

   
   
   
   U.S. v. Golston



IN THE CASE OF
UNITED STATES, Appellee
v.
Marcus T. GOLSTON, Specialist
U.S. Army, Appellant
 
No. 99-0286
Crim. App. No. 9600326
 
United States Court of Appeals for the Armed
Forces
Argued November 10, 1999
Decided May 25, 2000
SULLIVAN, J., delivered the opinion of
the Court, in which CRAWFORD, C.J., GIERKE and EFFRON, JJ., and COX, S.J.,
joined. GIERKE, J., filed a concurring opinion, in which COX, S.J., joined.
Counsel
For Appellant: Captain Blair T. O'Connor
(argued); Colonel Adele H. Odegard, Major Scott R. Morris, and Captain
Kirsten Campbell-Brunson (on brief); Colonel John T. Phelps II.
For Appellee: Captain Katherine M. Kane
(argued); Colonel Russell S. Estey and Captain Mary E. Braisted
(on brief).
Military Judge: Craig S. Schwender
 
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.


Judge SULLIVAN delivered the opinion of the
Court.
During the early part of 1996, appellant was
tried by a general court-martial composed of officer and enlisted members
at Darmstadt and Kaiserslautern, Germany. Contrary to his pleas, he was
found guilty of two specifications of indecent acts, each with a different
child, and one specification of indecent liberties with two other female
children, in violation of Article 134, Uniform Code of Military Justice,
10 USC § 934. The members sentenced appellant to a dishonorable discharge,
7 years confinement, forfeiture of $874 pay per month for 84 months, and
reduction to E-1. The convening authority approved the sentence as adjudged
on September 30, 1996. The Court of Criminal Appeals affirmed the findings
and sentence in a per curiam opinion on August 11, 1998.
On June 17, 1999, this Court granted review
on the following issue assigned by appellant:

WHETHER THE PROSECUTOR VIOLATED THE LEGAL
NORMS AND STANDARDS OF ARMY REGULATION 27-26 AND PROFESSIONAL ETHICS BY
BREACHING MATERIAL ASPECTS OF HIS ATTORNEY-CLIENT PRIVILEGE WITH MRS. GOLSTON,
HIS FORMER LEGAL ASSISTANCE CLIENT, WHEN HE LATER REPRESENTED THE GOVERNMENT
AGAINST SPC GOLSTON AND USED MATERIALLY ADVERSE INFORMATION OBTAINED FROM
HIS PRIOR REPRESENTATION OF MRS. GOLSTON TO SPC GOLSTONS PREJUDICE.

We hold that trial counsels failure to promptly
disclose his prior attorney-client relationship with appellants wife,
a defense witness in this case, did not substantially prejudice appellants
right to a fair trial. See United States v. Meek, 44 MJ 1
(1996); see generally United States v. Hasting, 461
U.S. 499 (1983).
Evidence was admitted at appellants court-martial
that in July, 1994, he exposed himself, while standing on his balcony,
to two young girls whom he knew were watching him from a neighboring bathroom
(S.H. age 11; S.S. age 8). Evidence was also admitted showing another incident
involving two different girls (I.R. age 6; M.M. age 7). It showed that
appellant was playing with his toddler son in a playground in his housing
area, and the two girls were in the same area. Appellant reached under
the dress of one of the girls and touched her vaginal area two times. With
the other girl, appellant played "hide the ball" by slipping a tennis ball
into her pants and having her "worm" around until it came out. That evening,
the two girls told their parents what had happened in the playground.
At appellant's general court-martial, Mrs.
Claudia Golston, appellants wife, was called as a defense witness on the
merits to testify that one of the girls (S.H.) involved in the indecent
liberties specification had a crush on appellant. The following exchange
then occurred between assistant trial counsel and Mrs. Golston:

ATC: Have you lied in the past to protect
your husband and your family?
WIT: Yes.
ATC: Isnt it true that you were accused of
stealing food and movies from the shoppette that you were working at?
WIT: Yes.
ATC: And that initially you admitted to stealing
that food and actually signed a promissory note agreeing to pay back the
money?
WIT: Yes.
ATC: But when confronted by MPI and questioned
about that and told that it could be very serious, that you may have to
be sent home, you lied and said, "No, I didnt steal that food. I was put
under pressure. Therefore, I told them I stole it"?
WIT: Yes; however - may I elaborate?
ATC: No.

