Ineffective Counsel

We presume defense counsel provided reasonable professional assistance and that his actions might be considered sound trial strategy. Jackson, 877 S.W

2008-07-17T02:29:00.000-07:00

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NUMBER 13-05-513-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ARMANDO VELA, Appellant,

THE STATE OF TEXAS, Appellee.

On appeal from the 319th District Court of Nueces County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Wittig⁽¹⁾

Memorandum Opinion by Justice Wittig

Appellant, Armando Vela, was convicted of aggravated robbery by a jury. An enhancement was found to be true and punishment was assessed by the jury at thirty years in prison. We affirm the judgment of the trial court.

In two issues, appellant challenges the legal and factual sufficiency of the evidence, and the denial of a challenge for cause. In the remaining three issues, he alleges ineffective assistance of counsel. Appellant gave timely notice of appeal. We address his issues in order.

1. Standard of Review

In reviewing legal sufficiency, we look at all of the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002). Legally sufficient evidence supporting a conviction exists if the court, after reviewing the evidence in the light most favorable to the prosecution, determines that a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979).

Evidence may be factually insufficient if: (1) it is so weak as to be clearly wrong and manifestly unjust, or (2) the adverse finding is against the great weight and preponderance of the available evidence. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). The evidence, though legally sufficient, is factually insufficient if it is so weak that the jury's verdict seems clearly wrong and manifestly unjust, or if, considering conflicting evidence, the jury's verdict, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). A factual sufficiency review requires the reviewing court to consider all of the evidence. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). A clearly wrong and unjust verdict occurs where the jury's finding is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Sells v. State, 121 S.W.3d 748, 754 (Tex. Crim. App. 2003). The Texas Court of Criminal Appeals in Roberts explained that a reversal for factual insufficiency cannot occur when "the greater weight and preponderance of the evidence actually favors conviction." Roberts, 220 S.W.3d at 524.

2. The Proof and Analysis

Appellant and his girlfriend, co-defendant Maria Garcia, entered a Kohl's Department Store. A security employee started surveillance with a store camera and caught appellant on tape taking a pair of tennis shoes from the shoe department and placing them on a shelf in a different aisle. Garcia then took the shoes and put them in her purse. The two then went to the athletic department where appellant picked out a pair of male athletic shorts and a black T-shirt. He handed them to Garcia who took the items off their hangers and put them into her purse. Garcia exited the store first and did not pay for the merchandise. When caught, Garcia offered to return the property. She was escorted back to the store. The in-store security tape was received into evidence without objection.

A security guard spotted appellant exiting the store and heading toward his vehicle. The vehicle was parked about ten spaces from the door. The guard held up his badge at face level and told appellant to come with him. Appellant pulled out a knife and headed toward the guard at a quick pace stating: "I don't have to go back with you. F-- you." Appellant then advanced toward the guard from a distance of thirty feet to thirty yards to within four or five feet. The pocket knife was open and pointed toward the guard, who testified that he was scared. Another security guard stepped in and appellant then fled the scene. Appellant was apprehended by police and brought back to the store within twenty minutes or less. The security guard's testimony was corroborated by witness Andrew Simpson.

Garcia testified that she was appellant's girlfriend. They had been together for more than a year and had lived together. Garcia told appellant she did not want to go into the store and steal that day. The couple had stolen property together on other occasions. Friends would "order" items to be stolen. The shoes appellant took were to fill such an order. When Garcia left the store she was surprised that she had lost appellant. She thought appellant perhaps stayed in the store to see if she had been caught. She did not see appellant walk toward Silva, pull a knife, or swear at Silva. Garcia did not deny that these things occurred, but rather, stated that she did not see them because she was scared and ran from the scene. Garcia testified that she felt like she was hung out to dry when she learned appellant told police he did not know her.

Appellant argues the evidence does not support a conviction because appellant "never maintained control of the property while exiting the store or outside of the store" sufficient to establish the intent necessary for aggravated robbery. In other words, appellant contends that he lacked the intent to maintain control of the property at the time of the assault to support a conviction of aggravated robbery. In any event, appellant contends that the confrontation in the parking lot was separate and apart from the theft in the store.

Section 29.01 of the Texas Penal Code provides:

(1) "In the course of committing theft" means conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft.

(2) "Property" means:

(A) tangible or intangible personal property including anything severed from land; or

(B) a document, including money, that represents or embodies anything of value.

Tex. Penal Code Ann. § 29.01 (Vernon 2003).

Section 29.02(a), governing "robbery," provides, in pertinent part, that :

A person commits an offense if, in the course of committing theft as defined in Chapter 31 of this code and with intent to obtain or maintain control of the property, he: (1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death....

Id. § 29.02 (Vernon 2003). Section 29.03(a), governing aggravated robbery, provides, in pertinent part, that "[a] person commits an offense if he commits robbery as defined in Section 29.02 of this code, and he . . . uses or exhibits a deadly weapon." Id. § 29.03.

Both parties cite White v. State, 671 S.W.2d 40, 41 (Tex. Crim. App. 1984). White holds that the phrase "in the course of committing theft" includes conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft. Id. (citing Tex. Penal Code § 29.01). No completed theft is required in order for the proscribed conduct to constitute the offense of robbery under the penal code. Id. (citing Robinson v. State, 596 S.W.2d 130 (Tex. Crim. App. 1980); Earl v. State, 514 S.W.2d 273 (Tex. Crim. App. 1974)).

Appellant further cites Lightner v. State, 535 S.W.2d 176, 178 (Tex. Crim. App. 1976). In Lightner, the Texas Court of Criminal Appeals affirmed a robbery conviction where the facts showed that the defendant had assaulted a police officer in an attempt to avoid arrest immediately following the theft of money from an unattended cash register in a store. See id. The defendant in that case argued that the evidence was insufficient to show robbery since the struggle with the police officer occurred after he had completed the theft. Id. The Lightner court held that:

Under Sections 29.01 and 29.02, supra, the offense of robbery includes any violence in the course of effectuating the theft as well as any violence while in immediate flight from the scene of the theft. This new definition of robbery proscribes the use of violence not only in the taking of the property, but also in the immediate efforts of the thief to keep the stolen property . . . .

Id.

The element "intent to obtain or maintain control of the property" in section 29.02 "deals with the robber's state of mind regarding the property" involved in the theft or attempted theft, and not his state of mind in the assaultive component of the offense of aggravated robbery. Ex parte Santellana, 606 S.W.2d 331, 333 (Tex. Crim. App. 1980). Therefore, violence or intentional threats or placing another in fear of imminent bodily injury accompanying an escape immediately subsequent to an attempted theft can constitute robbery under section 29.02. See Ulloa v. State, 570 S.W.2d 954, 957 (Tex. Crim. App. 1978); Tex. Penal Code Ann. § 29.02, Practice Commentary; see also Yarbrough v. State, 656 S.W.2d 200, 201-02 (Tex. App.-Austin 1983, no pet.); Banks v. State, 638 S.W.2d 532, 535 (Tex. App.-Houston [1st Dist.] 1982, pet. ref'd.).

Appellant is further burdened with the fact that his co-defendant had already completed the theft and the jury charge included an instruction on the law of parties. Accordingly, the jury could convict appellant under the evidence if he acted with intent to promote or assist the commission of theft by encouraging, directing, aiding, or attempting to aid Garcia. See Tex. Penal Code Ann. § 7.01 (Vernon 2003). Both the video tape of the theft and live testimony clearly demonstrate this.

The law does not require that appellant had the intent to maintain control over the property at the time the assault took place. White, 671 S.W.2d at 40-41. The evidence is thus sufficient to prove the aggravated element that appellant exhibited or used a deadly weapon. See Tex. Penal Code Ann. § 29.03.

We hold that there is legally and factually sufficient evidence to show that appellant committed the offense of aggravated robbery. See Lightner, 535 S.W.2d at 177-78; see also Tex. Penal Code Ann. § 29.03. Appellant's first issue is overruled.

3. Challenge for Cause

In his second issue, appellant complains the trial court abused its discretion in denying his challenge for cause of venireman Louis Garcia. Appellant claims Garcia was biased because he had a niece who was murdered. Her killer received only six months in jail and some years of probation. Because of this experience, Garcia said he may lean towards a heavier sentence if appellant were found guilty. "[I]f I find him guilty and he's found guilty by a unanimous decision, depending on everything that I've heard, I may lean towards a more heavier sentence." Further, Garcia stated that he would judge the accused's truthfulness with "extreme prejudice" if he found out that appellant had a prior conviction.

The venireman was challenged for cause and the trial count denied the motion. At that point, defense counsel stated: "Well, Your Honor, then I would ask the Court to allow me an extra challenge so that I can--because I'm going to strike this man, peremptory challenge. And I would like an extra challenge so that I can remove this man from the jury." The court denied the request.

Appellant argues on appeal that counsel would have used another peremptory challenge on the next venireman. The State argues, and we agree, that the record does not support this assertion.

In order to show harm from the erroneous denial of a challenge for cause, a defendant must demonstrate: (1) when a defendant exercises a peremptory challenge on a veniremember whom the trial court erroneously failed to excuse for cause at the defendant's request; (2) the defendant uses all of his statutorily allotted peremptory challenges; and (3) the defendant was denied a request for an additional peremptory challenge which he claims he would use on another veniremember whom the defendant identifies as "objectionable" and who actually sits on the jury. Escamilla v. State, 143 S.W.3d 814, 821 (Tex. Crim. App. 2004) (citing Johnson 43 S.W.3d at 5-6; Wolfe v. State, 147 Tex. Crim. 62, 178 S.W.2d 274, 280-81 (1944) (op. on reh'g)).

In Wolfe, also cited by appellant, the court similarly held that the accused need not show why such juror was objectionable to him. Wolfe 178 S.W.2d at 281. However, the same authority requires that "a further juror be presented whom he states to be objectionable to him..." Id. In Moreno, the court noted:

We also observe there is no support for the assertion that an objectionable juror served on the jury. While Wolfe does not require that a defendant show grounds for a challenge for cause nor show why a particular juror was objectionable, a defendant must at least state that a particular juror or jurors are objectionable to him, after he has exercised peremptory challenges on other prospective jurors who were disqualified and where his challenges for cause on such jurors were overruled.

Moreno v. State, 587 S.W.2d 405, 408 (Tex. Crim. App. 1979); see also Newbury v. State, 135 S.W.3d 22, 30-31 (Tex. Crim. App. 2004).

Appellant correctly cites Hernandez as reaffirming the court's holding in Wolfe. Hernandez v. State, 563 S.W.2d 947, 948 (Tex. Crim. App. 1978). However, the Hernandez court observed: "Appellant notified the court that had he been granted an additional challenge, he would have struck venireman Gary Carroll as being an unacceptable juror. These facts place appellant squarely within the rule laid down in Wolfe v. State . . . ." Here, unlike in Hernandez, appellant did not specify which veniremember he found objectionable.

Because appellant has not shown harm arising out of the trial court's ruling, we need not address whether in fact the ruling was erroneous. This issue is overruled.

4. Ineffective Assistance of Counsel

By issues three, four, and five, appellant complains of ineffective assistance of counsel. An appellate court reviews a trial court's ruling on a motion for mistrial and motion for new trial using an abuse of discretion standard of review. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007) (citing Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004)). We view the evidence in the light most favorable to the trial court's ruling and uphold the trial court's ruling if it was within the zone of reasonable disagreement. Id. We do not substitute our judgment for that of the trial court, but rather we decide whether the trial court's decision was arbitrary or unreasonable. Id. A trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support the trial court's ruling. Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004). We must view the evidence in the light most favorable to the trial court's ruling and presume that all reasonable factual findings that could have been made against the losing party were made against that losing party. Id. Thus, a trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support the trial court's ruling. Id.

Review of an ineffective assistance of counsel claim is conducted under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). The first requirement under Strickland states: "When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687-88. The second prong sets out the general requirement that the defendant affirmatively prove prejudice, i.e., there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Id. at 694. When the record is silent as to defense counsel's rationale or strategy, appellant fails to overcome the presumption that trial counsel's decision was reasonable. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003); Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999); see Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). Review of counsel's representation is highly deferential, and the reviewing court indulges a strong presumption that counsel's conduct fell within a wide range of reasonable representation. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); Thompson, 9 S.W.3d at 813-14; Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998); see also Ex parte Duffy, 607 S.W.2d 507, 513 (Tex. Crim. App. 1980). To overcome the presumption of reasonable professional assistance, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson, 9 S.W.2d at 813 (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)).

5. Failure to Call Witness

In his third issue, Appellant contends trial defense counsel was ineffective because he failed to call a material witness. The witness, appellant's sister, Emma Vaca, testified at the hearing on the motion for new trial. She was at the Kohl's store during the time appellant and Garcia were arrested. She testified that she overheard one of the officers tell Garcia that he saw a bruise on her side and that all she had to do was tell the officer that appellant forced her to go there, and that appellant beat her, and the officer would "f... him up." Vaca was not contacted by defense counsel before trial and was stated to be available for trial testimony.

Unquestionably, counsel should interview available, beneficial defense witnesses. Haynes v. State, 790 S.W.2d 824, 827 (Tex. App.-Austin 1990, no pet.) (counsel did not interview available, beneficial defense witnesses and did not visit scene of offense). Counsel has the duty to make an independent investigation of the facts and circumstances of the case by seeking out and interviewing potential witnesses. Ex parte Welborn, 785 S.W.2d 391, 395-96 (Tex. Crim. App. 1990); Ex parte Ybarra, 629 S.W.2d 943, 946 (Tex. Crim. App. 1982); Duffy, 607 S.W.2d at 517; Butler v. State, 716 S.W.2d 48, 54 (Tex. Crim. App. 1986). Once counsel has investigated the facts and developed a defensive theory, counsel is obligated to present sufficient available evidence in support of that defensive theory. See Duffy, 607 S.W.2d at 518; Butler, 716 S.W.2d at 54-55; Shelton v. State, 841 S.W.2d 526, 527 (Tex. App.-Fort Worth 1992, no pet.). However, the burden is on the defendant to show that purported witnesses were available and that their testimony would have been helpful to him. King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983) (holding that failure to call a witness may support ineffective assistance of counsel claim only if it is shown witness was available and defendant would have benefitted from testimony); see also Butler, 716 S.W.2d at 55. Here, the witness was purportedly available but the question of benefit remains.

Appellant argues Vaca's testimony would have tended to disprove the credibility and truthfulness of the co-defendant Garcia's testimony. The obvious problem with this argument is that appellant's trial counsel was the one who called Garcia. Defense counsel should not be expected to impeach his own witness.

Defense counsel testified that appellant did not give him his sister's contact information. The family member could have been impeached with her lack of knowledge of appellant's criminal past. Even had defense counsel known of Vaca, he could well reason that her testimony would hurt and not help the defendant. Defense counsel specifically testified that he did not think Vaca's testimony would help appellant's case. Further, Vaca had a criminal record and was on probation for delivery and manufacture of cocaine and felony theft. We presume defense counsel provided reasonable professional assistance and that his actions might be considered sound trial strategy. Jackson, 877 S.W.2d at 771. We may also impute implicit factual findings that support the trial judge's ultimate ruling on that motion for new trial when such implicit factual findings are both reasonable and supported in the record. Charles, 146 S.W.3d at 206. Here, the record supports a finding that testimony by Vaca would not have been beneficial nor would have the result of the trial have been different had she testified. Thus, we hold that the trial court did not abuse its discretion in overruling the motion for new trial on this basis.

6. Failure to Call Mitigation Witnesses

Appellant next challenges his counsel's effectiveness for failing to call witnesses to mitigate punishment. Mike Wanzer provided an affidavit which was admitted in the hearing on the motion for new trial. Wanzer's affidavit stated that he had known appellant in a working relationship for twenty years and that appellant was a trusted employee who was not prone to violence and not known to carry a knife. The affidavit also stated Wanzer was available and could have testified at the trial. Wazner did not appear live at the hearing.

Appellant's niece appeared and testified post-trial that she saw appellant every day, that he was a good man who worked hard and was never violent toward her or her family. She was aware of his prior convictions but not the family violence charges or evading arrest. She indicated defense counsel's office had contacted her, but through miscommunication, they never called her back.

Defense counsel testified that he talked with Wanzer, but did not think Wanzer's proposed testimony would have made an impact on the punishment. Counsel further testified that he had the impression that appellant had just started working with Wanzer and that Wanzer did not give him the impression that appellant had worked for him for years as indicated in the affidavit. Defense counsel also testified that it seemed that Wanzer didn't want to testify. Counsel called Wanzer two other times but Wanzer did not call back. Appellant points out that defense counsel initially called Wanzer "Bob Wanzer." Defense council then stated that "Wanzer" was the name he remembered. This confusion would likely have been cleared up with a live witness. Because only Wanzer's affidavit was used,

the factfinder may also infer from a party's failure to call an available, competent, and material witness, that the witness's testimony would be unfavorable. Albiar v. State, 739 S.W.2d 360, 363 (Tex. Crim. App. 1987); Torres v. State, 552 S.W.2d 821, 825 (Tex. Crim. App. 1977).

Defense counsel further testified that he had thirty years of legal experience. He worked in the District Attorney's office for almost eight years, and ninety percent of his practice during the last fifteen years had been in criminal law. He further opined his actions did not hurt appellant. According to counsel, his failure to call Wanzer as a witness was part of a sound trial strategy so that the prosecution could not ask a series of "did you know" type of questions. Defense counsel also stated that appellant would not give him any names of family members. Appellant told him: "I got into this myself, I'm going to get out of it myself."

The evidence at the motion for new trial hearing was contradictory. We review the trial court's denial of the motion by an abuse of discretion standard. Biagas v. State, 177 S.W.3d 161, 170. (Tex. App.-Houston [1st Dist.] 2005, pet. ref'd.). We may not substitute our judgment for that of the trial court; rather, we review whether the court's decision was arbitrary or unreasonable. Charles, 146 S.W.3d at 208. The fact finder is the exclusive judge of the credibility of witnesses and the weight to be afforded their testimony. See Rodriguez v. State, 191 S.W.3d 428, 437 (Tex. App.-Corpus Christi 2006, pet ref'd). The fact finder is free to accept one version of the facts, reject another, or reject all or any of a witness's testimony. See id. We presume that all reasonable factual findings that could have been made against the losing party, were made against him. Charles, 146 S.W.3d at 211. Viewing the evidence in the light most favorable to the ruling, we hold the trial court did not abuse its discretion in overruling the motion for new trial on this basis. See Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001); Charles, 146 S.W.3d at 208.

7. Failure to File Discovery Request

In his final contention of ineffectiveness, appellant asserts that his trial counsel failed to request until the day before trial all the evidence that the State intended to produce under rule 404(b) of the Texas Rules of Evidence. Tex R. Evid. 404(b) (providing for admission of other crimes, wrongs or acts). The State did not produce a printed version of appellant's extraneous offences at the hearing; however, the prosecutor stated at the hearing that she intended to use evidence of family violence. Defense counsel was apparently not aware of the conviction for family violence and asked for a continuance. The continuance was denied, and the trial court ordered the State to turn over copies of the information and pen packets.

Appellant concludes that his trial attorney was thus unprepared for the punishment phase of the trial. In reply, the State replies that it has an open file policy, and the information sought was available to the defendant through the State's files and through public records.

It is true as appellant argues, that appellant's ability to review the State's file does not equate to the State's indication that it will introduce such evidence in its case-in-chief. See Buchanan v. State, 911 S.W.2d 11, 15 (Tex. Crim. App. 1995). Still, as appellant also admits, the mere failure to file an appropriate pretrial motion shall not be categorically deemed ineffective assistance of counsel. Madden v. State, 911 S.W.2d 236, 241 (Tex. App.-Waco 1995, pet. ref'd).

Defense counsel testified at the motion for new trial hearing that he did file a specific discovery request for the surveillance tapes. The tape of the store's interior was produced without the necessity of a hearing. He was also provided access to the State's file, including appellant's history and extraneous offenses. Given the time constraints, he saw no need for a formal motion on the rule 404 matters. At the continuance hearing, defense counsel stated that the State had already told him about appellant's felony convictions, five burglaries, and one possession of a controlled substance plus "a whole lot of misdemeanors." The one thing counsel seemed to be unaware of was a family violence conviction pertaining to one of appellant's former girlfriends.

The State indicated they did not intend to use any of the prior convictions under rule 404(b). The prosecutor and defense counsel had previously conferred and the prosecutor stated that she had furnished all the rule 404(b) information. Defense counsel agreed, except for the family violence matter. The record indicates that the seeming disagreement in front of the judge was an apparent misunderstanding that the family violence would somehow be used under 404(b). The prosecutor stated she had no intent to use that matter under rule 404(b). Rather, the State intended to use this conviction in the punishment phase.

Defense counsel also stated he was attempting to try the case as soon as possible because appellant was in jail. Further, it is clear from the record that defense counsel thought he had been furnished all the information from the State's file and had no reason to suspect that the State was hiding any information. Thus, when he discovered he had not been told of the family violence conviction, he immediately moved for a continuance. He was then furnished this remaining bit of information in writing, even though it was not going to be used under rule 404(b).

The State argues that appellant has not shown that having some information earlier through some formal procedure would probably have caused a different outcome to the case. We agree. The record supports an implied finding by the trial judge that defense counsel had in fact already discovered the rule 404(b) evidence without the necessity of filing a formal motion. The only evidence of which he was unaware did not come under the purview of rule 404(b). See Tex R. Evid. 404(b). Thus, even a formal motion would not have necessarily have provided the information about the family violence conviction.

The record supports an implied finding that defense counsel used reasonable efforts to prepare for the punishment phase. Appellant failed to shoulder his burden to show both a deficient effort on the part of counsel and a reasonable probability of a different result. Strickland, 466 U.S. at 694. We accordingly hold that the trial court did not abuse its discretion by overruling the motion for new trial on this basis. We overrule issues three, four, and five.

8. Conclusion

The judgment of the trial court is affirmed.

DON WITTIG,

Justice

Do not publish. Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this the 30th day of May, 2008.

Retired Fourteenth Court of Appeals Justice Don Wittig assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to the government code. Tex. Gov't Code Ann. § 74.003 (Vernon 2005).

Specifically, the trial court shall determine: (1) what facts were in Lino Garza's statement and why these facts were material, see Brady v. Maryland,

2008-03-25T04:01:00.000-07:00

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-62,073-02

EX PARTE STEPHEN EDWARD TATRO, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 00-07-10358 IN THE 155TH DISTRICT COURT

FROM WALLER COUNTY

Per curiam.

O R D E R

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of murder and sentenced to fifty years' imprisonment. The First Court of Appeals affirmed his conviction. Tatro v. State, No. 01-01-00523-CR (Tex. App.-Houston [1st Dist.], delivered April 17, 2003, pet. ref'd).

On March 29, 2006, we remanded this application and directed the trial court to determine whether trial counsel rendered ineffective assistance for not challenging the State's hearsay objections and whether Applicant was entitled to a lesser-included offense instruction. On remand, after appointing counsel and holding an evidentiary hearing, the trial court concluded, among other things, that trial counsel rendered ineffective assistance and that the State engaged in prosecutorial misconduct. The trial court recommended that Applicant be granted relief.

We believe, however, that the record is not sufficient and that the trial court should make further findings of fact. Specifically, the trial court shall determine: (1) what facts were in Lino Garza's statement and why these facts were material, see Brady v. Maryland, 373 U.S. 83 (1963); (2) what other witness statements were not disclosed, what facts were in these statements, and why these facts were material; (3) whether the destruction of ballistics evidence was motivated by bad faith, see Arizona v. Youngblood, 488 U.S. 51 (1988); (4) what facts were not presented as a result of the State's objections to testimony from Glenn White, Patricia Barrett, Richard Tatro, Richard Casper, Ken Young, and Al Barrett, and how these facts would have affected the result of the proceeding; (5) how the testimony of a document examiner would have affected the result of the proceeding; (6) what specific evidence in the record showed that Applicant was entitled to instructions on self-defense, defense of property, and criminally negligent homicide; (7) how Ray Pederson's unimpeached testimony and the State's "double misconduct" prejudiced Applicant; (8) how counsel's requests for witness statements was deficient; (9) whether Applicant was indigent when he requested the appointment of experts and whether he was prejudiced, given that he requested $600 and received $500; and (10) whether the explanations in counsel's affidavit are credible.

The trial court may provide Applicant's trial counsel with a second opportunity to respond to Applicant's claim of ineffective assistance of counsel. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id.

Applicant appears to be represented by counsel. If not and the trial court elects to hold a second evidentiary hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent him at the hearing. Tex. Code Crim. Proc. art. 26.04.

The trial court shall then make further findings of fact as to whether the performance of Applicant's trial counsel was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. The trial court shall also make further findings of fact as to whether the State engaged in prosecutorial misconduct. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claims for habeas corpus relief.

This application will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 90 days of this order. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall be returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: March 5, 2008.

Do not publish.

appellant must demonstrate that he was prejudiced by the deficient performance. Stated another way, the second prong is met if defense...Syntax?

2008-03-14T23:46:00.000-07:00

NUMBER 13-02-218-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

ALEJANDRO RODRIGUEZ MATA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 257th District Court of Hidalgo County, Texas.

O P I N I O N

Before Justices Yañez, Rodriguez and Baird Footnote

Opinion by Justice Baird

Appellant was charged by indictment with the offense of murder. The indictment also alleged a prior felony conviction for the purpose of enhancing the range of punishment. A jury convicted appellant of the charged offense. Following appellant’s plea of not true, the jury found the enhancement allegation true and assessed punishment at ninety-nine years confinement in the Texas Department of Criminal Justice–Institutional Division, and a fine of $10,000. We affirm the conviction, but reverse and remand for a new trial on punishment. Footnote

I. Self Defense and Defense of Third Person.

Points of error one, two, and three contend: (a) the trial judge erred in denying appellant’s requested jury instruction on the defense of a third person; (b) the trial judge erred in failing to sua sponte instruct the jury on self defense; and (c) defense counsel was ineffective for failing to request a charge on self defense.

A person is justified in using non-deadly force against another where he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force. Tex. Pen. Code Ann. §§ 9.31 (Vernon Supp. 2004). A person is justified in using deadly force against another if: (1) he would be justified in using non-deadly force; (2) a reasonable person in the actor's situation would not have retreated; and, (3) he reasonably believes the deadly force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly force. Tex. Pen. Code Ann. § 9.32(a) (Vernon Supp. 2004). Section 9.33 of the penal code “provides, essentially, that a person is justified in using deadly force to protect a third person when that third person is threatened by circumstances that would entitle the actor to protect himself, and the actor reasonably believes his intervention is immediately necessary.” Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996). Since appellant used deadly force in the instant case, the issue is whether either appellant or a third person would have been justified in using such force against the decedent.

The only fact witness cited in appellant’s brief to support these points of error is Raymond Dean Sanchez. We need only consider his testimony because a defendant is entitled to an instruction on any properly requested defensive issue that is raised by the evidence, even if the evidence is weak, impeached, and not credible. Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999). Conversely, if the evidence, viewed in a favorable light, does not establish the defensive issue, an instruction is not required. Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim. App. 1984).

Sanchez testified the decedent wanted to purchase some cocaine. Sanchez drove the decedent to the apartment complex where appellant lived, and asked where cocaine could be located. Appellant’s brother, Leo, got into the vehicle with Sanchez and the decedent, and drove to a location where cocaine was subsequently purchased. On the return trip, Leo and the decedent began snorting the cocaine. Upon their arrival, the two began arguing over whether Leo consumed too much of the decedent’s cocaine. After exiting the vehicle, the decedent shoved Leo, and a fight ensued. Sanchez attempted to break up the fight; when his efforts failed, Sanchez went to appellant’s apartment and sought help separating the fighters. Sanchez testified appellant approached the fighters and stabbed the decedent with a screwdriver.

According to Sanchez, after the initial push by the decedent, Leo got the better of the decedent and was on top of him during the fight. Leo was still on top of the decedent when appellant arrived, and Leo never asked appellant for help. Moreover, Sanchez was steadfast in his testimony that the decedent was unarmed at all times, and that the decedent did not threaten to kill anyone.

For the purpose of our analysis we will assume the initial shove by the decedent constituted unlawful force, and that Leo was entitled to defend himself against that force. However, Sanchez’s testimony is clear that Leo quickly gained the advantage during the fight, and was on top of the unarmed decedent. Footnote Consequently, there is no testimony from Sanchez that a reasonable person in Leo's situation would not have retreated, or that Leo reasonably believed the deadly force was immediately necessary to protect himself against the decedent's use or attempted use of unlawful deadly force. Tex. Pen. Code Ann. § 9.32(a) (Vernon Supp. 2004). Therefore, we hold Leo was not justified in using deadly force to protect himself against the decedent. Consequently, we further hold the evidence did not raise the issue of defense of a third person because there is no testimony from which appellant could have reasonably believed his intervention into the fight between Leo and the decedent was immediately necessary to protect Leo against the decedent's use or attempted use of unlawful deadly force. Hamel, 916 S.W.2d at 493. Additionally, we hold appellant was not entitled to an instruction on self defense because there was no evidence that appellant reasonably believed the force was immediately necessary to protect himself against the decedent’s use or attempted use of unlawful deadly force, or that a reasonable person in appellant's situation would not have retreated. Tex. Pen. Code Ann. § 9.32(a) (Vernon Supp. 2004).

Consequently, we hold the trial judge did not err in denying appellant’s requested instruction on the defense of a third person, or in failing to instruct the jury on self defense. Furthermore, we hold defense counsel was not ineffective for failing to request a charge on self defense because counsel cannot be ineffective for not requesting an instruction the trial court could have properly refused. Rodriguez v. State, 899 S.W.2d 658, 668 (Tex. Crim. App. 1995). Accordingly, the first, second, and third points of error are overruled.

II. Ineffective Assistance of Counsel.

Points of error four through eleven contend defense counsel was ineffective at the trial of the instant case. The right to the effective assistance of counsel is guaranteed to criminal defendants by the Sixth and Fourteenth Amendments to the United States Constitution, and Article I, section 10 of the Texas Constitution. The well-known two-prong standard of Strickland v. Washington, 466 U.S. 668, 684 (1984), is utilized when reviewing ineffective assistance of counsel claims. The reviewing court must first decide whether trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Id. If counsel's performance was deficient, the reviewing court must decide whether there is a "reasonable probability" the result of the trial would have been different but for counsel's deficient performance. Id. A reasonable probability is a "probability sufficient to undermine confidence in the outcome." Id. at 694. Absent both showings, an appellate court cannot conclude the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. at 687; Ex parte Menchaca, 854 S.W.2d 128, 131 (Tex. Crim. App. 1993); Boyd v. State, 811 S.W.2d 105, 109 (Tex. Crim. App. 1991).

The defendant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). Allegations of ineffective assistance of counsel will be sustained only if they are firmly founded and affirmatively demonstrated in the appellate record. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). When determining the validity of an ineffective assistance of counsel claim, any judicial review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984). This deferential review begins with the strong presumption that counsel's actions and decisions were reasonably professional, and were motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Appellant has the burden of rebutting this presumption, and generally the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel's conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999) (trial record generally not sufficient to establish an ineffective assistance of counsel claim). There is, however, a recognized exception to this general rule which will be discussed in relation to the tenth point of error.A. The Guilt Phase.

1.

The fourth point of error contends defense counsel was ineffective for failing to secure an adverse ruling following his objection to the State’s argument that Sanchez had seen appellant with a knife stabbing the decedent as he lay on the ground. Defense counsel objected, stating the argument was “a mischaracterization of the testimony.” The trial judge responded by stating: “Use your own recollection, ladies and gentlemen, as to what the witness has testified to.”

We agree with defense counsel that the argument constituted a misstatement of Sanchez’s testimony. Sanchez categorically stated that he did not see anyone with a knife. The State cites Kinnamon v. State, 791 S.W.2d 84, 90 (Tex. Crim. App. 1990), overruled on other grounds, Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994), for the proposition that defense counsel may have decided the instruction adequately admonished the jury. While we do not read Kinnamon as necessarily standing for that proposition, the State’s argument does prove that we do not know why defense counsel did not continue objecting until he obtained an adverse ruling. It could well be that counsel thought the instruction from the trial judge was adequate. Because the record is silent on this issue, we are left to speculate about counsel’s actions. This we will not do. The fourth point of error is overruled.

2.

The fifth point of error contends defense counsel was ineffective for failing to object to the State calling a witness for the sole purpose of impeaching her. Our law is clear that the State may not call a witness solely for the purpose of impeaching that witness with otherwise inadmissible evidence. Hughes v. State, 4 S.W.3d 1, 7 (Tex. Crim. App. 1999).

The witness at issue, Adriana Mata, appellant’s sister, was a fact witness who had previously provided a written statement that she saw appellant stab the decedent. She had previously testified for the State at Leo’s trial for this same alleged offense. However, when called as a witness in the instant case, Adriana repeatedly stated that she did not remember making a statement or seeing the alleged murder. There is no showing the State called Mata solely for the purpose of impeaching her. Moreover, the information contained in Adriana’s statement which was subsequently introduced to impeach her was substantially testified to by other witnesses. Consequently, we hold there was no violation of the holding in Hughes, supra. Accordingly, the fifth point of error is overruled.

3.

The sixth point of error contends defense counsel was ineffective for not objecting to an extraneous offense. Specifically, there was no objection to the testimony of Officer Adrian Medrano, who testified that he checked the criminal histories of Leo and appellant when attempting to find an address to locate them. Defense counsel’s failure to object does not constitute ineffective assistance because the mere suggestion of the possibility of an extraneous offense is not sufficient to constitute error. Roach v. State, 586 S.W.2d 866, 868 (Tex. Crim. App. 1979), overruled on other grounds, Parker v. State, 985 S.W.2d 460 (Tex. Crim. App. 1999). The fifth point of error is overruled.

4.

The seventh point of error contends defense counsel was ineffective for “not objecting to irrelevant/overly prejudicial matters.” This point of error relates to the testimony of Sonia Garcia, the decedent’s sister, who identified a photograph of the decedent, and provided some background information. Although not specifically mentioned in appellant’s brief, we interpret this point of error as arguing that Garcia’s testimony constituted improper victim impact evidence.

Clearly, the State is permitted to provide evidence identifying the decedent in a murder case. This type of testimony constitutes error when presented in an inflammatory and prejudicial manner. See Stahl v. State, 749 S.W.2d 826, 829-30 (Tex. Crim. App. 1988). However, the instant case is easily distinguishable from Stahl where the prosecutor deliberately violated an express court order that would have prevented the witness from testifying, and the court found that the prosecutor's conduct was blatant in that he had foreknowledge of the witness's likely emotional outburst. Id. at 831.

