State v. McGuire

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NOT DESIGNATED FOR PUBLICATION

No. 115,394

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CHRISTOPHER M. MCGUIRE,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; DAVID J. KAUFMAN, judge. Opinion filed June 2, 2017.
Affirmed.

Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before LEBEN, P.J., GARDNER, J., and WALKER, S.J.

Per Curiam: This appeal asks whether all attorneys in a district attorney's office
are disqualified from prosecuting a case in which one assistant district attorney in that
office is the victim of the crime being prosecuted. The district court answered that
question negatively, and given the facts of this case, we find no abuse of discretion in that
decision. Accordingly, we affirm.



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Factual and procedural background

In 2009, Christopher M. McGuire pleaded guilty to two counts of felony
aggravated battery in case 09 CR 1935. The assistant district attorney who prosecuted
him was S.W., who is also the victim in this case. The district court granted a defense
motion for dispositional departure and sentenced McGuire to probation. In 2010,
McGuire admitted to having violated his probation and was sent to Larned State Hospital
due to mental health concerns.

While in Larned, McGuire threatened S.W. and another assistant district attorney
in a letter he mailed to them. As a result, McGuire was charged with two counts of
criminal threat in case 10 CR 3086. McGuire pleaded guilty as charged and agreed that
the threats were sexually motivated. His criminal history score at that time was A. He has
not challenged that guilty plea.

In 2014, S.W. received another threatening letter from McGuire. It stated, among
other things, "I want to feel the sexual ecstasy while I watch you die in such a hopeless
situation." The return address stated that the letter was from "CHRISTOPHER
MCGUIRE at the El Dorado Correctional Facility in El Dorado Kansas." Four latent
fingerprints on the letter matched McGuire's left thumb.

The district court issued a warrant for McGuire's arrest for the crime of criminal
threat. The State filed a notice that it was prosecuting McGuire's criminal threat as
sexually motivated. McGuire then moved to disqualify the Sedgwick County District
Attorney's office (SCDA) and to appoint a disinterested prosecutor. McGuire asserted
that SCDA had a conflict of interest because S.W., the alleged victim of the criminal
threat, was an assistant district attorney in that office. At the disqualification hearing,
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McGuire's counsel claimed that McGuire would accept a plea if the State dropped the
sexual motivation charge.

After the disqualification hearing, the district court determined that SCDA could
prosecute McGuire evenhandedly, so it denied McGuire's motion. McGuire then
voluntarily waived his right to a jury trial. Before the bench trial, the parties stipulated to
the following: S.W. was an assistant district attorney employed at SCDA; McGuire
wrote the letter to S.W. out of sexual motivation and with the intent to place S.W. in fear;
and McGuire's fingerprints were on the letter. The district court found McGuire guilty
beyond a reasonable doubt, convicted McGuire of criminal threat, and determined that
McGuire had made the criminal threat out of sexual motivation.

McGuire has timely appealed. McGuire's sole argument on appeal is that SCDA
had a disqualifying conflict of interest because the victim of his criminal threat was an
assistant district attorney in that office. McGuire contends that the conflict of interest
created a "substantial possibility" that the prosecutor from SCDA would not handle the
case in an evenhanded manner, so that appointment of a special prosecutor was
warranted.

Disqualifying a prosecutor's office is unlike disqualifying a private firm

We begin by recognizing that an impartial prosecutor is of fundamental
importance to the administration of justice:

"The prosecution of criminal offenses is the responsibility of the public
prosecutor who ordinarily has sole discretion to determine whom to charge, what charges
to file and pursue, and what punishment to seek. It is important to the public, as well as to
individuals suspected or accused of crimes, that these discretionary functions of the
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prosecutor be exercised with the highest degree of integrity and impartiality, and with the
appearance of the same. [Citation omitted.]
"The prosecutor speaks not only for the victim, or the police, or those who
support them, but for all citizens. [Citation omitted.] Both the accused and the public
have a legitimate expectation that the prosecutor's zeal will be objective and impartial in
each individual case. [Citation omitted.]" State v. Cope, 30 Kan. App. 2d 893, 895, 50
P.3d 513 (2002).

The United States Supreme Court has recognized "[t]he requirement of a disinterested
prosecutor," because "[a] prosecutor exercises considerable discretion" in a criminal
proceeding, and these decisions "are all made outside the supervision of the court."
Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 807, 107 S. Ct. 2124, 95
L. Ed. 2d 740 (1987).

