RENDERED: MARCH 22, 2018 TO BE PUBLISHED
~upttmt dtnurl nf ~fli~ ~l .. 2016-SC-000378-DG [Q)~1J~11J~1Jrt w.;., ftJmon,bL COMMONWEALTH OF KENTUCKY APPELLANT
ON REVIEW FROM COURT OF APPEALS v. CASE NO. 2014-CA-001375-MR MASON CIRCUIT COURT NO. 14-CR-00037
BRIAN MUCHRISON APPELLEE ·
OPINION OF THE COURT BY JUSTICE CUNNINGHAM
REVERSING AND REINSTATING
In 2014, Appellee, Brian Muchrison, was tried and convicted by a Mason
County Circuit Court jury of first-degree-trafficking in a controlled substance·
and of being a first-degree persistent felony offender .. He was sentenced to ten I years' imprisonment. His conviction arises from the sale of a quantity of heroin
to a confidential informant, Jennifer Suister ("Jennifer").
Jennifer had a romantic history with Appellee. She also had several
other boyfriends around the time she executed the drug buy at issue here.
One of her boyfriends was Christopher.Trent.· Trent had been arrested in
Mason County for burglary and was represented by public defender Josh
Hitch. Hitch would later represent Appellee. Trent told Hitch that he had "someone else" helping him get a favorable
bond recommendation from the Commonwealth but refused to identify the
person.
Unbeknownst to Hitch; Jennifer had entered into an agreement with the
Maysville Police Department to act as a confidential informant in exchange for
Trent receiving a favorable bond recommendation from the Commonwealth. As
a result, the Mason Circuit Court granted Trent's request for a surety ~ . bond.
However, Trent violated the terms of his release and was subsequently
arrested.
As Appellee's case proceeded to trial, he prepared an altf:'.rnate
perpetrator theory; arguing that Jennifer fabricated the drug transaction that
led to his charges. Appellee contended that he met with Jennifer on the night
of the alleged drug buy hoping to have sex, not to sell her drugs.
The day before Appellee's trial, the Commonwealth provided Hitch with
discovery indicating. that Jennifer had acted with the intention of "helping
Christopher Trent with his current charges." She had been paid three hundred -· dollars and an extra one hundred dollars for every successful purchase she
made.
Hitch immediately called the Kentucky Bar Association's Ethics Hotline.
His contact there informed him that he had a conflict but that it would be
several days before a formal letter could be issued confirming that opinion.
Hitch also filed.a motion to withdraw as Appellee's attorney. Although Trent
had already been sentenced, Hitch noted that Trent may elect to file post-·
2 conviction motions, which presumably would have required Hitch's continued
representation. After a hearing on the motion. to withdraw, the trial court
denied tpe motion; the trial court ordered Hitch tocontinue representing
Appellee and discontinue representing Trent post-:conviction.
At Appellees' trial, Hitch attempted to impeach Jennifer's testimony
concerning her need for money to pay her living expenses as the primary
reason for fabricating her story that Appellee sold her drugs. Further, as the
Appellee admits in his brief, Hitch also questioned Jennifer "about whether her
motivation for working as a confidential informant was to receive favorable
bond treatment for Mr. Trent .... " In addition to Jennifer's testimony, the
Commonwealth introduced a recording of the drug buy. Although the video
was of poor quality, the audio was discernable.
As previously stated, Appellee_ was convicted and sentenced to a total of
ten years' imprisonment. In a split decision, the Court of Appeals held, inter .
alia, that the trial court erred by failing to grant counsel's motion to withdraw._
As such, the Court of Appeals reversed Appellee's conviction and sentence.
This Court granted the Commonwealth's motion for discretionary review.
Having reviewed the record and the law, we reverse the Court of Appeals and
reinstate Appellee's conviction and ~entence.
