dissenting.
Respectfully, I dissent from that portion of the majority opinion which holds that Cox’s status as a limited guardian and his longtime association with victim Harding do not violate KRS 15.733(2), as well as the majority’s conclusion that there “was no conflict of interest sufficient to require Cox’s disqualification.”
Two things are patently clear in this case. First, there is no doubt that County Attorney Cox and victim Harding had a long-term and ongoing relationship. Cox testified that he had known Harding for over twenty years as a friend, colleague, and client. Cox stated in his petition to be named as limited guardian for Harding that: (1) Harding was the victim of an assault and robbery and was being treated in a Surgical and Trauma Intensive Care Unit; (2) that Cox had acted as Harding’s personal and private attorney for at least fifteen years; (3) that he had prepared wills and codicils for Harding; and (4) that he had been named as executor of Harding’s will and as trustee for a bequest to Harding’s spouse. The petition was filed only days following the robbery.
Second, it is clear that Cox failed to disclose his petition for appointment and his relationship with Harding despite appellant’s repeated objections to Cox’s participation at trial. It was not until after trial that a search of courthouse records revealed that Cox had been appointed as limited guardian for Harding. At the CR 60 .02 evidentiary hearing, Cox admitted the actions that he had taken on behalf of Harding pursuant to his role as guardian and also disclosed their close personal and professional relationship.
Perplexing indeed is Cox’s motive in delving so deeply into the prosecution of the appellant. It is undisputed that Cox prepared the search warrants executed during the robbery investigation; drafted arrest warrants which specified the charges to be *104sought; furnished leads to police during the investigation including potential witnesses; accompanied police on witness interviews; provided information concerning property taken during the robbery; and ultimately assisted, for the first time, in a felony prosecution in the Taylor Circuit Court.
While appellant’s argument that KRS 15.733(2) compelled the disqualification of Cox is persuasive, I believe the peculiar facts presented by this case speak more directly to the heart of the matter. Justice John Pal-more eloquently described the role and importance of the prosecutor in his oft-cited passage from Niemeyer v. Commonwealth, Ky., 533 S.W.2d 218, 222 (1976), modified on other grounds, Blake v. Commonwealth, Ky., 646 S.W.2d 718 (1983):
One of the finest offices the public can give to a member of the legal profession in this state is that of Commonwealth’s Attorney. Its very status becomes a mantle of power and respect to the wearer. Though few are apt to wear it lightly, some forget, or apparently never learn, to wear it humbly. No one except for the judge himself is under a stricter obligation to see that every defendant receives a fair trial, a trial in accordance with the law, which means the law as laid down by the duly constituted authorities, and not as the prosecuting attorney may think it ought to be.
It is a fundamental principle that it is the Commonwealth, not the victim of the crime in question, that is the interested party in a criminal case. Therefore, it is essential that a disinterested prosecutor, whose vision is not clouded by the often heart wrenching circumstances of a victim, manage a criminal prosecution.
Despite the best efforts by the county attorney in this case to assist impartially in the prosecution of the case, I fail to see how a reasonable person would not perceive the appearance of impropriety at the very least. In my opinion, the trial court erred by denying appellant’s CR 60.02 motion once the totality of the relationship between Cox and the victim was revealed, and such error was fundamental and pervasive. As Justice Brennan noted in Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987):
An error is fundamental if it undermines confidence in the integrity of the criminal proceeding. The appointment of an interested prosecutor raises such doubts. Prosecution by someone with conflicting loyalties “calls into question the objectivity of those charged with bringing a defendant to judgment.” It is a fundamental premise of our society that the state wield its formidable criminal enforcement powers in a rigorously disinterested fashion, for liberty itself may be at stake in such matters. We have always been sensitive to the possibility that important actors in the criminal justice system may be influenced by factors that threaten to compromise the performance of their duty.
Id. at 810, 107 S.Ct. at 2139, 95 L.Ed.2d at 760 (internal citations omitted).
Cox’s relationship with the victim in this case was such that it undermined the confidence in the integrity of the criminal proceeding. I would reverse the judgment of the Taylor Circuit Court and remand this case for a new trial.
STUMBO, J., joins this dissent.