We note that disqualifying an entire government office has different implications
than disqualifying a private law firm. "'The disqualification of Government counsel is a
drastic measure and a court should hesitate to impose it except where necessary.'" United
States v. Bolden, 353 F.3d 870, 878 (10th Cir. 2003) (quoting Bullock v. Carver, 910 F.
Supp. 551, 559 [D. Utah 1995]). We mention two underlying concerns: the separation of
powers issues and the incentive to remove certain prosecutors from a case.

Recognizing the significant separation of powers issues implicated by such
judicial action, the federal appeals courts have uniformly reversed the disqualification of
an entire United States Attorney's Office. See Bolden, 353 F.3d at 879. "[E]very circuit
court that has considered the disqualification of an entire United States Attorney's office
has reversed the disqualification." 353 F.3d at 879. Disqualification of an entire office is
unprecedented. United States v. Rodella, 59 F. Supp. 3d 1331, 1364 and n.3 (D.N.M.
2014).

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"[B]ecause disqualifying government attorneys implicates separation of powers
issues, the generally accepted remedy is to disqualify 'a specific Assistant United States
Attorney . . . , not all the attorneys in' the office." Bolden, 353 F.3d at 879. See, e.g.,
United States v. Marquez, 603 Fed. Appx. 685, 689-90 (10th Cir. 2015) (unpublished
opinion) (finding the district court correctly denied Marquez' motion to disqualify the
entire United States Attorney's Office in part because Assistant U.S. Attorney whose
house Marquez burglarized was not involved in Marquez' prosecution); Rodella, 59 F.
Supp. 3d at 1348-49 (stating even if the court disqualified a particular prosecutor, the
court would not disqualify the entire United States Attorney's Office but would instead
order that different attorneys from the office, who are not disqualified, prosecute the
case). The same rationale holds true for state attorney offices. See, e.g., Millsap v.
Superior Court, 70 Cal. App. 4th 196, 199, 203-05, 82 Cal. Rptr. 2d 733 (1999) (finding
the two prosecutors who were targets of the defendant's alleged murder solicitation were
not allowed to prosecute the solicitation case, but no conflict of interest justified recusal
of the entire prosecutorial office); Brown v. State, 455 So. 2d 583, 583-84 (Fla. Dist. App.
1984) (other members of a state attorney's office are not disqualified from prosecuting a
criminal case merely because one prosecuting attorney in the office is the alleged victim
and a State's witness in the case).

A second concern is that disqualifying an entire prosecutor's office could
incentivize defendants to remove a prosecutor by the use of threats, jeopardizing the
administration of justice. "[I]f the disqualification of one government attorney could
serve as the predicate for the disqualification of the entire United States Attorney's
Office, the administration of justice would be irreparably damaged." Grand Jury
Subpoena of Ford v. United States, 756 F.2d 249, 254 (2d Cir. 1985). Thus courts have
specifically observed that threatening a prosecutor will not necessarily create a
disqualifying interest in the prosecution of a different offense against the same defendant.
See, e.g., State v. Robinson, 143 N.M. 646, 652, 179 P.3d 1254 (Ct. App. 2008) ("We
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agree with these cases that, as a matter of policy, a defendant does not create a
disqualifying interest and cannot choose his or her prosecutor for an underlying offense
by the use of threats."); State v. McManus, 941 A.2d 222, 232 (R.I. 2008) (holding that
when a defendant allegedly threatens the life of a prosecutor, requiring that prosecutor's
disqualification would "provide an incentive for defendants to engage in such unlawful
conduct."); Kindred v. State, 521 N.E.2d 320, 327 (Ind. 1988) (finding the alleged threat
to the prosecutor's life was not a sufficient conflict of interest to justify disqualifying the
prosecutor and appointing a special prosecutor, in part because allowing prosecutors "to
be disqualified merely upon the unilateral action of defendants . . . would lead to absurd
consequences."); Resnover v. Pearson, 754 F. Supp. 1374, 1388-89 (N.D. Ind. 1991)
(rejecting defendant's argument that alleged threats made to the prosecutor required
recusal, and finding a criminal defendant cannot cause the recusal of his or her prosecutor
by threatening the prosecutor); Millsap v. Superior Court, 70 Cal. App. 4th at 203
(concluding, "If it were possible to recuse the entire office by fomenting some kind of a
threat against the trial deputy, defendants bent upon delay or other obstruction, or just
wanting to be rid of an effective prosecutor, would have the means to accomplish that
objective."). With those underlying principles in mind, we address the specific question
raised in this appeal.

