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COURT OF APPEALS DECISION DATED AND RELEASED MAY 14, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2466-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ANDREA M. WHITE,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Shawano County:
THOMAS G. GROVER, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
LaROCQUE, J. Andrea White appeals an
order denying her motion to disqualify the Shawano County district attorney and
his assistants from prosecuting burglary and misdemeanor theft charges against
her on grounds of conflict of interest.[1] The victim of White's alleged crimes is a
full-time secretary in the Shawano County district attorney's office. White argues that the employment
relationship between the victim and the prosecution staff in a small
five-person office creates an appearance of impropriety that requires
disqualification. We conclude that the
trial court's denial of White's motion was an acceptable exercise of its broad
discretionary authority in this area.
We affirm the trial court's order.
Evidence, including
White's confession, as well as statements by counsel and the court at the
motion hearing, establish the basis for the trial court's decision. White went to the home of Christine Radlitz,
a full-time secretary in the Shawano County district attorney's office, who was
holding a rummage sale. White
discovered that no one was home, entered an unlocked porch and "decided to
take the items without paying for them ...." She indicated that she did not enter the living quarters because
the inner door was locked. She told the
police she took almost everything from the porch, and after placing as many
items as she could inside her car, tied some things to the outside of her
car. A witness had observed the
incident and called the police who later apprehended White with the goods still
in her car. White gave the police a
written statement of admission.
Counsel for each side
made further representations, either in trial briefs or statements in open
court, which, while not presented under oath in evidentiary form, were tacitly
accepted as a basis for the trial court to resolve the motion. Because neither side objected to these
uncontested factual assertions, we will treat them as stipulated facts.
The Shawano County
district attorney's office consists of three attorneys and two secretaries, who
work with each other every day on a close personal basis under circumstances in
which trust and confidence are essential.
Radlitz, one of the secretaries, as well as some of her relatives are
potential witnesses in the case against White.
The Shawano County district attorney, Gary Bruno, has been the county's
prosecutor for almost eighteen years.
It is not unusual for him to be called upon to prosecute cases where he
knows the victims or the defendants personally. He advised the court that "[t]his matter is being handled
just like any other burglary case."
The district attorney made offers of settlement to White's former
counsel several months before the motion hearing. The offer was "identical to offers that [the district
attorney's office makes] in all first time offender burglary cases." White has a criminal record consisting of
two misdemeanor retail thefts and an obstructing conviction, all in the 1980s.
White's defense counsel
advised the court that she was not accusing the district attorney of handling
this matter any differently from the way he may have handled others. White did not raise an issue regarding the
application of a statutory disqualification.[2] White relies instead upon the close
employment relationship as the basis of an appearance of impropriety.[3]
This court previously
determined that an appearance of impropriety is a sufficient basis for the
disqualification of a prosecuting attorney.
State v. Retzlaff, 171 Wis.2d 99, 490 N.W.2d 750 (Ct. App.
1992). In Retzlaff, we
decided:
A court may disqualify counsel based upon
an appearance of impropriety if the conduct is sufficiently aggravated. The issue whether the conduct is
sufficiently aggravated is submitted to the trial court's discretion. ... While
the appearance of impropriety is not a basis for automatic disqualification, it
is an element that the trial court may consider in making disqualification
determinations.
... We recognize that some fact situations are
so clearly detrimental to the integrity of the legal profession and the
administration of justice that counsel should be disqualified as a matter of
law.
Id. at
103, 490 N.W.2d at 752.
In Retzlaff,
a district attorney determined that a theft case against Retzlaff did not have
prosecutive merit. Id. at
100, 490 N.W.2d at 751. The crime
victim donated $300 to the district attorney's successful opponent in the next
election, the largest contribution to the campaign outside that of the
candidate himself and his spouse. Id.
at 101, 490 N.W.2d at 751-52. The new
district attorney reviewed several cases for prosecutive merit and decided to
charge Retzlaff in the theft case. Id.
at 101, 490 N.W.2d at 752. We decided
the trial court did not erroneously exercise its discretion when it refused to
disqualify the district attorney based upon the facts presented.
