Sunday, August 31, 2014

Fist fight with attorney in front of jury irreparably effected defense counsel's performance

Korey A. Kaul won in State v. Mullendore, No. 109,581 (Kan. App. Aug. 8, 2014)(unpublished), obtaining a new trial in a Harper County statutory rape prosecution.  The COA described the unusual circumstances occurring just before the complaining witness testified:
Mullendore interrupted: “Your Honor, I got something to say. I'm trying to plead guilty. I wish you'd just leave me alone.” The district court asked the jury to leave the courtroom, but Mullendore kept speaking. Apparently at this point, [defense counsel] attempted to physically subdue Mullendore. Their entire verbal exchange is not reflected in the trial transcript, but on appeal, the parties agree [defense counsel] told Mullendore he would “ ‘beat the shit out of him.’ “ Mullendore continued: “You're going to beat the shit out of me? Why? Why did you say you're going to beat the shit out of me? ... That's crazy.” The district court again asked the jury to leave the courtroom, and Mullendore expressed dissatisfaction with Brown and asserted he would not let CM. take the stand.
Defense counsel moved for a mistrial, but the district court held that a defendant cannot get a mistrial based on his own misconduct.  Instead, the district court admonished the jurors to put the incident out of their minds.  The COA agreed that the outburst was inappropriate, but agreed with Mr. Mullendore that it did not end the analysis:
Mullendore's outbursts during the trial were inappropriate, but defense counsel's response and the ensuing argument brought to the court's attention the potential conflict between Mullendore and Brown. Mullendore argues the district court failed to fully inquire about the conflict it witnessed between Mullendore and Brown, further characterizing Brown's actions as potentially criminal. The State argues a defendant cannot be allowed to create conflict with bad behavior to justify reversal.
The problem here is more than just Mullendore's bad behavior. It is about the duty of the district court to inquire further when it has actual notice of potential attorney/client conflicts.
If the defendant's description of his or her concerns reflects the existence of circumstances that demonstrate the possibility of an irreconcilable conflict between the defendant and his or her counsel, the district court should inquire further.
The COA held that, on the state of the record, Mr. Mullendore had been deprived of conflict-free counsel:
The record reflects this discord affected [defense counsel's] performance. The outburst and altercation between Mullendore and [defense counsel] occurred in front of all or some of the jury. This outburst, by the very nature of what was said, affected [defense counsel's] credibility as an attorney to continue representing Mullendore in front of the jury. The jury observed a serious disagreement between Mullendore and [defense counsel] regarding how to handle the case, including whether Mullendore was innocent or guilty. When a lawyer and client are yelling and fighting, resulting in a physical altercation in front of the jury, that clearly affects the jury's perception of the lawyer's credibility, even though the district court instructed the jury to disregard what it saw and heard and to decide the case on the evidence. The actions between Mullendore and [defense counsel] clearly “undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” All of this activity between Mullendore and [defense counsel] irreparably impaired [defense counsel's] ability to represent Mullendore before the jury, especially when one considers the next witness to testify was Mullendore's daughter.
The deteriorated state of Mullendore and [defense counsel's] relationship was also shown by Mullendore's posttrial motion to replace [defense counsel] as his attorney because of their altercation during the trial. [Defense counsel] agreed there was a conflict and the district court granted the motion providing Mullendore with new counsel for sentencing.
We reverse Mullendore's convictions and remand for a new trial. With the district court's failure to fully investigate on the record the apparent attorney/client conflict and the negative effect it created on [defense counsel's] performance before the jury, we cannot conclude the jury witnessing this conflict did not affect the outcome of the trial.
[Update: the state did not file a PR and the mandate issued on September 11, 2014.]

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