That evening, after court was recessed, defense
counsel met with appellant and Mrs. Golston. She informed defense counsel
that trial counsel had been her legal services attorney with regard to
the events about which assistant trial counsel cross-examined her. The
next morning, defense counsel informed the military judge of the situation
and made a motion for mistrial or in the alternative, a motion to strike
Mrs. Golston's cross-examination testimony and to instruct the members
to disregard it. (R. at 349)
The military judge questioned appellant's standing
to raise a violation of his wife's right to confidentiality with her counsel.
Trial counsel then made the following statement for the record:

TC: Yes, sir. I feel like I just need to
state a few things for the record, if I may.
Your Honor, it is true that, in February of
1994, I represented Mrs. Golston in a legal assistance capacity. And, quite
frankly, over the last two years I had completely forgotten it. I have
represented hundreds of legal assistance clients in the year that I was
a legal assistance attorney in this very busy community.
We attempted to interview Mrs. Golston several
times. One time right after a 39(a) session; and we called a couple of
times. It was only about two weeks ago, when I requested the smif file
from the -- from the unit in preparation for sentencing, that I was going
through the file and I found the two reports that were -- that pertained
to Mrs. Golston, and I found them very interesting. I started reading through
it and said, "Boy! This sounds familiar." So, I went back through my notes
and I found that, yes, indeed, I had represented her. I turned over all
the documents to Captain Willson. I told Captain Willson that I had represented
her in a legal assistance capacity; did not go into any of the details
of my representation of her; however, the smif file did disclose that the
BSB Commander did want to institute or had instituted civilian misconduct
against Mrs. Golston and was going to early-return her from Germany back
to America. And, there were several documents in there pertaining to this
early-return. So, there was not only an issue where MPI had a report of
it, AAFES had a report of it, the BSB had a report of it, and the command
also had a report of it. It was all -- it was all -- all of this documentation
was found in those various records. When we realized that there could have
been even the appearance of impropriety, I stopped working on anything
that dealt with Claudia Golston. And, for what it's worth, I did not divulge
any [of] my conversations with Captain Willson or anyone else in this office
about what I represented Claudia Golston on or the conversations that we
had.
I just thought it was important for me to make
that clear.

The military judge then questioned assistant trial
counsel concerning his cross-examination of Mrs. Golston, particularly
where he got the information upon which he based that cross-examination.
He responded, "Sir, I have the Military Police Report that includes two
statements by Mrs. Golston, and that was provided to me by Captain Hellmich;
and I based my cross-examination on those two statements as well as the
case file for the case that we're not hearing." The military judge then
denied the defense's motion and alternative motion.

___ ___ ___
We initially note that a trial counsel at a
court-martial is the representative of the United States Government, and
he or she must act accordingly. The Supreme Court in Berger v. United
States, 295 U.S. 78, 88 (1935), clearly delineated the responsibilities
of this governmental position:

The United States Attorney is the representative
not of an ordinary party to a controversy, but of a sovereignty whose obligation
to govern impartially is as compelling as its obligation to govern at all;
and whose interest, therefore, in a criminal prosecution is not that it
shall win a case, but that justice shall be done. As such, he is in a peculiar
and very definite sense the servant of the law, the twofold aim of which
is that guilt shall not escape or innocence suffer. He may prosecute with
earnestness and vigorindeed, he should do so. But, while he may strike
hard blows, he is not at liberty to strike foul ones. It is as much
his duty to refrain from improper methods calculated to produce a wrongful
conviction as it is to use every legitimate means to bring about a just
one.
It is fair to say that the average jury, in
a greater or less degree, has confidence that these obligations, which
so plainly rest upon the prosecuting attorney, will be faithfully observed.
Consequently, improper suggestions, insinuations and, especially,
assertions of personal knowledge are apt to carry much weight against the
accused when they should properly carry none.

(Emphasis added.)
In addition, the Supreme Court has indicated
a criminal defendant may challenge prosecutorial methods as a "due process
violation"1 and secure
relief if they are "of sufficient significance to result in the denial
of the defendant's right to a fair trial." Greer v. Miller, 483
U.S. 756, 765 (1987); United States v. Hasting, 461 U.S. 499, 506
(1983). Recently, in United States v. Meek, 44 MJ at 5, we stated
a similar view on this matter:

