The Opinion of the Court was delivered PER CURIAM.
1. “In reviewing challenges to the findings and conclusions of the circuit
court in a habeas corpus action, we apply a three-prong standard of review. We review the
final order and the ultimate disposition under an abuse of discretion standard; the underlying
factual findings under a clearly erroneous standard; and questions of law are subject to a de
novo review.” Syllabus point 1, Mathena v. Haines, 219 W. Va. 417, 633 S.E.2d 771 (2006).
2. “In the West Virginia courts, claims of ineffective assistance of counsel
are to be governed by the two-pronged test established in Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L. Ed.2d 674 (1984): (1) Counsel's performance was deficient under
an objective standard of reasonableness; and (2) there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceedings would have been different.”
Syllabus point 5, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).
3. “In reviewing counsel's performance, courts must apply an objective
standard and determine whether, in light of all the circumstances, the identified acts or
omissions were outside the broad range of professionally competent assistance while at the
same time refraining from engaging in hindsight or second-guessing of trial counsel's
strategic decisions. Thus, a reviewing court asks whether a reasonable lawyer would have
acted, under the circumstances, as defense counsel acted in the case at issue.” Syllabus point
6, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).
4. “Where a counsel's performance, attacked as ineffective, arises from
occurrences involving strategy, tactics and arguable courses of action, his conduct will be
deemed effectively assistive of his client's interests, unless no reasonably qualified defense
attorney would have so acted in the defense of an accused.” Syllabus point 21, State v.
Thomas, 157 W. Va. 640, 203 S.E.2d 445 (1974).
5. “Widespread publicity, of itself, does not require change of venue, and
neither does proof that prejudice exists against an accused, unless it appears that the
prejudice against him is so great that he cannot get a fair trial.” Syllabus point 1, State v.
Gangwer, 169 W. Va. 177, 286 S.E.2d 389 (1982).
6. “A trial court has discretionary authority to bifurcate a trial and
sentencing in any case where a jury is required to make a finding as to mercy.” Syllabus
point 4, State v. LaRock, 196 W. Va. 294, 470 S.E.2d 613 (1996).
7. “Although it virtually is impossible to outline all factors that should be
considered by the trial court, the court should consider when a motion for bifurcation is
made: (a) whether limiting instructions to the jury would be effective; (b) whether a party
desires to introduce evidence solely for sentencing purposes but not on the merits; (c)
whether evidence would be admissible on sentencing but would not be admissible on the
merits or vice versa; (d) whether either party can demonstrate unfair prejudice or
disadvantage by bifurcation; (e) whether a unitary trial would cause the parties to forego
introducing relevant evidence for sentencing purposes; and (f) whether bifurcation
unreasonably would lengthen the trial.” Syllabus point 6, State v. LaRock, 196 W. Va. 294,
470 S.E.2d 613 (1996).
8. “Errors involving deprivation of constitutional rights will be regarded
as harmless only if there is no reasonable possibility that the violation contributed to the
conviction.” Syllabus point 20, State v. Thomas, 157 W. Va. 640, 203 S.E.2d 445 (1974).
Per Curiam:
Vernon H. Dunlap, Sr. (hereinafter “Mr. Dunlap”) appeals from an order of the
Circuit Court of Jefferson County that denied his petition for habeas corpus relief. Mr.
Dunlap filed the habeas petition subsequent to the denial of his appeal of his conviction for
first degree murder and sentence to life imprisonment without the possibility of parole. In
this habeas appeal, Mr. Dunlap assigns the following as error: (1) he was denied effective
assistance of counsel during his trial; (2) the trial was improperly bifurcated; (3) evidence
was improperly admitted during the penalty phase of the trial; and (4) a conflict of interest
existed with his former counsel. After a careful review of the briefs and the record submitted
on appeal, we affirm.
This time, Crystal and Kenneth (See footnote 4) decided to accompany Ms. Sisk back to Ms. Dodson's
apartment. It was almost 9:00 a.m. when Crystal, Kenneth, and Ms. Sisk arrived at Ms.
Dodson's apartment. Crystal was able to open the door to the apartment. When she, along
with Kenneth and Ms. Sisk entered the apartment, Ms. Dodson's lifeless body was found
lying on the floor. Ms. Dodson's throat had been slashed, and she had bled to death. (See footnote 5) Kenneth made a 911 emergency call to summon the police and paramedics.