In this case, appellant does not allege, nor does the record suggest, the existence of prosecutorial misconduct. Further, there was no emotional outburst as in Stahl, but rather a brief identification of the decedent with some general background information. Accordingly, we hold Garcia’s testimony was not prejudicial to appellant. Assuming arguendo the testimony was prejudicial, the testimony of Garcia pales in comparison to that in Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002), where the erroneous admission of such evidence was held to be harmless. See id. at 355. Accordingly, the seventh point of error is overruled.

B. The Punishment Phase.

The eighth, ninth, tenth, and eleventh points of error concern the good conduct time and parole instruction included in the punishment charge, and the State’s arguments on those subjects.

1. The Erroneous Instruction.

Appellant was convicted of murder, a first degree felony, for which he is required to serve one-half of his actual sentence (or thirty years) without regard for any good conduct time. Luquis v. State, 72 S.W.3d 355, 359 (Tex. Crim. App. 2002). Following such a conviction, the trial judge is required to instruct the jury as prescribed by the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (Vernon Supp. 2004). In its entirety, that instruction reads:

Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the period of incarceration imposed through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments, and attempts at rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.

It is also possible that the length of time for which the defendant will be imprisoned might be reduced by the award of parole.

Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served equals one-half of the sentence imposed or 30 years, whichever is less, without consideration of any good conduct time he may earn. If the defendant is sentenced to a term of less than four years, he must serve at least two years before he is eligible for parole. Eligibility for parole does not guarantee that parole will be granted.

It cannot accurately be predicted how the parole law and good conduct time might be applied to this defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities.

You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.

See id. (emphasis added).

However, the trial judge instructed the jury that appellant would not become eligible for parole “until the actual time served plus any good conduct time earned equals one-half of the sentence imposed or 30 years, which ever is less, without consideration of any good conduct time he may earn.” (emphasis added). Because the italicized portion of the instruction was erroneous, we hold defense counsel was ineffective for failing to object. Accordingly, the first prong of Strickland has been established as it relates to the eighth point of error.

2. The Improper Argument.

After the reading of the court’s charge, the State elected to make an opening argument prior to defense counsel. The State began by referring to appellant’s pen packet, and how a final conviction would affect the range of punishment. The State then argued:

The other thing that’s important here there is a lot of language regarding your, you know, that he can get good time credit, that there is such a thing as parole. That’s to let you know there is parole in Texas. What it is for the, okay, for you to do is go back and say, Let’s do him. Give him this because he will get out in this amount of time because you don’t know how the parole law will be applied today. They can change those laws in two years from now, but it is to let you know that they do exist and you may consider the existence of them, the fact that he may at some point be eligible for parole in considering the amount of time you think is appropriate in this case.

For example, when you look at the pen packet you can see that he was sentenced and the date he was sentenced. And the date you’ll see it was a sentence for five years for burglary of a habitation, and possession of a prohibited weapon, and date of that sentence . . . And after that he was sent to prison for a period of five years on . . . January of 1998. And so you know he was sentenced to a period of five years in 1998, and this offense was committed on January 1st of the year 2001, less than five years later.

So you know parole does exist in reality.

And so that will help you understand those issues.

(Emphasis added). Defense counsel then presented her argument which did not mention good conduct time or parole.

The State’s argument was improper in several respects. First, the prosecutor stated a person convicted of murder “can get good time credit.” As discussed in the preceding section, this argument is a misstatement of the law; a person convicted of murder is required to serve one-half of his actual sentence (or thirty years) without regard for any good conduct time. Luquis, 72 S.W.3d at 359. Even if the trial judge had accurately instructed the jury, this argument would have been improper because the statutory instruction specifically prohibits the consideration of good conduct time in a particular case: “[Y]ou are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant.” Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a).

Second, the State specifically asked the jury to apply the law of parole to appellant by stating: “What it is for the, okay, for you to do is go back and say, Let’s do him. Give him this because he will get out in this amount of time because you don’t know how the parole law will be applied today,” and asking the jury to consider parole “in considering the amount of time you think is appropriate in this case.” This argument violates the express language of the statutory instruction: “You are not to consider the manner in which the parole law may be applied to this particular defendant.” Id.

Third, subsection (d) of article 37.07, section 4 provides: “This section does not permit the introduction of evidence on the operation of parole and good conduct time laws.” Id., § 4(d). The State circumvented this mandatory statute by specifically referring the jury to the pen packet and arguing “And so you know he was sentenced to a period of five years in 1998, and this offense was committed on January 1st of the year 2001, less than five years later. So you know parole does exist in reality.” This argument was clearly improper. Hawkins v. State, 99 S.W.3d 890, 902 (Tex. App.–Corpus Christi 2003, pet. ref’d).

Having determined the State’s argument was improper, the question under Strickland's first prong is whether counsel's failure to object to the improper argument was deficient conduct. Even where an objection would have been meritorious, the failure to object may be attributed to sound trial strategy. Strickland, 466 U.S. at 690. A substantial risk of failure accompanies a claim of ineffective assistance of counsel on direct appeal because the record is simply underdeveloped and cannot adequately reflect the failings of trial counsel. Footnote Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). As a general rule, claims of ineffective assistance of counsel not developed in the appellate record will be resolved against the defendant when the appellate court employs Strickland's presumption that the challenged action of trial counsel was the result of "sound trial strategy." Strickland, 466 U.S. at 689. However, an exception to the "sound trial strategy" presumption exists when the record clearly confirms that no reasonable trial counsel would have engaged in the complained of conduct or omission. Vasquez v. State, 830 S.W.2d 948, 951 (Tex. Crim. App. 1992); Chavez v. State, 6 S.W.3d 66, 71 (Tex. App.--San Antonio 1999, pet. ref'd); Weeks v. State, 894 S.W.2d 390, 392 (Tex. App.--Dallas 1994, no pet.). Holding counsel ineffective in light of such a record is not speculation because the deficient performance is confirmed by the appellate record. Vasquez, 830 S.W.2d at 951; Stone v. State, 17 S.W.3d 348, 350 (Tex. App.–Corpus Christi 2000, pet. ref'd); Weeks, 894 S.W.2d at 392. When the record establishes that ”the challenged conduct was so outrageous that no competent attorney would have engaged in it,” the presumption that counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy is rebutted. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). In other words, Strickland does not require deference when there is no conceivable strategic purpose that would explain counsel's conduct. Lyons v. McCotter, 770 F.2d 529, 534-35 (5th Cir. 1985).

Obviously, the goal of every defense counsel at the punishment phase of trial is to have the jury assess the least amount of punishment possible. This was the goal of defense counsel in the instant case. To achieve this goal, counsel emphasized: (a) appellant’s relative youth -- twenty-three years of age; (b) the decedent’s lifestyle, which involved drinking and illicit drug use; and (c) that the decedent’s death was the result of a fight involving drugs, and not a planned killing. Footnote Defense counsel asked the jury to consider the lower end of the range of punishment.

In light of this obvious strategy, we hold there could have been no basis for defense counsel's failure to object to the improper argument of the State. Because the improper argument could only serve to increase appellant’s sentence, defense counsel’s failure to object was “so outrageous that no competent attorney would have engaged in it.” Garcia, 57 S.W.3d at 440. For these reasons, we hold the first prong of Strickland has been established.

Under the second prong, appellant must demonstrate that he was prejudiced by the deficient performance. Stated another way, the second prong is met if defense counsel's deficient performance creates a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694. In the instant case, the jury assessed the maximum punishment -- 99 years confinement and a fine of $10,000.00. While the decedent’s death was tragic and senseless, as are all murders, we do not find that the circumstances of the instant offense, in light of the decedent’s illicit drug use and unlawful attack on Leo, to be especially heinous. The jury certainly could have believed the crime warranted the maximum sentence. On the other hand, we must accept the probability that the jury accepted the State’s improper invitation to “go back and say, Let’s do him.” Consequently, our confidence in the punishment verdict is undermined by defense counsel's deficient performance. Therefore, we hold the second prong of Strickland has been met. Accordingly, the tenth point of error is sustained.

Additionally, we further hold the cumulative effect of the tenth point of error and the deficient conduct in the eighth point of error – failing to object to the erroneous good conduct time instruction – amounted to a denial of effective assistance of counsel at the punishment phase of appellant’s trial. Wright v. State, 28 S.W.3d 526, 537 (Tex. Crim. App. 2000); Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999). For this additional reason, we sustain the tenth point of error.

In light of this conclusion, we need not more fully address the eighth, ninth, and eleventh points of error. See Tex. R. App. P. 47.1. Further, we need not address the remaining points of error: numbers twelve, thirteen and fourteen. See id.

The trial court’s judgment of conviction is affirmed. However, because we sustain the tenth point of error, the judgment of the trial court is reversed as it relates to the sentence. This case is remanded to the trial court for a new trial on the issue of punishment. Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2004).

_________________________

CHARLES BAIRD,

Justice

Publish.

Tex. R. App. P. 47.2(b).

Opinion delivered and filed

this 12th day of August, 2004.

Ineffective CCISD and their Attorneys, pathetic the taxpayers pay for such waste

2008-01-17T01:46:00.000-08:00

(b) A child taken into custody may be detained prior to hearing on the petition only if:

1. the child is likely to abscond or be removed from the court's jurisdiction;
2. suitable supervision, care, or protection for the child is not being provided by a parent, guardian, custodian, or other person;
3. the child has no parent, guardian, custodian, or other person able to return the child to the court when required;
4. the child may be dangerous to himself or herself or the child may threaten the safety of the public if released;
5. the child has previously been found to be a delinquent child or has previously been convicted of a penal offense punishable by a term in jail or prison and is likely to commit an offense if released; or
6. the child's detention is required under subsection (f), below.

(c) If the child is not released, a request for detention hearing shall be made and promptly presented to the court, and an informal detention hearing shall be held promptly, but not later than the second working day after the child is taken into custody. If the child is taken into custody on a Friday or Saturday, then the detention hearing shall be held on the first working day after the child is taken into custody.

(d) A release of a child to an adult must be conditioned on the agreement of the adult to be subject to the jurisdiction of the juvenile court and to an order of contempt by the court if the adult, after notification, is unable to produce the child at later proceedings.

(e) If a child being released under this section is expelled from school in a county with a population greater than 125,000, the release shall be conditioned on the child's attending a juvenile justice alternative education program pending a deferred prosecution or formal court disposition of the child's case.

(f) A child who is alleged to have engaged in delinquent conduct and to have used, possessed, or exhibited a firearm in the commission of the offense shall be detained until the child is released at the direction of the judge of the juvenile court, a substitute judge, or a referee appointed, including an oral direction by telephone, or until a detention hearing is held.

Under the Disciplinary Rules of Professional Conduct, every defense counsel owes to his client his zealousness, competence, and diligence..cash only..

2007-11-06T01:25:00.000-08:00

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

No. PD-1084-05

DARRELL DEWAYNE CANNON, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

IN CAUSE NO. 05-04-01479-CR FROM THE FIFTH COURT OF APPEALS

COLLIN COUNTY

Holcomb, J., delivered the opinion of the Court, in which Price, Womack, Johnson, and Cochran, JJ., joined. Keller, P.J., and Meyers, Keasler, and Hervey, JJ., dissented.

We granted appellant's petition for discretionary review in order to determine whether he was denied his Sixth Amendment right to the effective assistance of counsel. We hold that he was denied that right.

On December 12, 2003, the criminal district attorney of Collin County filed an information in the trial court charging appellant with misdemeanor driving while intoxicated. See Tex. Pen. Code § 49.04(a). On September 20, 2004, after several prior settings, the State brought appellant to trial, with the Honorable John O. Barry presiding. The trial, including jury selection, lasted two days.

On the morning of the first day, shortly before jury selection began, defense counsel, Christopher N. Hoover, presented the trial court with an oral motion for continuance and a written motion to recuse. The oral motion for continuance was apparently based on appellant's alleged need for an expert to assist in the preparation of his defense. (1) The written motion to recuse alleged, in pertinent part:

"About four weeks ago, counsel tried State of Texas v. Jason Dixon before Judge Barry. During that trial Judge Barry appeared to personally attack the undersigned and was not fair and impartial. Events that occurred during that trial are the subject of a complaint with the Judicial Conduct Commission being drafted by Mr. Hoover."

The trial court, without hearing argument, denied the motion to recuse. Defense counsel then moved that the motion to recuse "be heard by a neutral judge," but the trial court denied that motion, too. Defense counsel then announced that he was "not ready for this trial," that he would "be unable to effectively represent [his] client," and that he could, therefore, "not participate" in the trial. The trial court then denied the previously-made oral motion for continuance, and jury selection began. Defense counsel, true to his word, declined to participate in jury selection, explaining once again that he was "not ready for this . . . trial," that he was "unable to effectively represent" his client, and that he was "unable to proceed."

On the afternoon of the first day, the guilt stage of the trial began. At the beginning of the guilt stage, defense counsel presented the trial court with an amended written motion to recuse. The amended motion, like the earlier motion, alleged that Judge Barry's fairness and impartiality were

in question and that they were, in fact, the subjects of a complaint that defense counsel was preparing to lodge with the Judicial Conduct Commission. Defense counsel did not ask for a ruling on the amended motion to recuse, however, and, so far as the record shows, the trial court did not make one. (2)

After the State read the information to the jury, the trial court asked appellant how he pled, and defense counsel responded that the defense was "not ready for trial" and could "not enter a plea at [that] particular time." The trial court then entered, on appellant's behalf, a plea of "not guilty." The State then made its opening statement. Defense counsel, though given the opportunity to make an opening statement, declined to do so, explaining once again that he was "not ready" and was "unable to render effective counsel."

The State proceeded with its case-in-chief, which consisted of the testimony of four witnesses - three police officers and an intoxilyzer technician - and some exhibits. The State's evidence, which included incriminating hearsay testimony, (3) was to the effect that, on the early morning of October 3, 2003, in Collin County, appellant, while intoxicated with alcohol, operated a van that was involved in a one-vehicle accident. Defense counsel, though given the opportunity, declined to cross-examine any of the State's witnesses or make any objections. Once the State rested, defense counsel declined to offer any defense. The trial court then announced, on appellant's behalf, that "[t]he defendant rests." The State then closed. Shortly thereafter, the trial court announced to all that the court would be in recess until 1:00 p.m. the following day.

When the trial court reconvened the next day, defense counsel presented the court with a written motion for continuance and an oral motion for instructed verdict. The written motion for continuance alleged, in pertinent part:

"This is an accident DWI case in which the defendant submitted to the taking of a sample of his breath after arrest. The result exceeded the legal limit of 0.080.

"In the accident, the air bag deployed in the defendant's vehicle. This introduces the unique issue of whether or not the air bag effected [sic] the breath test results as found in the 'Tindall Effect.'[ (4)] This issue is one that requires testimony from an expert with particular knowledge and training in forensic breath testing.

* * *

"The testimony of this expert witness is critical to the defense in this case and such an expert is not available on this date to appear for trial."

Defense counsel did not ask for a ruling on the written motion for continuance, however, and, so far as the record shows, the trial court did not make one. (5)

With respect to defense counsel's oral motion for instructed verdict, the record reflects the following:

Defense Counsel: Your Honor, although I was not ready for this trial when it began yesterday, I did have the opportunity to sit here and listen to the entire State's case-in-chief. And I'm going to point out to the State the cases of Ballard v. State, 757 S.W.2d 389; McCafferty v. State, 748 [S.W.2d] 489; Johnson v. State, 517 S.W.2d 536; and Weaver v. State, 721 S.W.2d 495, and ask that the court grant an instructed verdict of "not guilty" in this case in that, as a matter of law, the State's proof is insufficient to prove either that Darrell Cannon drove or operated the van or that he was intoxicated at that time, because I believe there's been no evidence elicited as to the time differential between the accident and the police officer's arrival that performed the field sobriety exercise.

The Court: Now, one moment, please.

Defense Counsel: And let the record reflect that I have provided the court with copies of those court cases.

* * *

The Court: Now, motion for instructed verdict denied.

After the jury returned to the courtroom and the trial court confirmed that all of the witnesses were still present, the following occurred:

The Court: Mr. Hoover, even now, if you wish to reopen and recall any of the witnesses who previously testified, you may do so.

Defense Counsel: I understand, Your Honor. Again, I'm inadequately prepared to render effective legal assistance to Mr. Cannon and again persist in my announcement of not ready.

The trial court then read the charge to the jury, and the State made its closing argument. Defense counsel, though given the opportunity to make a closing argument, declined to do so, explaining once again that he was "not ready" and was "unable . . . to assist Mr. Cannon in his defense."

The jury retired to deliberate. Fifteen minutes later, the jury returned a verdict of "guilty." The following then occurred:

The Court: Now, Mr. Hoover, I see no written election on file. I see no written application for community supervision on file. If, however, you contend that the defendant has elected that the jury assess the penalty in this case, I respectfully ask that you call my attention now to your position. If you have elected the jury assess punishment in this case.

Defense Counsel: Your Honor, as a matter of law, the court assesses punishment in these circumstances.

The Court: And, therefore, there's no reason why the jury should not now be discharged, correct?

Defense counsel: None that I know of, Your Honor.

The trial court then discharged the jury. Both the State and defense counsel indicated that they would offer no evidence on the question of punishment. The State then presented argument on punishment, followed by defense counsel's "argument," which, in its entirety, was as follows: "Your Honor, indeed you did hear the facts of this case. And you've heard several hundred pleas, probably. We believe that you can adequately assess the punishment well within the range provided by law." The trial court assessed appellant's punishment at confinement for ninety days, probated, and a fine of $1,000. The following then occurred:

Defense Counsel: Your Honor, I have one question.

The Court: Go ahead, Mr. Hoover.

Defense Counsel: At one time you pronounced the sentence at ninety days confinement, probated for two years. And then you said ninety days, probated for eighteen months.

The Court: I thank you for calling my attention to the error. Is [sic] the judge's intention that the period of [community] supervision be for eighteen months, not twenty-four months or two years. And to the extent that it was described orally differently, it is not to be regarded. The period of supervision is for eighteen months.

On direct appeal, appellant, citing both United States v. Cronic, 466 U.S. 648 (1984), and Strickland v. Washington, 466 U.S. 668 (1984), argued for the first time (6) that he was denied his Sixth Amendment right to the effective assistance of counsel because "the refusal of counsel to participate in the trial" resulted in "no adversarial testing of the prosecution's case." "In this case," appellant continued, "there was no trial strategy [on counsel's part]. Counsel was [simply] unprepared to go forward and repeatedly informed the trial court of his reason for not participating." Finally, appellant argued that, "[i]n these circumstances," prejudice to the defense "is irrefutably presumed."

The Fifth Court of Appeals, in an unpublished opinion, rejected appellant's arguments and affirmed the judgment of the trial court. Cannon v. State, No. 05-04-01479-CR (Tex.App. - Dallas 2005). The court of appeals explained its decision as follows:

"Although defense counsel at various times stated he was 'not ready,' 'unprepared,' and 'could not effectively represent his client,' appellant points to no specific errors of counsel that prejudiced appellant, except for the lack of cross-examination. Often, [however,] the decision to not cross-examine a witness is the result of wisdom acquired by experience in the combat of trial.

"Moreover, on the second day of trial, defense counsel did participate. Counsel moved for an instructed verdict due to the State's failure to carry its burden of proof. He cited cases to the court and provided the court with copies of those cases. Counsel also pointed out to the trial court its mistake in sentencing which would have adversely affected his client. In light of the evidence against his client for which he may have had no defense, notwithstanding his comments, defense counsel's actions could have been the product of a reasonable tactical judgment. Without a fully developed record, we could only speculate as to counsel's strategy. This we refuse to do.

"The right to the effective assistance of counsel is not recognized for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial. Absent some effect of challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated. Appellant does not specify how the challenged conduct affected the reliability of the trial process, nor may we presume such effect based on the external constraint of the trial court putting appellant to trial.

"Based on the standard set out in Cronic, appellant has not met his burden to demonstrate his claimed constitutional violation that he did not receive a fair trial. Nor has appellant presented us with a record sufficiently developed to meet his burden under Strickland to show he was prejudiced by specific errors of counsel. We resolve appellant's issue against him." Id., slip op. at 13-14 (citations and some internal punctuation omitted).

Appellant later filed a petition for discretionary review containing three grounds for review, two of which we granted. (7) See Tex. R. App. Proc. 66.3(c). In his petition and accompanying brief, appellant argues that the court of appeals erred in failing to recognize that "the total lack of participation by defense counsel constitute[d] ineffective assistance" under both United States v. Cronic, 466 U.S. 648, and Strickland v. Washington, 466 U.S. 668. He further argues that, given the record of defense counsel's deficient performance at trial, there is no need "to develop any other testimony by post-conviction writ." In its response brief, the State argues:

"The court of appeals did not err in finding Appellant was not denied his Sixth Amendment right to counsel under either the Cronic or Strickland standards. Appellant was not constructively denied counsel under Cronic because trial counsel was acting on Appellant's behalf and exercising effective trial strategy throughout the proceedings.[ (8)] Furthermore, counsel deserves the opportunity to explain his representation before being denounced as ineffective under Strickland. Additionally, Strickland requires that prejudice be demonstrated on the face of the record, and the record in the instant case does not show prejudice as a result of counsel's actions."

The State also argues that a finding of ineffectiveness of counsel in this case would encourage other defense counsel to engage in the kind of behavior at issue. The State cites United States v. Sanchez, 790 F.2d 245 (2nd Cir. 1986); Martin v. McCotter, 796 F.2d 813 (5th Cir. 1986); and Warner v. Ford, 752 F.2d 622 (11th Cir. 1985), in support of its various arguments.

The Sixth Amendment to the Constitution of the United States provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." The Sixth Amendment right to counsel applies to, among other proceedings, state criminal prosecutions in which, as in the instant case, the defendant is accused of a misdemeanor and a sentence of incarceration is actually imposed. Scott v. Illinois, 440 U.S. 367, 373 (1979). This right to counsel is not merely the right to have counsel physically present in the courtroom; it is the right to have the effective assistance of counsel in the courtroom. McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970).

In the usual case, an appellant, in order to obtain a reversal of his conviction on the ground of ineffective assistance of counsel, must demonstrate both deficient performance and prejudice. That is, he must demonstrate that: (1) defense counsel's performance fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. at 687. (9) However, if an appellant can demonstrate that defense counsel "entirely fail[ed] to subject the prosecution's case to meaningful adversarial testing," so that there was a constructive denial of the assistance of counsel altogether, then prejudice, because it is "so likely," is legally presumed. United States v. Cronic, 466 U.S. at 658-659. See also Bell v. Cone, 535 U.S.685, 696-697 (2002) (noting that, under Cronic, defense counsel's failure to test the prosecution's case must be "complete" before prejudice is presumed); Strickland v. Washington, 466 U.S. at 692 ("constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice"); Ex parte McFarland, 163 S.W.3d 743, 752-753 (Tex.Crim.App. 2005) (discussing constructive denial of counsel and presumed prejudice). (10)

In determining whether defense counsel "entirely fail[ed] to subject the prosecution's case to meaningful adversarial testing," we are guided by the following passage in Cronic:

"[T]he adversarial process protected by the Sixth Amendment requires that the accused have 'counsel acting in the role of advocate.' The right to the effective assistance of counsel is thus the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted - even if defense counsel may have made demonstrable errors - the kind of testing envisioned by the Sixth Amendment has occurred. But if the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated." 466 U.S. at 656-657 (citation and footnotes omitted).

In the usual case in which an ineffective-assistance claim is made, "the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decisionmaking as to overcome the presumption that counsel's conduct was reasonable and professional." Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). However, there are rare ineffective-assistance cases in which the record is sufficient for an appellate court to make a decision on the merits. Andrews v. State, 159 S.W.3d 98, 101-102 (Tex.Crim.App. 2005).

This is one of those rare cases. Here, defense counsel, at the start of voir dire, moved for a continuance and for recusal of the trial court judge. The trial court first denied the motion for recusal and then, a few moments later, it denied the motion for continuance. Immediately after the trial court denied the motion for recusal, defense counsel declared that he was "not ready for this trial," that he would "be unable to effectively represent [his] client," and that he could, therefore, "not participate" in the trial. Thereafter, defense counsel declined to participate in jury selection, declined to enter a plea for his client, declined to make an opening or closing argument to the jury, declined to cross-examine any of the State's witnesses, declined to make any objections, declined to offer any defense, declined to request any special jury instructions, and declined to offer any evidence or argument with respect to punishment. On the other hand, defense counsel did move for an instructed verdict, and he did bring to the trial court's attention the trial court's mistake in sentencing, which could have affected appellant.

Defense counsel, throughout appellant's trial, repeatedly stated the reason for his behavior: he was simply unprepared to go forward. We take counsel at his word and will not speculate that he may have had some other motive for his behavior. We also note that the record contains no suggestion that appellant failed to cooperate with defense counsel, or that appellant directed, agreed with, or acquiesced in defense counsel's behavior.

We hold that defense counsel's behavior, considered as a whole, constructively denied appellant his Sixth Amendment right to the effective assistance of counsel. Defense counsel, although physically present in the courtroom at all the requisite times, effectively boycotted the trial proceedings and entirely failed to subject the prosecution's case to meaningful adversarial testing. By his refusal to participate, defense counsel abandoned his role as advocate for the defense and caused the trial to lose its character as a confrontation between adversaries. Prejudice to the defense is legally presumed.

The State's reliance upon United States v. Sanchez, 790 F.2d 245; Martin v. McCotter, 796 F.2d 813; and Warner v. Ford, 752 F.2d 622, is misplaced, because those cases are distinguishable on their facts. In United States v. Sanchez, the defendant, Ramon Sanchez, was indicted for several drug offenses and, after deliberately absenting himself, was tried in absentia over his court-appointed attorney's objection. Defense counsel, who had little opportunity to consult with Sanchez before he disappeared, chose to remain silent throughout the trial, except that he moved for a judgment of acquittal and he objected to the court's instructions to the jury regarding Sanchez's absence. Sanchez was convicted and later appealed. On appeal, Sanchez argued that his attorney's silence at trial denied him the effective assistance of counsel. The United States Court of Appeals for the Second Circuit disagreed, explaining that Sanchez failed to show that his attorney's representation was deficient:

"[H]ere, there is no evidence that Sanchez made any effort to communicate with or otherwise cooperate with his attorney. There is no evidence that Sanchez consulted his attorney regarding his decision not to attend the trial, and not to be available during the weeks preceding trial. Where an attorney is confronted with such a client, whose uncooperativeness precludes any reasonable basis for an active defense, the strategy of silence - perhaps in hopes that the government will produce insufficient evidence or that the government or court will commit reversible error - may actually constitute a [reasonable] defense strategy. Certainly the right to counsel does not impose upon a defense attorney a duty unilaterally to investigate and find evidence, or to pursue a fishing expedition by cross-examination, or to present opening or closing remarks on the basis of no helpful information, or to object without purpose, on behalf of an uncooperative and unavailable client.

* * *

"Sanchez attempts to distinguish his case from cases following the Strickland two-part analysis by arguing that in effect he had no counsel at all. We find this argument unpersuasive. Certainly Sanchez may not by his absence effectively force his attorney into a strategy of silence and then complain that he was denied counsel.

* * *

"[W]here, as here, the defendant by his own obstructive conduct precludes his counsel from pursuing an intelligent active defense, the concerns of [United States v.] Cronic . . . are not invoked, and the [Strickland] test of effectiveness of counsel applies." United States v. Sanchez, 790 F.2d at 253-254 (citations omitted).

In Martin v. McCotter, the defendant, Michael Scott Martin, was tried in state court and convicted of robbery. He later sought federal habeas relief, arguing that his trial attorney's failure to offer a closing argument at the punishment stage of his trial constituted a constructive denial of counsel rendering a showing of prejudice unnecessary under Cronic. The federal district court denied relief, as did the United States Court of Appeals for the Fifth Circuit, which explained:

"We conclude . . . that counsel's decision to forego argument at the sentencing phase of Martin's trial did not constitute a constructive denial of counsel such as to render a showing of Strickland prejudice unnecessary. Counsel, although silent at the sentencing stage, did not entirely fail to subject the prosecutor's case to meaningful adversarial testing. . . . Counsel's active representation of Martin during the guilt-innocence phase was relevant to the sentencing phase; counsel's representation does not seem so deficient as to amount to no representation at all." Martin v. McCotter, 796 F.2d at 820 (citations and some internal punctuation omitted).

Finally, in Warner v. Ford, Horace Warner and two co-defendants were each charged with theft and a state firearms violation. The three were tried together in state court, each with his own attorney. Warner's attorney, Daniel Kane, was relatively inactive throughout the trial. He did not participate in jury selection, made no pretrial motions, made no opening or closing argument, cross-examined none of the prosecution's witnesses, and made no objections. However, Kane, on behalf of his client, moved for a directed verdict on the firearms count, moved for a mistrial three times, recommended that Warner not take the stand when called by a co-defendant, questioned one juror during trial, and argued to the court during sentencing. In contrast, the attorneys for Warner's two co-defendants presented defenses claiming ignorance of the circumstances of the case and blaming Warner for the crimes. All three co-defendants were found guilty on all counts. Warner later sought federal habeas relief, claiming that his trial attorney's relative inactivity constituted a constructive denial of counsel under Cronic. The federal district court denied relief, as did the United States Court of Appeals for the Eleventh Circuit, which explained:

"The district court's conclusion that Kane's silent trial tactic was reasonable under the circumstances is not clearly erroneous. . . . Kane testified [at the habeas hearing] that although he believed that Warner's case did not have a 'strong fact situation for trial,' he was prepared to go to trial if necessary. He testified that Warner's substantial prior record and the overwhelming evidence against all three defendants influenced his decision to maintain a 'low profile' before the jury. Since Kane knew codefendants' counsel to be very aggressive trial lawyers, he anticipated they would thoroughly cross-examine the Government's witnesses. He also arranged for them to 'handle the voir dire' and for additional peremptory strikes to be given to one of codefendant's [sic] counsel. Kane testified that he discussed the 'silent strategy' with Warner 'throughout the trial.'

"Russel J. Parker, the prosecutor against whom Kane tried Warner's case and 15 other criminal cases in 1979, testified favorably to Kane's competence as a defense attorney. Kane himself testified that he had used the 'silent strategy' with success in previous multiple defendant trials.

"In view of all the circumstances here, Kane's representation was not so defective as to entitle Warner to constitutional relief without a showing that his attorney's conduct prejudiced him." Warner v. Ford, 752 F.2d at 625.

As we have shown, the cases relied upon by the State are distinguishable on their facts. The State can find no logical support in them.

Our holding today is in accord with the holdings in Martin v. Rose, 744 F.2d 1245 (6th Cir. 1984); United States v. Galinato, 28 M.J. 1049 (N.M.C.M.R. 1989); and State v. Harvey, 692 S.W.2d 290 (Mo. 1985), each of which upheld a claim of ineffective assistance, under Cronic, on facts essentially identical to those before us today. Our research has found no case denying relief on such facts.

We are not persuaded by the State's argument that holding as we do today will encourage other defense counsel to engage in the conduct condemned. Under the Disciplinary Rules of Professional Conduct, every defense counsel owes to his client his zealousness, competence, and diligence. A defense counsel failing in those obligations opens himself up to disciplinary proceedings as well as a civil suit for malpractice. Furthermore, a trial court can meet the threat of attorney non-participation by ascertaining whether the defendant understands the implications and probable consequences of his counsel's conduct and whether the defendant is knowingly, intelligently, and voluntarily waiving his right to the effective assistance of counsel.

We sustain appellant's grounds for review, reverse the judgment of the court of appeals, and remand the case to the trial court for further proceedings consistent with this opinion. We also direct the Clerk of this Court to send a copy of this opinion to the Office of the Chief Disciplinary Counsel of the State Bar of Texas, so that officials therein may begin such investigation and take such action as they may deem appropriate.

DELIVERED OCTOBER 17, 2007

PUBLISH

1. Defense counsel's oral motion for continuance does not appear in the record, but his subsequent, written motion for continuance, which does appear in the record, was based on appellant's need for an expert to assist in the preparation of his defense. See discussion, infra.

2. The court of appeals stated that "[t]he trial judge denied the amended motion to recuse." Cannon v. State, No. 05-04-01479 (Tex.App. - Dallas 2005), slip op. at 2. However, we can find nothing in the record showing that the trial court made any ruling with respect to the amended motion to recuse.

3. On direct examination, State's witness Curtis Smith, a Wylie police officer, testified as follows:

Q: As part of your investigation, did you determine if anybody observed this accident occur?

A: Yes, I determined that there was a witness who saw it.

Q: What was his name, if you recall?

A: His name was Harold Wyan.

Q: Did you speak to Mr. Wyan?

A: I spoke to him later that night on the phone.

Q: What did he tell you?

A: He said that he was following [appellant's] van eastbound on Parker Road [in Collin County]. Wyan said he was traveling about fifty miles an hour, and the van was - the van was pulling away from him.

He estimated that the van was probably traveling fifty-five miles an hour. He observed the van drift off to the side of the road and nearly run off the road. The van then suddenly corrected.

Wyan said that he thought the driver was probably tired after he observed this. And he observed the van approach the intersection of Country Club [Road] and Parker Road and showed no indications of slowing down at the stop sign. The van continued straight through the intersection and collided with the guardrail on the east side of the road.

4. The record does not reflect the nature of the "Tindall Effect."

5. The court of appeals stated that "[t]he [trial] judge denied the [written] motion for continuance." Cannon v. State, No. 05-04-01479 (Tex.App. - Dallas 2005), slip op. at 2. However, we can find nothing in the record showing that the trial court made any ruling with respect to the written motion for continuance.

6. An ineffective-assistance claim may be brought for the first time on appeal. Robinson v. State, 16 S.W.3d 808, 810 (Tex.Crim.App. 2000).

7. We granted appellant's grounds for review numbers one and three. Ground for review number one reads: "The Court of Appeals erred in holding that Petitioner did not receive ineffective assistance of counsel because of Counsel's failure to participate at trial." Ground for review number three reads: "The Court of Appeals erred in finding that the trial record on its face does not support Petitioner's claim of ineffective assistance of counsel without the need for further factual development through the post-conviction court of habeas corpus process."

8. The State concedes that defense counsel "remained silent throughout Appellant's trial, except for a few instances," but argues that counsel's silence could have been a deliberate "strategy of gaining sympathy with the jury through the appearance of being 'railroaded' by both the trial court and the State." The State also suggests that defense counsel "could have been unable to present a defense without the testimony of the expert he requested and thus built in error to ensure reversal and a new trial."