Prosecutorial misconduct can be generally
defined as action or inaction by a prosecutor in violation of some legal
norm or standard, e.g., a constitutional provision, a statute, a
Manual rule, or an applicable professional ethics canon. See Berger
v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314
(1935) (duty of a prosecutor "to refrain from improper methods calculated
to produce a wrongful conviction"); see generally S. Childress
and M. Davis, 2 Federal Standards of Review § 12.01 (2d ed.
1992). The characterization of certain action as "prosecutorial misconduct,"
however does not in itself mandate dismissal of charges against an accused
or ordering a rehearing in every case where it has occurred. See Greer
v. Miller, 483 U.S. 756, 765, 107 S.Ct. 3102, 3108-09, 97 L.Ed.2d 618
(1987); Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868,
1871, 40 L.Ed.2d 431 (1974). Instead, an appellate court usually considers
the legal norm violated by the prosecutor and determines if its violation
actually impacted on a substantial right of an accused (i.e., resulted
in prejudice). See generally United States v. Hasting,
461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983);
United States v.
Morrison, 449 U.S. 361, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981); United
States v. Rushatz, [31 MJ 450, 457-58 (CMA 1990)].
If it did, then
the reviewing court still considers the trial record as a whole to determine
whether such a rights violation was harmless under all the facts of a
particular case. See generally United States v. Morrison,
449 U.S. at 365, 110 S.Ct. at 668; see also Davis v. Zant,
36 F.3d 1538, 1546 (11th Cir. 1994).

(Emphasis added) (footnote omitted).
Appellant has lodged a three-prong attack on
the conduct of trial counsel in his case and asserts that he was substantially
prejudiced by trial counsel's prosecutorial misconduct. First, he argues
that trial counsel was disqualified from prosecuting him because this prosecution
"placed him [trial counsel] in a position where he could have used information
acquired through his former representation of Mrs. Golston to her disadvantage
. . . ." Final Brief at 12. Second, he asserts
that trial counsel unethically used prior confidential disclosures by Mrs.
Golston, made to him in a legal assistance matter, to impeach her as a
witness at appellants court-martial. Finally, he asserts that trial counsel
failed to disclose sua sponte his prior attorney-client relationship
with Mrs. Golston prior to her cross-examination on matters included in
this relationship and, thus, created an impermissible "appearance of impropriety"
concerning his court-martial. Id. at 12, 15-17.
Appellants first argument for prosecutorial
misconduct is based on this Courts decision in United States v. McCluskey,
6 USCMA 545, 20 CMR 261 (1955). He cites that case for the proposition
that "[a] legal assistance attorney who acquires adverse information against
an accused from a confidential attorney-client relationship is thereby
precluded from serving as a prosecutor in a subsequent court-martial against
the accused." Final Brief 10. He then asserts that the same rule of law
should apply where the prior attorney-client relationship is with an accuseds
wife and she is expected to be called or is called as a defense witness
at the subsequent court-martial of her husband. We disagree.
The decisions of this Court in McCluskey
and United States v. Green, 5 USCMA 610, 18 CMR 234 (1955), deal
with direct violations of a military accuseds prior attorney-client privilege.
In both cases, an attorney-client relationship was formed with a military
accused and later breached by his lawyer with respect to the very matter
for which the accused was court-martialed. Article 27(a)(2), UCMJ, 10 USC
§ 827(a)(2), was the legal basis for our decision in these cases,
and at the time, it stated: ". . . nor shall any person who has acted for
the defense act subsequently in the same case for the prosecution." Clearly,
Article 27(a) was not violated in appellant's case.2
Moreover, we can find no codal article, Manual provision, or service regulation
that disqualifies a military attorney from prosecuting a military accused
at court-martial simply because this attorney previously represented the
accuseds wife in an unrelated matter and she was expected to be called
as a defense witness at his court-martial. Cf. Rule 1.9(a), Army
Regulation (AR) 27-26 (1 May 1992) ("A lawyer who has formerly represented
a client in a matter shall not thereafter (1) represent another person
in
the same or a substantially related matter in which the persons interests
are materially adverse to the interests of the client
. . . .") (emphasis added).
Appellants next argument is that trial counsel
actually "breached" his attorney-client relationship with appellant's wife
and improperly used her confidences to impeach her as a witness at appellant's
court-martial. Clearly, such conduct, if it occurred as a matter of fact,
would be unprofessional misconduct by trial counsel. See McCluskey,
supra
at 550, 20 CMR at 266; Rule 1.9(a), supra ("A lawyer who has formerly
represented a client in a matter shall not thereafter . . . (2) use information
relating to the representation to the disadvantage of the former client
except as Rule 1.6 would permit with respect to a client or when the information
has become generally known."). Paragraph 4-8(a), AR 27-3 (21 Feb 1996),
also states:

4-8. Attorney-client privilege
a. Communications between attorney and client
are privileged. See AR 27-26. Those providing legal assistance will
carefully guard the attorney-client relationship and protect the confidentiality
of all privileged communications with their clients, as well as the confidentiality
of other privileged information or documents that may be acquired. Privileged
communications will be disclosed only in accordance with applicable law.
If a client authorizes the disclosure of privileged matters, such authorization
should be obtained in writing, and the attorney should keep a copy of the
authorization.