About an hour before Ms. Dodson's body was found, the Jefferson County
Ambulance Authority received a 911 call regarding an unconscious man who was slumped
over in a pickup truck near a Shepherdstown boat ramp. Paramedics and Deputy M. Dumer
arrived at the scene. The authorities learned that the unconscious man in the pickup truck
was Mr. Dunlap. After Mr. Dunlap was taken to a hospital, it was learned that he had taken
an overdose of drugs.
About two hours after Deputy Dumer responded to the 911 call involving Mr.
Dunlap, he was instructed to respond to the emergency at Ms. Dodson's apartment. While
at Ms. Dodson's apartment, Deputy Dumer overheard other police officers discussing Mr.
Dunlap as a boyfriend of Ms. Dodson. Based upon that information, Deputy Dumer arranged
to have Mr. Dunlap's pickup truck held for further investigation and the issuance of a search
warrant.
In September 2004, a grand jury indicted Mr. Dunlap on a one count indictment
for murder in the first degree. Mr. Dunlap's trial was held in April 2005. During the trial,
the State presented four witnesses who testified that Mr. Dunlap confessed to them that he
killed Ms. Dodson. One of the witnesses was Mr. Dunlap's twenty-year-old daughter,
Tabitha Sanders. The jury ultimately convicted Mr. Dunlap of murder in the first degree.
The jury did not recommend mercy. Consequently, the trial court sentenced Mr. Dunlap to
life imprisonment without the possibility of parole. Mr. Dunlap filed a petition for appeal
with this Court. It was denied.
Subsequent to the denial of Mr. Dunlap's petition for appeal, he filed a habeas
corpus petition seeking to obtain a new trial. (See footnote 6) An omnibus evidentiary hearing was held by
the trial court. During the habeas hearing, Mr. Dunlap sought to establish ineffective
assistance of counsel on various grounds. Mr. Dunlap also argued that he was entitled to a
new trial because his trial was improperly bifurcated, evidence was improperly admitted
during the penalty phase of the trial, and a conflict of interest existed with his former court-
appointed counsel. At the conclusion of the hearing, the trial court denied the petition for
habeas relief. This appeal followed.
[i]n reviewing challenges to the findings
and conclusions of the circuit court in a habeas
corpus action, we apply a three-prong standard of
review. We review the final order and the ultimate
disposition under an abuse of discretion standard;
the underlying factual findings under a clearly
erroneous standard; and questions of law are
subject to a de novo review.
Syl. pt. 1, Mathena v. Haines, 219 W. Va. 417, 633 S.E.2d 771 (2006). With these standards
in mind, we now consider the issues presented in this appeal.
[i]n the West Virginia courts, claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984): (1) Counsel's performance was deficient under an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.
Syl. pt. 5, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995). The decision in Miller further held that,
[i]n reviewing counsel's performance,
courts must apply an objective standard and
determine whether, in light of all the
circumstances, the identified acts or omissions
were outside the broad range of professionally
competent assistance while at the same time
refraining from engaging in hindsight or
second-guessing of trial counsel's strategic
decisions. Thus, a reviewing court asks whether
a reasonable lawyer would have acted, under the
circumstances, as defense counsel acted in the
case at issue.
Syl. pt. 6, Miller, id. Applying the Miller standards, we will review each of the ineffective
assistance of counsel claims made by Mr. Dunlap.
1. Failure to have forensic testing performed on certain evidence. Mr.
Dunlap contends that his trial counsel was ineffective in failing to have forensic testing
performed on certain evidence collected during the investigation of the case. The evidence
included two knives, a bloody shoe print, and a bloody hand print found at Ms. Dodson's
apartment. During the habeas proceeding, Mr. Dunlap's trial counsel testified that he did not
have forensic testing done for two reasons. First, trial counsel had obtained a stipulation
from the State that no crime scene evidence directly linked Mr. Dunlap to the killing.
Second, trial counsel was afraid that the forensic testing might implicate Mr. Dunlap.
