Opinion
E2021-00276-CCA-R9-CD
03-22-2022
STATE OF TENNESSEE v. SONYA NALE
Herbert H. Slatery III, Attorney General and Reporter; Cody N. Branton, Assistant Attorney General; J. Michael Taylor, District Attorney General; David Shinn, Assistant District Attorney General, for the appellant, State of Tennessee. Thomas K. Austin, Dunlap, Tennessee, for the appellee, Sonya Nale.
Session January 26, 2022
Appeal from the Circuit Court for Bledsoe County Nos. 2019-CR-19, 2019-CR-20 William B. Acree, Senior Judge
The Defendant, Sonya Nale, is charged by indictment with bribery of a public servant, a Class B felony. See T.C.A. § 39-16-102 (2018). After the trial court granted the Defendant's motion to disqualify the Twelfth Judicial District Attorney's office, we granted the State's application for an interlocutory appeal pursuant to Tennessee Rule of Appellate Procedure 9 to review the trial court's order. We reverse the trial court's order disqualifying the district attorney general's office from prosecuting the case.
Tenn. R. App. P. 9 Interlocutory Appeal; Order of the Circuit Court Reversed; Case Remanded
Herbert H. Slatery III, Attorney General and Reporter; Cody N. Branton, Assistant Attorney General; J. Michael Taylor, District Attorney General; David Shinn, Assistant District Attorney General, for the appellant, State of Tennessee.
Thomas K. Austin, Dunlap, Tennessee, for the appellee, Sonya Nale.
Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., joined. D. Kelly Thomas, Jr., JJ., filed a separate opinion, concurring in part and dissenting in part.
OPINION
ROBERT H. MONTGOMERY, JR., JUDGE
The Defendant is alleged to have offered a bribe to a part-time Bledsoe County General Sessions Court judge, who reported the Defendant's alleged conduct to the Tennessee Bureau of Investigation. The general sessions judge also maintains a private criminal defense practice in the Twelfth Judicial District. The general sessions judge is a member of the board of directors of a local bank, as is an assistant district attorney general. The district attorney general has outstanding secured loans with the bank. Because the general sessions judge was the target of the Defendant's alleged bribery, he is a State's witness in the present case.
The Defendant filed a Motion to Disqualify the Twelfth Judicial District Attorney's Office, in which she alleged that both an actual conflict of interests and the appearance of impropriety existed. As relevant to this appeal, the motion alleged facts regarding (1) the State's appearance, through the district attorney general, in criminal matters heard by the general sessions judge; (2) the general sessions judge's private practice, in which he litigated criminal cases against the State, through the district attorney general, and (3) the district attorney general's indebtedness to the bank at which the general sessions judge sat on the board of directors.
At the hearing on the motion, the parties did not present evidence, although they later entered into stipulations of fact consistent with those we have recited. Defense counsel stated that the Defendant was alleged to have offered money to a general sessions judge to "make a [driving under the influence case for another individual] go away." The trial court noted that the Defendant had a second pending criminal case, and the assistant district attorney general stated that the Defendant was alleged to have offered a bribe to the arresting officer in the driving under the influence case. Defense counsel argued that a reasonable person aware of the facts would not think the Defendant "is going to get a fair shake." The assistant district attorney general noted that the motion to disqualify had not been filed for one and one-half years, "after we had our final attempt to negotiate a settlement." The record reflects that the indictment was returned on March 25, 2019, and that the motion to disqualify was filed on December 15, 2020. The assistant district attorney general stated that his office had not discussed with the general sessions judge any plea offer the State made to the Defendant.
In a written order, the trial court found that the judge who was the alleged target of a bribe was a part-time general sessions judge, that the general sessions judge had been the target of the alleged bribe by the Defendant, and that the general sessions judge was an essential witness for the State in the present case. The court found, "The Twelfth Judicial District Attorney General and his staff prosecuting cases in [the judge's] court creates an appearance [the judge] would have an improper influence over the Twelfth Judicial District Attorney General's and his staff's decisions with regards to the prosecution of the defendant in this matter." Therefore, the court concluded, the district attorney general's office staff "shall be disqualified." The court also consolidated the present case with the other pending bribery case.
