*1 funds misappropriating or has KIRKLAND, Michael Charles own for others to
attorney holds his/her Appellant, deal- improperly or has been otherwise use 3.165(l)(a) funds,” said SCR ing with poses “conduct a substantial Layton’s Kentucky, clients or to the of harm to his
threat COMMONWEALTH 3.165(l)(b). Appellee. public.” SCR ORDERED IT IS THEREFORE McKee, Appellant, Elliott Prestоn THAT: Layton temporarily K. sus- 1. David Kentucky, Appellee. in this Commonwealth practice of law
pended date and un- effective this Commonwealth 1998-SC-0934-MR, Nos. by subsequent order. superseded til 1998-SC-0935-MR. against Disciplinary proceedings 2. Kentucky. Supreme Court of Inquiry initiated Layton shall be 3.160, unless pursuant to SCR Commission 24, 2001. May resigns alreаdy begun Layton or unless Rehearing on Denial of As Modified under terms of disbarment. 27, 2001. Sept. 3.165(5), Layton to SCR 3. Pursuant shall, twenty days within of the date order, all clients in
entry notify of this rep- inability of his to continue
writing copies furnish
resent them shall of notice to the Director of the
such letters Bar
Kentucky Association. 3.165(6), Layton
4. Pursuant to SCR reasonably immediately, the extent
shall advertising cancel and cease
possible, engaged.
activities
All concur. 26, 2000
Entered: October Joseph E. Lambert
/s/ JUSTICE
CHIEF *2 it was issue is whether principal not to for the trial
reversible error possible McKee of a instruct raised McKee questions interest. Other should have are whether the *3 basеd on granted request a for mistrial whether misconduct and prosecutorial for request was error overrule robbery. attempted on instructions im- it was questions Kirkland whether on the first not to direct a verdict charge expert and whether degree robbery in an insti- testimony about rehabilitation excluded. setting improperly tutional Lexing- Kirkland and McKee entered a intending to rob the own- ton store kept knew the owner er. Both defendants McKee, un- the counter. pistol behind first, Kirkland, armed, entered while fol- handgun, a millimeter armed with surveillance camera The store lowed. ran around the showed that as McKee Cоnn, Lexington, Thomas L. Counsel for presumably money to obtain counter Appellant Kirkland. register, Kirkland fired a shot the cash Maurer, passed through register the cash Karen Assistant Public Advo- which cate, and struck the owner. Both Kirkland Department Advocacy, of Public Frankfort, taking for McKee fled the store without Aрpellant Counsel McKee. his wounds. money. The owner died from III, Attorney Albert B. Chandler Gener- by police, McKee being questioned After al, Fuchs, Gregory Attorney C. Assistant in- Kirkland made various confessed and General, Jr., Floyd, Samuel Assistant J. police. consistent statements to the General, Attorney Appellate Criminаl Divi- sion, Frankfort, Appellee. Counsel for trial, in his own At Kirkland testified shooter, admitted he was the defense and
WINTERSHEIMER,
Justice.
shooting
was acciden-
but claimed that
previously
He
that he had
appeals
judgment
These
are from a
tal.
admitted
that the victim was shot when
based on a
verdict which convicted told оthers
gun. He also testified that
Kirkland and McKee of murder and rob-
he went for his
joint
“gun” right
had hollered
before the
bery
degree
the first
after
trial. McKee
fatal
fired.
did not testi-
pa-
Kirkland was sentenced to life without
shot was
McKee
years
charge
fy.
the murder
A
determined that both
role for 25
on
years
guilty
and a concurrent
of 25
on and
were
of murder and
sentence
sentenced
robbery charge.
robbery
degree
McKee was sen-
in the first
parole
years
life without
for 25
years
charge
tenced to 25
on the murder
Kirkland to
charge
charge,
to run
on the murder
concurrent
years
and 20
on the
robbery charge
consecutively
years.
years
a total of
sentence of 25
and sentenced
years
(1990);
McKee to 25
on the
Smith v.
