S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
v.
Tunzy Antwain
Sanders, Appellant.
Appeal From Barnwell County
Gary E. Clary, Circuit Court Judge
Opinion No. 25163
Heard May 10, 2000 - Filed July 3, 2000
REVERSED AND REMANDED
Deputy Chief Attorney Joseph L. Savitz, III, of S.C.
Office of Appellate Defense, of Columbia, for
appellant.
Attorney General Charles M. Condom Chief Deputy
Attorney General John W. McIntosh, Assistant Deputy
Attorney General Donald J. Zelenka, Assistant
Attorney General Derrick K. McFarland, all of
Columbia; and Solicitor Barbara R. Morgan, of Aiken,
for respondent.
p.363
State v. Sanders
ACTING JUSTICE KINARD: Appellant was convicted of
murder, attempted armed robbery, and conspiracy. He appeals on the
ground his Sixth Amendment right to counsel was violated when counsel
was removed before trial. We reverse and remand for a new trial.
FACTS
Appellant and two others were charged with killing Minh Chapman
who was shot to death in the parking lot of the restaurant where she worked.
She was leaving work at the close of business and was carrying that day's
receipts.
Before trial, appellant's sister, Brenda Sanders, was admitted pro hac
vice to act as co-counsel on appellant's behalf. 1 The day before trial was to
commence, however, the trial judge removed Ms. Sanders because the State
indicated she would be called as a witness based on her interaction with the
State's witnesses. 2
At trial, two jailhouse informants, Aurelien Vigier and David Staley,
testified appellant confessed to the crime while imprisoned. Each also
testified that appellant had said Ms. Sanders was going to talk to the State's
witnesses "to get them to change their statements."
The State introduced the statement of Temetrius Williams which
placed appellant and his cohorts at the scene with the intent to commit a
robbery. Williams retracted her statement on the stand. She denied she had
ever talked with Ms. Sanders. When Ms. Sanders took the stand, she
testified that in the course of her investigation, she had had a brief telephone
conversation with Williams.
ISSUE
Was Ms. Sanders properly removed because she was a
necessary witness?
1 Ms. Sanders is an attorney in Michigan.
2 Co-counsel continued his representation.
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State v. Sanders
DISCUSSION
Appellant contends Ms. Sanders's removal violated his Sixth
Amendment right to counsel. The State argues in. response that Ms. Sanders
was properly removed because she was disqualified under Rule 3.7 of the
Rules of Professional Conduct. 3 This rule provides that, with certain
exceptions, 4 a lawyer "shall not act as advocate at a trial in which the lawyer
is likely to be a necessary witness."
We recognize the Sixth Amendment does not confer an absolute right
to be represented by one's preferred attorney. Wheat v. United States, 486
U.S. 153 (1988). This right is circumscribed by the trial court's obligation to
safeguard the integrity of the proceedings and ensure trials are conducted
according to the ethical standards of the profession. United States v.
Howard, 115 F.3d 1151, 1155 (4th Cir. 1997); Williams v. Williams, 81 F.3d
1321, 1324 (4th Cir. 1996).
Although the right to an attorney of one's choosing is not unlimited,
the Sixth Amendment does give some protection to a criminal defendant's
selection of retained counsel. United States v. Cunningham, 672 F.2d 1064,
1071 (2d Cir. 1982) (citing United States v. Armedo-Sarmiento, 524 F.2d 591,
592 (2d Cir. 1975)). Where this Sixth Amendment right is invoked, the court
must balance the defendant's right to his own freely chosen counsel against
the need to maintain the highest ethical standards of professional
responsibility. Cunningham, 672 F.2d at 1071. In balancing these interests,
the court will consider whether the defendant's constitutional right to
counsel is outweighed by the government's interest in disqualifying his
attorney. Id.
Here, the trial judge removed Ms. Sanders because the State indicated
it would call her as a witness. We cannot discern from this record, however,
3 Rule 407, SCACR.
4 The exceptions are: (1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in
the case; or (3) disqualification of the lawyer would work substantial
hardship on the client.
p.365
State v. Sanders
that Ms. Sanders was a "necessary witness" to support her removal as .
appellant's counsel under Rule 3.7. Although the trial judge indicated he
was willing to hold a hearing on the matter, no hearing was held. Instead,
the Solicitor simply stated her unsubstantiated concern that Ms. Sanders
"might be called as a witness . . . just by the nature of what was done."
Counsel representing a criminal defendant has a duty to conduct a
reasonable investigation, see Cobbs v. State, 305 S.C. 299, 408 S.E.2d 223
(1991), which encompasses the defendant's right to interview potential
witnesses against him. See State v. Williams, 326 S.C. 130, 485 S.E.2d 99
(1997). Here, the State produced no evidence Ms. Sanders attempted to
influence any witness's testimony. When she was called as a prosecution
witness, Ms. Sanders was never questioned regarding the nature of her
interaction with the State's witnesses. Her testimony in fact added little to
the State's case beyond her statement that she had spoken with Williams.
Under these facts, we do not think the State's interest in having Ms. Sanders
testify outweighed appellant's right to counsel of his choosing. Accordingly,
the judgment of the circuit court is reversed and the case is remanded for a
new trial.
We take this opportunity to set forth the proper procedure when
counsel's removal is sought under Rule 3.7. As a procedural safeguard, an
evidentiary hearing is appropriate to determine whether there is evidence to
support counsel's removal. This procedure will enable the trial judge to fully
assess counsel's anticipated role as a necessary witness before restricting the
defendant's exercise of his right to counsel. Further, it will provide a record
for meaningful review of the issue on appeal.
REVERSED AND REMANDED.
TOAL, C.J., WALLER, BURNETT and PLEICONES, JJ., concur.
p.366