In a later-filed document titled Stipulation of Facts, which was signed by the trial court, the parties set forth their stipulated facts, which included statements that the general sessions judge and an assistant district attorney general sat on the board of directors of a bank from which the district attorney general had borrowed money secured by three deeds of trust. The trial court stated in the stipulations document that these facts related to the bank "do not create a conflict or an appearance of a conflict for the Twelfth Judicial District Attorney General and his staff and are not relevant to this matter." The court stated that its ruling had relied upon the district attorney general's office's appearing in court before the general sessions judge.
The State filed an application with this court for an interlocutory appeal by permission pursuant to Tennessee Rule of Appellate Procedure 9, which we granted. After receiving the parties' briefs and oral arguments, the case is now before us for review.
We preface our discussion by noting that the State contends that the trial court erred in disqualifying the district attorney general's office on the basis of the district attorney general's appearance in other cases in the general sessions judge's court. The Defendant counters that the trial court abused its discretion by not finding that an appearance of impropriety based upon the relationships of the general sessions judge and a member of the district attorney general's staff with the bank at which the district attorney general has outstanding loans. The State responds in its reply brief that the Defendant's argument regarding the trial court's failure to rely on the banking relationship as an additional basis for disqualification is beyond the scope of this court's grant of an interlocutory appeal. Thus, we must begin our analysis with consideration of the scope of the appeal.
In contrast to the broad latitude afforded both the appellant and the appellee in an appeal as of right pursuant to Tennessee Rule of Appellate Procedure 3, an interlocutory appeal by permission pursuant to Rule 9 involves limited review of "'those matters clearly embraced within the question certified to'" the appellate court. Young v. City of LaFollette, 479 S.W.3d 785, 789 (Tenn. 2015) (quoting Tenn. Dept. of Mental Health & Mental Retardation v. Hughes, 531 S.W.2d, 299, 300 (Tenn. 1975)). In the present case, the trial court granted the State's motion for a Rule 9 appeal and defined the issue as follows:
Whether the relationship between the general sessions court judge and district attorney general creates an appearance of impropriety regarding disqualification of the district attorney general's office when the district attorney general's office is prosecuting a crime of this nature under these circumstances?
Thereafter, we accepted the application for an interlocutory appeal of this issue. We view the Defendant's issue regarding the banking relationship involving the general sessions judge and the district attorney general as within the scope of the certified question, and we will consider it in our analysis.
A party moving to disqualify an attorney in a criminal case must establish a conflict of interests by a preponderance of the evidence. State v. White, 114 S.W.3d 469, 476 (Tenn. 2003). A trial court's decision to disqualify an attorney for a conflict of interests and to impute an attorney's conflict of interests upon the attorney's firm is reviewed for an abuse of discretion. Clinard v. Blackwood, 46 S.W.3d 177, 182 (Tenn. 2001); see State v. Culbreath, 30 S.W.3d 309, 312-13 (Tenn. 2000). A court abuses its discretion by "apply[ing] an incorrect legal standard, or reach[ing] a decision which is against logic or reasoning that caused an injustice to the party complaining." State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999); see Clinard, 46 S.W.3d at 182.
When deciding whether a district attorney general or his office must be disqualified from prosecuting a case, a trial court must consider whether an actual conflict of interests or the appearance of impropriety exists. State v. Coulter, 67 S.W.3d 3, 29 (Tenn. Crim. App. 2001); see State v. Culbreath, 30 S.W.3d 309, 312-13 (Tenn. 2000). If the court determines that disqualification is required on either basis, the court must consider whether the entire district attorney general's office should be disqualified. Coulter, 67 S.W.3d at 29. A conflict of interests "includes any circumstances in which an attorney cannot exercise his or her independent professional judgment free of 'compromising interests and loyalties.'" Culbreath, 30 S.W.3d at 312 (citing Tenn. R. Sup.Ct. 8, EC 5-1) (replaced)). Our supreme court has said that the appearance of impropriety must be more than "the mere possibility of impropriety" and that "it must be real." Clinard, 46 S.W.3d at 187. It is determined objectively, from the perspective of a reasonable layperson with knowledge of all of the relevant facts. Id.
In the present case, the trial court disqualified the district attorney general's office based upon an appearance of impropriety, not based upon a finding of an actual conflict of interests, and the parties' appellate arguments have focused on the appearance of impropriety, rather than on the existence of an actual conflict of interests. Further, the State conceded at oral argument that if disqualification of the district attorney general himself was appropriate, the record had not been developed to establish how the remaining staff of the district attorney general's office might proceed with appropriate screening measures. We will limit our consideration to whether the trial court erred in determining that an appearance of impropriety exists.
