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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

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?

2 Co-counsel continued his representation.

p.364

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,

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

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