9. In some circumstances, none of which is applicable here, a showing that the result would have been different is not sufficient to show prejudice. See Williams v. Taylor, 529 U.S. 362 (2000).

10. Professors LaFave, Israel, and King have explained:

"[T]he Strickland discussion of prejudice must be read in light of Cronic's recognition that in extreme situations, as presented in Powell v. Alabama [287 U.S. 45 (1932)], prejudice will be presumed. This 'exception' to the Strickland prejudice requirement rests on what has been described as a 'constructive denial' of counsel. Although defendant is represented by counsel, the circumstances of the representation are such that defendant, in effect, is lacking the assistance of counsel. In Powell, that constructive denial of counsel was the product of the nature of the trial court's appointment of counsel. Lower courts have concluded that a constructive denial also occurs when counsel is not present during critical stages in the criminal trial. These rulings involve situations in which counsel consistently fell asleep or simply was tardy, with the court starting the proceedings without him. Courts have extended this reasoning also to encompass a counsel who is present but does not do anything." W. LaFave, et al., Criminal Procedure § 11.10(d) at 733 (2nd ed. 1999) (footnotes omitted and emphasis added).

Ander's brief for OJ?

2007-11-03T23:01:00.000-07:00

NUMBER 13-07-208-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

GABRIELA SALAZAR, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 105th District Court

of Nueces County, Texas

MEMORANDUM OPINION

Before Chief Justice Valdez, Justices Garza and Vela

Memorandum Opinion by Justice Vela

Without a plea agreement, (1) appellant, Gabriela Salazar, pleaded "No contest" to the offense of aggravated robbery. After the trial court found that the stipulated evidence (2) supported a finding of guilty, the court heard punishment evidence and then assessed punishment at sixteen years' imprisonment. Appellant's appellate counsel has filed an Anders brief in which she stated that after reviewing the record, she perceived three possible issues for review but rejected them as arguable grounds for reversal. The issues are whether: (1) appellant's nolo contendere plea was knowing and voluntary; (2) the trial court erred by sentencing appellant to sixteen years' imprisonment; and (3) trial counsel's failure to present medical testimony regarding appellant's hospitalization for depression and attempted suicide constituted ineffective assistance of trial counsel. After thoroughly reviewing the record, we agree that the appeal is frivolous and affirm.

I. Facts

The following testimony was elicited at the punishment hearing during which the State and defense each called three witnesses.

1. State's Witnesses

Roxanne Gonzalez testified that on September 16, 2006, she and Elida Barbosa were walking to a friend's house when appellant approached them. Thinking that a fight was imminent, Roxanne gave her jewelry to Elida for safekeeping. Appellant demanded a chain from Roxanne. When Roxanne refused to give it to her, appellant cut Roxanne's face with what Roxanne described as a "silver blade." Appellant told Roxanne that on the count of five, she wanted the jewelry. Undaunted, Roxanne refused to give it to her. Appellant left when a vehicle approached the scene.

Roxanne received twenty-five stitches to close the cut on her face. She testified that "[T]he doctor said that if she [appellant] would have cut me one more inch or a couple, maybe like one or two, that I could have died just from bleeding." As a result of the cut, she has a scar on her face. She stated that "it's going to be a scar for life. It ain't going to go away. It's just going to be there, . . . ." She also testified that she feared retaliation by appellant and said that appellant had a reputation for being a violent person.

On cross-examination, she testified she did not mention in her written statement that appellant cut her with a blade. When counsel asked her if cosmetic surgery could remove the scar, she replied, "[T]hey had told me something about that, that surgery can make it, like, go away, like-like it never wasn't there."

Sierra Reyes testified that on July 19, 2006, she and Alicia Gonzalez were walking near 19th and Howard when appellant and a girlfriend, "Bubba," accosted them. Appellant pointed a knife at Alicia and told Sierra, "[I]f you don't take off your shoes, I'm gonna hurt your friend." Sierra took off her shoes, and Bubba took them from her. Appellant warned them not to call the police and then took Sierra's necklaces. Alicia testified that appellant "told my friend, Sierra, that if she didn't give her her "J's",[ (3)] she was going to kill me right there and then." She also testified that after Sierra took off her shoes, "she [appellant] just snatched both of her [Sierra's] necklaces, off her chain. And she said if we called the cops, then she was going to kill us . . . ."

2. Defense Witnesses

Appellant testified that prior to the time she cut Roxanne's face, Roxanne and Elida had "jumped" appellant's sister-in-law, Maria. When appellant saw Roxanne and Elida at the time in question, she confronted them about the incident with Maria. Appellant testified that she and Roxanne "were just exchanging foul language towards each other, and then it escalated from there." Appellant stated that she cut Roxanne with "a clear piece of glass." She further testified that she did not realize the extent of Roxanne's injury. Appellant said she was sorry for hurting Roxanne and that she was sorry for what she did to Alicia and Sierra. She denied having a knife when she confronted Sierra and Alicia.

When defense counsel asked appellant if she had any health issues, she replied, "I've been admitted into the hospital for depression. They gave me medicine for depression, anti-depressant." She was hospitalized at Spohn Memorial for two weeks because she "sliced . . . [her] wrists" and "tried to drink Clorox."

Appellant's mother testified that appellant had cut her wrist and that she caught appellant "trying to drink Clorox." Appellant's ex-aunt testified that she did not think that appellant would benefit from incarceration.

II. Issues

1. Voluntary Plea

The first issue is whether appellant's nolo contendere plea was knowing and voluntary. Before a court may accept either a plea of guilty or plea of nolo contendere, a mentally competent defendant must freely and voluntarily enter the plea. Tex. Code Crim. Proc. Ann. art. 26.13(b) (Vernon Supp. 2006); Ex parte Battle, 817 S.W.2d 81, 83 (Tex. Crim. App. 1991). A finding that a defendant was duly admonished creates a prima facie showing that either a plea of guilty or a plea of nolo contendere was entered knowingly and voluntarily. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998) (per curiam). When the record reflects that a defendant was duly admonished, the defendant has the burden to demonstrate that he or she did not fully understand the consequences of the plea such that he or she suffered harm. Id. In considering the voluntariness of a nolo contendere plea, we must examine the record as a whole. Id.

The record from the plea hearing reflects that appellant read the written admonishments, that she reviewed them with her attorney, that her attorney explained them to her, that she understood them, that she freely and voluntarily signed the document containing the written admonishments, that by signing the document containing the admonishments, she understood that she was giving up valuable and important rights, that she understood she was waiving her right to a jury trial, that she understood the punishment range, and that she understood that she was waiving her right to have the jury assess punishment. Defense counsel advised the court that he believed she understood the proceedings, the nature of the charges against her, and the punishment range. When the trial court asked appellant, "To the charge of aggravated robbery as alleged in the indictment, how do you plead, guilty or not guilty?," she replied, "No contest." When the trial court asked her if she was pleading no contest freely and voluntarily, she replied, "Yes, sir." Her responses to the trial court's questions showed: (1) that the decision to plead no contest was her decision; (2) that she understood the consequences of her plea; (3) that she was sane; and (4) that she knew what was going on in the courtroom.

These recitations are entitled to a presumption of regularity. See Light v. State, 15 S.W.3d 104, 107 (Tex. Crim. App. 2000) (per curiam) ("[A] reviewing court, absent evidence of impropriety, [must] indulge every presumption in favor of the regularity of the proceedings and documents in the lower court."). Furthermore, the admonishments provide a prima facie showing that appellant's plea was knowing and voluntary. See Martinez, 981 S.W.2d at 197 (finding that defendant was duly admonished creates prima facie showing that plea of guilty or plea of nolo contendere was entered knowingly and voluntarily); see also Fuentes v. State, 688 S.W.2d 542, 544 (Tex. Crim. App. 1985) (when the record shows defendant received admonishment on punishment, this is a prima facie showing that guilty plea was knowing and voluntary). Because the record shows that appellant was mentally competent and that she entered her plea freely and voluntarily, we overrule the first issue.

2. Punishment

The second issue is whether the trial court erred by sentencing appellant to sixteen years' imprisonment. Appellant was charged by indictment with aggravated robbery by use or exhibition of a deadly weapon. Aggravated robbery is a first-degree felony carrying a punishment range of five to ninety-nine years or life imprisonment and a maximum fine of $10,000. See Tex. Pen. Code Ann. §§ 12.32(a) & (b), 29.03(b) (Vernon 2003).

In the present case, the punishment assessed by the trial judge was permissible. In fact, it fell in the low end of the statutory punishment range. See id. When the punishment assessed is within the limits prescribed by the statute, the punishment is not cruel and unusual within the constitutional prohibition. McNew v. State, 608 S.W.2d 168, 174 (Tex. Crim. App. 1978); Samuel v. State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972); Rodriguez v. State, 917 S.W.2d 90, 92 (Tex. App.-Amarillo 1996, pet. ref'd). The second issue is overruled.

3. Ineffective Assistance of Trial Counsel

The third issue is whether trial counsel's failure to present medical testimony regarding appellant's hospitalization for depression and attempted suicide constituted ineffective assistance of trial counsel. To establish this claim, a defendant must satisfy the two-pronged test announced in Strickland v. Washington, 466 U.S. 686, 687-88, 694 (1984). A defendant must show that (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. To determine whether the test has been satisfied on appeal, we will judge the totality of counsel's representation and not focus on isolated acts or omissions. Id. at 690.

Further, in a claim of ineffective assistance of counsel, the defendant must overcome the strong presumption of reasonable professional assistance. Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). The defendant must prove ineffective assistance of counsel by a preponderance of the evidence. Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991); Munoz v. State, 24 S.W.3d 427, 434 (Tex. App.-Corpus Christi 2000, no pet.). The court in Salinas stated, "[t]o overcome the presumption of reasonable professional assistance, 'any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.'" Salinas, 163 S.W.3d at 740 (quoting Thompson v. State, 9 S.W.3d at 813 (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996))). In most cases, when the record does not provide explanations for counsel's actions, a silent record will not overcome the presumption. Mallet v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).

In the present case, appellant had been hospitalized for depression, and she had attempted suicide. Trial counsel offered no medical testimony regarding this issue; rather, he relied upon the testimony of appellant and her mother.

Appellate review of trial counsel's representation is highly deferential and presumes counsel's actions fell within the wide range of reasonable and professional assistance. Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007). If counsel's reasons for his conduct do not appear in the record, and there is at least the possibility his conduct could have been grounded in legitimate trial strategy, we will defer to counsel's decisions and deny relief on an ineffective-assistance claim on direct appeal. Id. Here, counsel's reasons for his actions or intentions do not appear in the record, and his conduct could have been part of a reasonable trial strategy. Without more, we must defer to counsel's decisions and deny relief. The third issue is overruled.

III. Compliance with Anders v. California

Appellant's court-appointed counsel filed an Anders brief in which she has concluded that there is nothing that merits review on direct appeal. Anders v. California, 386 U.S. 738, 744 (1967). Appellant's brief meets the requirements of Anders. Id. at 744-45; see High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978). In compliance with Anders, counsel presented a professional evaluation of the record and referred this Court to what, in her opinion, are all issues which might arguably support an appeal. See Anders, 386 U.S. at 744; Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim. App. 1974); see also High, 573 S.W.2d at 812. Counsel informed this Court that: (1) she had diligently read and reviewed the record on appeal and has concluded that there is no meritorious ground for either reversal or modification of the judgment; (2) she has advised appellant by certified mail of her right to file her own brief; (3) she has furnished appellant with a complete copy of the record on appeal by certified mail on June 22, 2007; (5) she has furnished appellant with a copy of appellant's brief, along with a copy of her motion to withdraw as counsel. See Anders, 386 U.S. at 744-45; see also Stafford v. State, 813 S.W.2d 503, 509 (Tex. Crim. App. 1991); High, 573 S.W.2d at 813. No pro se brief has been filed with this Court.

IV. Independent Review

The United States Supreme Court advised appellate courts that upon receiving a "frivolous appeal" brief, they must conduct "a full examination of all the proceedings to decide whether the case is wholly frivolous." Penson v. Ohio, 488 U.S. 75, 80 (1988); see Ybarra v. State, 93 S.W.3d 922, 926 (Tex. App.-Corpus Christi 2003, no pet.). Accordingly, we have carefully reviewed the record and have found nothing that would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 826 (Tex. Crim. App. 2005); Stafford, 813 S.W.2d at 509. We agree with counsel that the appeal is wholly frivolous and without merit. See Bledsoe, 178 S.W.3d at 827-28 ("Due to the nature of Anders briefs, by indicating in the opinion that it considered the issues raised in the briefs and reviewed the record for reversible error but found none, the court of appeals met the requirements of Texas Rule of Appellate Procedure 47.1."). Accordingly, we affirm the judgment of the trial court.

V. Motion to Withdraw

An appellate court may grant counsel's motion to withdraw in connection with an Anders brief. Moore v. State, 466 S.W.2d 289, 291 n.1 (Tex. Crim. App. 1971); Stafford, 813 S.W.2d at 511 (noting that Anders brief should be filed with request to withdraw from case). We grant counsel's motion to withdraw. We order counsel to advise appellant promptly of the disposition of the case and the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (per curiam).

The trial court's judgment is affirmed.

ROSE VELA

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this 1st day of November, 2007.

1. On March 12, 2007, the trial court signed a document entitled "Trial Court's Certification of Defendant's Right of Appeal," in which the court indicated that this case did not involve a plea bargain and that appellant has the right of appeal.

2. Without objection, the trial court admitted the stipulated evidence as State's Exhibit No. 1. Texas has a procedural requirement that the State must offer sufficient proof to support a judgment based on either a plea of guilty or a plea of nolo contendere in a felony case. See Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005).

3. Alicia testified that appellant was referring to Sierra's "Jordans," a reference to the brand of shoes, which Sierra was wearing.

the attorney’s negligence and breach of duty resulted in his being confined prior to trial, placing him at a disadvantage in other pending legal matte

2007-10-12T00:46:00.000-07:00

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NUMBER 13-02-658-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

CHRISTOPHER LYNN GARDNER, Appellant,

v.

LORI K. REDMOND, Appellee.

On appeal from the 24th District Court of De Witt County, Texas.

DISSENTING OPINION

Before Justices Hinojosa, Yañez, and Garza

Dissenting Opinion by Justice Yañez

The majority holds that the sole proximate cause bar established in Peeler v. Hughes & Luce, 909 S.W.2d 494, 497-98 (Tex. 1995), applies to appellant’s legal malpractice claim. Accordingly, the majority holds that the injury complained of by the appellant was caused by his illegal conduct because the injury “relates to” his conviction, and as a result, summary judgment in favor of the appellee was proper. However, I would hold that the injury is separate and distinct from appellant’s conviction and his claim is not excluded by the sole proximate cause bar in Peeler. As a result, genuine issues of material fact exist which would prevent summary judgment in this case.

Factual Background

Appellant, Christopher Lynn Garner, was charged with three counts of aggravated robbery, and pleaded nolo contendre to three counts of robbery as a result of a plea agreement. The plea agreement provided for no affirmative finding of a deadly weapon and assessed punishment at three concurrent fifteen-year prison sentences. Garner later contacted appellee, Lori K. Redmond, an attorney, to represent him in a parole review hearing. She did so on two occasions, once in 1999 and again in 2000, both of which resulted in unfavorable outcomes for Garner.

Following his first parole denial, Redmond sent Garner a letter representing that Garner was incarcerated for a “3G” offense. Garner, in the belief that his sentence was erroneously entered as an aggravated robbery, rather than the lesser-included offense of robbery agreed to in the plea bargain, filed an application for a writ of habeas corpus. The court of criminal appeals denied the application, finding that the trial court’s written order complied with the plea agreement.

Garner then sued for legal malpractice, arguing that Redmond’s negligence caused him to file the writ of habeas corpus, thereby expending his only writ of habeas corpus. Footnote Both parties moved for summary judgment, and the trial court granted Redmond’s motion and denied Garner’s.

Summary Judgment Standard of Review

We review a trial court’s grant or denial of summary judgment de novo. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). A summary judgment movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Id. at 548; CIGNA Lloyds Ins. Co. v. Bradley’s Elec., Inc, 33 S.W.3d 102, 104 (Tex. App.–Corpus Christi 2000, pet. denied). Where the only question presented to the trial court was a question of law and both sides moved for summary judgment, the appellate court should render the judgment the trial court should have rendered. Jones v. Strauss, 745 S.W.2d 898, 900 (Tex. 1988); Bradley’s Elec., Inc., 33 S.W.3d at 104.

Sole Proximate Cause Bar

The majority’s opinion rests exclusively on the holding in Peeler that “as a matter of law, it is the illegal conduct rather than the negligence of a convict’s counsel that is the cause in fact of any injuries flowing from the conviction.” Peeler, 909 S.W.2d at 498. Had the appellant filed his lawsuit against appellee arguing that her negligence resulted in his not being released on parole, I would agree that the Peeler standard applies. However, he instead argues that he has used his one and only application for a writ of habeas corpus Footnote due to appellee’s negligence.

In Peeler, the appellant sued her attorney, who had represented her regarding her guilt or innocence, for failing to inform her of an immunity offered by the government. Id. at 496. The supreme court held that, as a matter of public policy, convicted criminals “may negate the sole proximate cause bar to their claim for legal malpractice in connection with that conviction only if they have been exonerated on direct appeal, through post-conviction relief, or otherwise.” Id. at 497-98 (emphasis added).

However, it is possible for “the circumstances and policy considerations involved in Peeler” to not be involved in a legal malpractice claim by a convicted criminal, thereby rendering Peeler inapplicable. Satterwhite v. Jacobs, 26 S.W.3d 35, 37 (Tex. App.–Houston [1st Dist.] 2000, pet. granted); rev’d on other grounds, 65 S.W.2d 653 (Tex. 2001). In Satterwhite, the convicted criminal (Satterwhite) sued his attorney who had represented him at a motion to hold defendant without bond hearing. Id. at 36. He argued that the attorney’s negligence and breach of duty resulted in his being confined prior to trial, placing him at a disadvantage in other pending legal matters and causing severe emotional and mental distress. Id. Satterwhite was later represented by another attorney and pleaded guilty to the charges. Id. In reversing the trial court’s grant of summary judgment in favor of the attorney, the court of appeals reasoned that Satterwhite’s claim was not based on the legal representation he had received during his criminal trial, the conviction was irrelevant to the claim for legal malpractice, and the issue from which the claim for legal malpractice arose did not involve the issue of Satterwhite’s ultimate guilt or innocence. Id. Therefore, the court concluded that “the nature of Satterwhite’s action in [that] case [was] materially different from that in the case before the supreme court in Peeler.” Id.

The present case is similar to Satterwhite in that the injury complained of does not arise out of Redmond’s representation of Garner at his criminal trial. Id. Instead, it arises from her representation of Garner at his parole hearings, or more specifically, from her misrepresentations to Garner following his parole hearings. In addition, Garner’s conviction is irrelevant to the claim he now asserts against Redmond. Id. He did not challenge his conviction in the trial court, nor does he do so on appeal. Simply because a convicted criminal has a right to a writ of habeas corpus Footnote does not in essence make his criminal conviction relevant to his claim for legal malpractice. Finally, Garner’s ultimate guilt or innocence is not at issue in this court, nor was it at issue in the trial court or in any of the parole hearings giving rise to Garner’s claim. Id. These factors suggest that Garner’s injuries do not flow from the conviction, but rather from the claimed negligence. Therefore, the injury is not connected to and does not relate to his conviction.

Because the injury claimed by Garner and the underlying legal representation provided by Redmond are “materially different” from those claimed in Peeler, I would hold that the Peeler standard does not apply here. As such, there is no sole proximate cause bar to Garner’s claim and a genuine issue of material fact exists that would preclude summary judgment for either party. Accordingly, the judgment of the trial court should be reversed and remanded for a trial on the merits.

LINDA REYNA YAÑEZ

Justice

Dissenting opinion delivered and filed this the

5th day of August, 2004.

“[t]he notion that defense counsel must obtain information that the State has and will use against the defendant is not simply a matter of common sens

2007-09-10T21:53:00.000-07:00

Ineffective Assistance Of Counsel - Defined and Discussed!

Also check out complaints against Rhode Island Boards and Commissions and Rhode Island Judges and Rhode Island Lawyers.

A brief definition

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.

Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland v. Washington, 466 US 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984)

...and now the Rhode Island definition:

The law requires a "strong presumption" that a lawyer's conduct falls within the "wide range" of professional assistance. In Rhode Island the standard is whether a lawyer's representation was so lacking that the trial had become a farce and a mockery of justice," - Judge Gale Prov. Journal 5-10-2006

First some "creative interpretations" of ineffective assistance...

A 1993 issue of The American Lawyer included the following collection of excerpts from rulings on appeals by clients on the grounds of “ineffective assistance” by their legal counsel.

NOT INCOMPETENT ENOUGH TO REQUIRE REVERSAL:

“Although defense counsel slept during portions of the trial, counsel provided defendant meaningful representation.”
“Proof of a defense counsel’s use of narcotics during trial does not amount to a per se violation of constitutional right to effective counsel.”

“Murder defendant was not deprived of effective assistance of counsel, though counsel was alcoholic.”

“Counsel’s … seeming indifference to defendant’s attire . . . through defendant was wearing same sweatshirt and footwear in court that he wore on the day of crime, did not constitute ineffective assistance.”

INCOMPETENT ENOUGH TO REQUIRE REVERSAL:

“Defense counsel’s closing argument that . . . admitted client’s guilt without client’s consent and argued . . . that permissive society in general, and television and rock music in particular, produced nihilistic attitudes in young people so that society should be held responsible for defendant’s conduct, constituted prejudicial ineffective assistance of counsel.”
“Counsel was himself under indictment on unrelated cocaine charges and repeatedly informed prospective jurors of that fact during voir dire.”

“Suggesting that if defendant had testified, he would have lied . . . constituted ineffective assistance of counsel.”

“[It was ineffective assistance when defense counsel failed] to challenge any prospective juror, either preemptory or for cause, with result that nine of twelve jurors had friends or relatives on various police force.”

Caught also provides the following cases where ineffective assistance and related issues are discussed: We start with Strickland v Washington and follow with SANTOS v. GREINER and then list cases that were successful in proving ineffective assistance.
Strickland v. Washington 466 U.S. 668 (1984)

Strickland pled guilty to three counts of murder and several other charges. He was sentenced to death after a hearing before a judge. He then challenged the sentence on the ground that his attorney provided constitutionally inadequate representation at the sentencing proceeding. In the course of rejecting his claim, the Court set out standards for adjudicating ineffective assistance of counsel claims.]

II

In a long line of cases that includes Powell v. Alabama, 287 U.S. 45 (1932), Johnson v. Zerbst, 304 U.S. 458 (1938), and Gideon v. Wainwright, 372 U.S. 335 (1963), this Court has recognized that the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial. The Constitution guarantees a fair trial through the Due Process Clauses, but it defines the basic elements of a fair trial largely through the several provisions of the Sixth Amendment, including the Counsel Clause:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

Thus, a fair trial is one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding. The right to counsel plays a crucial role in the adversarial system embodied in the Sixth Amendment, since access to counsel's skill and knowledge is necessary to accord defendants the "ample opportunity to meet the case of the prosecution" to which they are entitled.

Because of the vital importance of counsel's assistance, this Court has held that, with certain exceptions, a person accused of a federal or state crime has the right to have counsel appointed if retained counsel cannot be obtained. That a person who happens to be a lawyer is present at trial alongside the accused, however, is not enough to satisfy the constitutional command. The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel's playing a role that is critical to the ability of the adversarial system to produce just results. An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair.

For that reason, the Court has recognized that "the right to counsel is the right to the effective assistance of counsel." Government violates the right to effective assistance when it interferes in certain ways with the ability of counsel to make independent decisions about how to conduct the defense. See, e.g., Geders v. United States, 425 U.S. 80 (1976) (bar on attorney-client consultation during overnight recess); Herring v. New York, 422 U.S. 853 (1975) (bar on summation at bench trial); Brooks v. Tennessee, 406 U.S. 605 (1972) (requirement that defendant be first defense witness); Ferguson v. Georgia, 365 U.S. 570 (1961) (bar on direct examination of defendant). Counsel, however, can also deprive a defendant of the right to effective assistance, simply by failing to render "adequate legal assistance," Cuyler v. Sullivan, 446 U.S., at 344 (actual conflict of interest adversely affecting lawyer's performance renders assistance ineffective).

The Court has not elaborated on the meaning of the constitutional requirement of effective assistance in the latter class of cases--that is, those presenting claims of "actual ineffectiveness." In giving meaning to the requirement, however, we must take its purpose--to ensure a fair trial--as the guide. The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.

The same principle applies to a capital sentencing proceeding such as that provided by Florida law. We need not consider the role of counsel in an ordinary sentencing, which may involve informal proceedings and standardless discretion in the sentencer, and hence may require a different approach to the definition of constitutionally effective assistance. A capital sentencing proceeding like the one involved in this case, however, is sufficiently like a trial in its adversarial format and in the existence of standards for decision, see Barclay v. Florida, 463 U.S. 939, 952-954 (1983); Bullington v. Missouri, 451 U.S. 430 (1981), that counsel's role in the proceeding is comparable to counsel's role at trial--to ensure that the adversarial testing process works to produce a just result under the standards governing decision. For purposes of describing counsel's duties, therefore, Florida's capital sentencing proceeding need not be distinguished from an ordinary trial.

III

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

A

As all the Federal Courts of Appeals have now held, the proper standard for attorney performance is that of reasonably effective assistance. The Court indirectly recognized as much when it stated in McMann v. Richardson, 397 U.S., at 770, 771, that a guilty plea cannot be attacked as based on inadequate legal advice unless counsel was not "a reasonably competent attorney" and the advice was not "within the range of competence demanded of attorneys in criminal cases." When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness.

More specific guidelines are not appropriate. The Sixth Amendment refers simply to "counsel," not specifying particular requirements of effective assistance. It relies instead on the legal profession's maintenance of standards sufficient to justify the law's presumption that counsel will fulfill the role in the adversary process that the Amendment envisions. The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.

Representation of a criminal defendant entails certain basic duties. Counsel's function is to assist the defendant, and hence counsel owes the client a duty of loyalty, a duty to avoid conflicts of interest. From counsel's function as assistant to the defendant derive the overarching duty to advocate the defendant's cause and the more particular duties to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution. Counsel also has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process.

These basic duties neither exhaustively define the obligations of counsel nor form a checklist for judicial evaluation of attorney performance. In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances. Prevailing norms of practice as reflected in American Bar Association standards and the like, e.g., ABA Standards for Criminal Justice 4- 1.1 to 4-8.6 (2d ed. 1980) ("The Defense Function"), are guides to determining what is reasonable, but they are only guides. No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant. Any such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions. Indeed, the existence of detailed guidelines for representation could distract counsel from the overriding mission of vigorous advocacy of the defendant's cause. Moreover, the purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation, although that is a goal of considerable importance to the legal system. The purpose is simply to ensure that criminal defendants receive a fair trial.

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. See Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U.L.Rev. 299, 343 (1983).

The availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel's unsuccessful defense. Counsel's performance and even willingness to serve could be adversely affected. Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases, and undermine the trust between attorney and client.

Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.

These standards require no special amplification in order to define counsel's duty to investigate, the duty at issue in this case. As the Court of Appeals concluded, strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.

The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable. In short, inquiry into counsel's conversations with the defendant may be critical to a proper assessment of counsel's investigation decisions, just as it may be critical to a proper assessment of counsel's other litigation decisions.

B

An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.

In certain Sixth Amendment contexts, prejudice is presumed. Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice. So are various kinds of state interference with counsel's assistance. Prejudice in these circumstances is so likely that case-by-case inquiry into prejudice is not worth the cost. Moreover, such circumstances involve impairments of the Sixth Amendment right that are easy to identify and, for that reason and because the prosecution is directly responsible, easy for the government to prevent.

One type of actual ineffectiveness claim warrants a similar, though more limited, presumption of prejudice. In Cuyler v. Sullivan, the Court held that prejudice is presumed when counsel is burdened by an actual conflict of interest. In those circumstances, counsel breaches the duty of loyalty, perhaps the most basic of counsel's duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests. Given the obligation of counsel to avoid conflicts of interest and the ability of trial courts to make early inquiry in certain situations likely to give rise to conflicts, see, e.g., Fed.Rule Crim.Proc. 44(c), it is reasonable for the criminal justice system to maintain a fairly rigid rule of presumed prejudice for conflicts of interest. Even so, the rule is not quite the per se rule of prejudice that exists for the Sixth Amendment claims mentioned above. Prejudice is presumed only if the defendant demonstrates that counsel "actively represented conflicting interests" and that "an actual conflict of interest adversely affected his lawyer's performance."

Conflict of interest claims aside, actual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice. The government is not responsible for, and hence not able to prevent, attorney errors that will result in reversal of a conviction or sentence. Attorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial. They cannot be classified according to likelihood of causing prejudice. Nor can they be defined with sufficient precision to inform defense attorneys correctly just what conduct to avoid. Representation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another. Even if a defendant shows that particular errors of counsel were unreasonable, therefore, the defendant must show that they actually had an adverse effect on the defense.

It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test, and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding. Respondent suggests requiring a showing that the errors "impaired the presentation of the defense." That standard, however, provides no workable principle. Since any error, if it is indeed an error, "impairs" the presentation of the defense, the proposed standard is inadequate because it provides no way of deciding what impairments are sufficiently serious to warrant setting aside the outcome of the proceeding.

On the other hand, we believe that a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case. This outcome-determinative standard has several strengths. It defines the relevant inquiry in a way familiar to courts, though the inquiry, as is inevitable, is anything but precise. The standard also reflects the profound importance of finality in criminal proceedings. Moreover, it comports with the widely used standard for assessing motions for new trial based on newly discovered evidence. Nevertheless, the standard is not quite appropriate.

Even when the specified attorney error results in the omission of certain evidence, the newly discovered evidence standard is not an apt source from which to draw a prejudice standard for ineffectiveness claims. The high standard for newly discovered evidence claims presupposes that all the essential elements of a presumptively accurate and fair proceeding were present in the proceeding whose result is challenged. An ineffective assistance claim asserts the absence of one of the crucial assurances that the result of the proceeding is reliable, so finality concerns are somewhat weaker and the appropriate standard of prejudice should be somewhat lower. The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.

Accordingly, the appropriate test for prejudice finds its roots in the test for materiality of exculpatory information not disclosed to the defense by the prosecution, and in the test for materiality of testimony made unavailable to the defense by Government deportation of a witness. The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

In making the determination whether the specified errors resulted in the required prejudice, a court should presume, absent challenge to the judgment on grounds of evidentiary insufficiency, that the judge or jury acted according to law. An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, "nullification," and the like. A defendant has no entitlement to the luck of a lawless decisionmaker, even if a lawless decision cannot be reviewed. The assessment of prejudice should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision. It should not depend on the idiosyncracies of the particular decisionmaker, such as unusual propensities toward harshness or leniency. Although these factors may actually have entered into counsel's selection of strategies and, to that limited extent, may thus affect the performance inquiry, they are irrelevant to the prejudice inquiry. Thus, evidence about the actual process of decision, if not part of the record of the proceeding under review, and evidence about, for example, a particular judge's sentencing practices, should not be considered in the prejudice determination.

The governing legal standard plays a critical role in defining the question to be asked in assessing the prejudice from counsel's errors. When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt. When a defendant challenges a death sentence such as the one at issue in this case, the question is whether there is a reasonable probability that, absent the errors, the sentencer--including an appellate court, to the extent it independently reweighs the evidence--would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.

In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.

IV

A number of practical considerations are important for the application of the standards we have outlined. Most important, in adjudicating a claim of actual ineffectiveness of counsel, a court should keep in mind that the principles we have stated do not establish mechanical rules. Although those principles should guide the process of decision, the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. In every case the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results. . . .

Although we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result.

* * *

Justice MARSHALL, dissenting.

* * *

The opinion of the Court revolves around two holdings. First, the majority ties the constitutional minima of attorney performance to a simple "standard of reasonableness." Second, the majority holds that only an error of counsel that has sufficient impact on a trial to "undermine confidence in the outcome" is grounds for overturning a conviction. I disagree with both of these rulings.

A

My objection to the performance standard adopted by the Court is that it is so malleable that, in practice, it will either have no grip at all or will yield excessive variation in the manner in which the Sixth Amendment is interpreted and applied by different courts. To tell lawyers and the lower courts that counsel for a criminal defendant must behave "reasonably" and must act like "a reasonably competent attorney," is to tell them almost nothing. In essence, the majority has instructed judges called upon to assess claims of ineffective assistance of counsel to advert to their own intuitions regarding what constitutes "professional" representation, and has discouraged them from trying to develop more detailed standards governing the performance of defense counsel. In my view, the Court has thereby not only abdicated its own responsibility to interpret the Constitution, but also impaired the ability of the lower courts to exercise theirs.

The debilitating ambiguity of an "objective standard of reasonableness" in this context is illustrated by the majority's failure to address important issues concerning the quality of representation mandated by the Constitution. It is an unfortunate but undeniable fact that a person of means, by selecting a lawyer and paying him enough to ensure he prepares thoroughly, usually can obtain better representation than that available to an indigent defendant, who must rely on appointed counsel, who, in turn, has limited time and resources to devote to a given case. Is a "reasonably competent attorney" a reasonably competent adequately paid retained lawyer or a reasonably competent appointed attorney? It is also a fact that the quality of representation available to ordinary defendants in different parts of the country varies significantly. Should the standard of performance mandated by the Sixth Amendment vary by locale The majority offers no clues as to the proper responses to these questions.

The majority defends its refusal to adopt more specific standards primarily on the ground that "[n]o particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant." I agree that counsel must be afforded "wide latitude" when making "tactical decisions" regarding trial strategy, but many aspects of the job of a criminal defense attorney are more amenable to judicial oversight. For example, much of the work involved in preparing for a trial, applying for bail, conferring with one's client, making timely objections to significant, arguably erroneous rulings of the trial judge, and filing a notice of appeal if there are colorable grounds therefor could profitably be made the subject of uniform standards.

The opinion of the Court of Appeals in this case represents one sound attempt to develop particularized standards designed to ensure that all defendants receive effective legal assistance. . . . By refusing to address the merits of these proposals, and indeed suggesting that no such effort is worthwhile, the opinion of the Court, I fear, will stunt the development of constitutional doctrine in this area.