The State is represented by the district attorney general, who "is not an advocate for the victim of a crime or the witnesses for the State but is instead the representative of the sovereign state of Tennessee charged with 'safeguarding and advocating the rights of the people.'" State v. Johnson, 538 S.W.3d 32, 51 (Tenn. Crim. App. 2017) (quoting Quillen v. Crockett, 928 S.W.2d 47, 51 (Tenn. Crim. App. 1995)). The district attorney general and his staff "are expected to be impartial in the sense that they must seek the truth and not merely obtain convictions." Culbreath, 30 S.W.3d at 314; see State v. White, 114 S.W.3d 469, 477 (Tenn. 2003). In other words, the district attorney general's duty is to seek justice. Johnson, 538 S.W.3d at 51; see Berger v. United States 295 U.S. 629, 633 (1935) (stating that a prosecutor's interest is not to win a case, but to do justice).
The trial court found that the district attorney general's office appeared in court before the general sessions judge, which created an appearance of impropriety in the present case because the general sessions judge was a witness to the alleged bribery. The court did not elaborate further on the rationale for its conclusion.
The statements and arguments of counsel at the hearing reflect that the venue of the present case is a small community in which attorneys in private practice, judges, and prosecutors know one another and are involved with each other in multiple capacities, both related and unrelated to the law. This court knows that the United States Census Bureau reported in 2020 that the population of Bledsoe County, Tennessee was 14, 913. See Tenn. R. Evid. 201 (judicial notice); U.S. Census Bureau (2020) (retrieved from www.census.gov/quickfacts/bledsoecountytennessee). No evidence was offered to suggest that the district attorney general and his staff were biased in the present case toward the general sessions judge by virtue of their appearance in court before the general sessions judge in other cases or that they would take actions contrary to their duties as prosecutors to seek justice. Likewise, no evidence suggested that these facts influenced the district attorney general and his staff to prosecute the Defendant unfairly or differently than a defendant in a case in which the general sessions judge was not a witness. In the context of a small community in which legal professionals serve in multiple, interconnected roles, a reasonable layperson with knowledge of the facts of this case would not conclude that an appearance of impropriety existed. The defense's arguments at the hearing and on appeal suggest nothing more than a mere possibility of such, which is insufficient to warrant the drastic remedy of disqualification of a district attorney general's office. See Clinard, 46 S.W.3d at 187 (stating that "disqualification of one's counsel is a drastic remedy and is ordinarily unjustifiable based solely upon an appearance of impropriety"). We conclude, therefore, that the trial court abused its discretion in ordering disqualification on this basis. Cf. State v. Derek T. Grooms, No. W2019-01324-CCA-R10-CD, 2020 WL 9171956 (Tenn. Crim. App. Nov. 25, 2020) (holding that no actual conflict or appearance of impropriety existed to require disqualification of the district attorney general's office in a case against a defendant who was a victim of a crime being prosecuted in another case by the district attorney general).
We turn to the Defendant's contention that the trial court abused its discretion in not basing its disqualification order on the banking relationship of the district attorney, a member of his staff, and the general sessions judge. Again, no evidence was offered at the hearing, although the statements of counsel and the stipulations of fact again demonstrate the reality of a small community in which legal professionals are engaged in other business activity. No evidence was offered to suggest that the board of directors had any decision-making authority or influence over the bank's lending decisions as regards the district attorney general's loans. No evidence suggests that the district attorney general or his staff would prosecute the Defendant in a way that was inconsistent with the special duties conferred upon a prosecutor merely because the district attorney general had outstanding indebtedness to a bank whose board of directors included a member of the district attorney's staff and the general sessions judge, who was the State's witness. In the context of this community and these facts, a reasonable layperson with knowledge of the facts of this case would not conclude that an appearance of impropriety existed. The trial court did not abuse its discretion in denying the motion to disqualify the district attorney general's office based upon the banking relationship.
In consideration of the foregoing and the record as a whole, we reverse the trial court's order disqualifying the district attorney general and his office. The case is remanded for further proceedings consistent with this opinion.