Ky., 669
murder charge and
years
on the rob- S.W.2d
Peyton
also reinstated
bery charge to run consecutively. This
the Court of Appeals decision in Trulock v.
appeal followed.
Commonwealth, Ky.Aрp.,
I. Conflict of Interest
preserve the
objection.
issue
defense
McKee argues that
judge Trulock,
objection
held that
was not
committed reversible error when she did required because the rule
impose
not instruct him
possible
about a
defendant,
such a duty on the
but on the
interest because his cоunsel and Kirkland’s
contrary
duty
to comply with the rule
attorney were both employed by
Fay-
imposed solely
judge.
on the trial
*4
Aid,
ette County Legal
Inc.
On appeal, McKee raises the issue of
8.30(1) prohibits
RCr
dual representa-
conflict in representation, but Kirkland
persons
tion of
charged with the same
McKеe,
does not. As to
the record does
offenses unless:
not contain an
copy
executed
of a
waiver
(a)
judge
of the court in which the
dual representation as
by
authorized
RCr
proceeding
being
held explains to the
However,
8.30.
Kirkland did execute such
defendant or defendants the possibility
a waiver.
of a conflict of
part
interest on the
of the
The narrow issue before this Court is
attorney in that what may be or seem to
whether there
presumption
is a
of a con-
be in the best
may
interests
one client
flict of interest when an RCr 8.30 waiver is
not be
another,
best interests of
not executed and each defendant has his or
her attorney, but those
attorneys
two
work
(b) each
defendant
the proceeding
legal
the same
or public
aid
defender’s
executes and causes to be entered in the
office.
precedent
We find no case
in Ken-
record a statement that the possibility of
tucky answering
question
where there
a conflict of interests on
part
are two
attorneys
different
from the same
attorney
explained
has been
to the de-
legal
office,
public
aid or
defender’s
who
by
fendant
the court and that the defen-
represent
two different defendants in a
dant
repre-
nevertheless desires to be
trial,
joint
one
those defendants is
by
sented
attorney.
same
by
not advised
about a
Peyton
In
v.
Ky., 931
conflict,
potential
that the defendant’s con-
(1996),
S.W.2d 451
a majority of this Court
viction must
It
automatically be reversed.
held that “Noncomplianee with the provi-
must be remembered that the
quеstion
sions of RCr 8.30 is presumptively prejudi-
conflict of interest was not asserted by
cial and warrants reversal.” The majority
either defendant at trial.
acknowledged that prior
Peyton,
a defendant needed to show that a real We find the decision of the United
conflict of interest
In
holding,
existed.
so
Supremе
Cuyler
States
Court in
v. Sulli-
van,
majority
335,
1708,
overruled a line of cases that
446 U.S.
100 S.Ct.
64
proposition
stood for the
that a violation of L.Ed.2d 333
instructive
when
simply opened
RCr 8.30
the door for a
determined in a
corpus
federal habeas
case
case-by-case
actual,
evaluation to
distinguished
determine
that
as
рoten-
from
tial,
whether a defendant had in fact been prej-
necessary
interest was
by
udiced
such a violation. See Conn v.
order to afford
relief. That court has
Commonwealth, Ky,
75
Id. at
high.”
down
tations,
ethical
handed
defense
has an
tem
counsel
J.,
(Wintersheimer,
dissenting).
con
advise
456.
obligation to
of ana-
interest,
importance
case illustrates the
if defense counsel This
flicts of
case-by-
court,
situations on a
may
lyzing individual
not so advise the
the court
does
8.30,
asor
assume,
A violation of RCr
“special circumstances”
case basis.
absent
violation,
Sullivan,
questionable
supra, also in this
that none exists.
to the
any prejudice
show an
does not result
that a defendant must
indicated
defendant,
automatic
mandate
adversely affect
should not
actual conflict of interest
logic and
defies
See
Such
result
performance
lawyer.
of his
reversal.