B

I object to the prejudice standard adopted by the Court for two independent reasons. First, it is often very difficult to tell whether a defendant convicted after a trial in which he was ineffectively represented would have fared better if his lawyer had been competent. Seemingly impregnable cases can sometimes be dismantled by good defense counsel. On the basis of a cold record, it may be impossible for a reviewing court confidently to ascertain how the government's evidence and arguments would have stood up against rebuttal and cross-examination by a shrewd, well-prepared lawyer. The difficulties of estimating prejudice after the fact are exacerbated by the possibility that evidence of injury to the defendant may be missing from the record precisely because of the incompetence of defense counsel. In view of all these impediments to a fair evaluation of the probability that the outcome of a trial was affected by ineffectiveness of counsel, it seems to me senseless to impose on a defendant whose lawyer has been shown to have been incompetent the burden of demonstrating prejudice.

Second and more fundamentally, the assumption on which the Court's holding rests is that the only purpose of the constitutional guarantee of effective assistance of counsel is to reduce the chance that innocent persons will be convicted. In my view, the guarantee also functions to ensure that convictions are obtained only through fundamentally fair procedures. The majority contends that the Sixth Amendment is not violated when a manifestly guilty defendant is convicted after a trial in which he was represented by a manifestly ineffective attorney. I cannot agree. Every defendant is entitled to a trial in which his interests are vigorously and conscientiously advocated by an able lawyer. A proceeding in which the defendant does not receive meaningful assistance in meeting the forces of the State does not, in my opinion, constitute due process.

In Chapman v. California, 386 U.S. 18 (1967), we acknowledged that certain constitutional rights are "so basic to a fair trial that their infraction can never be treated as harmless error." Among these rights is the right to the assistance of counsel at trial. In my view, the right to effective assistance of counsel is entailed by the right to counsel, and abridgment of the former is equivalent to abridgment of the latter. I would thus hold that a showing that the performance of a defendant's lawyer departed from constitutionally prescribed standards requires a new trial regardless of whether the defendant suffered demonstrable prejudice thereby.

II

Even if I were inclined to join the majority's two central holdings, I could not abide the manner in which the majority elaborates upon its rulings. Particularly regrettable are the majority's discussion of the "presumption" of reasonableness to be accorded lawyers' decisions and its attempt to prejudge the merits of claims previously rejected by lower courts using different legal standards.

A

In defining the standard of attorney performance required by the Constitution, the majority appropriately notes that many problems confronting criminal defense attorneys admit of "a range of legitimate" responses. And the majority properly cautions courts, when reviewing a lawyer's selection amongst a set of options, to avoid the hubris of hindsight. The majority goes on, however, to suggest that reviewing courts should "indulge a strong presumption that counsel's conduct" was constitutionally acceptable, and should "appl[y] a heavy measure of deference to counsel's judgments,"

I am not sure what these phrases mean, and I doubt that they will be self-explanatory to lower courts. If they denote nothing more than that a defendant claiming he was denied effective assistance of counsel has the burden of proof, I would agree. But the adjectives "strong" and "heavy" might be read as imposing upon defendants an unusually weighty burden of persuasion. If that is the majority's intent, I must respectfully dissent. The range of acceptable behavior defined by "prevailing professional norms," seems to me sufficiently broad to allow defense counsel the flexibility they need in responding to novel problems of trial strategy. To afford attorneys more latitude, by "strongly presuming" that their behavior will fall within the zone of reasonableness, is covertly to legitimate convictions and sentences obtained on the basis of incompetent conduct by defense counsel.

The only justification the majority itself provides for its proposed presumption is that undue receptivity to claims of ineffective assistance of counsel would encourage too many defendants to raise such claims and thereby would clog the courts with frivolous suits and "dampen the ardor" of defense counsel. I have more confidence than the majority in the ability of state and federal courts expeditiously to dispose of meritless arguments and to ensure that responsible, innovative lawyering is not inhibited. In my view, little will be gained and much may be lost by instructing the lower courts to proceed on the assumption that a defendant's challenge to his lawyer's performance will be insubstantial.
SANTOS v. GREINER

New York Law Journal
September 30, 1999

SOUTHERN DISTRICT

Judge Peck

SANTOS v. GREINER QDS:02761643 Petitioner Jose Santos was convicted of rape, sodomy, sexual abuse and assault of his wife, Betzabet Gonzalez, on May 9, 1995. Santos, represented by counsel, seeks a writ of habeas corpus, alleging that (1) his due process right under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), was violated because the prosecutor failed to disclose evidence that Gonzalez recanted her grand jury testimony before trial and urged the prosecutor to drop the charges (Pet. ¶¶18-22); (2) he was denied effective assistance of counsel at trial (Pet. ¶23); and (3) the trial court's admission of Gonzalez's out-of-court statements under the "prompt outcry" hearsay exception violated his Sixth Amendment confrontation rights (Pet. ¶23).

The parties consented to disposition of this matter by a Magistrate Judge pursuant to 28 U.S.C. §636(c). (Dkt. No. 10.)

For the reasons set forth below, the petition is denied as without merit.

Facts

Jose Santos married Betzabet Gonzalez in March 1994 when both were in their mid-30s. (Tr. 130, 132, 287.) Gonzalez, a Venezuela-born immigrant, worked as a home attendant. (Tr. 130, 132.) Santos took classes at Bronx Community College and gave guitar lessons. (Tr. 288.) Their marriage, however, was stormy, with many arguments after which Santos would move out to stay with his mother. (Tr. 187, 190-92, 240, 289-91, 308-09.) Both Santos and Gonzalez testified that until the May 9, 1995 incident that resulted in Santos's conviction, he had never struck Gonzalez. (Tr. 143, 291.)

According to Gonzalez: on the evening of Friday, May 5, 1995, she declined to have sex with Santos because her two young sons were in the room. (Tr. 133-34, 193-94.) The next day, Santos told Gonzalez that he no longer wanted to live with her, that she "was not the type of woman who would satisfy him in any sense," and that he wanted a divorce. (Tr. 134-35, 226.) Santos gave Gonzalez his keys to the apartment and moved his things out. (Tr. 135-36, 194.) Santos, however, called Gonzalez repeatedly over the next two days. (Tr. 136-37.) Gonzalez unplugged the telephone on the evening of Monday, May 8, 1995. (Tr. 137.) That night she also realized that Santos had left behind an identification card and a document from the college he was attending. (Tr. 138, 195.)

Santos testified to a different reason for his leaving Gonzalez: Santos testified that on Saturday, May 6, 1995, Gonzalez "tricked me into taking her to the airport to" pick up her friend Beverly Carabaio and "hide her out in a hotel in New Jersey." (Tr. 293.) Santos did not approve of Carabaio because he suspected she was involved in criminal activity. (Tr. 293.) Santos also testified that he had consensual sex with Gonzalez on Sunday, May 7, 1995. (Tr. 294.) Santos became angry when Gonzalez came home late that night, packed his things, gave her his keys and vowed to seek a divorce. (Tr. 294, 312.)

The May 9, 1995 Attack

Gonzalez's Version

On Tuesday morning, May 9, 1995, Gonzalez's children left for school at "about 7:35 or 7:40." (Tr. 139.) Ten minutes later, Santos rang the doorbell and Gonzalez let him in "[b]ecause [she] thought he was coming to pick up the papers that he had left behind." (Tr. 140- 41.) Gonzalez testified that Santos "looked strange, like as if he had not slept all night." (Tr. 141.) Santos asked Gonzalez where she was Monday night; when she said she was home but had not returned his calls because she did not want to talk to him, he became violent, pushing her from behind. (Tr. 141-42.)

According to Gonzalez: "He grabbed me by the neck and began saying to me that I would have to learn how to respect him, because he was my husband and that I had to do whatever he said, that this thing of mine of doing whatever I wanted was going to come to an end, and he continued to squeeze my neck." (Tr 142.) Gonzalez smelled alcohol on Santos's breath. (Tr. 144.) As Gonzalez attempted to fight Santos off, he pushed her to the floor, "[a]nd when I fell, my leg bent backwards and when I fell to the floor, I felt a horrible pain and I began to cry. ... I felt a terrible pain at the bone on my ankle." (Tr. 143, 145.) Santos threw himself on top of Jose Santos Gonzalez on the floor but she pushed him and "he got up and went to the kitchen." (Tr. 145-46.) Santos returned from the kitchen with a large knife and said he was going to kill Gonzalez. (Tr. 147-49.) As Gonzalez was crying, Santos — knife in hand — continued to talk about killing her and killing himself, and Santos went to the living room and started drinking rum from the bottle. (Tr. 149-51.) "He walked like a madman, back and forth, back and forth," still holding the knife. (Tr. 151-52.) Finally, Gonzalez managed to raise herself up from the floor onto the edge of the bed. (Tr. 152-53.)

Santos pushed Gonzalez back onto the bed, forced her clothes off "very violently," and then took his own clothes off. (Tr. 153-55, 206-08.) Santos put his mouth on Gonzalez's breasts, performed oral sex on her and then raped her. (Tr. 155-59, 199.) After the rape concluded, Santos said he was going to kill Gonzalez and plunged the knife into the bed as Gonzalez moved out of the way. (Tr. 159-60, 203, 212-13.)

Gonzalez told Santos that if he took her to the hospital, she would not "tell them" what he had done to her. (Tr. 162-63.) Eventually, Santos called an ambulance, which took Gonzalez to the hospital to treat her injured leg. (Tr. 168-70, 213.) Because Santos was with her, Gonzalez told the ambulance crew that she fell down the stairs. (Tr. 169.)

Santos's Version

Santos disputed Gonzalez's account. Santos testified that on the morning of May 9, 1995, Gonzalez asked him to come in when he arrived to pick up his papers. (Tr. 295.) Gonzalez came at him with a knife from the kitchen, but she "stepped over a shoe at the entrance of the room and she slipped towards me. ... I grabbed her by the hand and I threw her over the bed. When I threw her on the bed, the knife buried itself in the mattress, and then I took the opportunity to take it away." (Tr. 296; see also Tr. 325-27, 331.) Because Santos saw that her foot was swollen, he called an ambulance to take her to the hospital. (Tr. 296-300, 322-24, 331.)

Gonzalez's Statements at the Hospital

When the couple arrived at Columbia Presbyterian Hospital, Gonzalez called a friend, America Martinez, who was not home, so she asked Martinez's daughter to call Martinez at work to ask her to come to the hospital. (Tr. 171-72, 219-20.) Martinez arrived, asked what happened, and Gonzalez said she would tell her later, because Santos was there. (Tr. 172-73, 222-24.) Gonzalez testified about her statement to a social worker and to Martinez:

Q. ... Did you speak to the social worker who came down?

A. Yes.

Q. Was anybody with you when you spoke to the social worker?

A. No.

. . .

Q. Did you tell the social worker that the defendant had pushed you onto the floor?

MR. PAISLEY [defense counsel]: Objection.

THE COURT: Overruled.

A. Yes.

Q. And that he raped you?

A. Yes.

MR. PAISLEY: Hearsay, Judge. Objection.

THE COURT: Overruled.

Q. And after you saw the social worker, did you tell Ms. Martinez also what had happened?

A. Yes.

Q. And did you tell Ms. Martinez that the defendant had raped you?

A. Yes.

(Tr. 174-75.) Defense counsel did not object when the prosecutor asked Gonzalez whether she had told Martinez that Santos had raped her. (Tr. 175.)

Outside the jury's presence, the trial judge explained that the defense's "objections were overruled on the grounds they are prompt outcries, which are exceptions to the hearsay rule." (Tr. 180.)

Later in the trial, Martinez testified, corroborating Gonzalez's testimony: "[Gonzalez] told me that [Santos] had hit her and had raped her and pushed her on the floor." (Tr. 237.) Defense counsel did not object to this testimony. (Tr. 237.)

Gonzalez's Testimony About Her Call to Santos's Defense Counsel

On cross-examination, defense counsel brought out that Gonzalez had called him and indicated that she did not want to send Santos to jail:

Q. Do you still love [Santos]?

A. Yes.

Q. Didn't you call me once?

A. Yes.

Q. And tell me that you didn't want to see him go to jail?

A. Yes.

Q. Have you made an attempt to drop the charges, yes or no?

A. No.

(Tr. 227.) Defense counsel did not follow up further on this topic. (Tr. 227-28.)

On re-direct, the State had Gonzalez explain her phone call to defense counsel:

Q. Did you call [defense counsel] Mr. Paisley on the telephone once?

A. Yes.

Q. Would you tell us why?

A. Because Jose's mother would call me a lot and she went to my house and she told me, crying, to please drop the charges against Jose, to do it for her, that he had — he was very remorseful, that he was changing and that he would never do that to me again. And so I told her that I would speak to the District Attorney to see what we can do about it. She told me, "This is Jose's attorney's phone number. Call him and see what he can tell you about dropping the charges against Jose."

(Tr. 230.) Defense counsel did not pursue the matter further. (Tr. 230.)

The Verdict and Sentencing

The jury found Santos guilty of first degree rape, sodomy and sexual abuse and second degree assault. (Tr. 420-24.) On December 20, 1995, the trial court sentenced Santos to ten to twenty years imprisonment on the rape charge and lesser concurrent sentences on the other charges. (12/20/95 Sentence Tr. at 12-13.)

Santos's Direct Appeal

Santos appealed to the First Department, arguing that the trial court erroneously admitted Gonzalez's hearsay testimony (Aff. of ADA Tiffany Foo, Ex. 6: Santos 1st Dep't Br. at 20-28), and that his sentence should be reduced in the interest of justice (id. at 29-34).

The First Department held that the trial court had not abused its sentencing discretion and that Gonzalez's statements were properly admitted under the prompt outcry hearsay exception "since they were made at the first suitable opportunity and because only the fact of a complaint was elicited. ... Moreover, the seriatim outcries to two different listeners were admissible since they were both prompt under the circumstances." People v. Santos, 243 A.D.2d 276, 276, 662 N.Y.S.2d 318, 318 (1st Dep't 1997).

Santos applied for leave to appeal to the New York Court of Appeals, asserting "one narrow issue," whether "the hearsay testimony of the complaining witness ... [was] correctly admitted as 'prompt outcry' testimony." (Foo Aff. Ex. 8: 11/21/97 Leave to Appeal Letter.) The New York Court of Appeals denied leave to appeal on December 1, 1997. People v. Santos, 91 N.Y.2d 880, 668 N.Y.S.2d 578 (1997).

Santos's First CPL §440.10 Motion

On May 30, 1996, Santos moved to vacate the judgment pursuant to CPL §440.10, arguing that: the prosecutor withheld evidence that Gonzalez had recanted her grand jury testimony; Santos had received ineffective assistance of trial counsel for counsel's failure to advise the court that Gonzalez had recanted; and prosecutorial misconduct causing Gonzalez to commit perjury and not recant. (Pet. Ex. C: Santos's 5/30/96 CPL §440.10 Motion, Santos Aff. ¶¶1, 4-5.) Santos attached to his motion a May 28, 1996 affidavit from Gonzalez stating that Santos had not raped her:

1. That on May 9, 1995, I consented to have sexual intercourse with my husband.

2. That on May 9, 1995, there was not penetration oral or anal or intent to do so.

3. That on May 9, 1995, there was not physical abuse.

4. That the fracture I suffered in my ankle on May 9, 1995, was accidental.

5. That I contacted defense counsel before trial, and I informed him that I wanted to withdraw the charges against my husband. Defense counsel informed me that in order to withdraw the charges it has to be done through the prosecutrix.

6. I contacted the prosecutrix to withdraw the charges. The prosecutrix informed me that it was too late to withdraw the charges and that this case have [sic] to be prosecuted. I agree [sic] to testify at trial, because I never thought the sentence would be too harsh.

(Pet. Exs. C & K: Gonzalez 5/28/96 Aff.)

On August 5, 1996, the trial court denied the motion, finding that: Gonzalez's affidavit was unreliable; its content was inconsistent with Santos's trial testimony that he did not have sex with Gonzalez at all on May 9, 1995; the prosecutorial misconduct and ineffective assistance of counsel claims were without merit; and "nowhere in her affidavit does [Gonzalez] state that she told either lawyer that the charges against the defendant were untrue." (Pet. Ex. I: 8/5/96 Opinion at 1-2.) Santos did not appeal this decision to the First Department. (See Foo Aff. Ex. 5: 7/10/97 DA Letter to 1st Dep't at 2.)

Santos's Second CPL §440.10 Motion

Santos filed his second CPL §440.10 motion on December 17, 1996, reiterating his prosecutorial misconduct and ineffective assistance claims. (Pet. Ex. D: Santos 12/17/96 CPL §440.10 Motion Papers at 4.) Santos based his renewal of the motion on Gonzalez's poor command of English and his own legal inability. (Id. at 4, 9-10.) The second Gonzalez affidavit, dated December 12, 1996, claimed that she started the physical altercation on May 9, 1995, but stopped short of stating that the sex was voluntary, saying Santos "had sex with me and though I was telling him to stop I have never denied sex to my husband." (Pet. Ex. L: 12/12/96 Gonzalez Aff. ¶¶3-4.)1/ Gonzalez also stated that that she told the prosecutor that her "complaint wasn't really true," but that the prosecutor forced her to testify:

[The prosecutor] told me I could go to jail for filing a false report. I repeated that Jose, my husband, didn't really rape me, and she became upset and told me that if I didn't stick to the original story I would be put in prison and my children would be taken away. I began to cry and she told me to be strong. That everything would be okay, and my husband would be home within six months anyway. She said that the six months would do him some good and teach him to respect a good woman like myself. (Pet. Ex. L: 12/12/96 Gonzalez Aff. ¶7.)

On June 3, 1997, the trial court denied Santos's second CPL §440.10 motion, pursuant to CPL §440.10(3)(c), because Santos's prior motion raised the same ground. (Pet. Ex. I: 6/3/97 Opinion at 2-3.) The trial court also found the motion to be without merit, because Gonzalez's affidavit showed that Santos had sex with her over her objection, and because "the recantation of a victim of domestic violence is particularly unreliable." (Id. at 3.)

Santos sought leave to appeal to the First Department. (Foo Aff. Ex. 5: 7/10/97 DA Letter to 1st Dep't at 2-3.) The First Department denied leave to appeal in July 1997. (Pet. Ex. J: 7/97 1st Dep't Certificate Denying Leave to Appeal.)

Santos's Federal Habeas Corpus Petition

Santos's present federal habeas corpus petition, in which he is represented by counsel, raises three grounds: (1) his due process rights under Brady v. Maryland were infringed because the prosecutor failed to disclose evidence that Gonzalez recanted her grand jury testimony before trial (Pet. ¶¶18-22); (2) he was denied effective assistance of trial counsel by his lawyer's failure to investigate and bring to the trial judge's notice Gonzalez's recantation, and by counsel's failure to request a jury charge regarding intoxication (Pet. ¶23); and (3) the trial court's admission of Gonzalez's statements at the hospital under the prompt outcry hearsay exception violated his Sixth Amendment confrontation rights (Pet. ¶23).

ANALYSIS

I. THE STATE DID NOT VIOLATE ITS BRADY OBLIGATIONS SINCE SANTOS'S ATTORNEY WAS AWARE OF GONZALEZ'S ALLEGED RECANTATION BEFORE TRIAL

Under Brady v. Maryland and its progeny, state as well as federal prosecutors must turn over exculpatory and impeachment evidence, whether or not requested by the defense, where the evidence is material to guilt or to punishment. See, e.g., Strickler v. Greene, 119 S. Ct. 1936, 1948 (1999); United States v. Bagley, 473 U.S. 667, 676, 682, 105 S. Ct. 3375, 3380, 3383-84 (1985); United States v. Agurs, 427 U.S. 97, 107, 96 S. Ct. 2392, 2399 (1976); Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97 (1963); Franza v. Stinson, 98 Civ. 5484, 1999 WL 495902 at *28 & n.9 (S.D.N.Y. June 30, 1999) (Kaplan, D.J. & Peck, M.J.). In order to demonstrate a Brady violation, a defendant must make a three-part showing. As the Supreme Court recently stated: "There are three essential components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 119 S. Ct. at 1948; see also, e.g., Moore v. Illinois, 408 U.S. 786, 794-95, 92 S. Ct. 2562, 2568 (1972); United States v. Payne, 63 F.3d 1200, 1208 (2d Cir. 1995), cert. denied, 516 U.S. 1165, 116 S. Ct. 1056 (1996); Orena v. United States, 956 F. Supp. 1071, 1090-92 (E.D.N.Y. 1997) (Weinstein, D.J.); Franza v. Stinson, 1999 WL 495902 at *28-29 & n.9.

Santos's Brady claim fails because he has failed to show that the prosecution suppressed, either willfully or inadvertently, evidence of Gonzalez's alleged recantation of her rape claim. Both Gonzalez affidavits presented on Santos's CPL §440.10 motions unambiguously state that Gonzalez notified Santos's lawyer before trial that she wanted to withdraw the charges against Santos and that her complaint was untrue. (Pet. Ex. K: 5/28/96 Gonzalez Aff. ¶5; Pet. Ex. L: 12/17/96 Gonzalez Aff. ¶7.) Indeed, defense counsel cross-examined Gonzalez at trial regarding her telephone call to him in which she stated that she did not want to see Santos go to jail. (Tr. 227, quoted at page 7 above.) The record is clear, therefore, that the defense knew of Gonzalez's supposed desire to recant.

When a defendant is actually aware of the existence of exculpatory evidence, or should be aware of such evidence, the prosecution does not violate due process by not disclosing the evidence to the defendant. "Evidence, even if material and exculpatory, is not 'suppressed,' and thus no Brady violation '"occurs if the defendant either knew, or should have known, of the essential facts permitting him to take advantage of any exculpatory evidence."'" Montemarano v. United States, No. 95-2314, 89 F.3d 826 (table), 1995 WL 722208 at *2 (2d Cir. Dec. 1, 1995); see also, e.g., United States v. Zackson, 6 F.3d 911, 918 (2d Cir. 1993); United States v. Diaz, 922 F.2d 998,1007 (2d Cir. 1990) ("[T]here is no improper suppression within the meaning of Brady where the facts are already known by the defendant."), cert. denied, 500 U.S. 925, 111 S. Ct. 2035 (1991); United States v. Grossman, 843 F.2d 78, 85 (2d Cir. 1988), cert. denied, 488 U.S. 1040, 109 S. Ct. 864 (1989); United States v. Gaggi, 811 F.2d 47, 59 (2d Cir.), cert. denied, 482 U.S. 929, 107 S. Ct. 3214 (1987); United States v. LeRoy, 687 F.2d 610, 618 (2d Cir. 1982), cert. denied, 459 U.S. 1174, 103 S. Ct. 823 (1983); United States v. Robinson, 560 F.2d 507, 518 (2d Cir. 1977) (en banc), cert. denied, 435 U.S. 905, 98 S. Ct. 1451 (1978); United States v. Stewart, 513 F.2d 957, 960 (2d Cir. 1975); Harris v. United States, 9 F. Supp. 2d 246, 275-76 (S.D.N.Y. 1998); United States v. Germosa, 95 CR. 486, 1998 WL 152571 at *9-10 (S.D.N.Y. April 2, 1998); Nieves v. Kelly, 990 F. Supp 255, 266 (S.D.N.Y. 1997) (Cote, D.J. & Peck, M.J.); Anderson v. Kelly, No. CV 91-1354, 1992 WL 175665 at *3 (E.D.N.Y. July 14, 1992); United States v. McGuinness, 764 F. Supp. 888, 896 (S.D.N.Y. 1991).

Since Santos's defense counsel was fully aware of Gonzalez's supposed desire to recant, there is no Brady violation. Santos's Brady claim is denied.

II. SANTOS'S TRIAL COUNSEL WAS NOT INEFFECTIVE UNDER THE STRICKLAND v. WASHINGTON TEST

A. The Strickland v. Washington Standard

The Supreme Court has announced a two-part test to determine if counsel's assistance was ineffective. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. This performance is to be judged by an objective standard of reasonableness. Id. at 688, 104 S. Ct. at 2064.

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

Id. at 689, 104 S. Ct. at 2065; accord, e.g., Franza v. Stinson, 98 Civ. 5484, 1999 WL 495902 at *7 (S.D.N.Y. June 30, 1999) (Kaplan, D.J. & Peck, M.J.); Torres v. Irvin, 33 F. Supp. 2d 257, 277 (S.D.N.Y. 1998) (Cote, D.J. & Peck, M.J.).

Second, the defendant must show prejudice from counsel's performance. Strickland v. Washington, 466 U.S. at 687, 104 S. Ct. at 2064. The "question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt." Id. at 695, 104 S. Ct. at 2068-69. Put another way, the "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068.

In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.

Id. at 695-96, 104 S. Ct. at 2069; see also, e.g., DeLuca v. Lord, 77 F.3d 578, 584 (2d Cir.), cert. denied, 519 U.S. 824, 117 S. Ct. 83 (1996); Franza v. Stinson, 1999 WL 495902 at *8; Torres v. Irvin, 33 F. Supp. 2d at 277.

The Supreme Court has counseled that these principles "do not establish mechanical rules." Strickland v. Washington, 466 U.S. at 696, 104 S. Ct. at 2069. The focus of the inquiry should be on the fundamental fairness of the trial and whether, despite the strong presumption of reliability, the result is unreliable because of a breakdown of the adversarial process. Id. The Supreme Court also made clear that "there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Id. at 697, 104 S. Ct. at 2069; accord, e.g., Franza v. Stinson, 1999 WL 495902 at *8; Torres v. Irvin, 33 F. Supp. 2d at 277.

In addition, the Supreme Court also has counseled that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland v. Washington, 466 U.S. at 690-91, 104 S. Ct. at 2066; accord, e.g., Franza v. Stinson, 1999 WL 495902 at *8; see also, e.g., Engle v. Isaac, 456 U.S. 107, 134, 102 S. Ct. 1558, 1575 (1982) ("We have long recognized . . . that the Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not insure that defense counsel will recognize and raise every conceivable constitutional claim."); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir.1998) ("In reviewing Strickland claims, courts are instructed to 'indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance' and that counsel's conduct was not the result of error but derived instead from trial strategy. We are also instructed, when reviewing decisions by counsel, not to 'second-guess reasonable professional judgments and impose on . . . counsel a duty to raise every "colorable" claim' on appeal.") (citations omitted); Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.) (a reviewing court "may not use hindsight to second-guess [counsel's] strategy choices."), cert. denied, 513 U.S. 820, 115 S. Ct. 81 (1994).

B. Application of the Strickland Standard to Santos's Claims

Santos alleges that three decisions by his trial lawyer constituted ineffective assistance of counsel. (Santos Br. at 6). Two of Santos's claims are interconnected and appear contradictory: Santos argues that his attorney fell short both by (1) failing to investigate properly "his case, including the fact that the complaining witness advised him she wished to withdraw her complaint" and (2) by failing to bring Gonzalez's "recantation" to the court's attention. (Santos Br. at 6; Pet. ¶23(a) on p. 4.)

Strickland requires an attorney "to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland v. Washington, 466 U.S. 668, 691, 104 S. Ct. 2052, 2066 (1984); see also, e.g., Nell v. James, 811 F.2d 100, 106 (2d Cir. 1987). "[A] particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland v. Washington, 466 U.S. at 691, 104 S. Ct. at 2066; see also, e.g., Nieves v. Kelly, 990 F. Supp. 255, 263 (S.D.N.Y. 1997) (Cote, D.J. & Peck, M.J.); Tapia-Garcia v. United States, 53 F. Supp. 2d 370, 1999 WL 333401 at *10 (S.D.N.Y.) (Baer, D.J. & Peck, M.J.). However, Santos provides no indication of how or where his attorney's investigation fell short. Defense counsel was aware that Gonzalez had expressed interest in recanting, and he cross-examined her at trial on her telephone call to him, her desire not to see Santos go to jail and on the subject of recantation, thus bringing her reservations to the jury's attention. (Tr. 227.) Nothing further would have been gained by, as Santos now urges, "inquiring of the prosecutor as to whether the complainant witness wanted to drop charges." (Santos Br. at 6.) See, e.g., Mullins v. Ramirez, No. C 96-1055, 1996 WL 506927 at *5 (N.D. Cal. Sept. 3, 1996) (no ineffective assistance of counsel where counsel failed to interview a witness whose testimony "'is otherwise fairly known to defense counsel'"), aff'd 127 F.3d 1105 (9th Cir. 1997). While there is no need for this Court to pass on the credibility of Gonzalez's repudiation, the inherent unreliability of recantation testimony (especially by a reconciliated spouse) may have played a role in trial counsel's strategic decision not to focus on the recantation. See, e.g., Hernandez v. Senkowski, No. 93 CV 5763, 1996 WL 285426 at *1 (E.D.N.Y. May 17, 1996) ("it is generally understood that recantations are unreliable and lack trustworthiness"); People v. Shilitano, 218 N.Y. 161, 170, 112 N.E. 733, 736 (1916) ("There is no form of proof as unreliable as recanting testimony").

Defense counsel's cross-examination of Gonzalez at trial about her alleged desire to recant, while perhaps not optimal in hindsight, fell within the range of acceptable conduct of attorneys in New York courts. "[T]he conduct of examination and cross-examination is entrusted to the judgment of the lawyer, and an appellate court on a cold record should not second-guess such decisions unless there is no strategic or tactical justification for the course taken." United States v. Luciano, 158 F.3d 655, 660 (2d Cir. 1998), cert. denied, 119 S. Ct. 2059 (1999); see also, e.g., United States v. Eisen, 974 F.2d 246, 265 (2d Cir. 1992) (reasonable trial tactic to forego further cross-examination because decisions on cross-examination are "strategic in nature"), cert. denied, 507 U.S. 1029, 113 S. Ct. 1840 (1993). Cross-examination of rape victims is a particularly delicate matter of trial strategy. See, e.g., Brewer v. State, No. 96-2988, 121 F.3d 712 (table), 1997 WL 464858 at *1 (8th Cir. 1997) (denying ineffectiveness claim based on limited cross-examination of a rape victim and noting that "[t]he extent to which an alleged rape victim 2/ The State claims that Santos's ineffective assistance of counsel claim based on failure to request the intoxication jury charge was not exhausted in state court. (See State Br. at 13-15.) However, in his second CPL §440.10 application, Santos claimed that trial counsel was ineffective for not raising an intoxication defense. (Pet. Ex. D: Santos 12/17/96 CPL §440.10 Motion Papers at 24.) Arguably, since the prior argument involved intoxication evidence while the present claim concerns an intoxication jury charge should be subjected to cross-examination is inherently a matter of strategy, as a withering and relentless cross-examination can easily backfire"); Williams-Bey v. Trickey, 894 F.2d 314, 316 (8th Cir.) (strategic decision not to cross-examine rape victim about certain information not ineffective assistance where defense attorney feared detailed cross-examination might elicit sympathy for the victim), cert. denied, 495 U.S. 936, 110 S. Ct. 2183 (1990). In this case, any number of strategic considerations might have explained why Santos's counsel did not more vigorously pursue the issue of Gonzalez's alleged recantation during cross-examination, including the possibility that counsel believed Gonzalez had been pressured by Santos or his family, as indeed Gonzalez testified on redirect. (Tr. 230.) See, e.g., United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir.) (no ineffectiveness where cross-examination "might have been counterproductive" since "[d]ecisions whether to engage in cross-examination, and if so to what extent and in what manner, are . . . strategic in nature"), cert. denied, 484 U.S. 958, 108 S. Ct. 357 (1987); Mullins v. Ramirez, 1996 WL 506927 at *5 (counsel not ineffective for failing to pursue examination of witness where "testimony would have been, at best, unpredictable, and may have even been detrimental" to the defendant).

Santos's third ineffectiveness allegation is that counsel failed to request a jury instruction on intoxication, despite evidence that Santos was drinking during the attack.2 (Santos (compare Pet. Ex. D at 24 with Santos Br. at 6.) Again, Santos fails to overcome the presumption that his trial attorney based his action on strategic considerations. The core trial defense, afterall, rested on Santos's credibility and his testimony that he did not engage in sexual intercourse with Gonzalez at all onMay 9, 1995. A defense that Santos had forcible seix with Gonzalez because he was intoxicated woujld ahve been inconsistent with his claim that it never happened. Failure to raise an intoxication defense that is inconsistent with other defenses that is inconsistent with other defneses not sufficient to support an ineffectiveness claim. See, e.g., White v. Singletary, 972 F.2d 1218, 1221 & n.3 (11th Cir. 1992) (no ineffectiveness for for failure to raise intoxication defense that would have been inconsistent with other defenses), cert. denied, 514 U.S. 1131,115 S.Ct. 2008 (1995); Harich v. Dugger, 844 F.2d 1464, 1470-71 (11th Cir. 1988) (en banc) (no ineffectiveness for failure to raise intoxication defense where defendant was only "mildly drunk" and testified as to his factual innocence), cert. denied, 489 U.S. 1071, 109 S. Ct. 1355 (1989); Keys v. Duckworth, 761 F.2d 390, 392-94 (7th Cir. 1985) (no ineffective assistance of counsel for failing to investigate intoxication defense where facts were insufficient to show intoxication); Underwood v. Artuz, 95 Civ. 7866, 1996 WL 734898 at *4 (S.D.N.Y. Dec. 24, 1996) (no ineffectiveness in decision not to call defendant to testify as to his own intoxication, where testifying might have subjected him to damaging cross-examination); Williams 3/ See also, e.g., Panuccio v. Kelly, 927 F.2d 106, 109-10 (2d Cir. 1991) (no ineffectiveness where defense counsel failed to advise defendant of the possibility of an intoxication defense prior to defendant's acceptance of a guilty plea, where the intoxication defense was unlikely to succeed); Kohler v. Kelly, 890 F. Supp. 207, 211-12 (W.D.N.Y. 1994) (same); Waters v. Hoke, No. 85 CV 2655, 1986 WL 14616 at *2 (E.D.N.Y. Nov. 18, 1986) (no ineffectiveness where defense attorney was not informed by client of client's intoxication at time of incident, and thus had no reason to investigate an intoxication defense). v. Walker, 92 Civ. 1905, 1993 WL 22128 at *6 (S.D.N.Y. Jan. 26, 1993); Shaird v. Scully, 610 F. Supp. 442, 447-48 (S.D.N.Y. 1985).3/ Therefore, defense counsel's decision not to request an intoxication jury instruction or present an intoxication defense that might have undermined Santos's credibility and claim of innocence was a reasonable strategic decision.

Santos's ineffective assistance of trial counsel claims are denied.