Our standard of review is abuse of discretion

We review the trial court's decision on a motion to disqualify an attorney from
handling a legal matter for an abuse of discretion. See State v. McKibben, 239 Kan. 574,
581-82, 722 P.2d 518 (1986) (finding no abuse of discretion in district court's ruling that
the entire three-person staff of the county attorney's office need not be disqualified even
though one of them formerly represented the defendant in the very matter for which he
was being prosecuted); Cope, 30 Kan. App. 2d at 897 (finding trial court did not abuse its
discretion in refusing to disqualify district attorney's office from prosecuting defendant
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who had threatened to blow up the courthouse in which prosecutor's office was located).
"Judicial discretion can be abused in three ways: (1) if no reasonable person would have
taken the view adopted by the trial court; (2) if the judicial action is based on an error of
law; or (3) if the judicial action is based on an error of fact." State v. Mosher, 299 Kan. 1,
3, 319 P.3d 1253 (2014). The party claiming that the trial court abused its discretion has
the burden to show such abuse of discretion. State v. Robinson, 303 Kan. 11, 90, 363 P.3d
875 (2015). Here, that party is McGuire.

No violation of the Model Rules of Professional Conduct is alleged

We note that the parties do not allege any violation of the Model Rules of
Professional Conduct; thus, we make no determination regarding them. See State v.
Dimaplas, 267 Kan. 65, 67-68, 70, 978 P.2d 891 (1999) (applying de novo review and
finding Kansas Rules of Professional Conduct did not preclude one attorney in the Saline
County Attorney's Office from prosecuting a case in which another attorney from that
same office was a material witness). Dimaplas held that in determining attorney
disqualification issues, the rules of professional conduct specifically reject the appearance
of impropriety standard in favor of a "function approach," concentrating on preserving
confidentiality and avoiding positions actually adverse to the client. 267 Kan. at 68. That
same approach, however, is reflected in the caselaw governing our resolution of this case,
as we discuss below.

Did the district court err in denying McGuire's motion to disqualify SCDA?

Under Kansas law, a conflict of interest exists when the circumstances of the case
evidence "a reasonable possibility that the prosecutor's office may not exercise its
discretionary function in an evenhanded manner." Cope, 30 Kan. App. 2d at 895-96. But
not every conflict in the prosecution warrants recusal. Recusal is warranted only when the
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conflict of interest "is so grave as to render it unlikely that the defendant will receive fair
treatment during all portions of the criminal proceedings." 30 Kan. App. 2d at 896. More
relevant to this case, in which we have a targeted victim, this court stated:

"It is true that a targeted victim of a crime would be personally and emotionally vested in
the outcome of the crime charged. The key in deciding whether a prosecutor should be
disqualified is whether the prosecutor has a significant personal interest in the litigation which
would impair the prosecutor's obligation to act impartially toward both the State and the accused.
[Citation omitted.]" 30 Kan. App. 2d at 897.

In Cope, the defendant had said that he was "going to go to war with" Johnson
County and that he planned to obtain C-4 explosives and place them around the
courthouse. 30 Kan. App. 2d at 894. Cope argued that the Johnson County District
Attorney's Office should have been disqualified from prosecuting the criminal threat case
against him because the entire office had been included in that criminal threat. Although
the district attorney's office was located in the courthouse, Cope had never specifically
threatened that office, and other offices were located in the courthouse. We held that the
district attorney's office had not been targeted to the extent necessary to create a
disqualifying conflict of interest. 30 Kan. App. 2d at 897.

Our case is distinguishable from Cope because McGuire's threat specifically
targeted S.W. and was not broad enough to encompass the entire office. Nonetheless,
Cope's standard applies to this case, as the parties concede. The district court in our case
applied the correct legal standard. When ruling on McGuire's motion for disqualification,
the district court recited nearly verbatim the applicable legal standard from Cope, which
we set forth above. The record shows that the trial judge properly applied that standard by
looking at the circumstances of the particular case, considering whether a conflict of
interest existed, and determining whether McGuire was likely to receive a fair trial. We
find no error of law which could constitute an abuse of discretion.
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Additionally, the facts of this case are not controverted. Thus, the district court
could not have abused its discretion by taking judicial action on the basis of a factual
error. As a result, the only remaining ground for finding an abuse of discretion is that no
reasonable person would have taken the view of the district court. See Mosher, 299 Kan.
at 3.