865,
economy.
judicial
also,
McBride,
F.Supp.
principles
ignores
v.
858
Spinks
(N.D.Ind.1994).
may be
Similar decisions
circum
Consequently,
under
(Utah
Webb,
v.
III.Attempted Robbery (McKee) Instruction (Kirkland) V.Mitigation Expert judge properly deter avowal, presented by mined that no attempted instruc testimony of a licensed clinical social was necessary pre tion under the evidence *6 report worker she had prepared as to for at trial. in sented Kirkland testified his by him. The trial did not err ex own defense and admitted that he and expert cluding testimony that Kirkland entered the to take store order could be rehabilitated an institutional money from the owner. McKee relat setting. judge correctly The ruled story police, although ed similar to he testimony that the was not admissible be testify not did at trial. All the evidence hearsay and bеcause cause of the the wit Kirkland en indicates McKee and qualified give opinion. ness was not to an gun tered the store with a to steal order Expert opinion evidence is admissible so money robbery from the victim. was The long qualified as a witness is to render an accomplished at that was no рoint. There opinion subject on the matter. This wit any of the to “attempt.” evidence Under experience with corrections or ness had no evidence, tality of the no basis there was years with adult offenders. The last 17 an attempt instruction. Common experience her had with working Collins, Ky., wealth 821 S.W.2d families, who people adolescents need reemployed. not to be was seeking reemployment. He had been (Kirkland) IV.Directed Verdict tried as an adult offender and was more The trial err at years age did not when than 18 the time of the acquittal trial. worker could state no she refused to direct а verdict The social qualified her to charges first-degree robbery experience express on the prospects to his opinion murder. Kirkland was his an as for ultimate testified that facility. in an adult The to rob the owner of store rehabilitation intent instruc- full mitted to the on proffered testimony gratuitous was omitted). (citations course, tions. which, hearsay subject was not hear- Self-serving to cross-examination. Id. at 360. say properly excluded when there is no in- I evidence of McKee’s believe the
independent evidence of its existence. minimal, and robbery in the was volvement hearsay opin- The anеcdotal evidence and reasonably have therefore the could proffered ion was not otherwise substanti- guilty merely he of at- believed that ated other witness. There was no person states that a tempt. KRS 506.010 error. Sanborn v. guilty attempt of criminal “when Cf. (1994). Here, Kirk- Ky., 892 S.W.2d another engages conduct intеnded aid a limited specifically land declined to use crime, although commit that person to report based records reviewed. attempted by not committed or crime is conduct person, provided the other that his judgment of conviction as to McKee under KRS complicity would establish judgment and the of conviction as to Kirk- if 502.020 the crime were committed land are both affirmed. 506.010(3). person.” other KRS Here taken, money was so no theft occurred. LAMBERT, C.J., COOPER, GRAVES, However, Commonwealth, Ky., v.Wade JJ., KELLER, JOHNSTONE concur. 207, found that we J., by separate STUMBO dissents 515.020, statute, robbery KRS opinion. require completed support theft Regаrdless, conviction. should STUMBO, Justice, dissenting. given opportunity have been convict I Respectfully, must dissent from Sec- attempt the lesser crime of if McKee of tion III opinion. of the Court’s The ma- merely they found that his behavior aided jority states that a was accom- Kirkland, actually but did not rise to the plished sоlely by “McKee and Kirkland robbery. level of entering] gun the store with a in order to result, I As a would reverse McKee’s and, victim,” such, money steal from the as conviction and remand for a new trial. holds that court was correct refusing a criminal attempt instruction *7 respect
with to McKee. Since a committed, says majority, there is
no evidence I attempt. believe this flawed,
logic is
and the trial court should
ATHLETIC
NATIONAL COLLEGIATE
an
have allowed
instruction for McKee.
ASSOCIATION, Movant,
we stated in
Taylor
As
(1999):
Ky.,
every issue fact raised evi-
dence and material to his defense sub-