Adkins v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Benton and Coleman
Argued at Salem, Virginia

KATHY MYRTLE ADKINS
OPINION BY
v. Record No. 2158-96-3 JUDGE JAMES W. BENTON, JR.
NOVEMBER 10, 1997
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF BUCHANAN COUNTY
Keary R. Williams, Judge

Buddy H. Wallen for appellant.
Ruth Ann Morken, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.

In this appeal, we consider whether the trial judge violated

the defendant's due process rights by appointing the private

prosecutor retained by the victim's family to act as special

prosecutor after the Commonwealth's attorney withdrew from the

case. For the reasons that follow, we reverse the convictions

and remand for a new trial.

I.

Kathy Myrtle Adkins was indicted by a grand jury for murder

and use of a firearm in the commission of murder. Prior to her

indictment, the victim's family hired David Epling, a private

attorney, to assist in the prosecution of the case. Epling

worked closely with an assistant Commonwealth's attorney and

participated in the decision to indict Adkins on the charges.

While the case was pending, Sheila Tolliver was elected to

serve as Commonwealth's Attorney and assumed the office. Because
Tolliver had previously represented Adkins' daughter, Tolliver

filed a motion for leave to withdraw and for appointment of a

special prosecutor. Due to Tolliver's conflict, the trial judge

granted the motion and appointed Epling to serve as special

prosecutor. See Code § 19.2-155.

Adkins objected to the appointment of Epling. At a hearing

on the issue, counsel for Adkins stated that Adkins' concern was

that "Epling is prosecuting her after being employed by the

family to do that." Counsel further stated that Adkins "is

entitled to a totally independent, objective prosecutor." Epling

responded that he was no longer being compensated by the victim's

family. Affirming the appointment, the judge stated that he

considered "Epling as a totally independent and impartial

prosecutor." The judge further noted that although Epling "may

have been employed by the family, . . . that would [not] qualify

him as an inappropriate person for prosecution in the cases."
Adkins was tried and convicted. She filed a motion to set

aside the verdict because her rights to due process and a fair

trial were denied by allowing Epling to act as special

prosecutor. The trial judge denied the motion.

II.

Virginia adheres to "the common-law rule which generally

permits the appearance of private counsel to assist the

prosecution." Cantrell v. Commonwealth, 229 Va. 387, 392, 329

S.E.2d 22, 26 (1985) (emphasis added). "At common law, a

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prosecuting attorney 'is the representative of the public in whom

is lodged a discretion . . . , which is not to be controlled by

the courts or by an interested individual.'" Ganger v. Peyton,

379 F.2d 709, 713 (4th Cir. 1967) (citation omitted). "'[T]he

breadth of discretion that our country's legal system vests in

prosecuting attorneys carries with it the potential for

individual and institutional abuse.'" Lux v. Commonwealth, 24

Va. App. 561, 568, 484 S.E.2d 145, 148 (1997) (quoting
Bordenkircher v. Hayes, 434 U.S. 357, 365 (1978)). Thus, we

require impartiality in the exercise of discretion on the part of

the prosecutor. See Berger v. United States, 295 U.S. 78, 88

(1935).

This case is governed by the principles the Supreme Court of

Virginia set forth in Cantrell. There, an attorney was hired by

a murder victim's family "to help get . . . Cantrell convicted."

229 Va. at 391, 329 S.E.2d at 25. Although the Commonwealth's

attorney was present at the trial and took an active role, the

private prosecutor examined most of the witnesses, generally

acted as lead counsel, and made the closing argument to the jury.

The private prosecutor was also retained by the family in a

civil suit to seek a change in custody of Cantrell's child from

Cantrell to the victim's parents. See id.

Cantrell argued that the private prosecutor's employment by

the victim's family created a conflict of interest which rendered

the private prosecutor's participation in the criminal

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prosecution improper to a degree that denied Cantrell due process

of law. He also argued that the private prosecutor had an

incentive other than the impartial administration of justice to

seek a conviction.

In discussing the limitations on the role of a private

prosecutor, the Supreme Court stated that when a private

prosecutor has been engaged to assist in a criminal proceeding,

"the public prosecutor must remain in continuous control of the

case." Id. at 393, 329 S.E.2d at 26. Noting the different roles

of a private and a public prosecutor, the Court stated that the

duty of a private prosecutor is to zealously represent his

client's interests while a public prosecutor's duty is "'to seek

justice, not merely to convict.'" Id. Thus, the Supreme Court

ruled that the private prosecutor's dual role as prosecutor and

civil attorney created a conflict of interest which interfered

with the fair administration of justice. The Court held that,

under the circumstances, the private prosecutor's role infringed

on the defendant's right to a fair and impartial trial.

The Commonwealth contends that in Cantrell the private
prosecutor had not been formally appointed as a special

prosecutor, was not being paid by the Commonwealth, and had not

taken an oath of office. The Commonwealth argues that Epling was

formally appointed as special prosecutor and that, although

Epling was initially hired by the victim's family to help in the

prosecution of Adkins, he never represented them in any civil

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matter. Also, Epling terminated his representation of the family

upon his appointment and was no longer being compensated by them.

While the facts in this case differ from those in Cantrell,

the rationale of Cantrell still applies. A public prosecutor is

vested with a duty not merely to convict but to see that the

accused receives a fair and impartial trial. A special

prosecutor appointed by the trial judge steps into the role of

public prosecutor and necessarily accepts that duty of

impartiality. However, where a special prosecutor has a

"personal interest in the outcome of the prosecution," Lux, 24
Va. App. at 569, 484 S.E.2d at 149, "his objectivity and

impartiality are called into question," id., and a defendant's

right to a fair and impartial trial is violated. A special

prosecutor who was formerly employed by the victim's family in

connection with the same proceeding is incapable of exercising

the fair-minded prosecutorial discretion to which the defendant

is entitled, see id., due to his pre-existing interest in

securing the conviction of the defendant. Once the private

prosecutor who has been paid by the victim's family to obtain a

conviction becomes the special prosecutor with full discretionary

authority, obviously, the opportunity to give full reign to the

partiality that initially existed is unchecked.

Epling was initially hired and paid by the victim's family

to protect its interest, not the interest of the Commonwealth.

When Epling was appointed special prosecutor, he was no longer

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merely assisting in the prosecution; he was given ultimate

control of the case. In view of Epling's earlier receipt of

payment by the victim's family to represent them in the

prosecution of Adkins, he owed his allegiance to those clients

and had a duty not to act adversely to their interest. We cannot

say that when the trial judge appointed Epling as special

prosecutor, with sole authority to make prosecutorial decisions,

Epling was then able to act with fair-minded discretion and

impartially or unprejudiced by motives related to his earlier

private gain. "The likelihood of conflict between those two

duties rises to the level of an overwhelming probability."

Cantrell, 229 Va. at 393, 329 S.E.2d at 26.

Having once been paid by the victim's family to protect its

interest and to assist in the prosecution, Epling was prohibited

for reasons of conflict of interest from becoming a special

prosecutor. The conflict of interest between a special

prosecutor's duty "to seek justice" and his duty to his former

client denied the defendant her right to a fair and impartial

trial. See id. at 394, 329 S.E.2d at 26-27. Accordingly, we

reverse the convictions and remand for further proceedings.

Reversed and remanded.

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