We find some guidance in State v. Camacho, No. 106,698, 2013 WL 195225
(Kan. App. 2013) (unpublished opinion). Camacho argued that a conflict of interest
existed warranting recusal of the entire prosecutor's office because the victims of the
crime being prosecuted were the parents of a deputy district attorney who worked in the
same office. We held that the district court did not consider proper legal standards in its
denial of Camacho's motion for disqualification because it failed to apply the standards
set forth in Cope. We nonetheless found that Camacho's argument failed on its merits.
Camacho held that the allegation that a case is being prosecuted by one attorney, when
another attorney in that same prosecutor's office is the adult child of the alleged victims
in the underlying criminal proceedings, is "insufficient as a matter of law." 2013 WL
195225, at *2. Camacho dismissed the defendant's assertion that because one assistant
district attorney ordinarily prosecuted in another division and was allegedly overzealous,
"there must be a community of interest running rampant in the SCDA's office that has
deprived him of fair dealing. Without more, Camacho presents an inference stacked on
top of another inference to arrive at a wholly illogical and insufficient conclusion to
support disqualification." Camacho, 2013 WL 195225, at *2. Camacho teaches that a
mere coprosecutorial relationship with one whose parents are victims of the crime being
prosecuted is not sufficient to impute one prosecutor's conflict of interest onto an entire
prosecutorial office.

McGuire's case presents a closer call than Camacho, as the fellow prosecutor in
this case is the targeted victim of the crime being prosecuted. The key in deciding this
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appeal is whether McGuire showed that the prosecutor had a significant personal interest
in the criminal threat litigation which would impair the prosecutor's obligation to act
impartially toward both the State and McGuire. See Cope, 30 Kan. App. 2d at 897.

When ruling on McGuire's motion to disqualify SCDA, the district court
considered McGuire's previous criminal threat case involving the same victim, case 10
CR 3086. The district court drew the reasonable inference that McGuire had been treated
fairly in that case, in part because McGuire had pleaded guilty as charged and had never
challenged that case in any manner. The inference of fairness is bolstered by the fact that
in that case, SCDA had recommended not only the low grid box number for both counts,
but also that the sentences run concurrently.

The district court then considered this case, and properly determined that SCDA
was not being overly zealous in alleging that McGuire's threat was sexually motivated
because McGuire's letter showed as much on its face, stating: "I want to feel the sexual
ecstasy while I watch you die in such a hopeless situation." Although McGuire alleges
that SCDA acted unfairly in seeking the maximum sentence and in refusing to accept a
17-month plea deal, the State's request for the high grid box number was reasonable
based on McGuire's criminal history score of A. McGuire has not shown that these or
other facts relating to the manner in which the prosecutor handled his case made it
unlikely that he would receive fair treatment during his criminal proceedings.

McGuire has also failed to show that the prosecutor had a significant personal
interest in the litigation. Although McGuire's letter to S.W. is objectively outrageous, it is
likely that every prosecutor would feel outrage when reading it, as would a special
prosecutor from the Attorney General's Office. See Robinson, 143 N.M. at 652 (finding
"insufficient evidence that would justify an inference of either an improper interest or
personal bias that interfered with their professional judgment that would not likely be
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shared by every prosecutor in the State"). McGuire has not shown that the prosecutor
who handled his case had a special emotional stake in its outcome.

McGuire has not shown any evidence suggesting that S.W. and the prosecutor had
any type of special relationship which would have affected the prosecutor's judgment or
motivated the prosecutor to handle the case differently than if the victim had not been a
fellow prosecutor. The record shows only that the prosecutor in McGuire's criminal threat
case and the victim of McGuire's criminal threat are fellow prosecutors in an office that
employs 54 prosecutors. McGuire has not shown that the prosecutor had a direct personal
interest arising from a financial interest, animosity, kinship, close friendship, or any other
relationship with the victim or the defendant which would naturally call into question his
objectivity and impartiality. Thus the prosecutor has not been shown to have had a
significant personal interest in the litigation, or anything but a public interest in
convicting an accused. Accordingly, McGuire has failed to meet his burden of proving
that SCDA had a disqualifying conflict of interest. See Robinson, 303 Kan. at 90.

The record fails to show a conflict of interest so grave as to render it unlikely that
McGuire would receive fair treatment during his criminal proceedings. A reasonable
person could easily agree with the district court's finding that McGuire failed to prove the
existence of a disqualifying conflict of interest. Therefore, we find no abuse of discretion.

Affirmed.