Nevertheless, the record before us overwhelmingly
established that trial counsel, as a matter of fact, did not divulge attorney-client
confidences to assistant trial counsel for purposes of cross-examining
appellants wife. First, trial counsel on the record stated, inter alia,
"And, for what its worth, I did not divulge any [of] my conversations
with Captain Willson or anyone else in this office about what I represented
Claudia Golston on or the conversations we had." Moreover, assistant trial
counsel on direct examination by the military judge responded clearly on
this precise question:

MJ: Well, Captain Willson, where did you
get the information upon which you cross-examined Mrs. Golston?
ATC: Sir, I have the Military Police Report
that includes two statements by Mrs. Golston, and that was provided to
me by Captain Hellmich; and I based my cross-examination on those two statements
as well as the case file for the case that were not hearing.

Finally, appellant has not offered any direct
evidence contradicting trial counsel and assistant trial counsels representations
in this matter.3 Accordingly,
we find his argument to be without merit.
Appellants final argument is that trial counsel
engaged in prosecutorial misconduct when he failed to sua sponte
inform the military judge of a possible conflict of interest in this case.
In particular, he notes that trial counsel did not advise the judge of
his predicament prior to the Governments cross-examination of appellants
wife on her prior arrest for shoplifting, and instead remained silent until
the defense brought this matter to the attention of the military judge.
Appellant broadly asserts that such prosecutorial inaction caused his case
to "reek with the appearance of impropriety." Final Brief at 12.
RCM 901(d), Manual for Courts-Martial, United
States (1995 ed.),4 provides
that "[t]he trial counsel shall announce the legal qualifications and status
as to oaths of the members of the prosecution and whether any member
of the prosecution has acted in any manner which might tend to disqualify
that counsel." (Emphasis added.) Here, trial counsel stated for the
record at the beginning of appellants court-martial that "[n]o member
of the prosecution has acted in any manner which might tend to disqualify
us in this court-martial." (Emphasis added.) However, prior to trial,
he recognized that the appearance of Mrs. Golston as a witness in this
case might raise an "appearance of impropriety," at least on his
part. But see also United States v. Boone,
42 MJ 308, 313 (1995) (team approach to ineffective assistance of counsel
issue). While trial counsel was technically correct that no disqualifying
conflict of interest existed at the outset of this trial, the actual calling
of Mrs. Golston as a defense witness cast doubt on his earlier responses.
In our view, he had a continuing duty to apprise the trial judge of any
change in circumstances concerning his earlier assertion concerning matters
"which might tend to disqualify" him. Moreover, our case law has repeatedly
held that notice to the trial judge is the appropriate prosecutorial response
in these circumstances. See United States v. Breese, 11 MJ
17, 23 (CMA 1981); United States v. Lucas, 25 MJ 9, 11 (CMA 1987);
see
also United States v. Hamilton, 41 MJ 22, 27 (CMA 1994).5
We conclude that trial counsel failed in this duty to avoid even the appearance
of wrongdoing in the area of attorney-client relationships. See McCluskey,
6 USCMA at 550, 20 CMR at 266.
Nevertheless, we conclude that appellant was
not prejudiced by trial counsels failure to inform the military judge
and the defense about this possible conflict of interest. Art. 59(a), UCMJ,
10 USC § 859(a); United States v. Meek, supra. Appellants
wife promptly notified defense counsel, after her cross-examination by
assistant trial counsel, that she had been represented by trial counsel
"regarding some of the issues which Captain Willson questioned her on yesterday."
Moreover, defense counsel was able to make timely motions for mistrial
or to disregard appellants wifes cross-examination testimony. Finally,
trial counsel and assistant trial counsel eventually disclosed on the record
the circumstances surrounding the potential conflict interest, their efforts
to avoid it, and their word that no violation of the attorney-client privilege
of Claudia Golston had occurred. Cf. United States v. Davis,
3 MJ 430, 433-34 (CMA 1977) (perfunctory inquiry into conflict of interests
or divisions of loyalty not satisfactory). In circumstances such as these,
where the potential appearance of impropriety or unfairness has been dispelled,
we find no prejudice has inured to appellant and to the system of military
justice. See United States v. Smith, 26 MJ 152, 154 (CMA
1988); see also United States v. Rushatz, 31 MJ at
455.
The decision of the United States Army Court
of Criminal Appeals is affirmed.
FOOTNOTES:
1/ Appellant's ability to pursue
a prosecutorial misconduct motion under Greer v. Miller, 483 U.S.
756 (1987), Berger v. United States, 295 U.S. 78 (1935), and United
States v. Meek, 44 MJ 1 (1996), is not impeded by his lack of standing
to directly assert a violation of Mrs. Golston's attorney-client privilege
with trial counsel. See also United States v. Johnston,
146 F.3d 785, 794 (10th Cir. 1998) ("The defendants ability
to pursue a motion to suppress under section 2518 is not impeded by his
lack of standing to directly assert the attorney-client privilege.").
2/ The current
version of Article 27(a)(2) is substantively the same as the version in
effect when McCluskey and Green were decided.
3/ Appellant
failed to pursue a discovery violation motion at trial, which he now contends
might have produced some proof contradicting trial counsel and assistant
trial counsel's versions of the facts surrounding this matter. We consider
such an argument unsupported on the record. If the prosecution team had
acquired discoverable information as a result of trial counsels representation
of Mrs. Golston, which it did not make available to the defense, there
would have been clear prejudice to appellant from the ethical violation.
The military judge provided the defense with ample opportunity to crystalize
the discovery issue, but the defense did not make a focused discovery request.
Appellant cannot now speculate about what the prosecution may have acquired
when he did not take advantage of the discovery opportunity available at
trial.
4/ The 1998 Manual
version of this rule is identical to the one in effect at the time of appellants
trial.
5/ See generally
Canon 9, ABA Model Code of Professional Responsibility (1980) (A Lawyer
Should Avoid Even the Appearance of Professional Impropriety);
see also
Ethical Considerations 9-2, 9-6, 4-2, 1-1, and 1-4.


