Brian Muchrison v.
Commonwealth Kentucky Court
of Appeals, to be published (7/8/16).
Muchrison appealed from a
jury conviction where he was sentenced to ten years for the offense of first
degree trafficking in a controlled substance and being a first-degree
persistent felony offender. The day (hours really) before trial the
Commonwealth provided discovery to Muchrison’s trial attorney that the
confidential informant (Suister) with whom Muchrison allegedly conducted the
drug transaction with had originally acted with the intention of “helping
Christopher Trent with his current charges,” which were the same charges for
which Muchrison’s trial counsel was also representing Trent. Trial counsel for
Muchrison contacted the Kentucky Bar Association’s Ethics Hotline, and his
contact advised him that he had a conflict, but it would be several days before
a formal letter memorializing that opinion could be issued. Trial counsel for
Mr. Muchrison moved to withdraw because of the conflict and the trial court
denied the motion finding that no conflict existed, but nonetheless ordered
Muchrison’s trial counsel to no longer represent Trent.
Each judge on the Court of
Appeals panel wrote a separate opinion (Judges Combs, Lambert, and Vanmeter).
The majority, Judges D. Lambert and Combs found the following when the Court
concluded that reversible error occurred when the trial court failed to permit
Muchrison’s trial counsel to withdraw:
“The trial court’s ruling diminishes the fact that
trial counsel’s original source of information, which he would later need in
order to effectively represent
another client, was a confidential communication with
his client. Further, the identity of the confidential informant was exactly
that—confidential—until such
time as the Commonwealth made it a matter of public
record mere hours before trial. The trial court also clearly recognized the
potential presence of a conflict of
interest; otherwise the order for trial counsel to
discontinue representation of Trent served as a completely moot gesture.
That
Muchrison’s trial counsel was able to find a different line of questioning to
establish Suister’s motive to fabricate a narcotics transaction is
immaterial.
The conflict manifested itself the instant trial counsel was forced by his
obligations to Trent to search for such alternative line of questioning. The
ethical
dilemma placed on trial counsel by the trial court’s ruling limited his ability
to cross-examine a critical witness, and thus deprived him of the right to
effective
counsel.”
Judge Combs concurred but wrote a separate opinion
which stated: “In addition to its error in failing to allow counsel to
withdraw, I would hold that the trial court also committed reversible error in
failing to sanction the Commonwealth for its highly dilatory conduct in
disclosing (“mere hours” before trial) Suister’s involvement with Trent. Its
conduct directly affected
the issue of conflict of interest, which caused the reversal of a criminal
conviction. Sanctions should have been imposed.”
Judge
Vanmeter dissented in a separate opinion arguing that there was no conflict and
that a continuance would have been a sufficient remedy to the Commonwealth’s
late notice.
Joshua Hitch represented Mr.
Muchrison in Mason Circuit Court.
Jason Apollo Hart represented
Mr. Muchrison on appeal.
*This case is not yet final,
the Attorney General’s Office filed an motion for discretionary review in the
Kentucky Supreme Court. Linda Horsman is representing Mr. Muchrison on further
appellate proceedings.
Trial Tip: Consider filing Giglio
motions that cite this case, when and if it becomes final to argue for a
reasonable if not immediate disclosure of who the confidential informant is and
what they got for working with the Commonwealth.