D. Kelly Thomas, Jr., J., concurring in part and dissenting in part.
I respectfully dissent from the majority's holding that the trial court abused its discretion by disqualifying the Twelfth Judicial District Attorney General's office. As noted by the majority, a trial court's decision to disqualify a prosecutor or an entire district attorney general's office is reviewed under an abuse of discretion standard. Clinard v. Blackwood, 46 S.W.3d 177, 182 (Tenn. 2001); State v . Culbreath, 30 S.W.3d 309, 313 (Tenn. 2000). A court abuses its discretion by "apply[ing] an incorrect legal standard, or reach[ing] a decision which is against logic or reasoning that caused an injustice to the party complaining." State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999); see Clinard, 46 S.W.3d at 182.
Relevant to the participation of the District Attorney General's Office in this case, our supreme court has stated in Culbreath, that "an actual conflict or an apparent conflict may exist anytime a lawyer cannot exercise his or her independent professional judgment free of 'compromising influences and loyalties.'" 30 S.W.3d at 315 (quoting State v. Tate, 925 S.W.2d 548, 554 (Tenn. Crim. App. 1995)). Under the facts presented, I cannot agree with the majority that the trial court applied an incorrect legal standard or reached a decision that is against logic or reasoning when it disqualified the District Attorney General's Office.
Here, the Defendant is being prosecuted by the Twelfth Judicial District Attorney General's Office for bribery of the General Sessions Judge. Specifically, the indictment reads as follows:
[The Defendant] on the 21st day of September, 2018 and the 5th day of October, 2018, inclusive, in Bledsoe County, Tennessee, and before the finding of this Indictment, unlawfully and knowingly offered a pecuniary benefit, to-wit: $10, 000.00, to Howard Upchurch, a public servant, with the
intent to influence the said public servant's exercise of discretion or other action in the said public servant's official capacity; all in violation of T[ennessee] C[ode] A[nnotated section] 39-16-102[.]
The majority correctly notes that the trial court judge found that an appearance of impropriety existed, rather than finding that an actual conflict of interest was present. However, the trial court did not make any affirmative conclusion in this regard. Under the Tennessee Rules of Professional Conduct, "[e]xcept as law may otherwise expressly permit, a lawyer serving as a public officer or employee . . . is subject to RPCs 1.7 and 1.9[.]" Tenn. Sup. Ct. R. 8, RPC 1.11(d)(1). Pursuant to Rule 1.7, a concurrent conflict of interest exists if "the representation of one client will be directly adverse to another client" or "there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer." Tenn. Sup. Ct. R. 8, RPC 1.7(a). I feel constrained to observe that arguably, pursuant to Rule 1.7(a), the District Attorney General Office's representation of the State of Tennessee is "materially limited by" its "responsibility to . . . a third person," that being Howard Upchurch, the General Sessions Court Judge for Bledsoe County, who is also the prosecuting witness.
Our supreme court in Culbreath made some pertinent observations in this regard:
The prosecutor's discretion about whom to prosecute and to what extent they should be prosecuted, however, is vast and to a large degree, not subject to meaningful review. See Ramsey [v. Town of Oliver Springs], 998 S.W.2d [207, ] 209 [(Tenn. 1999)]; State v. Superior Oil, Inc., 875 S.W.2d 658, 660 (Tenn. 1994) ("prosecutorial discretion in the charging process is very broad"). Moreover, as the United States Supreme Court has recognized, the prosecutor's discretion goes beyond initial charging decisions:
A prosecutor exercises considerable discretion in matters such as the determination of which persons should be targets of investigation, what methods of investigation should be used, what information will be sought as evidence, which persons should be charged with what offenses, which persons should be utilized as witnesses, whether to enter into plea bargains and the terms on which they will be established, and whether any individuals should be granted immunity. These decisions, critical to the conduct of a prosecution, are all made outside the supervision of a court.
Young [v. United States ex rel. Vuitton Et Fils S.A.], 481 U.S. [787, ] 807 [(1987)]. In sum, . . . the foundation for the exercise of the vast prosecutorial
30 S.W.3d at 316. In addition, Comment [8] to Rule 1.7 provides guidance for identifying when there is a significant risk that the representation of one or more clients will be materially limited by a lawyer's other responsibilities or interests:discretion is freedom from conflict of interest and fidelity to the public interest.
Even where there is no direct adversity between clients, a conflict of interest exists if there is a significant risk that a lawyer's ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer's other responsibilities or interests. The conflict in effect forecloses alternatives that would otherwise be available to the client. The mere possibility of subsequent harm does not itself require disclosure and consent. The critical questions are: what is the likelihood that a difference in interests will eventuate and, if it does, will it materially interfere with the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client?Tenn. Sup. Ct. R. 8, RPC 1.7, cmt. [8].