Defense counsel testified to the latter decision as follows:
Well, first of all as to the knives_ well, I'll
just go through that. We weren't sure if there was
blood on them to begin with. They weren't in
evidence. I could really argue that the state, you
know, dropped the ball. There's somebody else
involved. I was afraid of_ one of the fears is you
have them tested, you find your defendant's DNA
on them, or you find a link to the defendant and
there was no link whatsoever to link Vernon
Dunlap to this killing. I really didn't want to go
out and try to manufacture any. We do not believe that trial counsel was ineffective in failing to have forensic
testing performed on the above-stated evidence. We have held that, “[w]here a counsel's
performance, attacked as ineffective, arises from occurrences involving strategy, tactics and
arguable courses of action, his conduct will be deemed effectively assistive of his client's
interests, unless no reasonably qualified defense attorney would have so acted in the defense
of an accused.” Syl. pt. 21, State v. Thomas, 157 W. Va. 640, 203 S.E.2d 445 (1974).
In the instant case, trial counsel extracted a stipulation from the State, which
was made known to the jury, that no crime scene evidence linked Mr. Dunlap to the killing.
Insofar as no crime scene evidence linked Mr. Dunlap to the crime, trial counsel made a
strategic decision not to risk linking Mr. Dunlap to the crime through forensic testing. Mr.
Dunlap's daughter and three other witnesses testified that he confessed to them that he killed
Ms. Dodson. Defense counsel had a reasonable basis to believe that forensic testing of the
evidence might implicate Mr. Dunlap in the killing. This precise issue was addressed in Jackson v. State, 770 A.2d 506, 513 (Del. 2001).
In Jackson, the defendant was convicted of capital murder and sentenced to
death. One of the issues raised by the defendant in a habeas attack on the conviction and
sentence was that trial counsel was ineffective in not having forensic testing performed on
certain crime scene evidence. It was said in Jackson that trial counsel chose to forego
forensic testing of evidence especially because counsel believed such evidence might not be
favorable to the defendant, in view of the strong evidence the State had against the defendant.
The Delaware Supreme Court quoted the trial court's finding on this issue as follows:
The Superior Court correctly found that “[f]aced with this evidence, it was not improper for counsel to forgo further forensic testing of the crime scene evidence. Rather, the Court concludes that counsel made a reasonable tactical decision to forgo such testing in order to focus their efforts on creating a reasonable doubt about Jackson's guilt.”
Jackson, 770 A.2d at 513.
Clearly, the evidence supported the trial court's finding that Mr. Dunlap's trial
counsel was not ineffective by failing to have forensic testing performed.
2. Failure to adequately investigate the case. Mr. Dunlap contends that his
trial counsel failed to properly investigate his case. There are two issues involved with this
matter. (See footnote 7) First, Mr. Dunlap argues that his trial counsel should have done an investigation of
Steve Fogle, the father of Ms. Dodson's daughter. Prior to trial, the police investigated Mr.
Fogle and determined that he was living in North Carolina at a shelter in the Salvation Army
Center. The police investigation revealed that Mr. Fogle signed into the shelter the day prior
to and after the killing.
The second issue raised by Mr. Dunlap is that trial counsel should have
investigated Scott Marshall and Brian Walls. Mr. Marshall and Mr. Walls were incarcerated
with Mr. Dunlap in the regional jail while his trial was pending. Mr. Marshall had contacted
the State and informed the State that Mr. Dunlap confessed to him that he killed Ms. Dodson.
However, prior to trial, Mr. Dunlap received a letter from Mr. Marshall, wherein Mr.
Marshall stated that Mr. Walls had informed him that someone said he was going to testify
against him. Mr. Marshall stated in the letter that this was not true because he did not even
know Mr. Dunlap. Notwithstanding the letter, Mr. Marshall testified at trial that Mr. Dunlap
confessed to him that he killed Ms. Dodson.
Mr. Dunlap contends that, had the trial counsel properly investigated Mr.
Fogle's alibi, as well as Mr. Marshall and Mr. Walls, the outcome of the trial could have been
different. The habeas trial court disagreed as follows:
With regard to the Fogle issue, it seems
that the strategy here was “to leave the door of
reasonable doubt open and suggest the police
investigation of the death was inadequate.” That
is not an unreasonable strategy to take given the
lack of physical evidence, the circumstantial
nature of the State's case, and the theory of the
defense. . . . With regard to the issue pertaining to
Scott Marshall letter and [Walls], the Court is
concerned that trial counsel did not confront
Marshall with the same for impeachment
purposes, although the Court concedes that trial
counsel had done a pretty good job of impeaching
Marshall by exploring his own crime and possible
hopes of leniency if he cooperated with the State.