III. SANTOS WAS AFFORDED ADEQUATE OPPORTUNITY TO CONFRONT HIS ACCUSER AT TRIAL THROUGH CROSS EXAMINATION

Santos maintains that he was denied the right to confront witnesses against him, in violation of his Confrontation Clause rights under the Sixth and Fourteenth Amendments, by the admission of Gonzalez's two out-of-court statements at the hospital shortly after the attack. Santos contends that the trial court's "mechanical" application of the New York hearsay rule permitting "prompt outcries" that corroborate a sexual assault charge "resulted in denying [Santos] his right of confrontation." (Santos Br. at 8.)

The Confrontation Clause of the Sixth Amendment affords the accused the right "to be confronted with the witnesses against him." U.S. Const. amend. VI. The Sixth Amendment's Confrontation Clause is applicable in state criminal trials via the Fourteenth Amendment. E.g., Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 1076 (1965); Pointer v. Texas, 380 U.S. 400, 404, 85 S. Ct. 1065, 1068 (1965); Avincola v. Stinson, 97 Civ. 1132, 1999 WL 557965 at *17, *19 (S.D.N.Y. July 9, 1999) (Scheindlin, D.J. & Peck, M.J.). The right to confront witnesses has been interpreted as "securing an adequate opportunity to cross-examine adverse witnesses." United States v. Owens, 484 U.S. 554, 557, 10 S. Ct. 838, 841 (1988); see also, e.g., Pennsylvania v. Ritchie, 480 U.S. 39, 53, 107 S. Ct. 989, 999; Davis v. Alaska, 415 U.S. 308, 315-16, 94 S. Ct. 1105, 1110 (1974); Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 1076 (1965); Bagby v. Kuhlmann, 932 F.2d 131, 135 (2d Cir.), cert. denied, 502 U.S. 926, 112 S. Ct. 341 (1991); Dunbar v. Harris, 612 F.2d 690, 692 (2d Cir. 1979); United States v. Cardillo, 316 F.2d 606, 610-11 (2d Cir.), cert. denied, 375 U.S. 822, 84 S. Ct. 60 (1963); Avincola v. Stinson, 1999 WL 557965 at *19; Mercado v. Stinson, 98 Civ. 0551, 1999 WL 129570 at *8 (S.D.N.Y. Feb. 10, 1999) (Baer, D.J. & Peck, M.J.). The primary purpose of the confrontation clause is to prevent out-of-court statements from being used against a criminal defendant in lieu of in-court testimony subject to the scrutiny of cross-examination. See, e.g., Douglas v. Alabama, 380 U.S. at 418-19, 85 S. Ct. at 1076-77; Mitchell v. Hoke, 930 F.2d 1, 2 (2d Cir.1991); Avincola v. Stinson, 1999 WL 557965 at *17.

The Supreme Court has consistently held that when a defendant has an opportunity to cross-examine the witness who made the out-of-court statement, the Confrontation Clause is satisfied; while an out-of-court statement by a witness may be excluded as hearsay under state evidence rules or laws, there is no Confrontation Clause violation in admitting such a statement when the witness who made the statement can be fully and fairly cross-examined at trial. See, e.g., California v. Green, 399 U.S. 149, 158, 90 S. Ct. 1930, 1935 (1970) ("Viewed historically, then, there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarant's out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination."); United States v. Russell, 712 F.2d 1256, 1258 (8th Cir. 1983); see also, e.g., Delaware v. Fensterer, 474 U.S. 15, 22, 106 S. Ct. 292, 295 (1985) (the "Confrontation Clause is generally satisfied" when cross-examination affords an opportunity to expose infirmities in witness testimony); Rado v. Connecticut, 607 F.2d 572, 578-80 (2d Cir. 1979), cert. denied, 447 U.S. 920, 100 S. Ct. 3009 (1980). As the Supreme Court explained in United States v. Owens, 484 U.S. 554, 108 S. Ct. 838 (1988), when the defendant is afforded an opportunity at trial to cross-examine the declarant who made an out-of-court statement, there is no need to inquire into the nature of the hearsay statement:

This Court has recognized a partial (and somewhat indeterminate) overlap between the requirements of the traditional hearsay rule and the Confrontation Clause. The dangers associated with hearsay inspired the Court of Appeals in the present case to believe that the Constitution required the testimony to be examined for "indicia of reliability," or "particularized guarantees of trustworthiness." We do not think such an inquiry is called for when a hearsay declarant is present at trial and subject to unrestricted cross-examination. In that situation, as the Court recognized in Green, the traditional protections of the oath, cross-examination, and opportunity for the jury to observe the witness' demeanor satisfy the constitutional requirements.

United States v. Owens 484 U.S. at 560, 108 S. Ct. at 843 (citations omitted).

Application of these principles to the present case is straightforward. Santos objects to the introduction of two out-of-court statements by Gonzalez in the hospital shortly after the rape. Evidence of these statements was adduced by in-court testimony by Gonzalez herself. Defense counsel was given ample opportunity to cross-examine Gonzalez about her statements and, in fact, did so. Therefore, the Confrontation Clause has been satisfied and Santos' claim is denied.

CONCLUSION

For the reasons set forth above, Santos's petition for a writ of habeas corpus is denied. Since Santos has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. §2253.

So Ordered.

NOTES:

(1) Gonzalez's statement is consistent with Santo's "machismo" claim that he was unaware it was "a crime to have sex with his wife whether the wife wanted to or not." (Pet. Ex. D: Santos 12/17/96 CPL §440.10 Moton Papers at 23.)

(2) The State claims that Santo's ineffective assistance of counsel claim based on failure to request the intoxication jury charge was not exhausted in state court. (See State Br. at 13-15.) However, in his second CPL §440.10 Motion Papers at 24.) Arguably, since the prior argument involved intoxication evidence while the present claim concerns an intoxication jury charge (compare Pet. Ex. D at 24 with Santos Br. at 6), the present claim is not exhausted. However, as here, "where the issue of whether the claim is exhausted is somewhat questionable, but the lack of merit of the claim is easily shown, it may be more appropriate for the Court to reach the merits." Morris v. Reynolds, 48 F. Supp. 2d 379, 385 n.8 (S.D.N.Y. 1999) (Baer, D.J. & Peck, M.J.); see also, e.g., Cowans v. Artuz, 14 F. Supp. 2d 503, 507 n.5 (Preska, D.J. & Peck, M.J.); Benitez v. Senkowski, 97 Civ. 7819, 1998 WL 265245 at *4 n.5 (S.D.N.Y. May 19, 1998) (Cote, D.J. & Peck, M.J.). The Court therefore denies the claim on the merits for the reasons discussed in text.

(3) See also, e.g., Panuccio v. Kelly,m 927 F.2d 106, 109-19 (2d Cir. 1991) (no ineffectiveness where defense counsel failed to advise defendant of the possibility of an intoxication defense prior to defendant's acceptance of a guilty plea, where the intoxication defense was unlikely to succeed); Kohler v. Kelly, 890 F. Supp. 207, 211-12 (W.D.N.Y. 1994) (same); Waters v. Hoke, No. 85 CV 2655, 1986 WL 14616 at *2 (E.D.N.Y. Nov. 18, 1986) (same); Waters v. Hoke, No. 85 CV 2655, 1986 WL 14616 at *2 (E.D.N.Y. Nov. 18, 1986) (no ineffectiveness where defense attorney was not informed by client of client's intoxication at time of incident, and thus had no reason to investigate an intoxication defense).
SUMMARIES OF ALL PUBLISHED SUCCESSFUL INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS SINCE STRICKLAND V. WASHINGTON

Note: * signifies a capital case

Updated April, 2006

TERESA L. NORRIS
CENTER FOR CAPITAL LITIGATION
P.O. BOX 11311
COLUMBIA, SC 29211
(803) 765-0650
norristl@bellsouth.net

This page originally found on

http://www.capdefnet.org/hat/contents/constitutional_issues/ineffective_assist/ineffective_assistance_of_counsel.htm

UNITED STATES SUPREME COURT CASES

Cuyler v. Sullivan,
446 U.S. 335 (1980)

The Sixth Amendment right to the effective assistance of counsel applies equally to retained and appointed counsel.

Jones v. Barnes
463 U.S. 745, 751-52 (1983)

Appellate counsel does not have a constitutional duty to raise every nonfrivolous issue requested by defendant.

United States v. Cronic
466 U.S. 648 (1984)

The court held that:

The right to the effective assistance of counsel is . . . the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted – even if defense counsel may have made demonstrable errors – the kind of testing envisioned by the Sixth Amendment has occurred. But if the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated. As Judge Wyzanski has written: "While a criminal trial is not a game in which the participants are expected to enter the ring with a near match in skills, neither is it a sacrifice of unarmed prisoners to gladiators." United States ex rel. Williams v. Twomey, 510 F.2d 634, 640 (CA7), cert. denied sub nom. Sielaff v. Williams, 423 U.S. 876, 96 S.Ct. 148, 46 L.Ed.2d 109 (1975).

Id. at 657-58 (footnotes omitted). Some circumstances warrant a presumption of prejudice. These circumstances include the complete denial of counsel at a critical stage of trial. Id. at 659. "Similarly, if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable." Id. The fact that counsel was given only 25 days to prepare for trial, that counsel was young and inexperienced in criminal matters, that charges were complex, that charges were grave, and that some witnesses were not easily accessible did not provide basis for finding ineffective assistance of counsel, however, in the absence of a showing of deficient conduct and prejudice.

*Strickland v. Washington,
466 U.S. 668 (1984)

In order to establish ineffective assistance of counsel, the defendant must show that counsel's performance was deficient, i.e. "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. The defendant must also show that the deficient performance prejudiced the defense, i.e., "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. With respect to counsel's conduct, the Court held that "the defendant must show that counsel's representation fell below an objective standard of reasonableness," which must be judged under "prevailing professional norms." Id. at 688. The Court also held that "[j]udicial scrutiny of counsel's performance must be highly deferential," and must be evaluated "from counsel's perspective at the time." Id. at 689. "Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. (citation omitted). With respect to the duty to investigate, the Court held that "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 691. "The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." Id. Thus, "inquiry into counsel's conversations with the defendant may be critical to a proper assessment of counsel's investigation decisions, just as it may be critical to a proper assessment of counsel's other litigation decisions." Id. With respect to prejudice, "a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case." Id. at 693. "The result of a proceeding can be rendered unreliable, and the hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." Id. at 694. Thus, the appropriate test is that for materiality of exculpatory evidence not disclosed to the defense by the prosecution. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. In determining prejudice, the court should presume "that the judge or jury acted according to law." Id. "When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt. When a defendant challenges a death sentence such as the one at issue in this case, the question is whether there is a reasonable probability that, absent the errors, the sentencer-including an appellate court, to the extent it independently reweighs the evidence-would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Id. at 695. "In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury," id., because "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support," id. at 696. In applying these standards, "[t]he ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. In every case the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process." Id. at 696. No different or special standards apply in federal habeas. A state court findings of fact made in the course of deciding an ineffectiveness claim are subject to the deference requirement in federal habeas, but a state court conclusion that counsel rendered effective assistance of counsel is not a finding of fact binding on the federal court. "[B]oth the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact." Id. at 698. Counsel in Strickland provided effective assistance even though defendant plead guilty and counsel did not prepare and present character or psychiatric evidence or request presentence report. Counsel's strategy was based on his knowledge of the judge, who favored acceptance of responsibility, and counsel wanted to rely on the plea colloquy and prohibit cross-examination of the defendant and other defense witnesses. Counsel did not want a presentence report because it would have reflected numerous priors.

Evitts v. Lucey,
469 U.S. 387 (1985)

"To prosecute the appeal, a criminal appellate must face an adversary proceeding that-like a trial-is governed by intricate rules that to a layperson would be hopelessly forbidding." Id. at 396. Thus, counsel is necessary, but "a party whose counsel is unable to provide effective representation is in no better position than one who has no counsel at all. A first appeal as of right therefore is not adjudicated in accord with due process of law if the appellant does not have the effective assistance of counsel." Id. Retained counsel, who filed a timely notice of appeal but failed to perfect the appeal, provided ineffective assistance of counsel.

Hill v. Lockhart
474 U.S. 52 (1985)

Strickland standard applies to guilty plea challenges based on ineffective assistance of counsel. In order to satisfy the Strickland "prejudice" standard, the defendant must show that there was a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.

Kimmelman v. Morrison,
477 U.S. 365 (1986)

The restrictions on federal habeas review of Fourth Amendment claims do not apply to Sixth Amendment claims of ineffective assistance of counsel even though the principal allegation of inadequate representation relates to counsel's failure to file a timely motion to suppress evidence allegedly obtained in violation of the Fourth Amendment. In order to succeed on the merits of the claim, however, the defendant must establish that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice. The Court relied, in part, on the reasoning that "[a] layman will ordinarily be unable to recognize counsel's errors and to evaluate counsel's professional performance; consequently a criminal defendant will rarely know that he has not been represented competently until after trial or appeal, usually when he consults another lawyer about his case." Id. at 378 (citation omitted). Likewise, the Court reasoned that "[t]he constitutional rights of criminal defendants are granted to the innocent and the guilty alike. Consequently, we decline to hold either that the guarantee of effective assistance of counsel belongs solely to the innocent or that it attaches only to matters affecting the determination of actual guilt." Id. at 380. Counsel in this case failed to file the motion to suppress because he was unaware of the search or the evidence. The Court held that counsel's failure to conduct any discovery because of a belief the state was obliged to provide inculpatory information was unreasonable and "betray a startling ignorance of the law-or a weak attempt to shift blame for inadequate preparation." Id. at 385. In other words, counsel failed to investigate or make a reasonable decision not to investigate through discovery. "Such a complete lack of pretrial preparation puts at risk both the defendant's right to an 'ample opportunity to meet the case of the prosecution,' and the reliability of the adversarial testing process." Id. (citations omitted). In addition, the state's argument that counsel's failure to investigate was reasonable because of the relative importance or unimportance of the evidence involved is "flawed." Id. "At the time Morrison's lawyer decided not to request any discovery, he did not-and, because he did not ask, could not-know what the State's case would be. While the relative importance of [the evidence] . . . is pertinent to the determination whether [the defendant] was prejudiced by his attorney's incompetence, it sheds no light on the reasonableness of counsel's decision not to request any discovery."

Murray v. Carrier
477 U.S. 478 (1986)

Court in federal habeas case held that ineffective assistance of counsel is cause for procedural default, but the exhaustion doctrine generally requires that such claim be presented to state courts as independent claim before it may be used to establish cause for procedural default. Attorney error short of ineffective assistance of counsel does not, however, constitute cause for procedural default even when that default is on appeal rather than at trial. In discussing safeguards from a miscarriage of justice, the court observed that "the right to effective assistance of counsel . . . may in a particular case be violated by even an isolated error of counsel if that error is sufficiently egregious and prejudicial." Id. at 496.

*Smith v. Murray
477 U.S. 527 (1986)

Court declined in federal habeas to review issue that had been preserved by counsel at trial but deliberately abandoned during the direct appeal to the Virginia Supreme Court because counsel did not believe that state law "support[ed] our position at that particular time." Id. at 531. The court stated, "This process of ‘winnowing out weaker arguments on appeal and focusing on’ those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy." Id. at 536 (quoting Jones v. Barnes, 463 U.S. 745, 751-52 (1983)).

Pennsylvania v. Finley,
481 U.S. 551 (1987)

The Constitution does not require States to provide counsel in non-capital post-conviction proceedings.

*Burger v. Kemp
483 U.S. 776 (1987)

Counsel was not ineffective in failing to offer mitigating evidence in capital sentencing. The evidence that could have been presented disclosed "an exceptionally unhappy and unstable childhood," id. at 789, that included one incident of arrest as a juvenile that resulted in probation. Counsel was aware of some of the family history but "made the reasonable decision that his client’s interest would not be served by presenting this type of evidence." Id. at 791. As the record stood, there was no evidence that petitioner had any prior criminal record. Presentation of the family history could have been counterproductive by revealing the juvenile probation, involvement in drugs at an early age, and "violent tendencies that are at odds with the defense’s strategy of portraying petitioner’s actions on the night of the murder as the result of [the codefendant’s] strong influence upon his will." Id. at 793. While counsel "could well have made a more thorough investigation than he did," id. at 794, "counsel’s decision not to mount an all-out investigation into petitioner’s background in search of mitigating circumstances was supported by reasonable professional judgment," id.

*Murray v. Giarratano,
492 U.S. 1 (1989)

The Constitution does not require States to provide counsel in capital post-conviction proceedings.

*Coleman v. Thompson,
501 U.S. 722 (1991)

There is no constitutional right to an attorney in state post-conviction proceedings; "[c]onsequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings." Id. at 752. Thus, the risk of attorney error in state post-conviction proceedings is borne by the defendant and counsel's filing of the notice of appeal one day late in state post-conviction, which prompted the state court to dismiss the petition, procedurally defaulted the issues for federal habeas proceedings.

*Lockhart v. Fretwell,
506 U.S. 364 (1993)

Court holds that the prejudice test of Strickland "focuses on the question whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair," id. at 372, and is not limited to a contemporary assessment of the law. The aggravating factor used to sentence Fretwell die was duplicative of an element of the underlying felony used to convict him of felony murder. Trial counsel did not object to this duplication despite an Eighth Circuit opinion finding the duplication to be unconstitutional. The Arkansas Supreme Court refused to review the issue on direct appeal because of the lack of objection. In state habeas, the Arkansas Supreme Court denied the ineffective assistance claim because, at the time of trial, the Arkansas Courts had not adopted the Eighth Circuit's position. In federal habeas, the District Court granted relief due to ineffective assistance of counsel for failure to make the appropriate objection. The Eighth Circuit affirmed on appeal, despite the fact that it had reversed the controlling case due to the Supreme Court's intervening opinion in Lowenfield v. Phelps, 484 U.S. 231 (1988). The Supreme Court granted cert and reversed declaring that "[t]o set aside a conviction or sentence solely because the outcome would have been different but for counsel's error may grant the defendant a windfall to which the law does not entitle him." Id. at 369- 70. While recognizing that Strickland required that counsel's conduct be viewed under the law at that time ("contemporary assessment"), the Court declared that there was no such restriction on the prejudice requirement. Id. at 372. The Court rejected the argument that Teague v. Lane, 489 U.S. 288 (1989) prohibited this retroactivity by declaring that Teague was motivated to protect State interests in finality. A federal habeas petitioner has no interest in finality and thus could not benefit from Teague despite the fact that States can. Id. at 372-73. Justice O'Connor in her concurrence noted that this decision "will, in the vast majority of cases, have no effect on the prejudice inquiry" under Strickland. Id. at 373. In her view, this case determined only that "the court making the prejudice determination may not consider the effect of an objection it knows to be wholly meritless under current governing law, even if the objection might have been considered meritorious at the time of its omission." Id. at 374.

Kyles v. Whitley,
514 U.S. 419 (1995)

(1) The "touchstone" of the prejudice test in ineffective assistance of counsel claims is "a 'reasonable probability' of a different result, and the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict . . . , but whether . . . he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Id. at 434. Likewise, the prejudice test of Strickland "is not a sufficiency of evidence test." Id. Furthermore, the resulting prejudice from counsels' errors must be "considered collectively, not item-by-item." Id. at 436.

Smith v. Robbins,
528 U.S. 259 (2000)

The Court held that California's no-merit brief procedure, in which appellate counsel who has found no non-frivolous issues remains available to brief any issues appellate court might identify, does not violate the Sixth Amendment right to effective assistance of counsel on appeal. Court also held that the Ninth Circuit erred when it ruled that asserted Anders violation required new appeal, without testing claimed Sixth Amendment error under Strickland v. Washington. The proper review under Strickland requires an analysis of prejudice unless there is a complete denial of counsel on appeal, state interference with counsel's assistance, or counsel has an actual conflict of interest.

Roe v. Flores-Ortega,
528 U.S. 470 (2000)

Counsel's failure to file notice of appeal without defendant's consent must be reviewed under the Strickland analysis rather than a per se rule. While the better practice is to consult with defendant regarding the possibility of appeal in all cases, and the state's are free to impose this rule, the constitution does not require such a per se rule. "[C]ounsel has a constitutionally-imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal) or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing." Id. at 1036. In proving prejudice, "a defendant must demonstrate a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed." Id. at 1038. This prejudice analysis doe not require a showing that the appeal would have had merit.

*Williams v. Taylor,
529 U.S. 362, 120 S. Ct. 1495 (2000)

The decision in Lockhart v. Fretwell did not modify or supplant the rule of Strickland, which does not include a separate inquiry into fundamental fairness even after the defendant shows that his lawyer was ineffective and that his ineffectiveness probably affected the outcome of the proceeding. The Strickland holding is clearly established law irrespective of the fact that the test requires a case-by-case examination of the facts. The state court's decision denying relief was an "unreasonable application" of this clearly established law because the state court's decision "turned on its erroneous view that a 'mere' difference in outcome is not sufficient to establish constitutionally ineffective assistance of counsel." Id. at 1515. In addition, the state court's decision was an unreasonable application of Strickland because the state court failed to evaluate the totality of the available mitigation evidence adduced at trial and in the habeas proceedings and affirmed simply because it did not find that the unpresented mitigation evidence would undermine the prosecution's death-eligibility case or the finding of future dangerousness. "Mitigating evidence unrelated to dangerousness may alter the jury's selection of penalty, even if it does not undermine or rebut the prosecution's death-eligibility case." Id. at 1516. The Court found ineffective assistance in sentencing and reversed. The facts are discussed below in the capital sentencing section.

Edwards v. Carpenter,
529 U.S. 446 (2000) (reversing Carpenter v. Mohr, 163 F.3d 938 (6th Cir. 1998))

Ineffective assistance of counsel claim asserted as cause for procedural default of another claim may itself be procedurally defaulted. The defendant plead guilty under Alford, while maintaining his innocence, solely to avoid the death penalty. Under Ohio law, however, in aggravated murder cases, a three-judge panel must then conduct a culpability hearing to determine that the defendant is in fact guilty. In this case, the prosecutor recited the facts to the panel, but no evidence was presented. The Ohio Supreme Court held subsequently that a recitation of the facts is not evidence and this alone will not support the culpability finding. Trial counsel served as direct appeal counsel and raised only one weak issue. Subsequently, represented by different counsel, Carpenter filed an application to reopen the direct appeal because appellate counsel was ineffective for failing to raise the sufficiency of the evidence issue. [Under state law, this was the appropriate vehicle for raising the appellate IAC issue.] The Court of Appeals dismissed the application as untimely under state law. The Ohio Supreme Court affirmed. In habeas, Carpenter argued IAC for failing to challenge the sufficiency of the evidence and IAC for failing to raise the issue on appeal. The Sixth Circuit held that, while the ineffective assistance of appellate counsel issue was procedurally barred because the state relied on a procedural bar in that filing was out of time, the ineffective assistance of appellate counsel claim was exhausted and could, therefore, serve as cause for the state court procedural default of his sufficiency of the evidence claim. The Supreme Court reversed finding that the ineffective assistance of appellate counsel claim was also procedurally defaulted because it was dismissed as untimely under state law. Thus, this claim can excuse the procedural default on the sufficiency of the evidence challenge only if petitioner can show cause and prejudice for failing to timely file the application to reopen the direct appeal.

Glover v. United States,
531 U.S. 198, 121 S. Ct. 696 (2001)

Assuming, but not deciding, that counsel was deficient in failing to object to increase of offense level under sentencing guidelines despite available argument that all the offenses (labor racketeering, money laundering, and tax evasion) should be grouped together because they all involved substantially the same harm, Petitioner proved prejudice. If the sentence increase was erroneous, the petitioner's 84 month sentence was increased by 6 - 21 months. The government conceded that Seventh Circuit finding that this was insufficient for prejudice was drawn from Lockhart, which was error because "Lockhart does not supplant the Strickland analysis." Id. at 700. "Authority does not suggest that a minimal amount of additional time in prison cannot constitute prejudice. Quite to the contrary, our jurisprudence suggests that any amount of actual jail time has Sixth Amendment significance." Id.

In Kyles, the Court reviewed a petitioner's claim that the state did not disclose evidence favorable to the defense in violation of the rule established in Brady v. Maryland, 373 U.S. 83 (1963), and refined in United States v. Bagley, 473 U.S. 667 (1985). In Brady, the Court held that the government must disclose evidence that is both favorable to the defense and "material." 373 U.S. at 87. In Bagley, the Court held that the "materiality" test under Brady was the same as the prejudice test espoused in Strickland for determining ineffective assistance of counsel claims. Bagley, 473 U.S. at 682, (Blackmun, J., with O'Connor, J., concurring) and 473 U.S. at 685 (White, J., with Burger, C.J., and Rehnquist, J., concurring in part and concurring in the judgment). Thus, the Court's discussion of the "materiality" test in Kyles is equally applicable to the analysis of prejudice in resolving claims of actual ineffectiveness of counsel under Strickland.

*Bell v. Cone
535 U.S. 685, 122 S. Ct. 1843 (2002)

The presumption of prejudice under Cronic does not apply unless the attorney’s failure to contest the government’s case is "complete." Id. at 1851. "The aspects of counsel’s performance challenged by respondent – the failure to adduce mitigating evidence and the waiver of closing argument – are plainly of the same ilk as other specific attorney errors we have held subject to Strickland’s performance and prejudice components." Id. at 1851-52. "For respondent to succeed [in federal habeas], however, he must do more than show that he would have satisfied Strickland’s test if his claim were being analyzed in the first instance, because under § 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly. Rather, he must show the . . . [state court] applied Strickland to the facts of his case in an objectively unreasonable manner. This, we conclude, he cannot do." Id. at 1852.

*Woodford v. Visciotti
537 U.S. 19, 123 S. Ct. 357 (2002).

Court held that the Ninth Circuit had improperly granted habeas relief. The Ninth Circuit had found that the California Supreme Court’s decision was "contrary to" and an "unreasonable application" of federal law under 28 U.S.C. § 2254(d)(1). With respect to the "contrary to" clause, the Ninth Circuit read the state Supreme Court decision as requiring the defendant to prove by a preponderance of the evidence that he had been prejudiced. The Court held that this was a mischaracterization of the state court opinion, which had expressed and applied the proper standard for evaluating prejudice. Although there were instances of the state court using the term "probable" instead of including the modifier "reasonably," the court held:

"This readiness to attribute error is inconsistent with the presumption that state courts now and follow with the law. It is also incompatible with § 2254(d)’s "highly deferential standard for evaluating state-court rulings." Lindh v. Murphy, 521 U.S. 320, 333, n.7,117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), which demands that state court decisions be given the benefit of the doubt."

Id. at 360. The Ninth Circuit also held that the state court had unreasonably applied established Supreme Court precedent, but the Ninth Circuit apparently substituted its own judgment for that of the state court. While the state court decision may have been incorrect there was no showing that it was objectively unreasonable.

The federal habeas scheme leaves primary reasonably with the state court’s for these judgments, and authorizes federal-court intervention only when a state-court decision is objectively unreasonable. It is not that here. Whether or not we would reach the same conclusion as the California Supreme Court, "we think at the very least that the state court’s contrary assessment was not "unreasonable."

Id. at 361.

Massaro v. United States
538 U.S. 500, 123 S. Ct. 1690 (2003)

Court held that an ineffective assistance of counsel claim may be brought in a collateral proceeding under 28 U.S.C. § 2255, "whether or not the petitioner could have raised the claim on direct appeal." The Court did not hold that ineffective assistance claims "must be reserved for collateral review" because counsel’s ineffectiveness may be so apparent from the record that appellate counsel or the court sua sponte will consider it advisable to address the issue on direct appeal.

*Wiggins v. Smith
539 U.S. 510, 123 S.Ct. 2527 (2003).

Counsel ineffective in capital habeas case, decided under the AEDPA, for failing to adequately prepare and present mitigation. Counsel relied on arguments that the defendant was not directly responsible for the murder and did not present any social history or other mitigation, despite knowledge of at least some of the defendant’s background information. The issue before the Court was "whether the investigation supporting counsel’s decision not to introduce mitigating evidence of Wiggins’ background was itself reasonable." Id. at 2536 (emphasis in original). "

In assessing counsel’s investigation, we must conduct an objective review of their performance, measured for ‘reasonableness under prevailing professional norms,’ which includes a context-dependent consideration of the challenged conduct as seen ‘from counsel’s perspective at the time.’" Id. (quoting Strickland, 466 U.S. at 688). In this case, where counsel had only limited records available and did not investigate further, counsel’s conduct "fell short of the professional standards that prevailed in Maryland in 1989," because no "social history report" was prepared even though counsel had funds available to retain a "forensic social worker." Id. at 2536.

Counsel’s conduct similarly fell short of the standards for capital defense work articulated by the American Bar Association (ABA) – standards to which we have referred as "guides to determining what is reasonable." Strickland, supra, at 688; Williams v. Taylor, supra, at 396. The ABA Guidelines provide that investigations into mitigating evidence "should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor." ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 11.4.I(C), p. 93 (1989) (emphasis added).

Id. "Despite these well-defined norms, . . . , counsel abandoned their investigation of petitioner’s background after having acquired only rudimentary knowledge of his history from a narrow set of sources." Id. at 2537 (citing the ABA standards again). The Court found that "[t]he scope of their investigation was also unreasonable in light of what counsel actually discovered" in the records available to them, "particularly given the apparent absence of any aggravating factors in petitioner’s background." Id. at 2537 (citation omitted).

In assessing the reasonableness of an attorney’s investigation, . . . , a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further. Even assuming [counsel] limited the scope of their investigation for strategic reasons, Strickland does not establish that a cursory investigation automatically justifies a tactical decision with respect to sentencing strategy. Rather, a reviewing court must consider the reasonableness of the investigation said to support the strategy.

Id. at 2538. In this case, "counsel were not in a position to make a reasonable strategic choice . . . because the investigation supporting their choice was unreasonable." Id. at 2543. "In assessing prejudice, we reweigh the evidence in aggravation against the totality of available mitigation evidence." Id. at 2542. "[W]e evaluate the totality of the evidence – ‘both that adduced at trial, and the evidence adduced in the habeas proceeding[s].’" Id. at 2542 (quoting Williams v. Taylor, 529 U.S. at 397-98). Prejudice was found here because counsel did not discover "powerful" evidence of "physical torment, sexual molestation, and repeated rape," as well as, alcoholic parents, foster homes, homelessness, and "diminished mental capacities." Id. at 2542. "Had the jury been able to place petitioner’s excruciating life history on the mitigating side of the scale, there is a reasonable probability that at least one juror would have struck a difference balance." Id. at 2543. While Williams v. Taylor had not been decided at the time of the state court decision, the Court held that it "made no new law" in Williams v. Taylor and had just applied Strickland to conclude that "counsel’s failure to uncover and present voluminous mitigating evidence at sentencing could not be justified as a tactical decision . . . , because counsel had not ‘fulfill[ed] their obligation to conduct a thorough investigation of the defendant’s background." Id. at 2535 (quoting Williams, 529 U.S. at 396). Like in Williams, the state court decision here was "objectively unreasonable," id. at 2538, and an unreasonable application of Strickland (under the AEDPA standards) because the state court did not

conduct an assessment of whether the decision to cease all investigation . . . actually demonstrated reasonable professional judgment. The state court merely assumed that the investigation was adequate. In light of what the . . . [available] records actually revealed, however, counsel chose to abandon their investigation at an unreasonable juncture, making a fully informed decision with respect to sentencing strategy impossible."

Id. The state court decision was also an unreasonable application of the facts to the law because the state court erroneously concluded that the [available] . . . records reflected sexual abuse, when the records did not mention it at all, "much less . . . the repeated molestations and rapes of petitioner. . . ." Id. at 2539. The state court conclusion was proven to be incorrect by clear and convincing evidence as required by 28 U.S.C. 2254(e)(1). The facts are discussed in more detail below in the capital sentencing section.

Yarborough v. Gentry
540 U.S. ___, 124 S. Ct. 1 (2003) (per curiam).

The Court reversed the Ninth Circuit’s grant of relief because the state court determination that counsel was not ineffective was not objectively unreasonable under the AEDPA. The defendant had been convicted of assault with a deadly weapon for stabbing his girlfriend. On appeal, he argued that his trial counsel’s closing argument deprived him of his right to effective assistance of counsel. The state court denied relief, as did the federal district court, but the Ninth Circuit reversed. The court held that the right to effective assistance extends to closing arguments. Nonetheless, counsel has wide latitude in deciding how best to represent a client, and deference to counsel’s tactical decisions in his closing presentation is particularly important because of the broad range of legitimate defense strategy at that stage. Closing arguments should "sharpen and clarify the issues for resolution by the trier of fact," but which issues to sharpen and how best to clarify them are questions with many reasonable answers. Indeed, it might sometimes make sense to forgo closing arguments altogether. Judicial review of a defense attorney’s summation is therefore highly deferential – and doubly deferential when it is conducted through the lens of federal habeas. The Court found that the Ninth Circuit erred in finding the state court decision to be objectively unreasonable. While the Ninth Circuit found and relied on the fact that counsel did not highlight a number of potential exculpatory pieces of evidence, the Court found "these other potential arguments do not establish that the state court’s decision was unreasonable." Relying on a number of law review articles and treatises, the court found that "focusing on a small number of key points may be more persuasive than a shotgun approach." "In short, judicious selection of arguments for summation is a core exercise of defense counsel’s discretion." "When counsel focuses on some issues to the exclusion of others, there is a strong presumption that he did so for tactical reasons rather than through sheer neglect." That presumption has particular force where a petitioner bases his ineffective assistance claim solely on the trial record, creating a situation in which a court "may have no way of knowing whether a seemingly unusual or misguided action had a sound strategic motive." Here, "counsel plainly put to the jury the centerpiece of his case." The court also found that counsel’s argument was not deficient in reminding the jury of evidence of the defendant’s bad character but also stating that evidence was legally irrelevant. "This is precisely the sort of calculated risk that lies at the heart of an advocate’s discretion. By candidly acknowledging his client’s shortcomings, counsel might have built credibility with the jury and persuaded it to focus on the relevant issues in the case." The Court also found that counsel’s conduct in making only a passive request that the jury reach some verdict was not unreasonable. "Given a patronizing and overconfident summation by a prosecutor, a low-key strategy that stresses the jury’s autonomy is not unreasonable." The Court also rejected the Ninth Circuit’s finding that counsel was ineffective for failing to argue explicitly that the government had failed to prove its case. The court held "[c]ounsel’s entire presentation, however made just that point." Finally, the Court rejected the Ninth Circuit’s finding of ineffectiveness because counsel admitted that he did not know the truth which implied that he did not even believe his client’s testimony. The Court held, however, "there is nothing wrong with a rhetorical device that personalizes the doubt anyone but an eyewitness must necessarily have. Winning over an audience by empathy is a technique that dates back to Aristotle." In sum, the Court found that the Ninth Circuit’s decision "gives too little deference to the state courts that have primary responsibility for supervising defense counsel in state criminal trials."