The State and majority refer to the General Sessions Judge as merely a witness; however, Judge Upchurch was the subject of the bribery, and the individual who reported the offense. Therefore, Judge Upchurch's cooperation with the Twelfth Judicial District Attorney General's office and participation in the Defendant's prosecution were crucial. The District Attorney General's office prosecutes the criminal cases in Judge Upchurch's court, absent some reason for disqualification. Furthermore, in my view, the small close-knit nature of Bledsoe County only exacerbates this problem, rather than making it an exception. Judge Upchurch is the only General Sessions Judge in Bledsoe County. Listing General Sessions Judges in the State of Tennessee, https://www.tncourts.gov/courts/general-sessions-courts/judges (searchable by county). Based upon these observations, I could see how such duties would create a "significant risk" that the District Attorney General's representation of the State of Tennessee would be "materially limited by" its "responsibility to" the General Sessions Judge, thus, a conflict of interest may be present. Circumstances that arguably establish a conflict of interest would certainly buttress the trial court's conclusion that at least the appearance of impropriety exists.
Relative to whether an appearance of impropriety exists, it is determined objectively from the perspective of a reasonable lay person with knowledge of all reasonable facts. Clinard, 46 S.W.3d at 187. In this regard, the Culbreath Court has stated,
To ensure and maintain public confidence in the integrity of the government, public officials, including prosecutors, must act impartially and responsibly. Government officials must be held to high ethical standards to make certain their activities are conducted in the public's interest. Furthermore, 'governments have a responsibility to the public to avoid even the appearance of impropriety and to act to reduce the opportunities and incentives for unethical behavior by their officials and employees.' This is true of the prosecuting attorney because 'an appearance of impropriety on the part of a government attorney will inevitably harm not only the individual attorney, but also the entire system of government that allows such improprieties to take place.'30 S.W.3d at 316 (quoting Roberta K. Flowers, What You See Is What You Get: Applying the Appearance of Impropriety Standard to Prosecutors, 63 Mo. L. Rev. 699 (1998) (citations omitted)).
I feel constrained to note that the Circuit Court Judges in the Twelfth Judicial District recused themselves from the Defendant's prosecution due to the General Sessions Judge's involvement in this case. In the order entered to the effect, it was stated,
For good cause shown and it appearing to the [c]ourt that all trial judges in the [Twelfth] Judicial District have a conflict due to one of the key witnesses, Howard Upchurch, being an attorney in this district who makes regular appearances before all trial judges in this district and surrounding districts.
If the Circuit Court Judges feel that a conflict exists, then I cannot say the trial court abused its discretion in holding that an appearance of impropriety is present regarding the Twelfth Judicial District Attorney General's Office. Arguably, an even more egregious situation is evident-Mr. Upchurch is not merely an attorney who frequently appears before the Circuit Court Judges of the Twelfth Judicial District, but he is a Judge who adjudicates the District Attorney General's criminal prosecutions in Bledsoe County General Sessions Court. Moreover, proceedings in General Sessions Court are preliminary and do not involve juries or the rights attendant to jury trials.
In my opinion, the majority's analysis comes perilously close to requiring evidence of actual impropriety rather than just an appearance of impropriety. Any lay person could reasonably think that the District Attorney General's office would approach this prosecution differently, possibly looking like an "insider-deal" to those unfamiliar with the legal system or like the Defendant would not receive the proverbial "fair shake." More than just a mere possibility of impropriety exits under these circumstances. Furthermore, these concerns would apply universally to the entire office, touching the office as a whole.
In short, it would appear that the District Attorney General's Office could not exercise its independent professional judgment free of "compromising influences and loyalties." Based upon these considerations, I would affirm the order of the trial court disqualifying the Twelfth Judicial District Attorney General's Office. See Culbreath, 30 S.W.3d at 316 (the Tennessee Supreme Court holding that the Shelby County District Attorney General's Office was disqualified from prosecuting defendants based upon a conflict of interest created by the use of a private attorney hired as a special prosecutor for the county, who had received substantial compensation from special interest groups).
Finally, I would agree with the majority's conclusion that the banking relationship between the General Sessions Judge, the District Attorney General, and an Assistant District Attorney General, did not, by itself, create an appearance of impropriety.