Nevertheless, even if the Court considers this to
be deficient performance, there is absolutely no
evidence of any reasonable probability that, but
for such performance, the result of the trial would
have been different, especially since three other
witnesses testified that [Mr. Dunlap] had
confessed the crime to them.
We find no abuse of discretion in the disposition of this issue. Like the trial
court, we have concerns with how Mr. Dunlap's counsel handled the investigation of Mr.
Marshall and Mr. Walls. However, merely finding that counsel's performance may have
been deficient on an issue does not afford a defendant habeas relief. It must also be shown
that there is “a reasonable probability that, but for counsel's unprofessional errors, the result
of the proceedings would have been different.” State ex rel. Waldron v. Scott, 222 W. Va.
122, 128, 663 S.E.2d 576, 582 (2008) (internal quotations and citation omitted). As the trial
court noted, had Mr. Marshall been impeached with his letter denying Mr. Dunlap confessed
to him, the State still had three other witnesses who testified that Mr. Dunlap confessed to
them. More importantly, one of the witnesses was Mr. Dunlap's daughter.
3. Failure to request a change of venue. Mr. Dunlap next argues that his
trial counsel should have requested a change of venue because of the case's extensive media
coverage. (See footnote 8) The habeas trial court summarily disposed of this issue as having no merit. The
trial court found:
This ground appears to be founded in pure
speculation. The ultimate test is whether or not a
fair and impartial jury can be empaneled. A
review of the transcript indicates that there was no
particular difficulty in this case in putting together
venire panels of regular and alternate jurors.
We agree with the trial court in finding that, other than the statement that there
was extensive media coverage of the case prior to trial, Mr. Dunlap has failed to provide any
evidence of any unusual difficulties in selecting an impartial jury. This Court has previously
held that “[w]idespread publicity, of itself, does not require change of venue, and neither
does proof that prejudice exists against an accused, unless it appears that the prejudice
against him is so great that he cannot get a fair trial.” Syl. pt. 1, State v. Gangwer, 169
W. Va. 177, 286 S.E.2d 389 (1982).
4. Failure to sufficiently meet with Mr. Dunlap. The final ineffective
assistance of counsel claim raised by Mr. Dunlap, is that trial counsel failed to meet with him
on a sufficient basis to prepare for trial. The habeas trial court determined that this issue was
meritless based upon the following:
The only evidence pertaining to this
ground was elicited from Trial Counsel. Craig
Manford testified that he had approximately a
dozen phone conferences with [Mr. Dunlap]; that
he met with [Mr. Dunlap] in person at least a
dozen times; that [Mr. Dunlap] seemed to
understand and approve of the trial strategy; and
that Mr. Manford perceived that he had a pretty
good working relationship with [Mr. Dunlap].
Mr. Dunlap has failed to provide any evidence of trial counsel's failure to
adequately meet with and prepare him for trial. Mr. Dunlap's “claim of ineffective assistance
of counsel [on this issue] amounts to nothing more than general and bare allegations without
any analysis[.]” State ex rel. Hatcher v. McBride, 221 W. Va. 760, 766, 656 S.E.2d 789, 795
(2007).
The habeas court found that the decision to bifurcate was a discretionary matter
and “that the effort to bifurcate did not come as a surprise to the Defense, although the timing
created some practical difficulties even though the Court recessed proceedings for several
days.”
We have held that “[a] trial court has discretionary authority to bifurcate a trial
and sentencing in any case where a jury is required to make a finding as to mercy.” Syl. pt.
4, State v. LaRock, 196 W. Va. 294, 470 S.E.2d 613 (1996). The decision in LaRock listed
a number of nonexclusive factors that a trial court may consider in deciding whether to allow
bifurcation of a criminal trial:
Although it virtually is impossible to outline all factors that should be considered by the trial court, the court should consider when a motion for bifurcation is made: (a) whether limiting instructions to the jury would be effective; (b) whether a party desires to introduce evidence solely for sentencing purposes but not on the merits; (c) whether evidence would be admissible on sentencing but would not be admissible on the merits or vice versa; (d) whether either party can demonstrate unfair prejudice or disadvantage by bifurcation; (e) whether a unitary trial would cause the parties to forego introducing relevant evidence for sentencing purposes; and (f) whether bifurcation unreasonably would lengthen the trial.