Holland v. Jackson
124 S. Ct. 2736 (2004)

The Sixth Circuit Court of Appeals erred in finding that the state court decision denying relief on the basis of an ineffective assistance of counsel claim was an "unreasonable application" or "contrary to" Strickland. The petitioner in a murder case sought state post-conviction relief on the basis of counsel’s failure to adequately investigate. The court denied relief. Afterwards, the petitioner filed a motion to reopen on the basis of "newly discovered evidence" and attaching an affidavit that would have contradicted the testimony of the state’s primary witness. On appeal, the state court held that the affidavit was not properly before the court. Alternatively, the court stated it would deny relief on the merits. "[W]hether a state court’s decision was unreasonable must be assessed in light of the record the court had before it." Here, the District Court and the Court of Appeals made no findings warranting the admission of new evidence buttressing a previously rejected claim. Instead, the Court of Appeals "simply ignored entirely the state court’s independent ground for its decision, that [the] statement was not properly before it." Thus, the court erred in finding that the state court’s decision was an unreasonable application of Strickland. The court also erred in finding that the state court’s decision was "contrary to" Strickland (in three instances) due to imposition of a different burden of proof on prejudice than "reasonable probability." The important holding here is that "the unadorned word ‘probably’ is permissible shorthand when the complete Strickland standard is elsewhere recited."

Florida v. Nixon
125 S. Ct. 511 ( 2004)

Trial counsel’s "failure to obtain the defendant’s express consent to a strategy of conceding guilt in a capital trial" is not automatically deficient performance and must be evaluated under the Strickland test rather than under the Cronic test. The Court recognized that some decisions concerning "basic trial rights" must be made by the defendant and require that "an attorney must both consult with the defendant and obtain consent to the recommended course of action." These basic trial rights include the determination of "whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal." (quoting Jones v. Barnes, 463 U.S. 745, 751 (1983)). For other matters, "[a]n attorney undoubtedly has a duty to consult with the client regarding ‘important decisions,’ including questions of overarching defense strategy," (citing Strickland, 466 U.S. at 688), but this "obligation . . . does not require counsel to obtain the defendant’s consent to ‘every tactical decision,’" (citing Taylor v. Illinois, 484 U.S. 400, 417-418 (1988) (an attorney has authority to manage most aspects of the defense without obtaining his client's approval)). With respect to capital cases, the court recognized that

the gravity of the potential sentence in a capital trial and the proceeding’s two-phase structure vitally affect counsel’s strategic calculus. Attorneys representing capital defendants face daunting challenges in developing trial strategies, not least because the defendant’s guilt is often clear. Prosecutors are more likely to seek the death penalty, and to refuse to accept a plea to a life sentence, when the evidence is overwhelming and the crime heinous. In such cases, "avoiding execution [may be] the best and only realistic result possible." ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases § 10.9.1, Commentary (rev. ed.2003), reprinted in 31 Hofstra L.Rev. 913, 1040 (2003).

In circumstances where guilt is clear, counsel must "strive at the guilt phase to avoid a counterproductive course," such as presenting logically inconsistent strategies in the trial and sentencing. (Citing, inter alia, Lyon, Defending the Death Penalty Case: What Makes Death Different?, 42 Mercer L.Rev. 695, 708 (1991) ("It is not good to put on a ‘he didn't do it’ defense and a ‘he is sorry he did it’ mitigation. This just does not work. The jury will give the death penalty to the client and, in essence, the attorney.")). Thus, "[c]ounsel . . . may reasonably decide to focus on the trial’s penalty phase," and "counsel cannot be deemed ineffective for attempting to impress the jury with his candor and his unwillingness to engage in ‘a useless charade.’"

To summarize, in a capital case, counsel must consider in conjunction both the guilt and penalty phases in determining how best to proceed. When counsel informs the defendant of the strategy counsel believes to be in the defendant’s best interest and the defendant is unresponsive, counsel’s strategic choice is not impeded by any blanket rule demanding the defendant's explicit consent. Instead, if counsel’s strategy, given the evidence bearing on the defendant's guilt, satisfies the Strickland standard, that is the end of the matter; no tenable claim of ineffective assistance would remain.

*Rompilla v. Beard
125 S. Ct. 2456 (2005).

Counsel ineffective in capital sentencing for failing “to make reasonable efforts to obtain and review material that counsel [knew] the prosecution [would] probably rely on as evidence of aggravation at the sentencing phase of the trial,” which would have led to significant mitigation Counsel interviewed the defendant, who provided minimal assistance in mitigation and “was actively obstructive by sending counsel off on false leads,” and a few of the defendant’s family members, and reviewed the reports of court-appointed examiners, who assessed only competence and capacity at the time of the offenses. Finding nothing “particularly helpful” in these sources, counsel did not conduct additional investigation for information “that might have cast light on [the defendant’s] mental condition.” Counsel also did not obtain the file of a prior conviction for rape and assault, even though counsel knew the state intended to rely on the aggravating circumstance of a significant history of felony convictions indicating the use or threat of violence and knew that the state specifically intended to read the testimony of the prior rape victim into evidence in sentencing. In mitigation, the defense presented brief testimony from the defendant’s family members, who “argued in effect for residual doubt, and beseeched the jury for mercy.” In addressing the ineffective assistance claim, the Court noted that, in a capital sentencing, “defense counsel’s job is to counter the State’s evidence of aggravated culpability with evidence in mitigation.” While “reasonably diligent counsel may draw a line when they have good reason to think further investigation would be a waste,” counsel’s conduct in this case was “deficient in failing to examine the court file” on the prior conviction because counsel knew the state intended to rely on it and “the prior conviction file was a public document, readily available for the asking at the very courthouse where [the defendant] was to be tried.” While counsel opposed admission of the evidence, this was insufficient because “[c]ounsel’s obligation to rebut aggravating evidence extended beyond arguing it ought to be kept out.” Here, despite knowing of the state’s intent to rely on the evidence, counsel did not look at any part of the file, until the day before the sentencing phase began and then looked only at the transcript of the victim’s testimony. The obligation to review the remainder of the file was particularly pressing here owing to the similarity of the violent prior offense to the crime charged and [the defendant’s] sentencing strategy stressing residual doubt. Without making efforts to learn the details and rebut the relevance of the earlier crime, a convincing argument for residual doubt was certainly beyond any hope.

In reaching this conclusion, the Court emphasized “[t]he ease with which counsel could examine the entire file. . . . Suffice it to say that when the State has warehouses of records available in a particular case, review of counsel’s performance will call for greater subtlety.” The Court also noted that “[t]he notion that defense counsel must obtain information that the State has and will use against the defendant is not simply a matter of common sense.” It is described “in terms no one could misunderstand” in the ABA Standards for Criminal Justice “in circulation” at the time of trial and the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases promulgated in 1989, “shortly after” this trial, and made “even more explicit” in the 2003 revisions. “[I]n any case, [we] cannot think of any situation in which defense counsel should not make some effort to learn the information in the possession of the prosecution and law enforcement authorities.” The state court’s application of Strickland was objectively unreasonable because the court reasoned that “defense counsel’s efforts to find mitigating evidence by other means excused them from looking at the prior conviction file.” The Court rejected this reasoning because “[n]o reasonable lawyer would forgo examination of the file thinking he could do as well by asking the defendant or family relations whether they recalled anything helpful or damaging in the prior victim’s testimony.” Counsel is not required to look for a needle in a haystack, when a lawyer truly has reason to doubt there is any needle there. But looking at a file the prosecution says it will use is a sure bet: whatever may be in that file is going to tell the defense counsel something about what the prosecution can produce.

The Court cautioned, however, that, although counsel’s conduct was unreasonable in the circumstances of this case, a different result might be obtained in other situations “where a defense lawyer is not charged with knowledge that the prosecutor intends to use a prior conviction in this way.” Because the state court never reached question of prejudice, the Court examined this issue “de novo.” Prejudice was uncontested by the Commonwealth and the Court found prejudice. If counsel had looked in the file, counsel would have discovered “mitigation leads that no other source had opened up,” including information that the defendant grew up in a “slum environment” and had numerous prior incarcerations for offenses “often of assaultive nature and commonly related to over-indulgence in alcoholic beverages.” The file also contained information “pointing to schizophrenia and other disorders, and test scores showing a third grade level of cognition after nine years of schooling.” “The jury never heard even of this and neither did the mental health experts who examined [the defendant] before trial.” If the experts had reviewed these records, they (like “their post-conviction counterparts”) would have “found plenty of ‘red flags’ pointing up to a need to test further.” This testing would have established that (1) the defendant “suffers from organic brain damage, an extreme mental disturbance significantly impairing several of his cognitive functions”; (2) the impairments probably resulted from “fetal alcohol syndrome” and, thus, existed since childhood; and (3) the defendant’s capacity to appreciate the criminality of his conduct or to conform his conduct to the law was substantially impaired at the time of the offenses. “These finds in turn would probably have prompted a look at school and juvenile records, all of them easy to get,” which showed that (1) the defendant’s mother was often missing from the home for a week or more at a time when the defendant was 16; (2) the defendant’s mother was frequently drunk and “the children have always been poorly kept and on the filthy side which was also the condition of the home at all times”); and (3) the defendant’s “IQ was in the mentally retarded range.” “This evidence adds up to a mitigation case that bears no relation to the few naked pleas for mercy actually put before the jury” and “‘might well have influenced the jury’s apprisal’ of . . . culpability.” (quoting Wiggins v. Smith, 539 U.S. 510, 538 (2003) and Williams v. Taylor, 529 U.S. 362, 398 (2000)).

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Accordingly, the trial court shall provide trial counsel with a second opportunity to respond to Applicant's claim of ineffective assistance of couns

2007-08-24T21:33:00.000-07:00

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. WR-67,812-01 & -02

EX PARTE MICHAEL LAFFERY, Applicant

ON APPLICATIONS FOR A WRIT OF HABEAS CORPUS

CAUSE NOS. 06-CR-0436-H & 05-CR-4440-H IN THE 347^TH DISTRICT COURT

FROM NUECES COUNTY

Per curiam.

O R D E R

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court these applications for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of robbery, aggravated robbery, and two counts of credit card abuse. He was sentenced to imprisonment for ten years, thirty years, and two one-year terms. He did not appeal his convictions.

Applicant contends, among other things, that his trial counsel rendered ineffective assistance because she failed to advise him of his appellate rights. Trial counsel submitted an affidavit to the trial court. Based on that affidavit and the record, the trial court has entered findings of fact and conclusions of law recommending that relief be denied. We believe, however, that the record is not adequate to resolve whether trial counsel was ineffective. The record indicates that, despite Applicant pleading guilty without recommendations from the State, trial counsel signed certifications stating that Applicant's cases were plea bargains and that, as a result, he had no rights to appeal. We believe that trial counsel should have the opportunity to explain in a second affidavit why she signed these certifications and whether, despite her signatures on these certifications, she specifically told Applicant he could appeal his convictions.

Accordingly, the trial court shall provide trial counsel with a second opportunity to respond to Applicant's claim of ineffective assistance of counsel. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id.

If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent him at the hearing. Tex. Code Crim. Proc. art. 26.04.

The trial court shall then make further findings of fact as to whether the performance of Applicant's trial attorney was deficient and, if so, whether her deficient performance prejudiced Applicant. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief.

These applications will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 90 days of this order. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall be returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: August 22, 2007

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Once again 13th COAppeals violates the US Consitution's Sixth Amendment

2007-08-24T00:29:00.000-07:00

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NUMBER 13-06-501-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ROBERT S. SALINAS, Appellant,

THE STATE OF TEXAS, Appellee.

On appeal from the 28th District Court of Nueces County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Benavides and Vela

Memorandum Opinion by Justice Benavides

Appellant Robert Salinas claims that he received ineffective assistance from his trial counsel when counsel failed to (1) present and obtain rulings from the trial court on filed motions and (2) secure a witness through subpoena. We disagree and affirm the judgment of the trial court.

I. Factual Background

On February 2, 2006, Robert Salinas was indicted for aggravated sexual assault of a child, a first degree felony, and indecency with a child by touching, a second degree felony. Tex. Penal Code Ann. § 22.021(a) (Vernon 2007); Tex. Penal Code Ann. § 21.11 (Vernon 2007).

Salinas's counsel, during the course of trial preparation, filed the following motions: (1) a Motion for Discovery and Inspection of Evidence, (2) a Motion for Discovery of Punishment Evidence, (3) a Motion for Production of Favorable Evidence, and (4) a Motion for Production of Witness Statements after Direct Examination. Although trial counsel filed these motions, he did not present any of the motions to the trial court or obtain rulings on them. During the trial, no dispute arose over any discovery matters which would have related back to the pretrial motions filed.

At trial, Salinas sought to have a witness testify on his behalf who did not appear. Salinas's trial counsel did not secure the witness through subpoena. Trial counsel stated that the witness's testimony would only last five to ten minutes, but did not otherwise expound upon the substance of the testimony. Trial counsel then requested, and was granted, an extra ten minutes to wait for the witness to appear, but she never did. After the recess, the defense rested. Salinas's counsel did not make a record of what the witness would have said or why her testimony would have changed the outcome of the trial.

Salinas was convicted on both counts on August 8, 2006. He received sentences of fifty years and twenty years, respectively, in the Texas Department of Criminal Justice Institutional Division. The district court ordered the sentences to run concurrently. Salinas now appeals his conviction, arguing that his trial counsel was ineffective.

II. Standard of Review

When evaluating claims of ineffective assistance of counsel, there is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim App. 1986) (citing Strickland v. Washington, 466 U.S. 668, 690 (1984)). In order to overcome this presumption, an appellant must demonstrate by a preponderance of the evidence that (1) counsel's performance was so deficient as to fall below an objective standard of reasonableness, and (2) there is a reasonable probability that but for counsel's professional errors the trial result would have been different. Strickland, 466 U.S. at 688. A "reasonable probability" means a probability sufficient to undermine confidence in the outcome. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). Effective assistance of counsel does not mean errorless counsel. See Saylor v. State, 660 S.W.2d 822, 824 (Tex. Crim. App. 1983). The defendant bears the burden of proving both elements of an ineffective assistance of counsel by a preponderance of the evidence. Munoz v. State, 24 S.W.3d 427, 434 (Tex. App.-Corpus Christi 2000, no pet.).

III. Analysis

The acts or omissions complained of in an ineffective assistance of counsel appeal must appear on the record, and a silent record providing no explanation for counsel's conduct is insufficient to overcome the presumption of reasonableness. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). It is "critical that the defendant obtain the necessary record in the trial court to rebut the Strickland presumption that counsel's conduct was strategic." Batiste v. State, 217 S.W.3d 74, 83 (Tex. App.-Houston [1st Dist.] 2006, no pet.).

An appropriate record, including counsel's reasons for his actions, is generally prepared at a hearing on a motion for new trial or developed by a writ of habeas corpus. Batiste, 2006 Tex. App. LEXIS 8822, at *19-20. "'[T]rial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective.'" Goodspeed, 187 S.W.3d at 392 (quoting Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003)). Absent an opportunity for the attorney to explain his actions, an appellate court should not "find deficient performance unless the challenged conduct was 'so outrageous that no competent attorney would have engaged in it.'" Goodspeed, 187 S.W.3d at 392 (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).

This presumption of reasonable professional judgment which we extend to trial counsel means that we may not speculate about the reasons that trial counsel did not file a particular motion. Robinson v. State, 22 S.W.3d 631, 636 (Tex. App.-Waco 2000, pet. ref'd). It is possible, for instance, that trial counsel may simply have decided that the presentation of a particular motion would have been frivolous. Id. If there is no explanation for trial counsel's actions in the record, then we must presume that counsel was better positioned than the appellate court to judge the pragmatism of the decision. Ex parte Okere, 56 S.W.3d 846, 856 (Tex. App.-Dallas 2001, no pet.).

Similarly, an appellate court is also barred from revisiting trial counsel's failure to subpoena a witness unless there is an explanation in the record as to what the testimony of the witness would have established. Id. Lacking an offer of proof or any other evidence that would provide such an explanation, a court has no basis for evaluating whether there was a reasonable probability that the outcome of the trial would have been different had the witness been subpoenaed and testified. See Reese v. State, 905 S.W.2d 631, 635-36, 638 (Tex. App.-Texarkana 1995, pet. ref'd). To do so would be mere speculation on our part.

Salinas argues that his counsel's failure to present four motions and subpoena a specific witness constituted ineffective assistance of counsel. The record is silent, however, as to any explanation for counsel's actions in either situation. With no explanation of the motivation behind counsel's decisions, we find that Salinas has failed to overcome the strong presumption of reasonable assistance extended to trial counsel. Salinas has not shown that his counsel's actions fell below an objective standard of reasonableness or that but for these actions the outcome of his trial would have been different. Strickland, 466 U.S. at 687.

IV. Conclusion

The judgment of the district court is AFFIRMED.

_________________________

GINA M. BENAVIDES,

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this the 23rd day of August, 2007.

Texas Appeals Judges house keeping as usual~ probative value to substantially outweigh the prejudicial effect lies within the "zone of reason......

2007-08-24T00:19:00.000-07:00

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NUMBER 13-05-786-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

SAMMY ROACH, Appellant,

THE STATE OF TEXAS, Appellee.

On appeal from the 105th District Court

of Nueces County, Texas

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Benavides

Memorandum Opinion by Justice Rodriguez

Appellant, Sammy Roach, was charged and convicted of driving while intoxicated, third offense. Tex. Penal Code Ann. § 49.04 (Vernon 2006). A jury found appellant guilty, and the trial court sentenced appellant to seven years' imprisonment. On appeal, appellant raises the issue of whether the trial court erred in admitting evidence of appellant's prior convictions. The State raises two additional issues: (1) whether appellant timely filed his notice of appeal to provide this Court with jurisdiction; and (2) whether and to what extent appellant preserved his right to appeal the admissions. We affirm.

I. Jurisdiction

On August 23, 2005, appellant was convicted and sentenced. After sentencing, appellant expressed his desire to appeal. No written notice of appeal was filed within the 90 day time limit. See Tex. R. App. P. 26.2(a)(2) (Vernon 2003) (providing that notice of appeal must be filed within 90 days of the date sentence is imposed). On September 2, 2005, however, appellant signed an affidavit of indigency requesting that counsel be appointed for appeal.

Ordinarily, the law requires that a convicted person file a notice of appeal in writing with the clerk. Tex. R. App. P. 25.2(b), (c) (Vernon 2003) (providing that notice of appeal must be timely filed with the trial court clerk). The notice must show the person's desire to appeal from the judgment or other appealable order. Id. However, in Cantu v. State, 46 S.W.3d 421, 423-24 (Tex. App.-Corpus Christi 2001, no pet.), this Court recognized a limited exception. See id. In Cantu, we concluded that rule 25.2 is satisfied when: (1) the appellant orally expresses to the trial court his desire to appeal, and the trial court gives permission; and (2) the appellant files a form requesting counsel and expressing his desire to appeal. Id.

In this case, on two occasions after appellant was sentenced he personally requested the trial court to "proceed to appeal." See id. The trial court responded by stating "that's fine" or "all right." See id. Appellant also filed his affidavit of indigency requesting counsel and expressing his desire to appeal. See id. The requirements of rule 25.2(c), in light of Cantu, were thus satisfied. We conclude that this Court has jurisdiction over appellant's appeal.

II. Admissibility of Prior Convictions

At trial, during cross-examination of appellant, the State requested a hearing outside the presence of the jury to discuss the admissibility of appellant's prior convictions for the purpose of impeaching appellant's testimony. Appellant had three theft convictions occurring between 1992 and 1993⁽¹⁾ and an aggravated assault conviction in 1982. Appellant's counsel stated that he "believe[d] the theft convictions aren't permissible for impeachment at this time" and that he "d[id] not believe that the aggravated assault is an impeachable crime." The trial court disagreed with both statements and decided that "[i]f it's a felony, it can be used for impeachment." At that point, the trial court asked if there were objections. Appellant's counsel responded, "No."

The trial resumed with the State questioning appellant. Appellant's counsel objected to the State's questions regarding his prior theft convictions on grounds that "any prior convictions have to be within ten years."⁽²⁾ The State supported the admissibility of the evidence on grounds of moral turpitude, and the trial court overruled appellant's objection. Without objection, the State then proceeded to ask appellant about his conviction for aggravated assault.

Based on the above, we conclude appellant preserved his objection to evidence regarding the theft convictions, but not as to the conviction for aggravated assault. See Tex. R. App. P. 33.1(a) (to preserve appellate review, an objection must be timely and state the grounds for the ruling "with sufficient specificity to make the trial court aware of the complaint, unless specific grounds were aware from the context"); Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim. App. 2002) (providing that one of the two general policies for sufficiently specific objections is that a specific objection will provide the trial court the basis for the objection so that the trial court may rule on it).

A. Evidence of Theft Convictions

By his sole issue on appeal, appellant contends that the trial court erred by allowing the State to introduce evidence of appellant's remote prior convictions. At trial, appellant objected on grounds of remoteness--that the crimes occurred more than ten years before the trial. See Tex. R. Evid. 609(b). On appeal, appellant argues that the probative value of admitting the evidence does not substantially outweigh its prejudicial effect. The State contends appellant has waived error because his objection at trial does not comport with his argument on appeal. See Tex. R. App. P. 33.1(a). We disagree.

Rule 609(b) provides that when an objection to the remoteness of a prior conviction is raised, the trial court conducts a balancing test to determine whether the probative value of evidence of a conviction occurring more than ten years prior to trial substantially outweighs its prejudicial effect. Tex. R. Evid. 609(b). On appeal, when reviewing the issue of remoteness, "[we] may presume that the trial judge conducted the balancing test, which need not be shown in the record." Bryant v. State, 997 S.W.2d 673, 676 (Tex. App.-Texarkana 1999, no pet.). Thus, while appellant's argument on appeal uses the more specific balancing language, we conclude it comports with his general remoteness objection and is properly before us on appeal.

B. Applicable Law and Standard of Review

In determining whether the probative value of the evidence substantially outweighed the prejudicial effect, see Tex. R. Evid. 609(a), (b), we must weigh the following factors: "(1) the impeachment value of the prior crime, (2) the temporal proximity of the past crime relative to the charged offense and the witness' subsequent history, (3) the similarity between the past crime and the offense being prosecuted, (4) the importance of the defendant's testimony, and (5) the importance of the credibility issue." Theus v. State, 845 S.W.2d 874, 880 (Tex. Crim. App. 1992) (en banc); see Hankins v. State, 180 S.W.3d 177, 180-81 (Tex. App.-Austin 2006, pet. ref'd) (applying Theus factors to a rule 609(b) issue); Polk v. State, 865 S.W.2d 627, 630-31 (Tex. App.-Fort Worth 1993, pet. ref'd) (same). We presume that the trial court, in this case, conducted the balancing test. Bryant, 997 S.W.2d at 676.

"The determination of the admissibility of evidence is within the sound discretion of the trial court and will not be disturbed on appeal absent a clear abuse of discretion." Theus, 845 S.W.2d at 876. In fact, we must accord the trial court "wide discretion" in weighing the factors. Id. at 881.

C. Analysis

The theft convictions occurred in 1992 and 1993, but the record does not show any confinement. Thus, we must assume that the convictions (and confinements) occurred more than ten years before this trial. Rule 609(b) therefore applies.

Regarding the first Theus factor, "[t]he impeachment value of crimes that involve deception is higher than crimes that involve violence, and the latter have a higher potential for prejudice." Theus, 845 S.W.2d at 881. Theft is a crime of deception and moral turpitude, and thus weighs in favor of the evidence being admitted. Bryant, 997 S.W.2d at 676. Therefore, appellant's past theft convictions weigh in favor of admissibility.

The temporal proximity of a crime "will favor admission if the past crime is recent and if the witness has demonstrated a propensity for running afoul of the law." Theus, 845 S.W.2d at 881 (citing United States v. Hayes, 553 F.2d 824, 828 (2d Cir. 1977) (stating that Court has held that convictions have more probative value as they become more recent)). Appellant's theft convictions occurred approximately thirteen years before trial; therefore, they cannot be considered proximate. See Tex. R. Evid. 609(b). This factor weighs against admissibility of the evidence.

If the past crime and the charged crime are similar, then a jury might be more likely to "convict on the perception of a past pattern of conduct, instead of on the facts of the charged offense." Theus, 845 S.W.2d at 881. In this case, appellant's prior theft convictions are not similar to his current charge of DWI. Theft is a crime of deception, see White v. State, 21 S.W.3d 642, 647 (Tex. App.-Waco 2000, pet. ref'd), while DWI is a crime of strict liability with no regard to appellant's mental state. See, e.g., Aguirre v. State, 22 S.W.3d 463, 476 (Tex. Crim. App. 1999); Ex parte Weise, 23 S.W.3d 449, 453 (Tex. App.-Houston [1st Dist.] 2000), rev'd on other grounds, 55 S.W.3d 617, 621 (Tex. Crim. App. 2001). The dissimilarity between the two types of crimes demonstrates a low prejudicial effect, and thus weighs in favor of admissibility of evidence of the theft convictions.

The last two factors are related and often analyzed together because "both depend on the nature of a defendant's defense and the means available to him of proving that defense." Theus, 845 S.W.2d, at 881. "When the case involves the testimony of only the defendant and the State's witnesses, . . . the importance of the defendant's credibility and testimony escalates. As the importance of the defendant's credibility escalates, so will the need to allow the State an opportunity to impeach the defendant's credibility." Id. At trial, appellant served as the defense's only witness. Thus, these two factors weigh in favor of admissibility.

Because four of the five factors weigh in favor of admissibility, we find that determining the probative value to substantially outweigh the prejudicial effect lies within the "zone of reasonable disagreement." Id. The trial court did not abuse its discretion in admitting evidence of the theft convictions. Thus, we overrule appellant's sole issue.

III. Conclusion

Accordingly, we affirm the judgment of the trial court.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this 23rd day of August, 2007.

1. We note that the State, on one occasion, referred to the convictions as occurring between 1991 and 1992. The one year difference, however, does not affect our analysis.

2. Appellant did not cite an evidentiary rule; however, it is assumed to be rule 609(b), the time limit subsection under impeachment by evidence of a conviction of a crime. Tex. R. Evid. 609(b).

Just because they allege to independently review the record does not provide evidence when defendant has not a copy.

2007-07-27T23:50:00.000-07:00

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US Supreme Court Center> US Supreme Court Cases & Opinions> Volume 488 > PENSON v. OHIO, 488 U.S. 75 (1988)
PENSON v. OHIO, 488 U.S. 75 (1988)
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U.S. Supreme Court
PENSON v. OHIO, 488 U.S. 75 (1988)
488 U.S. 75

PENSON v. OHIO
CERTIORARI TO THE COURT OF APPEALS OF OHIO, MONTGOMERY COUNTY

No. 87-6116.

Argued October 12, 1988
Decided November 29, 1988

After the indigent petitioner and two codefendants were found guilty of several serious crimes in an Ohio state court, the new counsel appointed to represent petitioner on appeal filed with the Ohio Court of Appeals a document captioned "Certification of Meritless Appeal and Motion," which recited that the attorney had carefully reviewed the record, that he had found no errors requiring reversal, and that he would not file a meritless appeal, and which requested leave to withdraw. The court entered an order that granted the latter motion and that specified that the court would thereafter independently review the record thoroughly to determine whether any reversible error existed. The court later denied petitioner's request for the appointment of a new attorney. Subsequently, upon making its own examination of the record without the assistance of counsel for petitioner, the court noted that counsel's certification of meritlessness was "highly questionable" since petitioner had "several arguable claims," and, in fact, reversed one of petitioner's convictions for plain error, but concluded that petitioner "suffered no prejudice" as a result of "counsel's failure to give a more conscientious examination of the record" because the court had thoroughly examined the record and received the benefit of arguments advanced by the codefendants' counsel. The court therefore affirmed petitioner's convictions on the remaining counts, and the State Supreme Court dismissed his appeal.

Held:

1. Petitioner was deprived of constitutionally adequate representation on appeal by the Ohio Court of Appeals' failure to follow the procedures set forth in Anders v. California, 386 U.S. 738, for allowing appointed counsel for an indigent criminal defendant to withdraw from a first appeal as of right on the basis that the appeal is frivolous. Under those procedures, counsel must first conduct a "conscientious examination" of the case and support a request to withdraw with a brief referring to anything in the record that might arguably support the appeal, and the court must then conduct a full examination of all the proceedings and permit withdrawal if its separate inquiry reveals no nonfrivolous issue, but must appoint new counsel to argue the appeal if such an issue exists. The state court erred in two respects in not denying counsel's motion to withdraw. First, the motion was not supported with an "Anders brief," so

Page 488 U.S. 75, 76

that the court was left without an adequate basis for determining that counsel had performed his duty of carefully searching the record for arguable error and was deprived of assistance in the court's own review of the record. Second, the court should not have acted on the motion before it made its own examination of the record to determine whether counsel's evaluation of the case was sound. Most significantly, the court erred by failing to appoint new counsel to represent petitioner after determining that the record supported "several arguable claims." Such a determination creates a constitutional imperative that counsel be appointed, since the need for forceful and vigorous advocacy to ensure that rights are not forgone and that substantial legal and factual arguments are not passed over is of paramount importance in our adversary system of justice, whether at the trial or the appellate stage. Pp. 79-85.

2. In cases such as this, it is inappropriate to apply either the lack of prejudice standard of Strickland v. Washington, 466 U.S. 668, or the harmless-error analysis of Chapman v. California, 386 U.S. 18. Such application would render the protections afforded by Anders meaningless, since the appellant would suffer no prejudice or harm from the denial of counsel and would thus have no basis for complaint, whether the court, on reviewing the bare appellate record, concluded either that the conviction should not be reversed or that there was a basis for reversal. The Court of Appeals' consideration of the appellate briefs filed on behalf of petitioner's codefendants does not alter this conclusion, since a criminal appellant is entitled to a single-minded advocacy for which the mere possibility of a coincidence of interest with a represented codefendant is an inadequate proxy. More significantly, the question whether the briefs filed by the codefendants, along with the court's own review of the record, adequately focused the court's attention on petitioner's arguable claims is itself an issue that should have been resolved in an adversary proceeding. Furthermore, it is important that the denial of counsel in this case left petitioner completely without representation during the appellate court's actual decisional process, since such a total denial is legally presumed to result in prejudice and can never be considered harmless error, whether at the trial or the appellate stage. Pp. 85-89.

Reversed and remanded.

STEVENS, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. O'CONNOR, J., filed a concurring opinion, post, p. 89. REHNQUIST, C. J., filed a dissenting opinion, post, p. 89.

Gregory L. Ayers, by appointment of the Court, 485 U.S. 957, argued the cause for petitioner. With him on the briefs

Page 488 U.S. 75, 77

were Randall M. Dana, David C. Stebbins, and George A. Lyons.

Mark B. Robinette argued the cause for respondent. With him on the brief was Lee C. Falke.*

[Footnote *] Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union et al. by Larry W. Yackle, John A. Powell, Steven R. Shapiro, and Kim Robert Fawcett; and for the National Association of Criminal Defense Lawyers by Bruce S. Rogow.

Gloria A. Eyerly and Harry R. Reinhart filed a brief for the Ohio Association of Criminal Defense Lawyers as amicus curiae.

JUSTICE STEVENS delivered the opinion of the Court.

In Anders v. California, 386 U.S. 738 (1967), we gave a negative answer to this question:

"May a State appellate court refuse to provide counsel to brief and argue an indigent criminal defendant's first appeal as of right on the basis of a conclusory statement by the appointed attorney on appeal that the case has no merit and that he will file no brief?" Brief for Petitioner in Anders v. California, O. T. 1966, No. 98, p. 2.

The question presented by this case is remarkably similar and therefore requires a similar answer.

I

Petitioner is indigent. After a trial in the Montgomery County, Ohio, Court of Common Pleas, he and two codefendants were found guilty of several serious crimes. Petitioner was sentenced to a term of imprisonment of 18 to 28 years. On January 8, 1985, new counsel was appointed to represent him on appeal. Counsel filed a timely notice of appeal.

On June 2, 1986, petitioner's appellate counsel filed with the Montgomery County, Ohio, Court of Appeals a document captioned "Certification of Meritless Appeal and Motion." Excluding this caption and the certificate evidencing its service

Page 488 U.S. 75, 78

on the prosecutor's office and petitioner, the document in its entirety read as follows:

"Appellant's attorney respectfully certifies to the Court that he has carefully reviewed the within record on appeal, that he has found no errors requiring reversal, modification and/or vacation of appellant's jury trial convictions and/or the trial court's sentence in Case No. 84-CR-1056, that he has found no errors requiring reversal, modification and/or vacation of appellant's jury trial convictions and/or the trial court's sentence in Case No. 84-CR-1401, and that he will not file a meritless appeal in this matter.

"MOTION

"Appellant's attorney respectfully requests a Journal Entry permitting him to withdraw as appellant's appellate attorney of record in this appeal thereby relieving appellant's attorney of any further responsibility to prosecute this appeal with the attorney/client relationship terminated effective on the date file-stamped on this Motion." App. 35-36.

A week later, the Court of Appeals entered an order allowing appellate counsel to withdraw and granting petitioner 30 days in which to file an appellate brief pro se. Id., at 37. The order further specified that the court would thereafter "independently review the record thoroughly to determine whether any error exists requiring reversal or modification of the sentence . . . ." Ibid. Thus, counsel was permitted to withdraw before the court reviewed the record on nothing more than "a conclusory statement by the appointed attorney on appeal that the case has no merit and that he will file no brief." Moreover, although granting petitioner several extensions of time to file a brief, the court denied petitioner's request for the appointment of a new attorney. No merits brief was filed on petitioner's behalf.

