, in People v. Garcia, 698 P.2d 801 (Col. 1985), the
Colorado court mandated disqualification of a prosecutor and the
entire staff of the district attorney's office because the
prosecutor had been endorsed as a witness for the prosecution
regarding a bond violation charge. In explaining the rationale
underlying the limitation regarding the prosecutor's role as a
witness in a case where is he also acting as an advocate, the
Colorado court stated the following:
The basic reason for the limitation is to protect the integrity of the adversary process by separating the lawyer's role as an advocate from that of a witness. Advocacy is based on
reason and is subject to objective evaluation,
whereas testimony 'is based on the witness'
moral qualities and is evaluated in terms of
individual credibility.' The separation of
the witness from the adversary process and
from the advocacy function of the prosecutor
is essential and forecloses a prosecutor from
combining argument with fact or from
impermissibly injecting his personal belief
into arguments before the jury.
Id. at 805-06 (citation omitted).
After hearing the multitude of evidence presented in the
present case, the lower court found that the petitioner had custody
of certain taped telephone conversations, participated in copying
the tapes, and transported the tapes to various locations for
copying purposes. Furthermore, the lower court found that the
petitioner's testimony was necessary for trial. The lower court
also determined that private special prosecuting attorney Scott
Durig, having already served as special prosecutor in this case,
would be appointed to act as special prosecuting attorney for
Jackson County in the prosecution of this case.
The issue to be decided by the lower court was very simple: Did the testimony of the petitioner relate to an uncontested issue? If the answer is no, Rule 3.7 mandates disqualification. Thus, the legal principle is clearly stated in the rule, and all that remains is a factual determination regarding whether the issue is contested or uncontested. The lower court heard the evidence and determined that the issue to be addressed by the petitioner related to a contested issue. As discussed above, the issue of the integrity of
the tapes became a contested issue when evidence was raised
indicating that the tapes may have been altered. The petitioner's
excessive personal involvement and contact with the originals,
beyond that normally expected of a prosecutor, necessitates his
testimony for the State in the establishment of a chain of custody.
We find no error and therefore deny the requested prohibition.
Footnote: 1The indictment charged the defendant with murder in the first degree, conspiracy to commit murder in the first degree, first degree arson, conspiracy to commit first degree arson, night-time burglary, conspiracy to commit night-time burglary, grand larceny, and conspiracy to commit grand larceny. Upon the defendant's motion, the murder and conspiracy to commit murder counts were severed for trial purposes, and trial was set for December 3, 1991.
Footnote: 2The tape recordings of telephone conversations in which the defendant was a participant were secretly recorded by three neighbors of the defendant. The conversations were received on a radio scanner located in the residence of the closest of the neighbors involved. The scanner had been programmed by Ms. Kathy Judge to receive telephone conversations from the defendant's cordless telephone. A total of 108 ninety-minute tapes were used to record several hundred conversations.