Syl. pt. 6, LaRock id. (emphasis added).
It is clear that the LaRock factors are concerned with a party being able to
present evidence for sentencing that may not be admissible on the merits of a prosecution.
In this case, the State had a considerable amount of additional bad acts evidence involving
Mr. Dunlap that may not have been admissible during the guilt phase, even if the State had
timely brought the evidence to the court's attention. However, this evidence was highly
relevant as to the decision of whether Mr. Dunlap should receive mercy and obtain a sentence
that would allow him to be eligible for parole. Ultimately, we agree with the trial court that
“there is no evidence that would lead [us] to conclude that the bifurcation herein was
constitutional error.” More importantly, Mr. Dunlap has not articulated any plausible
prejudicial effect from bifurcation.
Before admitting the evidence, the trial court should conduct an in camera hearing as stated in State v. Dolin, 176 W. Va. 688, 347 S.E.2d 208 (1986). After hearing the evidence and arguments of counsel, the trial court must be satisfied by a preponderance of the evidence that the acts or conduct occurred and that the defendant committed the acts. If the trial court does not find by a preponderance of the evidence that the acts or conduct was committed or that the defendant was the actor, the evidence should be excluded under Rule 404(b). If a sufficient showing has been made, the trial court must then determine the relevancy of the evidence under Rules 401 and 402 of the West Virginia Rules of Evidence and conduct the balancing required under Rule 403 of the West Virginia Rules of Evidence. If the trial court is then satisfied that the Rule 404(b) evidence is admissible, it should instruct the jury on the limited purpose for which such evidence has been admitted. A limiting instruction should be given at the time the evidence is offered, and we recommend that it be repeated in the trial court's general charge to the jury at the conclusion of the evidence.
Syl. pt. 2, in part, McGinnis, 193 W. Va. 147, 455 S.E.2d 516. The habeas trial court held that a McGinnis hearing and admissibility determination is only necessary during the guilt phase of a trial. The court correctly found that “[t]his evidence was not heard during the 'guilt phase,' so it did not go to the question of guilt, but rather to the question of the penalty.” We agree with the habeas court.
Mr. Dunlap has failed to cite to any decision of this Court where we have
required a McGinnis hearing for sentencing purposes only. As a general matter, “[t]he rules
of evidence, including Evid.R. 404(B) regarding 'other acts,' do not strictly apply at
sentencing hearings.” State v. Combs, No. CA2000-03-047, 2005 WL 941133, at *2
(Ohio Ct. App. 2005). See Patton v. State, 25 S.W.3d 387, 392 (Tex. App. 2000) (“It has
been held that Rule 404(b) does not apply to the penalty or punishment phase of a bifurcated
trial.”). Moreover, “[a] trial court has wide discretion in the sources and types of evidence
used in determining the kind and extent of punishment to be imposed. And a sentencing
court is not restricted by the federal constitution to the information received in open court.” Elswick v. Holland, 623 F. Supp. 498, 504 (S.D.W. Va. 1985) (citations omitted). Therefore,
we find this issue to be without merit.
[t]he Sixth Amendment is implicated only when
the representation of counsel is adversely affected
by an actual conflict of interest. When counsel
for a defendant in a criminal case has an actual
conflict of interest when representing the
defendant and the conflict adversely affects
counsel's performance in the defense of the
defendant, prejudice to the defense is presumed
and a new trial must be ordered.”
State ex rel. Blake v. Hatcher, 218 W. Va. 407, 414 n.4, 624 S.E.2d 844, 851 n.4 (2005)
(quoting United States v. Tatum, 943 F.2d 370, 375 (4th Cir.1991 (emphasis omitted))
In the instant case, the alleged conflict of interest does not involve trial counsel.
Mr. Dunlap's claim of conflict of interest involves a former counsel, Mr. Kratovil, who
withdrew from representing him prior to his indictment. Under the unique facts of this case,
we do not believe that the “presumed prejudice” that flows from a showing of an actual
conflict applies. At best, the issue raised by Mr. Dunlap involves a potential conflict of
interest.