Analysis
The issue here involves an alleged denial of Appellee's Sixth Amendment
right to conflict-free counsel. Glasser v. United States, 315 U.S. 60, 70 (1942),
superseded in part on other grounds by Fed. R. Evid. 104(a) ("[T]he 'Assistance
3 of Counsel' guaranteed by the Sixth Amendment contemplates that such
assistance be un~rammeled -and unimpaired by a court order requiring that one
lawyer shall simultaneously represent conflicting interests."); s~e also Bartley
v. Commonwealth, 400 S.W.3d 714, 719 (Ky. 2013). These questions of law will
be reviewed de novo~ Commonwealth v. Parrish, 471 S.W.3d 694, 697 (Ky.
2015). We also note.that "in contrast to· claim·s raised for the first time post-
conviction, there is no requirement [in the present case] that the defendant
show a conflict actually prejudiced him or impacted his counsel's performance
in some way." Samuels v. Commonwealth, 512 S.W.3d 709, 713 (Ky. 2017)
(citing Beard v. Commonwealth, 302 S.W.3d 643, 645-47 (Ky. 2010)). "[T]he
adequacy of the assistance[] provided in representing [the defendant] is
irrelevant to that inquiry." Id.
The Court of App'eals correctly defined the heart of the present issue as
follows:
[Mr~ Hitch's] position was that his representation of Trent, and the ethical responsibilities inherent therein, precluded him from fully exploring exculpatory facts in his cross-examination of [Jennifer], which prevented him from fully presenting [Appellee's] defense.
In its order denying Hitch's motion to withdraw, the trial court stated that
"[t]he information [of the confidential informant's identity] comes from the
Commonwealth, and only confirms a vague statement made by Mr. Trent." The
court further noted that the information was "not detrimental to Trent" and
that the information was "not confidential ih that it was known to and provided
by the Commonwealth?"
4 In reversing the trial court's order denying the motion to withdraw, the
Court of Appeals reasoned:
[t]hat his responsibilities to Trent would affect his cross- examination of [Jennifer] to [Appellee's] detriment is a reasonable belief in this situation, particularly in light of the fact that Trent still expected trial counsel to file post-convictio~ motions. A client's reasonable belief or expectation that a lawyer will undertake representation is all that is necessary to create a current attorney-client relationship. [Citations omitted]. The trial court's ruling diminishes the fact that trial counsel's original source of information, which he would later need in order to effectively represent another client [Appellee], was~ confidential communication with his client [Trent] .
·The Court of Appeals also cited Supreme Court Rule ("SCR") 3.130(1.7) in
support of its conclusion that there was a conflict of interest here. Subsection
Free access — add to your briefcase to read the full text and ask questions with AI
RENDERED: MARCH 22, 2018 TO BE PUBLISHED
~upttmt dtnurl nf ~fli~ ~l .. 2016-SC-000378-DG [Q)~1J~11J~1Jrt w.;., ftJmon,bL COMMONWEALTH OF KENTUCKY APPELLANT
ON REVIEW FROM COURT OF APPEALS v. CASE NO. 2014-CA-001375-MR MASON CIRCUIT COURT NO. 14-CR-00037
BRIAN MUCHRISON APPELLEE ·
OPINION OF THE COURT BY JUSTICE CUNNINGHAM
REVERSING AND REINSTATING
In 2014, Appellee, Brian Muchrison, was tried and convicted by a Mason
County Circuit Court jury of first-degree-trafficking in a controlled substance·
and of being a first-degree persistent felony offender .. He was sentenced to ten I years' imprisonment. His conviction arises from the sale of a quantity of heroin
to a confidential informant, Jennifer Suister ("Jennifer").
Jennifer had a romantic history with Appellee. She also had several
other boyfriends around the time she executed the drug buy at issue here.
One of her boyfriends was Christopher.Trent.· Trent had been arrested in
Mason County for burglary and was represented by public defender Josh
Hitch. Hitch would later represent Appellee. Trent told Hitch that he had "someone else" helping him get a favorable
bond recommendation from the Commonwealth but refused to identify the
person.
