Lee v. State

690 So. 2d 664, 1997 WL 122653
CourtDistrict Court of Appeal of Florida
DecidedMarch 20, 1997
Docket96-380
StatusPublished
Cited by21 cases

This text of 690 So. 2d 664 (Lee v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lee v. State, 690 So. 2d 664, 1997 WL 122653 (Fla. Ct. App. 1997).

Opinion

690 So.2d 664 (1997)

Keith Darryl LEE, Appellant,
v.
STATE of Florida, Appellee.

No. 96-380.

District Court of Appeal of Florida, First District.

March 20, 1997.

*665 Steven A. Been, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General; Mark C. Menser, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.

PADOVANO, Judge.

Keith Darryl Lee, the defendant, appeals his conviction for first degree murder. At issue in the appeal is the validity of the defendant's waiver of a conflict of interest resulting from his court-appointed lawyer's previous representation of a key witness for the prosecution. The record does not show that the defendant was aware of his right to obtain other counsel at the time the trial court accepted the waiver. Consequently, we conclude that the waiver was ineffective. Because the error in accepting the waiver was prejudicial, we must reverse for a new trial.

A grand jury indicted the defendant for the first degree murder of Herman Curtis Dennard. The court appointed the Public Defender's Office to represent the defendant and the case was set for a jury trial on January 16, 1996. During a pretrial hearing in November 1995, the assistant public defender assigned to the case, Earl D. Loveless, disclosed to the trial court that the Public Defender's Office had recently represented Charles Kyles, a key witness against the defendant, on an offense for which he was then currently serving a sentence. Loveless also informed the trial court that he had personally represented Kyles in a 1985 case. Loveless told the trial court that he had no memory of his own prior representation of Kyles and indicated that he did not believe that it created a conflict of interest in this case.

In response to an inquiry from the trial court regarding the protection of Kyles' attorney-client privilege, Loveless explained that he and the prosecutor had discussed a possible stipulation to the number of Kyles' prior convictions so that there would be no need for any cross-examination on that issue. The trial court then engaged in the following dialogue with the defendant:

THE COURT: Okay. Let me ask, also. Mr. Lee, did you understand what Mr. Loveless just shared with us?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand that if there's a witness called to testify against you about something, one of the things your lawyer has a responsibility to do is to—is to consider the credibility of that witness and to consider what attacks may be made upon the credibility of that witness. And sometimes obviously when a lawyer represents someone, they learn information about that person that is privileged, it is protected by the attorney-client privilege and that attorney can't disclose that information. He can't tell you what it is in this case because it would be violating Mr. Kyles' attorney-client privilege. And then he can't use it to impeach the witness although it might be good impeachment *666 evidence, significant impeachment evidence.
Now, when you say, Judge, I understand all that and I want to waive any conflict, then that says okay, you accept that Mr. Loveless won't be able to use any of that information, if any he has—and I don't know because he can't disclose it to me. He can't disclose it to you.
THE DEFENDANT: Yes, sir.
THE COURT: But when you say Judge, I'll waive the conflict, that means that if you're saying you're going to let this matter go forward and when he examines this witness, he will not be entitled to use any privileged information that he may gain from his representation of this witness in the past. Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. Are—do you wish to waive that conflict and have Mr. Loveless continue to represent you during this trial?
THE DEFENDANT: Yes, sir.

Following this court appearance, the defendant wrote two letters to the trial court expressing his dissatisfaction with defense counsel on a number of issues. In the second letter, the defendant stated that he and Loveless had a conflict, that he had asked Loveless to file a motion to suppress evidence and other things, and had gotten no response. The defendant also stated in his second letter that he wanted Loveless removed from his case and that he wanted to represent himself.

Another hearing was held in December 1995 to determine whether the trial court should take any action on the issues raised in the defendant's letters. At that hearing, the defendant informed the trial court that he had been on antidepressants during the previous hearing when he waived his conflict of interest with Loveless and that he felt he had not made the right decision because certain things about Charles Kyles, one of the state's witnesses, needed to come out during trial. The defendant indicated that he wanted to withdraw his previous waiver of his right to conflict-free counsel and have the Public Defender's Office removed from his case on grounds that his previous waiver had not been knowingly and voluntarily entered. Prompted by the trial court's inquiry, the defendant conceded that he was still on antidepressants at the time of this second hearing. The trial court then determined, based on its own observations of the defendant at the prior hearing, that it would not revisit the conflict of interest issue because, in the court's view, the defendant's previous waiver had been knowingly, intelligently, and voluntarily made.

The defendant continued to complain about Loveless' performance and the trial court informed the defendant that Loveless would have to respond to each allegation and that the defendant should bring up all of his complaints about his counsel's performance at that time. The defendant then told the court that he was planted in a cell with Charles Kyles, a jailhouse informant who had been wired, that he told Loveless about this "entrapment," and that Loveless had ignored his concerns by saying that it was not entrapment. Loveless began to respond to these accusations, but said that he believed they were now getting into issues of strategy and privileged information that he felt he could not divulge. The trial court then ruled that the defendant had not described or proven any conduct that justified the removal of Loveless and the appointment of another lawyer in his place.

The trial court reminded the defendant of his right to court-appointed counsel, to hire his own lawyer, or to represent himself, and explained to the defendant that there was no reason to believe his current court-appointed lawyer would not continue to be his counsel should he choose to remain with the option of court-appointed counsel. At that point, the defendant informed the trial court that he wished to represent himself. He explained that he felt as though he was forced into representing himself because the court had denied his motion to have another lawyer appointed to represent him. The trial court then conducted a Faretta[1] inquiry and determined that the defendant had freely, voluntarily, *667 and knowingly waived his right to counsel and exercised his right to self-representation; however, the defendant soon changed his mind and the trial court authorized the continued representation of the defendant by attorney Loveless.

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Cite This Page — Counsel Stack

Bluebook (online)
690 So. 2d 664, 1997 WL 122653, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lee-v-state-fladistctapp-1997.