GIERKE, Judge (concurring):
I agree with the decision and rationale in
this opinion. I agree that there was no breach of the attorney-client privilege
between trial counsel and Mrs. Golston. I agree that appellant was not
prejudiced. I write separately to express my own views about the conduct
of the prosecution team in this case.
In United States v. Boone, 42 MJ 308,
313 (1995), we measured the performance of defense counsel by evaluating
"the combined efforts of the defense team as a whole." In my view, this
team approach is equally applicable to the prosecution. In this case, the
prosecution team labored under a conflict of interest. Its interests were
adverse to Mrs. Golstons. It wanted to send Specialist Golston to jail;
Mrs. Golston wanted to keep him out of jail. The prosecution team was determined
to attack Mrs. Golstons reputation; she had an interest in protecting
it. Under the team approach adopted by this Court in Boone, trial
counsels conflict of interest was imputed to the entire prosecution team.
The conflict of interest could be resolved only by relieving trial counsel
from further participation in the case.
When trial counsel discovered that he had previously
represented Mrs. Golston and disclosed that fact to assistant trial counsel,
both officers had an ethical duty to disclose the conflict of interest
to the military judge immediately, and not wait for two more weeks until
Mrs. Golston raised the issue in the middle of this trial. See United
States v. Murphy, 50 MJ 4, 10 (1998) (appellant entitled to have military
judge settle conflict-of-interest issues on the record); United States
v. Breese, 11 MJ 17, 23 (CMA 1981) (conflict of interest presumed where
military judge has not conducted suitable inquiry). Both officers had a
duty to "avoid the very appearance of that wrongdoing which, in
obedience to the important policy dictating [the attorney-client] relationship,
the courts are impelled to deplore . . . ." United States v. McCluskey,
6 USCMA 545, 550, 20 CMR 261, 266 (1955). In my view, they failed in that
duty.
To Mrs. Golston and any observer who knew that
trial counsel had represented her, the situation looked like a conflict
of interest. To Mrs. Golston and any observer who knew that trial counsel
had represented her, it appeared that trial counsel had breached the attorney-client
privilege when assistant trial counsel cross-examined her about the same
matter that she and trial counsel had exchanged confidential communications.
The prosecution team violated the precept announced in McCluskey
and codified in the ABA Code of Professional Responsibility.
I agree with the majoritys ultimate conclusion
that appellant was not prejudiced under the specific facts of this case.
I sincerely hope that this case will cause prosecutors to be more sensitive
to the potential for conflicts of interest arising from multiple military
duties.

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