Page 488 U.S. 75, 79

In due course, and without the assistance of any advocacy for petitioner, the Court of Appeals made its own examination of the record to determine whether petitioner received "a fair trial and whether any grave or prejudicial errors occurred therein." Id., at 40. As an initial matter, the court noted that counsel's certification that the appeal was meritless was "highly questionable." Ibid. In reviewing the record and the briefs filed by counsel on behalf of petitioner's codefendants, the court found "several arguable claims." Id., at 41. Indeed, the court concluded that plain error had been committed in the jury instructions concerning one count.[Footnote 1] The court therefore reversed petitioner's conviction and sentence on that count but affirmed the convictions and sentences on the remaining counts. It concluded that petitioner "suffered no prejudice" as a result of "counsel's failure to give a more conscientious examination of the record" because the court had thoroughly examined the record and had received the benefit of arguments advanced by counsel for petitioner's two codefendants. Ibid. Petitioner appealed the judgment of the Court of Appeals to the Ohio Supreme Court, which dismissed the appeal. Id., at 45. We granted certiorari, 484 U.S. 1059 (1988), and now reverse.

II

Approximately a quarter of a century ago, in Douglas v. California, 372 U.S. 353 (1963), this Court recognized that the Fourteenth Amendment guarantees a criminal appellant the right to counsel on a first appeal as of right. We held

Page 488 U.S. 75, 80

that a procedure in which appellate courts review the record and "appoint counsel if in their opinion" the assistance of counsel "would be helpful to the defendant or the court," id., at 355, is an inadequate substitute for guaranteed representation.[Footnote 2] Four years later, in Anders v. California, 386 U.S. 738 (1967), we held that a criminal appellant may not be denied representation on appeal based on appointed counsel's bare assertion that he or she is of the opinion that there is no merit to the appeal.

The Anders opinion did, however, recognize that in some circumstances counsel may withdraw without denying the indigent appellant fair representation provided that certain safeguards are observed: Appointed counsel is first required to conduct "a conscientious examination" of the case. Id., at 744. If he or she is then of the opinion that the case is wholly frivolous, counsel may request leave to withdraw. The request "must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal." Ibid. Once the appellate court receives this brief, it must then itself conduct "a full examination of all the proceeding[s] to decide whether the case is wholly frivolous." Ibid. Only after this separate inquiry, and only after the appellate court finds no nonfrivolous issue for appeal, may the court proceed to consider the appeal on the merits without the assistance of counsel. On the other hand, if the court disagrees with counsel - as the Ohio Court of Appeals did in this case - and concludes that there are nonfrivolous issues for appeal, "it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal." Ibid.

Page 488 U.S. 75, 81

It is apparent that the Ohio Court of Appeals did not follow the Anders procedures when it granted appellate counsel's motion to withdraw, and that it committed an even more serious error when it failed to appoint new counsel after finding that the record supported several arguably meritorious grounds for reversal of petitioner's conviction and modification of his sentence. As a result, petitioner was left without constitutionally adequate representation on appeal.

The Ohio Court of Appeals erred in two respects in granting counsel's motion for leave to withdraw. First, the motion should have been denied because counsel's "Certification of Meritless Appeal" failed to draw attention to "anything in the record that might arguably support the appeal."[Footnote 3] Ibid. The so-called "Anders brief" serves the valuable purpose of assisting the court in determining both that counsel in fact conducted the required detailed review of the case[Footnote 4] and that

Page 488 U.S. 75, 82

the appeal is indeed so frivolous that it may be decided without an adversary presentation. The importance of this twin function of the Anders brief was noted in Anders itself, 386 U.S., at 745, and was again emphasized last Term. In our decision in McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429 (1988), we clearly stated that the Anders brief is designed both "to provide the appellate courts with a basis for determining whether appointed counsel have fully performed their duty to support their clients' appeal to the best of their ability," and also to help the court make "the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw." Id., at 439. Counsel's failure to file such a brief left the Ohio court without an adequate basis for determining that he had performed his duty carefully to search the case for arguable error and also deprived the court of the assistance of an advocate in its own review of the cold record on appeal.[Footnote 5]

Moreover, the Court of Appeals should not have acted on the motion to withdraw before it made its own examination of the record to determine whether counsel's evaluation of the

Page 488 U.S. 75, 83

case was sound.[Footnote 6] This requirement was plainly stated in Ellis v. United States, 356 U.S. 674, 675 (1958), it was repeated in Anders, 386 U.S., at 744, and it was reiterated last Term in McCoy, 486 U.S., at 442. As we explained in McCoy:

"To satisfy federal constitutional concerns, an appellate court faces two interrelated tasks as it rules on counsel's motion to withdraw. First, it must satisfy itself that the attorney has provided the client with a diligent and thorough search of the record for any arguable claim that might support the client's appeal. Second, it must determine whether counsel has correctly concluded that the appeal is frivolous." Ibid.

Most significantly, the Ohio court erred by failing to appoint new counsel to represent petitioner after it had determined that the record supported "several arguable claims." App. 41. As Anders unambiguously provides, "if [the appellate court] finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal." 386 U.S., at 744; see also McCoy, 486 U.S., at 444 ("Of course, if the court concludes that there are nonfrivolous issues to be raised, it must appoint counsel to pursue the appeal and direct that counsel to prepare an advocate's brief before deciding the merits"). This requirement necessarily follows from an understanding of the interplay between Douglas and Anders. Anders, in essence, recognizes a limited exception to the requirement articulated in Douglas that indigent defendants receive representation on their first appeal as of right. The exception is predicated on the fact that the Fourteenth Amendment - although demanding

Page 488 U.S. 75, 84

active and vigorous appellate representation of indigent criminal defendants - does not demand that States require appointed counsel to press upon their appellate courts wholly frivolous arguments. However, once a court determines that the trial record supports arguable claims, there is no basis for the exception and, as provided in Douglas, the criminal appellant is entitled to representation. The Court of Appeals' determination that arguable issues were presented by the record, therefore, created a constitutional imperative that counsel be appointed.

It bears emphasis that the right to be represented by counsel is among the most fundamental of rights. We have long recognized that "lawyers in criminal courts are necessities, not luxuries." Gideon v. Wainwright, 372 U.S. 335, 344 (1963). As a general matter, it is through counsel that all other rights of the accused are protected: "Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive, for it affects his ability to assert any other rights he may have." Schaefer, Federalism and State Criminal Procedure, 70 Harv. L. Rev. 1, 8 (1956); see also Kimmelman v. Morrison, 477 U.S. 365, 377 (1986); United States v. Cronic, 466 U.S. 648, 654 (1984). The paramount importance of vigorous representation follows from the nature of our adversarial system of justice. This system is premised on the well-tested principle that truth - as well as fairness - is "`best discovered by powerful statements on both sides of the question.'" Kaufman, Does the Judge Have a Right to Qualified Counsel?, 61 A. B. A. J. 569, 569 (1975) (quoting Lord Eldon); see also Cronic, 466 U.S., at 655; Polk County v. Dodson, 454 U.S. 312, 318-319 (1981). Absent representation, however, it is unlikely that a criminal defendant will be able adequately to test the government's case, for, as Justice Sutherland wrote in Powell v. Alabama, 287 U.S. 45 (1932), "[e]ven the intelligent and educated layman has small and sometimes no skill in the science of law." Id., at 69.

Page 488 U.S. 75, 85

The need for forceful advocacy does not come to an abrupt halt as the legal proceeding moves from the trial to appellate stage. Both stages of the prosecution, although perhaps involving unique legal skills, require careful advocacy to ensure that rights are not forgone and that substantial legal and factual arguments are not inadvertently passed over. As we stated in Evitts v. Lucey, 469 U.S. 387 (1985):

"In bringing an appeal as of right from his conviction, a criminal defendant is attempting to demonstrate that the conviction, with its consequent drastic loss of liberty, is unlawful. To prosecute the appeal, a criminal appellant must face an adversary proceeding that - like a trial - is governed by intricate rules that to a layperson would be hopelessly forbidding. An unrepresented appellant - like an unrepresented defendant at trial - is unable to protect the vital interests at stake." Id., at 396.

By proceeding to decide the merits of petitioner's appeal without appointing new counsel to represent him, the Ohio Court of Appeals deprived both petitioner and itself of the benefit of an adversary examination and presentation of the issues.

III

The State nonetheless maintains that even if the Court of Appeals erred in granting the motion to withdraw and in failing to appoint new counsel, the court's conclusion that petitioner suffered "no prejudice" indicates both that petitioner has failed to show prejudice under Strickland v. Washington, 466 U.S. 668 (1984), and also that any error was harmless under Chapman v. California, 386 U.S. 18 (1967). In either event, in the State's view, the Court of Appeals' affirmance of petitioner's conviction should stand.[Footnote 7] We disagree.

Page 488 U.S. 75, 86

The primary difficulty with the State's argument is that it proves too much. No one disputes that the Ohio Court of Appeals concluded that the record below supported a number of arguable claims. Thus, in finding that petitioner suffered no prejudice, the court was simply asserting that, based on its review of the case, it was ultimately unconvinced that petitioner's conviction - with the exception of one count - should be reversed. Finding harmless error or a lack of Strickland prejudice in cases such as this, however, would leave indigent criminal appellants without any of the protections afforded by Anders. Under the State's theory, if on reviewing the bare appellate record a court would ultimately conclude that the conviction should not be reversed, then the indigent criminal appellant suffers no prejudice by being denied his right to counsel. Similarly, however, if on reviewing the record the court would find a basis for reversal, then the criminal defendant also suffers no prejudice. In either event, the criminal appellant is not harmed and thus has no basis for complaint. Thus, adopting the State's view would render meaningless the protections afforded by Douglas and Anders.

Nor are we persuaded that the Court of Appeals' consideration of the appellate briefs filed on behalf of petitioner's codefendants alters this conclusion. One party's right to representation on appeal is not satisfied by simply relying on representation provided to another party. See Tr. of Oral Arg. 28-29. To the contrary, "[t]he right to counsel guaranteed by the Constitution contemplates the services of an attorney

Page 488 U.S. 75, 87

devoted solely to the interests of his client. Glasser v. United States, 315 U.S. 60, 70 [(1942)]." Von Moltke v. Gillies, 332 U.S. 708, 725 (1948) (plurality opinion). A criminal appellant is entitled to a single-minded advocacy for which the mere possibility of a coincidence of interest with a represented codefendant is an inadequate proxy.[Footnote 8] The State's argument appears to suggest, however, that there would rarely, if ever, be a remedy for an indigent criminal appellant who only receives representation to the extent a codefendant's counsel happens to raise relevant arguments in which they share a common interest. Again, the State's argument proves too much.

More significantly, the question whether the briefs filed by petitioner's codefendants, along with the court's own review of the record, adequately focused the court's attention on the arguable claims presented in petitioner's case is itself an issue that should not have been resolved without the benefit of an adversary presentation. An attorney acting on petitioner's behalf might well have convinced the court that petitioner's interests were at odds with his codefendants' or that petitioner's case involved significant issues not at stake in his codefendants' cases. Mere speculation that counsel would not have made a difference is no substitute for actual appellate advocacy, particularly when the court's speculation is itself unguided by the adversary process.[Footnote 9]

Page 488 U.S. 75, 88

Finally, it is important to emphasize that the denial of counsel in this case left petitioner completely without representation during the appellate court's actual decisional process. This is quite different from a case in which it is claimed that counsel's performance was ineffective. As we stated in Strickland, the "[a]ctual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice." 466 U.S., at 692. Our decision in United States v. Cronic, likewise, makes clear that "[t]he presumption that counsel's assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial." 466 U.S., at 659 (footnote omitted). Similarly, Chapman recognizes that the right to counsel is "so basic to a fair trial that [its] infraction can never be treated as harmless error." 386 U.S., at 23, and n. 8. And more recently, in Satterwhite v. Texas, 486 U.S. 249, 256 (1988), we stated that a pervasive denial of counsel casts such doubt on the fairness of the trial process, that it can never be considered harmless error. Because the fundamental importance of the assistance of counsel does not cease as the prosecutorial process moves from the trial to the appellate stage, see supra, at 85, the presumption of prejudice must extend as well to the denial of counsel on appeal.

The present case is unlike a case in which counsel fails to press a particular argument on appeal, cf. Jones v. Barnes, 463 U.S. 745 (1983), or fails to argue an issue as effectively as he or she might. Rather, at the time the Court of Appeals first considered the merits of petitioner's appeal, appellate counsel had already been granted leave to withdraw; petitioner was thus entirely without the assistance of counsel on appeal. In fact, the only relief that counsel sought before the Court of Appeals was leave to withdraw, an action that can hardly be deemed advocacy on petitioner's behalf. Cf. McCoy, 486 U.S., at 439-440, n. 13. It is therefore inappropriate

Page 488 U.S. 75, 89

to apply either the prejudice requirement of Strickland or the harmless-error analysis of Chapman.[Footnote 10]

The judgment of the Court of Appeals is accordingly reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion.

It is so ordered.

Footnotes
Footnote 1 Petitioner was charged in counts 5 and 6 of the indictment with felonious assault. App. 6-7; see Ohio Rev. Code Ann. 2903.11(A)(2) (1987). In examining the record, the Court of Appeals discovered that the trial court neglected to instruct the jury concerning an element of this crime. Applying the State's plain-error doctrine, which requires a showing of substantial prejudice, the Court of Appeals reversed petitioner's conviction under count 6 of the indictment, but let stand his conviction under count 5. App. 41-43.

Footnote 2 In reaching this conclusion, the Court noted:

"At this stage in the proceedings only the barren record speaks for the indigent, and, unless the printed pages show that an injustice has been committed, he is forced to go without a champion on appeal. Any real chance he may have had of showing that his appeal has hidden merit is deprived him when the court decides on an ex parte examination of the record that the assistance of counsel is not required." 372 U.S., at 356.

Footnote 3 Counsel's "Certification of Meritless Appeal," which simply noted that counsel, after carefully reviewing the record, "found no errors requiring reversal, modification and/or vacation of appellant's" conviction or sentence, App. 35, bears a marked resemblance to the no-merit letter we held inadequate in Anders. The no-merit letter at issue in Anders read as follows:

"Dear Judge Van Dyke:

"This is to advise you that I have received and examined the trial transcript of CHARLIE ANDERS as it relates to his conviction of the crime of possession of narcotics.

"I will not file a brief on appeal as I am of the opinion that there is no merit to the appeal. I have visited and communicated with Mr. Anders and have explained my views and opinions to him as they relate to his appeal.

"Mr. Anders has advised me that he wishes to file a brief in this matter on his own behalf. . . ." Tr. of Record in Anders v. California, O. T. 1966, No. 98, p. 6.

Footnote 4 Not only does the Anders brief assist the court in determining that counsel has carefully reviewed the record for arguable claims, but, in marginal cases, it also provides an independent inducement to counsel to perform a diligent review:

"The danger that a busy or inexperienced lawyer might opt in favor of a one sentence letter instead of an effective brief in an individual marginal

Page 488 U.S. 75, 82

case is real, notwithstanding the dedication that typifies the profession. If, however, counsel's ultimate evaluation of the case must be supported by a written opinion `referring to anything in the record that might arguably support the appeal,' [Anders,] 386 U.S., at 744 . . ., the temptation to discharge an obligation in summary fashion is avoided, and the reviewing court is provided with meaningful assistance." Nickols v. Gagnon, 454 F.2d 467, 470 (CA7 1971) (footnotes omitted), cert. denied, 408 U.S. 925 (1972).

In addition, simply putting pen to paper can often shed new light on what may at first appear to be an open-and-shut issue.

Footnote 5 One hurdle faced by an appellate court in reviewing a record on appeal without the assistance of counsel is that the record may not accurately and unambiguously reflect all that occurred at the trial. Presumably, appellate counsel may contact the trial attorney to discuss the case and may thus, in arguing the appeal, shed additional light on the proceedings below. The court, of course, is not in the position to conduct such ex parte communications.

Footnote 6 Obviously, a court cannot determine whether counsel is in fact correct in concluding that an appeal is frivolous without itself examining the record for arguable appellate issues. In granting counsel's motion to withdraw, however, the Ohio Court of Appeals noted that it was deferring its independent review of the record for a later date. See App. 37.

Footnote 7 The Court of Appeals' finding of "no prejudice" is not free from ambiguity. The court wrote: "Because we have thoroughly examined the record and already considered the assignments of error raised in the other

Page 488 U.S. 75, 86

defendants' appeals we find appellant has suffered no prejudice in his counsel's failure to give a more conscientious examination of the record." App. 40-41. Not only does this language leave unclear whether the court relied on Strickland, Chapman, or both cases in concluding that petitioner was not entitled to relief, but it also appears to limit the finding of no prejudice to "counsel's failure to give a more conscientious examination of the record." The court did not recognize that petitioner's rights were also violated by its own omission in failing to appoint new counsel, and thus did not consider whether this separate violation was prejudicial.

Footnote 8 There is, of course, a significant distinction between joint representation on appeal, which is often appropriate, and the mere possibility of a coincidence of interest between represented and unrepresented criminal appellants.

Footnote 9 Although petitioner has been represented by counsel in this Court, we decline to sit in place of the Ohio Court of Appeals in the first instance to determine whether petitioner was prejudiced as to any appellate issue by reason of either counsel's failure to file an Anders brief or the court's failure to appoint new counsel. Cf. Kimmelman v. Morrison, 477 U.S. 365, 390 (1986). It would be particularly inappropriate for us to do so in a case raising both factual issues and questions of Ohio law.

Footnote 10 A number of the Federal Courts of Appeals have reached a like conclusion when faced with similar denials of appellate counsel. See United States ex rel. Thomas v. O'Leary, 856 F.2d 1011 (CA7 1988); Freels v. Hills, 843 F.2d 958 (CA6 1988); Jenkins v. Coombe, 821 F.2d 158 (CA2 1987), cert. denied, 484 U.S. 1008 (1988); Cannon v. Berry, 727 F.2d 1020 (CA11 1984). But cf. Sanders v. Clarke, 856 F.2d 1134 (CA8 1988); Lockhart v. McCotter, 782 F.2d 1275 (CA5 1986), cert. denied, 479 U.S. 1030 (1987); Griffin v. West, 791 F.2d 1578 (CA10 1986).

JUSTICE O'CONNOR, concurring.

I join the Court's opinion. I write separately to emphasize that nothing in the Court's opinion forecloses the possibility that a mere technical violation of Anders v. California, 386 U.S. 738 (1967), might be excusable. The violation in this case was not a mere technical violation, however, and on that understanding I concur.

CHIEF JUSTICE REHNQUIST, dissenting.

The Sixth Amendment to the Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." The Court has construed this language to include not only the right to assistance of counsel at trial, Gideon v. Wainwright, 372 U.S. 335 (1963), but also to the assistance of counsel on appeal. Douglas v. California, 372 U.S. 353 (1963). We have also held that the right conferred is not simply to the assistance of counsel, but also to the effective assistance of counsel, both at trial, see United States v. Cronic, 466 U.S. 648 (1984); Strickland v. Washington, 466 U.S. 668 (1984), and on appeal, see Evitts v. Lucey, 469 U.S. 387 (1985).

Page 488 U.S. 75, 90

There is undoubtedly an equal protection component in the decisions extending the Sixth Amendment right to counsel on appeal; Griffin v. Illinois, 351 U.S. 12 (1956); Douglas v. California, supra. But we have also recognized that

"[t]he duty of the State under our cases is not to duplicate the legal arsenal that may be privately retained by a criminal defendant in a continuing effort to reverse his conviction, but only to assure the indigent defendant an adequate opportunity to present his claims fairly in the context of the State's appellate process." Ross v. Moffitt, 417 U.S. 600, 616 (1974).

The Court today loses sight of this, and instead seeks to engraft onto our decision in Anders v. California, 386 U.S. 738 (1967), a presumption of prejudice when the appellate attorney for an indigent does not exactly follow the procedure laid down in that case. Thus today's decision is added to the decision in Anders itself as a futile monument to the Court's effort to guarantee to the indigent appellant what no court can guarantee him: exactly the same sort of legal services that would be provided by suitably retained private counsel.

There are doubtless lawyers admitted to practice in the State of Ohio who, for a substantial retainer, would have filed a brief on behalf of petitioner in the Ohio Court of Appeals urging, with a straight face, all of the claims which petitioner's appointed attorney decided were frivolous. But nothing in the Constitution or in any rational concept of public policy should lead us to require public financing for that sort of an effort. The Court's opinion today justifies the Anders brief because it "serves the valuable purpose of assisting the court in determining both that counsel in fact conducted the required detailed review of the case and that the appeal is indeed so frivolous that it may be decided without an adversary presentation." Ante, at 81-82 (footnote omitted). These may be desirable purposes, but it seems to me that it stretches the Sixth Amendment a good deal to say that it requires these interests to be pursued in this manner. The

Page 488 U.S. 75, 91

Sixth Amendment does not confer a right to have the court supervise counsel's assistance as it is rendered, but rather a right to have counsel appointed for the purpose of pursuing the appeal.

Here counsel rendered "assistance" and his performance must be reviewed for ineffectiveness and prejudice before any constitutionally mandated relief is in order. Strickland, supra, at 687-696. Counsel states - and we have no reason to disbelieve him - that he conscientiously reviewed the record and "found no errors requiring reversal, modification and/or vacation of appellant's jury trial convictions and/or the trial court's sentence in [his case]." App. 35. As it turned out, that determination was incorrect, but this fact does not mean that counsel did not employ his legal talents in the service of his client. Whether or not this evaluative process constituted "assistance" cannot be affected by its conclusion. "[T]he canons of professional ethics impose limits on permissible advocacy. It is the obligation of any lawyer - whether privately retained or publicly appointed - not to clog the courts with frivolous motions or appeals." See Polk County v. Dodson, 454 U.S. 312, 323 (1981).

This is not to say that an attorney's erroneous decision to withdraw is necessarily adequate assistance of counsel. That is to be judged under Strickland. Of course, counsel may protect himself from collateral review of the effectiveness of his performance by following the safe-harbor procedures outlined in Anders. As described by the Court today, the filing of an Anders brief creates a strong presumption that counsel has diligently worked on the case and that the court was correct in assessing the frivolousness of the appeal when it allowed withdrawal. Anders may well outline a prudent course to follow for the appointed attorney who wishes to withdraw from a frivolous case. But if counsel declines to follow it, the basic constitutional guarantee of effective assistance remains the underlying standard by which his conduct should be judged.

Page 488 U.S. 75, 92

In this case, petitioner was one of a group of three men who broke into a dwelling and robbed, raped, and otherwise sexually assaulted the adult inhabitants. It cannot be questioned that petitioner and his codefendants stood in substantially the same position in defending against the charges.* The appellate court considered the briefs of petitioner's codefendants and conducted its own review of the record. It ultimately reversed one of petitioner's convictions as a result. It also considered but decided against reversing another. Although the "coincidence of interest with a represented codefendant," ante, at 87, is not a substitute for the assistance of counsel, it certainly may eliminate the prejudice of poor representation if it brings to the court's attention the meritorious arguments that appointed counsel failed to make. In this case, the merits briefs filed on behalf of his codefendants were substantially more beneficial to petitioner than an Anders brief from his own attorney. The appellate court performed its duty in utilizing the available advocate's papers on petitioner's behalf and in exercising its independent judgment of the record. After doing so, it concluded that petitioner had not suffered prejudice from his counsel's withdrawal without filing an Anders brief. On these facts, I think that conclusion plainly correct.

[Footnote *] The Court asserts that "[a]n attorney acting on petitioner's behalf might well have convinced the court that petitioner's interests were at odds with his codefendants' . . . ." Ante, at 87. This appears to be pure speculation. Nothing in the papers filed in this Court, nor in the majority opinion, suggests any theory of how this might be done or why, if such a conflict existed, the court could not discern it from its own review of the record.

Page 488 U.S. 75, 93

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Some mistakes are so obvious a jury can find negligence as a matter of common knowledge.

2007-07-27T00:47:00.000-07:00

Six lawyer mistakes which require expert testimony in a malpractice action.
Posted by Sandy McCorquodale at 5/31/2007 8:38 AM and is filed under uncategorized

Some mistakes are so obvious that a jury can find negligence as a matter of common knowledge. Missing the statute of limitations is a classic example of negligence that any layperson can understand. But when is expert testimony required? Here are six areas from a recent case:

* Failing to diligently investigate a claim.
* Failing to diligently prosecute a claim.
* Failing to challenge a class action certification.
* Failing to answer and respond to discovery.
* Failing to file a stay of counterclaims.
* Failing to file a motion for contempt.

Sprowl v. Dooley, No. 05-06-00359-CV, 2007 WL 1330447 (Tex. App.--Dallas May 8, 2007) (not designated for publication).

Non-disclosure agreement? Aren't you gonna read it?.....Read it a thousand times...............

2007-07-05T07:48:00.000-07:00

Spy Game Script - Dialogue Transcript
Voila! Finally, the Spy Game script is here for all you quotes spouting fans of the Brad Pitt and Robert Redford spy movie. This script is a transcript that was painstakingly transcribed using the screenplay and/or viewings of Spy Game. I know, I know, I still need to get the cast names in there and I'll be eternally tweaking it, so if you have any corrections, feel free to drop me a line. You won't hurt my feelings. Honest.

Swing on back to Drew's Script-O-Rama afterwards for more free movie scripts!
Spy Game Script