A circuit court
possesses broad discretion in determining whether the facts of a case warrant
the disqualification of counsel. Burkes
v. Hales, 165 Wis.2d 585, 590, 478 N.W.2d 37, 39 (Ct. App. 1991). A discretionary determination must be made
upon the facts appearing in the record and in reliance on the applicable
law. Additionally, and most
importantly, a discretionary determination must be the product of a rational
mental process by which the facts and law relied upon are stated and considered
together for the purpose of achieving a reasoned and reasonable
determination. Hartung v. Hartung,
102 Wis.2d 58, 66, 306 N.W.2d 16, 20-21 (1981). Although the trial court did not make formal findings of fact,
this court may affirm the trial court if it reached a result that the evidence
would sustain had a specific finding supporting that result been made. See Moonen v. Moonen,
39 Wis.2d 640, 646, 159 N.W.2d 720, 723 (1968). The parties agree that a prosecutor has an ethical responsibility
to seek justice, not merely to seek a conviction. See Standards for
Criminal Justice, The Prosecution Function 3-1.1(c) (1980).
The
undisputed evidence made known to the trial court supports its determination
that there was an insufficient appearance of a conflict of interest to require
disqualification. The district
attorney's office had in place long established and well-known guidelines for
disposition of criminal cases. The
district attorney offered the same disposition to White as he did to other
first-time burglary defendants, although White has prior theft convictions. The trial court took judicial notice, based
upon approximately eighteen years of experience with the incumbent district
attorney, that the guidelines were "follow[ed] religiously" in
resolving criminal matters. Although
White is charged with a serious felony, it is a property crime with no apparent
aggravating circumstances, and there is no evidence that the victim expressed
an opinion regarding disposition of the matter.
Finally, in Retzlaff
we upheld the trial court's consideration of prosecutive merit in weighing any
appearance of impropriety. Id.
at 105, 490 N.W.2d at 753. The alleged
evidence against White suggests there was an eyewitness to the crime, White was
apprehended by the police shortly thereafter with the stolen property still in
her possession and she gave a written confession to the police.
We
decline to adopt White's suggestion for disqualification of the district
attorney's staff as a matter of law, despite the absence of a finding of actual
prejudice. We conclude, as we did in Retzlaff, that unless the
appearance of impropriety is sufficiently egregious, disqualification is a
matter of trial court discretion properly exercised. Absent a showing of actual prejudice or egregious circumstances,
deference to trial court discretion is influenced by practical
considerations. Prosecutors in
medium-sized and small counties are inescapably placed in ethical predicaments
rooted in an infinite variety of relationships of various degrees of
proximity. As public officials in a
small community, they inevitably deal with victims, witnesses and defendants in
social, professional and political contexts.
While we view the issue here as a close call, whether the particular
relationship calls for recusal of a prosecutor and his staff absent a showing of
actual prejudice is fact specific, and not subject to any bright line
test. It must be resolved on a
case-by-case basis as was suggested by the analysis in Retzlaff.
Because the trial court
applied the evidence of record to the relevant legal standards to reach a
reasonable conclusion, it acted within the boundaries of its broad discretion
to deny the motion.
By the Court.—Order
affirmed.
Not recommended for
publication in the official reports.
[2]
Section 978.045 (1g), Stats.,
provides in relevant part:
A court on its own motion may
appoint a special prosecutor under sub. (1r) or a district attorney may request
a court to appoint a special prosecutor under that subsection.
Section 978.045 (1r) provides in relevant part:
The judge may appoint an attorney
as special prosecutor if any of the following conditions exists:
....
(h) The district attorney determines that a conflict of interest exists regarding the district attorney or the district attorney staff.
[3] White has neither alleged nor shown actual prejudice in respect to the matter at issue, and has not raised an issue with the trial court's finding of no actual prejudice. In fact, defense counsel stated to the trial court that she did not accuse the prosecutor of handling this matter any different from any other cases in his office. Finally, there was no evidence presented that Radlitz had any actual influence on the exercise of the district attorney's decisions in this case. White did allude briefly to the fact that Radlitz wrote a cover letter accompanying discovery material from the prosecution to the defense, but she does not pursue the significance of that action. The trial court expressly drew the inference that Radlitz was merely performing routine duties as a secretary. Where two competing inferences can be drawn from the facts, we are bound to accept the inference drawn by the finder of fact. State v. Friday, 147 Wis.2d 359, 370-71, 434 N.W.2d 85, 89 (1989). We conclude that the finding of no actual prejudice is not clearly erroneous.