Unbeknownst to Hitch; Jennifer had entered into an agreement with the
Maysville Police Department to act as a confidential informant in exchange for
Trent receiving a favorable bond recommendation from the Commonwealth. As
a result, the Mason Circuit Court granted Trent's request for a surety ~ . bond.
However, Trent violated the terms of his release and was subsequently
arrested.
As Appellee's case proceeded to trial, he prepared an altf:'.rnate
perpetrator theory; arguing that Jennifer fabricated the drug transaction that
led to his charges. Appellee contended that he met with Jennifer on the night
of the alleged drug buy hoping to have sex, not to sell her drugs.
The day before Appellee's trial, the Commonwealth provided Hitch with
discovery indicating. that Jennifer had acted with the intention of "helping
Christopher Trent with his current charges." She had been paid three hundred -· dollars and an extra one hundred dollars for every successful purchase she
made.
Hitch immediately called the Kentucky Bar Association's Ethics Hotline.
His contact there informed him that he had a conflict but that it would be
several days before a formal letter could be issued confirming that opinion.
Hitch also filed.a motion to withdraw as Appellee's attorney. Although Trent
had already been sentenced, Hitch noted that Trent may elect to file post-·
2 conviction motions, which presumably would have required Hitch's continued
representation. After a hearing on the motion. to withdraw, the trial court
denied tpe motion; the trial court ordered Hitch tocontinue representing
Appellee and discontinue representing Trent post-:conviction.
At Appellees' trial, Hitch attempted to impeach Jennifer's testimony
concerning her need for money to pay her living expenses as the primary
reason for fabricating her story that Appellee sold her drugs. Further, as the
Appellee admits in his brief, Hitch also questioned Jennifer "about whether her
motivation for working as a confidential informant was to receive favorable
bond treatment for Mr. Trent .... " In addition to Jennifer's testimony, the
Commonwealth introduced a recording of the drug buy. Although the video
was of poor quality, the audio was discernable.
As previously stated, Appellee_ was convicted and sentenced to a total of
ten years' imprisonment. In a split decision, the Court of Appeals held, inter .
alia, that the trial court erred by failing to grant counsel's motion to withdraw._
As such, the Court of Appeals reversed Appellee's conviction and sentence.
This Court granted the Commonwealth's motion for discretionary review.
Having reviewed the record and the law, we reverse the Court of Appeals and
reinstate Appellee's conviction and ~entence.
Analysis
The issue here involves an alleged denial of Appellee's Sixth Amendment
right to conflict-free counsel. Glasser v. United States, 315 U.S. 60, 70 (1942),
superseded in part on other grounds by Fed. R. Evid. 104(a) ("[T]he 'Assistance
3 of Counsel' guaranteed by the Sixth Amendment contemplates that such
assistance be un~rammeled -and unimpaired by a court order requiring that one
lawyer shall simultaneously represent conflicting interests."); s~e also Bartley
v. Commonwealth, 400 S.W.3d 714, 719 (Ky. 2013). These questions of law will
be reviewed de novo~ Commonwealth v. Parrish, 471 S.W.3d 694, 697 (Ky.
2015). We also note.that "in contrast to· claim·s raised for the first time post-
conviction, there is no requirement [in the present case] that the defendant
show a conflict actually prejudiced him or impacted his counsel's performance
in some way." Samuels v. Commonwealth, 512 S.W.3d 709, 713 (Ky. 2017)
(citing Beard v. Commonwealth, 302 S.W.3d 643, 645-47 (Ky. 2010)). "[T]he
adequacy of the assistance[] provided in representing [the defendant] is
irrelevant to that inquiry." Id.
The Court of App'eals correctly defined the heart of the present issue as
follows:
[Mr~ Hitch's] position was that his representation of Trent, and the ethical responsibilities inherent therein, precluded him from fully exploring exculpatory facts in his cross-examination of [Jennifer], which prevented him from fully presenting [Appellee's] defense.