Inject me first. Show them it's safe.
You'll feel better in an hour.
Faster, faster, they're coming...
He's dead.
Everyone out.
Go back and finish the inoculations.
Did you fix it? No, not yet!
You've got ten minutes to fix the electrical.
Ten minutes, do you hear me?
You got, maybe, seven minutes.
This is taking too long...
I think we found the problem.
Six minutes.
Almost got one of the fuses fixed.
Thirty seconds.
Get out now.
Papers...
You...
Come with me.
Stop the ambulance now.
Get out!
Police! Get out! Okay!
Yeah?
It's Duncan. What are you doing at home?
Jogging.
How long does it take you to get to work?
- Harry, what time is it there? - How long?
Thirty, forty minutes. Why?
I'll give you minutes before I transmit.
If you want to see the cable before they do, you'd better hustle.
- Duncan. - What the hell is going on, Harry?
Read the cable.
If I'm walking into a shit storm...
...I've got to know which way the wind's blowing.
- Boy Scout is in trouble. - What kind of trouble?
Where are you calling from?
Are you in your car? Are you out of your fucking mind?
He's a big boy. He can take care of himself.
You call me from secure when you get there.
Sorry, sir. You'll need to come to the desk with me, please.
Mr. Muir.
Duty roster has you checking out tonight. Just a reminder:
On your way out, we need you to sign out your ID, card key, parking pass.
It's a date.
You got a cable from Hong Kong? You check Operations Center?
I go up there, Nyland will want to collect that $ I owe him from the 'Skins game.
Come on, Henry. Pull it off the mainframe, will you? My last day.
Gladys.
Cubans are in the drawer on the left.
If these walls could talk, huh?
All this history, I envy you.
Well, bag your job. You can be just like me.
No, really. The debt this country owes you guys.
Are we going to dance with your hand on my ass, or will you make your move?
You used to run an agent named Bishop.
- Tom Bishop. Yeah. How is he? - We'd like to take a look at his files.
You try Records?
Of course, we have his main files.
- It was your personals. - What do you want to know?
We'll have your op reports downloaded in an hour. That should give us all we need.
For now, I'll just take your files.
Grab yourself a seat and make yourself comfortable.
It will take me a while to dig them up.
Call my office as soon as you have them. ASAP.
Muir, good luck with the retirement.
The director sent this down. Actually looks like he signed it himself.
Harker said I'm supposed to collect all your files on Tom Bishop.
Finally get to use one of these burn bags.
Hold this till you hear otherwise.
You didn't see what I put in there.
Are we feeling a little paranoid on our last day?
When did Noah build the Ark, Gladys?
Before the rain. Before the rain.
Hey, Billy, you got my $ ?
Harker said to bring this file. Can you buzz me through?
No, I can't, sir. I'll make sure he gets it.
Sir?
Did you get that Chinese translated?
As for trade negotiations in the Far East...
... negotiators have been working with the Chinese in an effort...
... to streamline the proceedings, preparing for the President's trip next week.
In other world news, now that the Cold War is finally over...
... Berliners are proclaiming a new era, here where Soviet and American tanks...
... faced each other in the darkest days of the...
- Is this it? - It's all I could find.
Packed, misplaced, you know how it is. Moving day and all.
It's probably mostly up here anyway. Old school, you know?
Muir?
Step this way.
Sit down here, please, Mr. Muir.
Jesus, Aiken, how long has it been?
This task force have a name?
This is a tough one, Troy.
I'm going to see you later. You got it, Cy.
Nathan!
- Troy. - Good to see you. Thanks for stopping by.
For the record, we've been joined by Nathan Muir, Near East ops.
We're in the process of dealing with a fairly specific...
...international flap.
We brought you in here as a stopgap. Fill in a few holes for us.
So, I'm like the little Dutch boy?
Yeah, we just need you to be a team player on this one, Muir.
Why is that funny?
Every time my coach told me that, I knew I was about to get benched.
Due to the nature of this task force, there will be certain information...
...which you don't need to know.
A week ago, Tom Bishop disappeared in Hong Kong.
Last night he turned up outside Shanghai. He's been arrested for espionage.
We're working up a complete profile based on relevant personal histories...
...and op records. This has to be handled with kid gloves.
How long does the President have to claim him?
- Twenty-four hours. - Starting when?
As of now, Nathan.
: am
Bishop has been classified as a common criminal...
...and will be executed at : tomorrow morning, our time.
What about the press?
Why not leak it and throw the spotlight on China, and buy us some time?
We need the press on this like we need a third tit.
You using the other two?
We don't want outside influences to limit our options.
- What was Bishop doing in China? - He was with an operation for Duncan.
- Was? - Yes.
Until he took matters into his own hands.
- Where are they holding him? - I'm sorry, Nathan.
It would be nice to know what gaps are filled.
I've only got fingers here.
Guess it's kind of tough timing. A week before the President's road trip.
You guys afraid there will be a congressional hearing?
That's why we're transcribing and videotaping, right?
- Are you gonna want me to testify? - No.
No? Absolutely not.
You met Bishop in Vietnam, right?
Yeah.
Spring of ' .
Hue had just fallen. Danang would go in a couple of days.
I had flown in country to get an ARVIN sniper...
... who'd been with us throughout the Phoenix program.
He was a heavy-hitter named Bihn.
DANANG: U.S. FIREBASE APRIL '
I've got some bad news for you, sir.
- He's dead. - Dead?
Just before dawn. Caught a mortar round with his teeth.
Got anybody else?
There's a staff sergeant, but he's nowhere near Bihn's confirmed.
- How many has he got? - Three kills.
- Christ, and that's the best you've got? - He's a fine shot, sir.
- Where is he? - He's right over there.
In the back? Yeah.
There is another guy, kills, but he's at least two days away.
- Confirm that. - Yes, sir.
Why is he over there?
They live separately. Cook their own food. Gook food.
The smell is awful, sir.
Not to the enemy.
- Send him in. - Yes, sir.
Yes, sir?
- Bishop? - That's correct, sir.
- Where are you from? - Hemet, California, sir.
Here, have a seat.
You didn't get to be a marksman putting food on your mama's table.
No, we have a Safeway back home.
Where did you learn to shoot?
Boy Scouts, sir.
- Are you kidding me? - No, sir.
- When did you get pulled in? - I volunteered, sir.
He came across as an idealist. You know, a little attitude.
Starts out trying to see what he's made of. Ends up disliking the view.
- Who was the target, Muir? - General Hun Chea.
- He's Laotian? - Yeah. Unofficial enemy.
Code name: Red Shirt.
He's responsible for the western flank of the Saigon offensive.
- And his name is... - Don't need a name, sir.
You don't need it or you don't want it?
Yeah, I'll do it, sir.
Okay.
The target will be at a location...
... clicks away, tomorrow morning at .
It's a high-powered meet-and-greet with the Vietcong.
Will he be alone?
He sometimes travels with a bit of an entourage.
"Bit of an entourage"?
Red Shirt located.
Do you have in sight? Red Shirt confirmed.
Niner-eight-zero to gate.
One-zero-zero-five to table.
Wind:
Five miles left.
Target in sight.
Bravo Six, Bravo Six. Delta Two. Over.
- Go, Delta Two. - We have target in sight, but no shot.
- Say it again? - No shot. Helo's obstructing target. Over.
NVA doesn't have air support.
Position in jeopardy. Our position is compromised. Over.
Say it again. Over.
We're still a go. We have no go.
- Clear. - Don't take the shot.
- See if you can get them back. - Delta Two, Delta Two.
Move.
Come on.
Delta Two, Bravo Six, over.
Sorry about your men, Captain.
You want to make another pass, sir?
Hold it! Go back again!
Hell of an ad for the Boy Scouts.
Did you have a presidential finding authorizing those kills?
I don't believe we've met.
Who are you?
Dr. William Byars.
National Security Council.
Was there a finding, Muir?
We were in a place we weren't supposed to be...
... assassinating a general from a country we weren't at war with.
We weren't officially at war with North Vietnam either...
- Is that a no? - Come on, guys. We're on the clock.
The President admits Bishop is ours, denies he's a spy.
We put out the fires and negotiate a deal.
Unless I'm missing something.
This'll just take a second.
Stop recording. Stop tape.
Your secretary's got your wife on the line. She says it's urgent.
Go ahead. You want to take it outside?
No, I'll take it in here. That's fine.
- Hello. - Got your message.
- You want me to start a fire yet? - Right.
This'll just take a second. Right.
Tell you what. Why don't you hold that reservation...
... and we may still be able to use it.
You might just. As we speak...
...there are three guys rummaging through everything I spent a week packing.
Okay.
If there were any instances of personal dysfunction...
...emotional or psychological, it could be helpful.
It's insubstantial. Right.
Okay.
Yeah, as a presidential finding is of no real importance.
- You still there? - Yeah.
So he was an assassin, recruited to kill.
Sounds good. Bye-bye.
Sorry. Wife's planning a retirement dinner.
"Assassin"?
I think I just figured it out.
- The Bishop files. - Where?
- My office. Closet. It'll just take a second. - I'll send a security officer down.
You guys have better things to do than to rummage through my office.
Right, Chuck?
He's on his way down.
You were right.
It rained.
What about these?
Burn them.
- What is this about? - Money.
Free trade. Microchips. Toaster ovens.
And what does that have to do with you?
Nothing.
Get me Digger Gibson's number.
Shit!
Agency's looking for a reason to let the Chinese kill Tom Bishop.
: pm
What Operation are you working for?
What's your connection with the prisoner?
Who hired you?
No!
They shut down my secure line. Last day and all. Can I use yours?
- Well... - Thanks.
I'm sorry, it's classified. Do you mind?
Right.
I said nothing there. It's not in English?
It's not in English, either. This fax just came in.
So, sir, you and Muir came up together, right?
How well do you know him?
- No one knows Nathan, not really. - Do you trust him?
- He's a man who got the job done. - Is he on the job now?
Office of Security, Hong Kong.
At : this morning, a call originated from station to Muir's home.
- He knew about Bishop before he got here? - He played dumb. This is Harker.
I need confirmation on all calls in and out of Nathan Muir's office.
Gee, I'm hungry.
Hong Kong Herald. Digger Gibson, please.
One moment, sir.
Hello. Gibby, old boy.
Nathan! To what do I owe this honor?
You still have contacts at CNN? I got something for you.
Talk to me.
How about, "CIA operative caught in the act of espionage"?
- Can you get that on the air? - That won't be easy.
Come on, Gibby.
That's never stopped you before.
- Give me minutes. - Yeah.
I remember seeing something about Bishop in my South American box...
...but it wasn't there. Those op files downloaded yet?
Let's go with this. Bishop's recruitment.
Yeah. Well, back then, recruitment took time.
Bishop was evacuated with the last of them on April .
That gave me a month to do my homework.
I talked to his neighbors, his teachers, his mom...
...scoutmaster.
I pulled his dad's record from the Pentagon.
And then started to move some pieces around the board.
And my plan was to isolate and alienate.
WEST GERMANY
I had his C.O. give him menial duties...
... with non-English speaking personnel.
And I kept him in limbo about even the possibility of going home.
And then I watched and waited.
This consignment is a misdirect. It needs to go to the military H.Q. in Mannheim.
You understand?
I don't understand you.
Fuck.
Then, in December...
...when I didn't think he could take anymore...
...I made the move.
There she is!
Hi.
Sorry, sir. It's Bishop. Sergeant Bishop.
- Oh, Christ. Of course! - Hi.
Hi. This is Tom Bishop.
- It's Tom, right? - Yes, sir. Tom, sir.
How are you?
- Sandy? - My second wife.
Second wife?
He asked what I was doing in Berlin, and I said I was a military liaison of sorts.
- It's good to hear an American voice again. - I'll bet.
- What are you doing for Christmas? - No plans.
Good to see you.
- Central Intelligence? - Train you as an agent.
You'd be working for me, mostly undercover.
- In Europe? - Wherever the action is.
- And what if I preferred just to go home? - That's okay. It's fine.
I can make arrangements for you to end your tour in San Diego.
In which case, I'll presume you'll forget we ever had this conversation.
Look, it's your choice.
The next day, we started his tradecraft.
Technology gets better every day, and that's fine.
But most of the time, all you need is a stick of gum, a pocketknife and a smile.
That's disappointing. Guten Morgen.
Today we're going to be discussing a radio set.
Not just any radio set, but a Russian radio set.
Every building, every room, every situation is a snapshot.
I'm sitting here talking to you, I'm also checking the room, memorizing it.
The people, what they're wearing. Then I ask:
"What's wrong with this picture?" "Anything suspect?"
You got to see it, assess it, and then dismiss most of it without thinking.
Without thinking? Like breathing.
You breathe, don't you?
Always carry cigarettes and a lighter. It's a great icebreaker.
Einen Kaffee, bitte. Zwei.
Listen, but I want your concentration...
...to be on something different, anything, so you don't react. Understand?
Yes.
So, when do I get my first assignment?
When I decide you're ready.
- What is your name? - Michael Sandville.
The suit in the kitchen.
Threat?
Wait, how'd you see that?
See that apartment building?
Yeah. Know anyone who lives there?
No.
Within five minutes, I want to see you standing on one of those balconies.
Come on.
- Did you serve in Vietnam? - No, I did not.
Favorite color?
- Why don't we discuss it over coffee? - You just lost seconds.
Solicit information from someone.
Gladly.
Entschuldigen Sie bitte.
Guy reading the menu. Don't look at him.
He wasn't reading the menu. He's not reading at all. Threat?
Only to the hostess.
You gave four pieces of personal information...
...for one dubious, impersonal fact.
Just finding out where she got that dress.
Where you from? When's your birthday?
You know everything about me. I don't know a thing about you.
What did you tell her? You're straight. You're engaged.
Tomorrow is your girl's birthday, and you have no taste in women's fashion.
What if she were an asset?
You told her four lies that now have to be true.
Okay.
Was ist das?
Haben Sie da einen anderen? Ja. Wir haben einen besseren.
- I thought spies drank martinis. - Scotch. Never less than years old.
Is that right?
- Agency rules? - My rules.
So, what else? What else do I need to know?
Put away some money so you can die someplace warm.
And don't ever touch it. Not for anyone, ever.
Okay.
Is that it?
Don't ever risk your life or your career for an asset.
If it comes down to you or them, send flowers.
He was a natural.
He could take an East German just over the wall...
... look him in the eye, and ask him to go back...
...to the place he'd just fled and spy for us.
Sie haben eine Familie da drüben gelassen, ja?
He got so good, he could close in an afternoon...
... and send the guy out with a smile.
Let me get this straight. You allowed a contract agent to develop assets?
He was that good. I thought he'd be a fine case officer.
Let's get on with it. I'd like to hear what you can offer about Operation Rodeo.
- "Rodeo"? - The Cathcart affair?
The director wants to see you in the anteroom.
Hold transcription. Hold tape. I'll be right back.
This would go a lot faster if you'd tell me something about the op.
What's it called? "Sideshow"?
What about it?
- How did you come by this information? - Just stuff we learn in the field.
Sorry about that. Okay, where were we?
I think we were talking about Operation Rodeo.
Right, Chuck?
You're on.
My East German contacts...
... discovered that we had an unidentified mole in the embassy.
And we had the Ambassador in our cross hairs...
...until some information leaked when he was out the country.
So that just left one possibility.
- Ann! - Hello.
Ann Cathcart. Yeah.
Bishop was involved in a small but integral part of the operation...
... going east to bring across an East German functionary named Schmidt.
- Ready? - Yeah.
Fuck!
Your passport is in the glove box. Spill some vodka on your coat.
If they stop us, don't say a word. Remember, you're drunk.
And where is Mrs. Muir?
Patricia left me, Ann. She filed for divorce.
I'm so sorry, Nathan. How is it I always say the wrong things?
Patricia?
Yeah, my third wife.
My God, how many wives have you had?
Four.
You want to hear about them or Bishop?
You see that gentleman? Yeah.
He's the Ambassador.
- Why don't you go and say hello to him? - Okay.
- Your scotch is older than she is. - Am I supposed to feel bad about that?
They know. They have my family already. I know it.
If they knew, they would've stopped us by now.
Tomorrow, your wife and kids will be safe in Munich.
- I have to make a stop. - What?
A scheduled stop. It's okay. For a phone call.
They'll follow you. They'll hear you!
Frederick, it's all taken care of. If they ask, tell them I got sick.
Why don't we go outside? I'm sure we won't be missed.
I wish I could.
- I have to stay near the phone. - Working on a Saturday night?
Are you bringing someone across?
Yes?
- Vodka did me in, I'm coming home. - Throw out the bottle.
- Repeat? - Throw out the bottle.
They know.
They don't fucking know.
They'll be waiting. Drop close to checkpoint.
- Negative. We're coming across. - No! That's an order.
They are coming.
- You have to let him go. - They will kill him!
Good evening.
Where is he?
Let's go... just a couple of drunks.
Change of plans, Frederick.
No.
You will drive me across, just as you said.
If I do that, they'll kill us both. This way we still have a chance.
You liar. This way you still have a chance.
I can't help you.
- Get out of the car. - I will not get out of this car.
- Get out of the car! - I will not get out!
Get out! No!
Get out!
Please. My wife. My children.
I can't help you.
Nathan, what happened? What went wrong?
- Nothing. - Nothing?
Actually, one thing.
Don't ever question me again. Ever.
- What? - I give an order, you take it.
Don't ask why.
Those seconds on the phone could have blown the op.
- The op was bringing Schmidt across. - It was to set up Cathcart.
And your end had to look legit.
- Are you telling me Schmidt was bait? - Yes.
Nathan, they executed him on a shitty cellar floor!
And it could have been you. About Schmidt...
...he told the Russians last week he had a contact.
- An American he could use. - Don't tell me that!
You didn't look in his eye! He was an asset.
Don't tell me that!
He was your asset. Somebody you used for information.
Jesus Christ!
You don't trade these people like baseball cards!
It's not a fucking game! Yes, it is.
That's exactly what it is.
It's no kid's game, either, but a whole other game.
And it's serious, and it's dangerous, and it's not one you want to lose.
Nathan, we killed this man.
We used him, and we killed him.
Okay, help me understand this one.
Nathan, what are we doing here?
- Don't bullshit me about the greater good. - That's exactly what it's about.
Because what we do is, unfortunately, very necessary.
If you can't sacrifice scum like Schmidt for those that only want their freedom...
...then you better take a hard look at your chosen profession.
It doesn't get any easier.
- Why... - You want to walk?
If you want to walk...
...walk.
You should've told me about the op.
You used me.
I did. Listen to this, because this is important.
If you'd pulled a stunt there and got nabbed, I wouldn't come after you.
You go off the reservation, I will not come after you.
Fuck your rules, Nathan. Okay.
But tonight they saved your life.
Can we have the relevant files on Ann Cathcart, please?
Ann Cathcart's body was found...
... in the lobby of a cheap hotel in East Germany...
...just two months after she defected.
Yeah.
Beaten to death. VoPos never solved the case.
- Bishop was in Berlin when this happened. - We were both in Berlin.
Do you recall Bishop's reaction to Ann Cathcart's death?
Motive and opportunity.
Nathan, you should leave here...
...knowing that we're looking into every possible scenario.
What's Sideshow?
You don't need to know.
Why are you trying to burn Bishop?
Troy?
Hold transcription. Hold video.
Sideshow was a bugging op.
Listening to government offices in eastern China.
The trade talks?
You're afraid the lid to the cookie jar is gonna shut on our hand?
Come on, guys.
The Chinese need trade status more than we need to give it.
That's not necessarily so.
Twenty-four hours after capture, Bishop is allowed to start talking.
That gives you hours to make a trade.
Now, come on, you're on the clock.
: pm EXECUTION : am
He doesn't know anything.
Bishop wasn't on Sideshow.
He wasn't working for us.
He was arrested during a rescue attempt at a prison outside Su Chou.
Who was he after?
Don't know.
Get off me!
For more on this late-breaking story, we go live to Hong Kong.
It's just been confirmed that the Chinese claim to have arrested...
... an American operative of the CIA.
While the State Department remains quiet, sources say that...
... the individual, working out of the American consulate here...
... was captured in an act of espionage.
If confirmed, this comes at a bad time for an administration...
... which is in trade negotiations with China.
The U.S. Government is in the process of negotiating for his release.
We are so fucked.
... abreast of the situation as it develops. This is Frank Nall, live in Hong Kong.
Guess that limits our options.
I want to know what you have to say about this, and I want it on the record.
When I was a kid, I used to spend summers on my uncle's farm.
He had this plow horse that he used to work with every day.
And he really loved that plow horse.
One summer, she came up lame.
Could barely stand.
The vet offered to put her down.
You know what my uncle said?
No, Muir, what did he say?
He said, "Why would I ask somebody else to kill a horse that belonged to me?"
Get me Peter Brody at the FCC. I don't care, just get him.
Looks like Bishop's gonna be okay.
Good.
- What about the flag? - Keep it. Something to remember me by.
- You know where to store this stuff, right? - Yeah.
What do I do with the storage key?
If I need it, I'll send for it. Send you a postcard.
From where? Not a chance.
You'd show up and try to clean the place, and scare the native girls away.
I wish.
I'll be working for Andy Unger down the hall.
You're gonna miss it.
You know that, don't you?
Thank you.
Have a nice day. Thank you.
Thank you.
More on this late-breaking story, we go live to Hong Kong.
In a late-breaking development of the incident reported earlier...
... rumors that Tom Bishop, an alleged CIA operative...
... had been captured in an act of espionage...
... now appears to be a hoax. Tom Bishop died months ago.
While the CIA has made no official comment...
... sources close to the Agency have confirmed Bishop's death late last year.
The story is attributed to an overzealous member of the Chinese government...
... who leaked the false information...
... in the hopes of undermining the current U.S. Trade negotiations.
This is Frank Nall, live in Hong Kong.
Mr. Muir?
: pm
Told you, you'd miss it.
- Who do you trust in Military Intelligence? - I co-signed Martha Rayburn's car loan.
Listen, Gladys, I got to buy some time here.
I'm gonna need the imagery analysis for a military prison near Su Chou.
And if you use the phones, don't use these.
Any chance I could lose my job over this?
Good. I didn't want to work for Andy Unger anyway.
I know who it is.
I know who Bishop was after.
- Well, so do we. - But do you know why?
If anybody knew the back-story, it would...
It would make a congressional hearing really worth watching.
And, by the way, that's not in the op reports.
Muir, you're not cleared to be in here.
Relax, if I didn't have clearance, how did I get in?
Where's this report?
The people on the seventh floor are pretty disappointed...
...it hasn't arrived yet.
Hold on.
What report?
You were at the briefing. I'm talking about Tom Bishop.
Bishop went rogue.
They were gonna pull him out until somebody up there...
...I won't say who, said that your department...
...claimed there weren't enough resources. - Who said that?
I can buy some time while you pull this thing together.
Operation Sideshow, that's near the prison, right?
Near Su Chou.
China. Come on.
Any air support?
Shit, this is probably Folger.
Yes.
Penghu Islands.
Commander Wiley's outfit.
Forty minutes from Su Chou prison.
Thank you.
Hey, I'm having a little retirement dinner party tonight.
- Services library. Say, : ? - Sure.
You know, I didn't know you liked me.
- What was that all about? - What?
- What did Muir want? - We were just talking.
- What about? - His party.
I don't think you're invited.
Gladys?
- Hello. - It's me.
- Where are you? - First floor coffee shop.
Talk to me.
Imagery Analysis.
They've got every angle on the prison you could want, collecting dust.
Gladys, get me whatever they have.
- I'll have to go through Folger's office. - I'm aware of that.
I need info on an outfit of ours in the Penghu Islands.
Commander Wiley's outfit.
Muir?
Muir, wait up!
And call Kappler in the map room. Tell him my party's canceled.
Your party?
- We need you upstairs a bit longer. - What's that?
I said we're gonna need you upstairs a bit longer.
You've got something in your teeth.
Harker says you might care to enlighten us on information...
...that's not in your op reports?
I just want to help out.
Is it relevant to the issue at hand?
I know who Bishop was after.
Elizabeth Hadley.
Pull up what we have on Hadley.
Yeah, it was a tip-of-the-sword deal out of Beirut.
Intended to be clean and efficient in a place that was anything but.
By ' the place was a nightmare.
BEIRUT '
... surrounding areas in a new round of bitter fighting.
Sheik Salameh was our target.
He ran a large terrorist faction that had taken out...
...many American targets, at least one of the embassy bombings...
... that left people dead, mostly civilians.
An assassination was not an option.
He needed to appear to die of natural causes...
... to avoid violent repercussions and even more bloodshed.
His base of operations was Cyprus.
We knew that he was extremely dangerous and paranoid.
He was planning a trip to Beirut to see the family doctor.
I sent Bishop in a couple of months ahead of me to make contacts...
... and get within striking distance of the sheik.
I set him up at the Commodore.
You know, where all the flacks and the expatriates stayed.
His cover was as a photojournalist.
He was talented. Had a good eye.
Probably had a photography merit badge stuffed in a drawer at home.
It wasn't that much different from Nam, actually.
So it wasn't long before he was right at home.
It took him seven weeks...
... but Bishop found a way to get to the sheik.
- Hi. - Hi.
Thanks.
Parlez-vous français? No.
Yeah, tobacco, see, cigarettes.
It's for the children, for God's sake!
Turn it off!
Fine.
Okay, calm down. Calm down! Come on, quiet, guys.
Bishop delivered a consignment of medical supplies to the refugee camp.
He'd negotiated a deal with a new contact in order to get closer to the sheik's doctor.
Take the antibiotics and morphine straight into the hospital.
The rest of the stuff, the hypos, bandages, the works, take it into storage, okay?
Fuck.
- Hey, what happened to the kid over here? - He was trying to take The Hill.
It's in the north end of the camp.
If they make it, they're in a safe zone...
... where they can get medical supplies and food.
Of course, they've got to make it back.
There we go, honey.
- Hi. - Hi.
I'd like to come back and do a story on the doc.
- I could get something published for you. - For me?
- Let the world know what's going on here. - I don't know, Terry.
Maybe we can work something out.
Bishop did a "day in the life" spread on the doctor that got printed in the "Times".
Won't you look at it?
So with that relationship intact, things looked good.
It's good.
Then again, this was Beirut.
We didn't know when the doctor would give the sheik his physical...
... but it was our one and only opportunity to take him out.
I didn't have the usual time to butter him up...
...which means we needed twice the sex with half the foreplay.
Hello? Muir has arrived.
Can you get over here soon?
Right. Okay.
- Good. - All right.
What's wrong?
Israeli troops moving in to the Bekáa Valley.
Where in the Bekáa?
South end.
My God, it's : . With the roadblocks, you won't get there till noon.
Yeah, so the shots won't be so pretty.
All right, I'm up. What's so important?
It's a new day.
- It's far too early, you psycho. What is it? - The Sheik Ali Salameh.
He's moving.
How? Speedboat from Cyprus.
He's booked the top floor of the Nebaa apartments for two weeks.
My God, you're hideous. Why do you even bother?
I missed you, too.
You want flowers at : a.m.?
Flowers would be nice, but I'll settle for breakfast.
I got a good spot.
- Yeah? - Taught the guy to make migas.
- Migas? - Yeah.
A Mexican restaurant in Beirut? I'm impressed.
Suddenly, Mexican doesn't sound so good to me.
Better be the best damn breakfast I ever had.
Delicious. You'll love it. We have to get to the end of the alley.
You're gonna make a beautiful corpse.
Happy birthday, Nathan.
You know, Langley has seven different birth dates for you?
- They're all wrong. - Believe me, it wasn't easy.
KGB, Mossad, also wrong. Fortunately, I was well-trained.
Tom, I'm speechless.
- Where the hell do you find this in Beirut? - Beirut?
Diplomatic pouch, overnight from London. Got a new racket going on here.
- Operation Dinner Out. - "Dinner Out"?
Dinner Out. I'll remember that.
Here we go.
How we doing? The sheik's due for a physical.
I made contact with his doctor, who's also his cousin.
Sounds right.
The doctor's name is Ahmad. He works in a refugee camp south of town.
I got to him through an aid worker.
- Blonde or brunette? - I didn't say he was a she.
Is she cute?
Just someone I used to get into the camp.
- She gonna be any further use to us? - Not to "us".
Another piece of nasty business.
Langley wants a backup.
Okay.
They want me to liaise with the Lebanese militia, just in case.
Nathan, those guys are cowboys. No. Not an option.
All the more reason to make sure we do it our way.
- You're minutes late. - Nathan, we're okay. I just got hung up.
We got zero room for error here. You're right.
You're right. Won't happen again.
Ahmad.
- Good to see you. - How are you, sir?
Great, thanks.
I have a friend you'd be interested in speaking with.
You good on time? Okay.
Doctor.
- How are you? - Fine, thanks. May I?
Please.
It's official business.
I'm afraid a bit unpleasant, but something I think you ought to see.
The doctor's father had been a politician, a diplomat of some note...
... and he and his wife had died a couple of years back...
... from CO asphyxiation.
We have reason to believe that the death of your parents was not accidental.
Are you saying they were murdered?
We know who did it.
I wanted to give you a chance, if you want it, to do something about this.
Something I think would serve both of our interests.
I'm sorry.
It's like he wanted me to know.
What I did know was that if we weren't careful...
... she was gonna cause the whole thing to come crashing down around us.
Good, yeah.
He's been with her every night.
Scotch.
What's wrong? Nothing.
Excuse me, sir?
You see the gentleman at the bar?
Would you get him a double of your cheapest scotch?
Thank you.
Who is it?
He works at the embassy. He helped me out with a passport problem.
Excuse me. The gentleman here offered you a scotch.
Here he comes.
Good guy. A really good guy. All right.
- Terry? It's Terry, right? - That's right.
Good to see you again, Nathan.
I was saying how you helped me with that passport problem.
Elizabeth Hadley, Nathan Muir.
Pleased to meet you. Nice to meet you.
You probably don't know he mentioned you at the embassy.
He said he'd met a beautiful girl and wanted to extend his stay.
- That's got to be you, right? - Well, you never know.
- You want to join us? - Maybe just for a minute.
I don't want to be a third wheel.
- What brings you to this part of the world? - I'm with an international aid organization.
How do you keep track of it all?
"It all"?
I haven't been here that long, but it seems nobody trusts anybody.
Seventeen sects all claiming their birthright here.
- Do you have a favorite? - Our organization is neutral.
God, that must be nice. Being neutral.
Never having to take sides. Sleeping like a baby.
- That's a simplistic way to look... - Don't defend me.
What?
No, she's right. So how do you sleep, Elizabeth?
Actually, I don't. It's the shelling. I can't quite get used to it, you know.
All night. Well, it's more effective that way.
Families at home, greater chance of casualties. Good business.
Then quite a lot of these shells seem to come from the sea, from warships.
Funny. Now that I think about it.
The bombs, guns, bullets, tanks, they all come from somewhere else, too.
China, Syria, Iraq, Iran, the U.S.
This place is like Flavors. Something for everyone.
Bad day at the office, Nathan?
You're right. I apologize.
You're kind enough to invite me to your table...
...and I start talking politics off the bat.
I guess that's the curse of the job. Must be.
So, Elizabeth, do you miss London?
It must be tough not being able to return.
- That doesn't concern you. - What are you saying?
I don't know if she's mentioned that she's not welcome at home.
Her parents won't talk to her, her brother and two sisters think she's crazy.
She's a fanatic.
- Stop it. - This is ridiculous.
- You just met this guy, right? - Stop it!
No, please don't. Please stay with your friend.
Shit!
- What are you doing? - What you should have done.
Your homework.
- Nathan, she set us up with Ahmad. - Yeah? So she's just an asset?
Did it ever occur to you she might see you as an asset?
Yes, it did, and I'm telling you, you're wrong.
How did you two meet?
Did you mark her, or was it the other way around?
- Did she get you to do her any favors? - Nathan, you're out of line.
Drop it. It's under control.
How about him?
Rajiq Nabih. You got him under control? Hezbollah.
She uses him to finance her camp, and he uses her for God knows what.
Now tell me I'm wrong, Tom.
Tell me you knew about him.
I don't know what the fuck you're doing.
My personal life is my business. You stay out of it!
Like heck.
Sure, "Terry", I'll stay out of your personal life.
Taxi, s'il vous plaît. Oui, madame.
Am I getting played here?
- Jesus, you're such a... - Am I getting played?
- You accuse me of lying to you? - What is it?
Do you want the truth?
Well, fine. I'm a fixer. A fanatic. How do you think I move so freely?
I make deals, provide introductions...
...anything to help the people that I work with.
And as much as I'd like to deny it, sometimes, most times...
...those introductions have consequences.
Why can't you go home?
Why can't you go home?
- Why? - I...
- Why? - I was involved...
...with a human rights group in London.
We bombed a building owned by China. It was supposed to be empty. It wasn't.
And I have to live with that.
Fine. That's me. What about you?
- You can start small. Your name. - You know my name.
- Your name. - Terry.
Tell me your real name, please.
- Terry. - Jesus, you're pathetic.
She had worked both ends against the middle for so long...
... the middle decided to give up and go home.
The Chinese, of course, had serious problems with her.
A lot of little ones, one big one.
The London bombings killed the premier's nephew.
- They don't forget that kind of thing. - How well did you know Hadley?
Our paths crossed. That's about it.
- What was Bishop's reaction to all this? - Didn't bring it up.
So, neither did I.
I'm gonna try to get us some work in South America.
You ever been to Argentina?
- You okay? - Yes, I am okay.
Okay.
Half a drop of this on the skin, he'll be dead in hours.
You will use this stethoscope.
You will take the cap off, hold it to his chest to check his heart...
...then place the cap back on. Don't brush against it.
- Got it? - Yeah.
That's it.
Tell me. Is it hard?
Is what hard?
To take a life?
Yeah.
The sheik wants me to come at noon...
...on Friday.
Which was just four, long days away.
Intelligence showed us that he was planning a major attack...
... on the civilian sector of West Beirut.
We were on the clock, and we knew this was our only chance.
It was imperative that everything went according to plan.
Bishop baby-sat the doctor...
... and the rest of us tried not to watch the water boil.
And, to satisfy Langley, I met with the Lebanese militia...
...who were more than just a little excited about even the possibility...
...of putting their bomb squad into action against the sheik...
... in case the plan with the doctor failed.
Monsieur, bonjour.
The militia was purely a backup. Not a real option.
And then there was the waiting. That's the worst part.
Gives you too much time to consider, "What if?"
My name is Tom.
And then on Thursday...
... the day before the sheik's physical...
... the Druze and the Party of God started a street war in South Beirut.
The sheik got antsy, and the water boiled over.
- Tom Bishop on the phone. - Yeah?
The sheik wants him there within the hour.
- Here we go. - Nathan, the doc is not with me.
Where is he?
The Amal retaliated, shelling the Palestinian camp.
- You let him go? - Nathan!
- You let her take him? - I'm on my way now.
The Lebanese militia isn't an option.
If the sheik gets away, we're dead in the water.
No, I can get him there! Just trust me.
Get out of the way!
Ahmad, it's time. I'm sorry, we've got to go now.
Fuck! Move!
Hello.
- It's Muir. Where are we? - Looks like they're packing up to go.
Move!
- And? - Could be an hour, could be minutes.
Get out of the way! Ahmad! Go! Move!
Get out of the way!
Hello.
Repeat... . Okay.
Okay, good luck, Ahmad.
- Ahmad, we got to go. You okay? - Yes.
Thank you.
The destruction was more extensive than anyone anticipated.
Our Lebanese friends were insecure about this being their first big mission.
So they packed the car with enough Semtex to blow up half of Beirut.
It was a tough deal, but I figured Bishop could handle it.
I didn't see him until a week later...
...when we were scheduled to fly out of there to Karachi.
That was the last time I saw him.
Happy?
casualties, an entire apartment block leveled...
...one dead terrorist. Yeah, happy.
We have some fucked-up barometer for success, don't we?
Let's take a walk.
I'm not going with you.
I hooked up with another op.
Probably for the best.
Is this about her?
No.
Make sure you're doing it for the right reasons, Tom.
Yeah, I'm done with your reasons, Nathan. I'm done with you.
I'm not ending up like you.
Good luck.
Good luck.
Lizzy?
Yes?
I'm on my way.
I'm going to brief the White House. We'll finish this up at tomorrow.
- The files you requested, sir. - Thank you.
Wait! You can't go in there!
I'll get back to you.
It's all right.
You can't do this.
- I'm due at the White House. - He's one of ours.
Troy?
Do you remember when we could tell the good guys from the bad guys?
All this...
...was about something, wasn't it?
Yes.
: pm
Yeah, yeah.
- Forgot my smokes. - I'll get them, sir.
You're aware this is now a non-smoking facility, sir?
Feels good to break a rule now and then.
LONDON: STOCK EXCHANGE
- Good morning. Thomas Quinn. - Mitch Alford, please.
- Nathan Muir. - One moment, please.
Mitch, I got Nathan Muir on the line. Do you want to take it? Thanks.
Hey, Nathan, what can I do for you?
Who's this?
- She was his wife. - This guy and his fucking wives.
She stayed in Korea while he did two tours in South America.
His second op with Harry Duncan was real sensitive shit.
Muir worked with Duncan? Bishop worked for both of them.
Liquidate everything, Mitch. Stocks, T-bills, money markets, the works.
Let's discuss it. No, I don't care about penalties.
I want access to it now.
- Nathan, "save for a rainy day" and all that. - I know what I'm doing.
Wire-transfer the balance to this account:
- - - - - - - - - .
First Maritime of Grand Cayman.
- Grand Cayman? - That's it. Thanks, Mitch.
: pm
This is Harker.
Find out if there were any calls made to Hong Kong since this morning.
The whole building.
- Hi. - Hi there.
I mislaid my pass.
- I'll look upstairs. - No problem.
Get a load of this.
What?
He consolidated his international trading account.
He did what?
Sent them to a bank in Grand Cayman.
- Get me his account balance. - Right.
U.S. EMBASSY HONG KONG
- Yeah? - Harry? It's Muir.
Here's the list of the Hong Kong calls you requested.
Embassy.
That's his cell phone.
Hong Kong Herald.
That's Andrew Unger's fucking office.
You still have contact with that official at the power company?
- Yeah. Yeah, Deng. Why? - Yeah, this is Harker.
I'll hold.
Where can I fax you that's under the radar?
Kowloon Marriott.
Look, what the hell's going on here, Muir?
- You got to trust me on this, Harry. - And why should I trust you?
You recommended Boy Scout to me in the first place.
Call me on my cell.
Muir?
What's going on, Unger?
I'm looking for my badge. I don't understand. It's always...
: pm
Where's Muir? He's gone for the day, sir.
What?
How much longer?
Print them out and send them up.
Yeah. What now?
Did you get my fax?
Yes. I see an op requiring three months of prep.
Bishop prepped it before he piggybacked Sideshow.
So, what, we gonna ask him for help? He's gonna be dead in six hours.
He's got a friend on the inside. Check the roster for Sideshow.
Well, I'll be damned.
- Tran. - He's got all the schematics for the prison.
So what do we need Deng for?
Thirty minutes to complete blackout at Su Chou.
- And, Harry? - Yeah.
Get me bottom dollar.
: am
Yeah.
KOWLOON, HONG KONG
Deng wants yuan for the power-out in Su Chou.
No way.
Tell him $ K, and I'll pay in dollars.
$ U.S. dollars?
No way. That's not enough.
$ U.S.
Well, he won't risk it for less than $ but he will take dollars.
Five years ago, it would have cost $ .
Five years ago...
... Deng wouldn't have had to bribe ten employees, two supervisors...
...a local politician, all of whom stand to lose their lives if they get caught.
Come on, Muir, it's not like it was your money.
Tell him $ in a Grand Cayman account, and that's it.
$ ?
Okay, it's a deal.
Okay, it's a done deal.
Good morning, Gladys. If the wife calls, tell her I'll be upstairs.
I have a very... He's retiring today.
Good morning, gentlemen.
- Director Wilson. - Good morning.
Have a seat.
I found some extra stuff on Bishop.
: am
I don't think it's relevant, but if you want to see it...
Harker, you want to go ahead?
There are a couple of things that need to be cleared up.
About Bishop? No, about you, Muir.
About the past hours.
Mr. Muir has been working against us from the start.
What are you talking about? I've done nothing but cooperate.
Cooperate?
Have I withheld anything?
The fact that Harry Duncan tipped you off to Bishop's situation...
...before you even arrived yesterday.
Yet you chose to play dumb with us. Why?
Then maybe you'd like to tell us about the calls you placed to Duncan...
...from Andrew Unger's office last night.
- Harry Duncan's a friend. - Aren't they all?
We discussed a personal matter. Harry Duncan's gone missing.
Well, good for Harry. He deserves some time away.
With your $ ?
Muir transferred that amount to a Grand Cayman account yesterday.
As of an hour ago, it's gone.
You want to accuse me of something? Accuse me.
Maybe the payoff went to Digby Gibson when you tipped off the press.
- Troy? - Leave Digger out of this.
His paper is a front. He's Ml 's man in Hong Kong.
Anything else, Harker?
Yes, sir.
Yesterday, lmagery Analysis delivered a file requested by Muir's secretary...
...to your office.
Did you receive that file, sir?
I don't remember seeing it.
It was returned at this morning.
All right, give it to me.
Thank you.
Is this China?
Muir?
I believe it is, sir, and it would behoove Mr. Muir...
...to tell us exactly what $ has bought him there.
Muir?
It's kind of difficult to explain.
I think you'd better tell us everything.
I've been using company resources for personal benefit.
For the past year, I've been routing one of our satellites...
...over some retirement property that I'm thinking about buying.
What the hell is that? Harker, let me see that.
Because of the weather patterns and the erosion occurring...
...along the coastline of the beaches...
...and the fact that it's my life savings...
...I just wanted to be sure. Sorry.
I believe I'll sit in for the rest of this.
- Aiken, where did you leave off yesterday? - Beirut, sir.
We still don't know how Hadley wound up in a Chinese prison.
- Should we go off the record with this, sir? - No, let's just get on with this.
After the bombing, Hadley was a concern, not only to Middle East ops...
... but to Bishop's life.
So, I brokered a trade with the Chinese government...
... using Hadley in exchange for a U.S. diplomat convicted of espionage.
She was flown to a high-security prison near Su Chou, eastern China.
Her place was cleared out and a "Dear John" saying...
...they were through was forged and left for Bishop to find.
It appears you underestimated Bishop's feelings for her.
Yeah, I underestimated.
And you took it upon yourself to do this deal, and you were alone in this?
Yeah. Just me.
- Muir's secretary is on the phone. - Thank you.
Your secretary's on the phone. Line .
- Yeah? - I've got Commander Wiley.
Okay, connect us.
U.S. MILITARY BASE MILES WEST OF SU CHOU
Commander Wiley, sir. Package received. What's the verdict?
- We're on for tonight. - Roger, sir, I understand.
- Operation Dinner Out is a go. Confirm? - Correct. Dinner Out is a go.
Thumbs up!
"Dinner out is a go"? Hell of a way to speak to your wife.
Why do you think they keep dumping him?
: am
- How did Bishop find out where she was? - Couldn't have been too hard.
Small world, people talk.
A white face in a Chinese prison stands out.
He's well-trained.
I should've known he'd find out.
- Any other questions? - Yeah, one.
If you'd known he was going after her, would you have told us?
No.
SU CHOU PRISON
Move it! Come on!
: am
Do we edit the transcript or let it stand?
The Agency can't be responsible for some crazy thing Bishop did on his own.
I'm sorry about Bishop.
So am I.
We done here? Non-disclosure agreement.
- Aren't you gonna read it? - Read it times.
Aiken, would you escort Mr. Muir from the building?
Dinner with his wife?
Sir. Why?
- He said he had four wives. - I'm changing phones.
There was one in Germany. His first wife was Korean.
- And Peggy. That's three. - He was only married once.
This is "Blackhawk ".
We're inbound. Operation Dinner Out accomplished.
What did you say? Nothing.
- Just that we're on our way home, sir. - No, operation what?
Dinner Out, sir.
Who are the others?
Here it is. Patricia Lemour, Sandra Harris and Peggy Dye.
All agents or civilian assets. They were all cover wives.
And who was he talking to?
There's been an incident in China.
Jesus Christ.

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