Metropolitan News-Enterprise


Monday, November 22, 2004


Page 1


C.A. Upholds Ruling Counsel in Murder Case Was Ineffective

Trial Judge Had Discretion to Find Lawyer Should Have Had Defendant Testify, Court Says


By KENNETH OFGANG, Staff Writer/Appellate Courts


A trial judge’s order for new trial based on ineffective assistance of counsel is reviewed under the deferential abuse-of-discretion standard, as to the determination that the lawyer’s performance was substandard as well as the conclusion that the defendant was prejudiced, the Court of Appeal for this district has ruled.

Dix. Six Thursday affirmed Ventura Superior Court Judge Vincent O’Neill’s order granting a new trial to Bridget Callahan in the October 1998 killing of Nichole Hendrix.

Callahan was facing life imprisonment without possibility of parole after a jury convicted her in November 2002, but the trial judge found that Oxnard attorney Joseph O’Neill was ineffective in failing to impeach the testimony of prosecution witnesses; failing, without a good tactical reason, to call the defendant to testify on her own behalf; and failing to offer expert testimony that would have supported a duress defense.

Racist Attach Charged

Prosecutors claimed that Callahan assisted the two men who actually killed Hendrix by helping to kidnap and rob the victim and then standing guard outside the motel room bathroom where she was killed. They said that the killers were members of a white racist gang called The Skin Head Dogs, that Callahan was a friend of theirs, that Hendrix had participated in some of their criminal activities, and that they were afraid she was planning to inform on them.

After an eight-day hearing, the trial judge granted the retrial sought by Callahan’s new attorney, Kay Duffy. O’Neill said in his written ruling that “the defense had no reasonable course other than to call the defendant, was clear the benefits of that course would clearly outweigh the liabilities.”

He added:

“Had the defendant testified, counsel would have had facts and a jury instruction on which to base a logical argument for a verdict more favorable than first-degree murder with special circumstances.”

That ruling was well within the ambit of the trial judge’s discretion, Justice Steven Perren wrote for the appeals court. He cited People v. Ault (2004) 33 Cal.4th 1250, in which the high court held that a grant of new trial based on juror misconduct is reviewed for abuse of discretion.

The same level of deference is owed to a trial judge who concludes that counsel’s deficient performance prejudiced the defendant, Perren concluded, since the trial judge, having observed the proceedings, is in the best position to evaluate the attorney’s performance and its impact on the outcome.

“The cases recognizing the trial court’s unique ability to evaluate an attorney’s performance are legion,” the justice wrote.

Perren went on to conclude that O’Neill did not abuse his discretion in Callahan’s case.

The prosecution’s case, the justice noted, largely rested on the testimony of Nichole Echols and Jennifer Pinger, who claimed they were present when Callahan told the killers she had given Hendrix pills that would knock her unconscious.

At the hearing on the new trial motion, a district attorney investigator testified that he was unaware of Echols’ and Pinger’s connection to the case until he received a telephone call from the girlfriend of one of the killers near the conclusion of the grand jury proceedings. The investigator said the call “seemed a little orchestrated,” and that after talking to Pinger and Echols, he wondered whether he was being “duped.”

‘Damning’ Testimony

Perren said the testimony was “damning” and “pivotal to the felony-murder theories upon which Callahan was convicted.” Had jurors been made aware of “the suspicious circumstances under which these witnesses came forward,” the jurist said, the verdict might have been different.

Perren also faulted trial counsel for not putting the defendant on the stand, where she would have testified that she had not met Echols and Pinger until after the killing of Hendrix, that she had been injecting methamphetamine with the killers in the motel room, that the killers physically prevented her from leaving the room, and that she feared they would kill her, she said in her testimony at the hearing on the new-trial motion.

Without that testimony, Perren said, Callahan had no defense to the murder charge, so there was no tactical reason for keeping her off the stand.

Joseph O’Neill told the MetNews Friday he was “glad she got a new trial,” but said he had not read the Court of Appeal opinion and declined to comment further.

The case is People v. Callahan, 04 S.O.S. 6040.


Copyright 2004, Metropolitan News Company