In its order denying Hitch's motion to withdraw, the trial court stated that
"[t]he information [of the confidential informant's identity] comes from the
Commonwealth, and only confirms a vague statement made by Mr. Trent." The
court further noted that the information was "not detrimental to Trent" and
that the information was "not confidential ih that it was known to and provided
by the Commonwealth?"
4 In reversing the trial court's order denying the motion to withdraw, the
Court of Appeals reasoned:
[t]hat his responsibilities to Trent would affect his cross- examination of [Jennifer] to [Appellee's] detriment is a reasonable belief in this situation, particularly in light of the fact that Trent still expected trial counsel to file post-convictio~ motions. A client's reasonable belief or expectation that a lawyer will undertake representation is all that is necessary to create a current attorney-client relationship. [Citations omitted]. The trial court's ruling diminishes the fact that trial counsel's original source of information, which he would later need in order to effectively represent another client [Appellee], was~ confidential communication with his client [Trent] .
·The Court of Appeals also cited Supreme Court Rule ("SCR") 3.130(1.7) in
support of its conclusion that there was a conflict of interest here. Subsection
(a)(2) of that rule precludes an attorney {rom representing a client when "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."
Hitch's initial concern ·after receiving the Commonwealth's notification of
the relationship between Trent and Jennifer is certainly understandable. The
acknowledgment by the ethics hotline representative adds efficacy to this
claim. However, we ultimately disagree with that determination. Although
there ~as technically an "overlap" in Hitch's representation ofTrent and
Appellee, we fail to see any conflict of interest here. Samuels, 512 S.W.3d at
713.
Similar to our· decisfon in Samuels, "[w]hen the totality of the
circumstan9es [is] examined, it becomes clear that [Appellee] has not
5 demonstrated that his lawyer was burdened by an actual conflict of interest
during [his] representation of him." Id. at 716. More precisely, there was no
"significant risk" that the information provided by the Commonwealth
concerning the relationship between Trent and Jennifer "materially limited"
Bitch's responsibilities to either Appellee or Tren·t. SCR 3.130(1.7). In other
words, there was no ethical impediment to cross-examining Jennifer regarding
her relationship and agreement with Trent, and further arguing that Jennifer
fabricated the drug transaction that led to Appellee's arrest.. In fact, Hitch did
cross-examine Jennifer concerning her relationship with Trent and how that
impacted her motivation for working as a confidential informant.
We also note that Appellee's charges were completely unrelated to Trent's
charges. Moreqver, Trent had been sentenced and was in the custody of the
Department of Corrections when Hitch filed his motion to withdraw. Any.
potential conflict that may have arisen here was ameliorated by the trial court's
order that Hitch withdraw from representing Trent post-coriviction before
Appellee's trial began. As such, any post-conviction motions that Trent may
have desired to file could have been raised by another court appointed
attorney.
Therefore, the trial court correctly denied the rriotion to withdraw. AnY.
additional issues concerning defense counsel's ;representation of Appellee that
resulted from counsel's good faith, albeit erroneous perception of a conflict of
interest, may be adqressed by Appellee through the proper post-conviction
process.
6 Conclusion
For the reasons stated herein, we hereby reverse the decision of the
Court of Appeals and reinstate Appellee's conviction and sentence.
Minton, C.J.; Cunningham, Hughes, Keller, Venters, and Wright, JJ.,
sitting. Cunningham, . Keller, Venters, and Wright, JJ., concur. Minton, . C.J;;
and Hughes, J., concur in result only. VanMeter, J., not sitting.
COUNSEL. FOR APPELLANT:
Andy Beshear Attorney General of Kentucky
Leilani K.M. Martin Assistant. Attorney General
COUNSEL FOR APPELLEE:
Jason Apollo Hart Assistant Public Advocate
Linda Roberts Horsman Assistant Public Advocate