It has been recognized that “[t]he mere possibility of a conflict of interest is
insufficient to impugn a criminal conviction.” State v. Manross, 532 N.E.2d 735, 737 (Ohio
1988). A defendant seeking to overturn a conviction based upon a potential conflict “will
be entitled to a new trial only if he can establish 'material prejudice' to his defense resulting
from the alleged conflict.” Commonwealth v. Mosher, No. SJC-08949, 2010 WL 277787,
at *8 (Mass. Jan. 27, 2010).
In this appeal, as was the same below, all that Mr. Dunlap's brief states is that
he “would respectfully assert that he was prejudiced by the Kratovil/Amore conflict of
interest in that sensitive information related to [his] case may have been shared with a critical
state witness, Scott Marshall.” This is nothing more than a conclusory statement. That is,
Mr. Dunlap has not come forward with evidence, or even mere allegations, showing that Mr.
Kratovil provided Mr. Marshall with information about his involvement in the murder of Ms.
Dodson. Mr. Dunlap has not asserted that Mr. Marshall gave testimony during the trial that
could only have been learned from Mr. Kratovil. In fact, during Mr. Marshall's testimony
at trial, he indicated that everything he knew about Mr. Dunlap's confession was told to him
by Mr. Dunlap.
Further, although we find Mr. Kravtovil's continued representation of Mr.
Marshall to be troubling, such representation was harmless because the essence of Mr.
Marshall's testimony was the same as that given by three other witnesses. Two of the
witnesses, Danielle and Troy Kelican, were friends of Mr. Dunlap who visited him while he
was in jail. During the visit, Mr. Dunlap told the Kelicans that he killed Ms. Dodson. The
third witness was Mr. Dunlap's daughter, Tabitha Sanders. Ms. Sanders testified that, during
her visit with her father while he was hospitalized, he confessed to killing Ms. Dodson. In
the final analysis, if we exclude Mr. Marshall's testimony, the jury still had three other
witnesses who testified to the same issue that Mr. Marshall testified to. This Court has long
held that “[e]rrors involving deprivation of constitutional rights will be regarded as harmless
only if there is no reasonable possibility that the violation contributed to the conviction.” Syl.
pt. 20, State v. Thomas, 157 W. Va. 640, 203 S.E.2d 445 (1974). See State v. DeWeese, 213
W. Va. 339, 352, 582 S.E.2d 786, 799 (2003). Based upon the record in this case, there is
no reasonable possibility that Mr. Kravtovil's potential conflict of interest through his
continued representation of Mr. Marshall contributed to Mr. Dunlap's conviction.
There was trial testimony that Ms. Dodson actually ended the relationship on February 17, 2004.
The State's brief references to trial transcript testimony by Ms. Sisk. However, the trial transcript referenced by the State has not been made a part of the record on appeal. Further, in this Court's review of the trial testimony by Kenneth Robinson, he testified that Ms. Sisk's child was at Ms. Dodson's home while he and Crystal were still there.
Under this assignment of error, Mr. Dunlap also restated his contention that trial counsel should have had forensic testing performed on evidence. We have already determined that the trial court's ruling on this issue was not error.
Mr. Dunlap also contends that trial counsel should have conducted a community sentiment survey.
Prior to allowing evidence of this specific prior bad acts conduct by Mr. Dunlap, the trial court held a hearing as required by State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994).
Rule 404(b) of the West Virginia Rules of Evidence states the following:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
Prior to the appointment of Mr. Kratovil and Mr. Amore, another attorney was appointed to represent Mr. Dunlap. However, the initial counsel withdrew because of a conflict of interest.
Mr. Amore's motion to withdraw indicated that, in addition to Mr. Marshall, another witness he represented was also going to testify against Mr. Dunlap.
It appears that the Lawyer Disciplinary Board eventually found that both Mr. Amore and Mr. Kratovil violated their duty of loyalty to Mr. Dunlap. However, the Board did not find that either attorney breached their duty of confidentiality to Mr. Dunlap. See Nix v. Whiteside, 475 U.S. 157, 165, 106 S. Ct. 988, 993, 89 L. Ed. 2d 123 (1986) (“[B]reach of an ethical standard does not necessarily make out a denial of the Sixth Amendment guarantee of assistance of counsel.”).
Mr. Dunlap also contended that Mr. Amore prejudiced his defense because of the conflict of interest. While it is not clear from his brief, presumably Mr. Dunlap asserted a conflict of interest by Mr. Amore because he was in the same law firm with Mr. Kratovil.