Thursday, July 1, 2010
Page 3
C.A. Cites Ineffective Legal Assistance, Throws Out Drug Conviction
Panel Says Lawyer Should Have Moved to Withdraw for Lack of Investigative Help
By KENNETH OFGANG, Staff Writer
A contract public defender who relied on his own investigation of his client’s illegal search claim because the county’s investigator had too much other work provided ineffective assistance, the First District Court of Appeal ruled yesterday.
In a 2-1 decision, Div. Two reversed Charles Jones’ conviction on charges of transporting methamphetamine and ordered a new trial.
Presiding Justice J. Anthony Kline, writing for the court, cited undisputed evidence that 12 contract public defenders in Lake County in 2006 were forced to share a single investigator, and that investigator had no time to look into nonviolent drug crimes.That being the case, an attorney who could not adequately investigate his client’s case by himself had an ethical obligation to move to withdraw, and to appeal if that motion were denied, Kline wrote.
Justice James Lambden concurred.
Justice J. Paul Haerle dissented, arguing that attorney Thomas Quinn conducted an adequate investigation of Jones’ contention that he did not roll through a stop sign, which would have rendered the police stop of his vehicle and ensuing search illegal. Haerle further argued that more thorough investigation would not have resulted in the granting of the suppression motion, because there was substantial evidence Jones ran the stop sign.
Jones was convicted in two separate cases.
In the first, he was charged with three offenses. Quinn moved to suppress the evidence obtained in the search of his vehicle following the traffic stop in Clearlake, alleging that Officer Greg Piccini could not have seen the car go through the sign and that the stop was pretextual.
2006 Hearing
At a 2006 hearing, Quinn challenged Piccini’s testimony that while traveling north, he saw the defendant’s SUV run a stop sign while traveling east. The officer said he then turned right to follow Jones’ vehicle and stopped it about 150 yards east of the street on which the officer had been traveling.
After another police officer arrived, Piccini said, the defendant consented to a search of the vehicle. On cross-examination, the officer acknowledged that he had received information about Jones that evening from the Lake County Narcotics Task Force.
The defense called no witnesses, and the motion was denied. About three months later, Jones’ new lawyer filed a second motion to suppress, arguing that such a motion was authorized because the defendant received ineffective assistance in connection with the first motion.
Judge Arthur Mann denied the second motion without a hearing.
Jones then agreed to a “slow plea”—a nonjury trial with an acknowledged likelihood of conviction—on the transport charge and prior-conviction allegations. In the second case, he pled guilty to possession of methamphetamine and possession of tear gas, and admitted enhancement allegations, in exchange for dismissal of eight other counts.
He received a total prison term of 10 years, four months at a consolidated sentencing on the two cases.
The Court of Appeal reversed in an unpublished 2008 opinion. It held that the judge should have held a hearing to determine whether Jones received ineffective assistance in connection with the first suppression motion.
The court ordered that Mann hold such a hearing and rehear the suppression motion in the event he found ineffective assistance. The new hearing was held last year.
‘Unusual’ Configuration
Jones testified that, given the “unusual” configuration of the streets, the officer could not have seen his vehicle before making a sharp turn onto the east-west street, and could not have seen the stop sign without being “right on the stop sign.” He claimed that he told Quinn from the beginning that the stop was “bogus” and that two of his friends—Samantha Sutch and Marty Francesky—were right behind him at the stop sign, but apparently drove on after he was pulled over.
He said he identified the two friends and gave Quinn their number, and that he pointed them out to the lawyer when they attended the suppression hearing, but that Quinn said their testimony was unnecessary.
In testimony that Kline described as “exceedingly equivocal,” Quinn claimed to have “somewhat limited’ recollection of what had occurred three years earlier, and that he remembered Jones giving him the name of Sutch—who testified at the new hearing that Jones stopped at the sign—but he could not recall whether this occurred before or after the hearing.
He said he remembered telling Jones that if he had witnesses, he should bring them to the hearing.
Quinn, who was admitted to the State Bar in 2000 and had been a contract public defender for about three years, said that he may have forgotten and failed to record the names of potential witnesses “due to the press of business or my relative inexperience with suppression motion practice at the time.”
The attorney acknowledged that with only one investigator for 12 contract lawyers, cases had to be prioritized. His decision to proceed without an investigator was based on that fact, as well as his belief that he could adequately proceed based on photographs of the scene taken by him and by a friend of the defendant, he said.
The defense also presented an expert witness—a former prosecutor, defense lawyer, and criminal investigator—as to the standard of care with respect to defense investigation, and an investigator hired by Jones’s new attorney who took a number of photographs and testified as to the difficulty of seeing the stop sign from the place the officer said he observed Jones running it.
In ruling that Quinn adequately represented the defendant, Mann said he was “sure” the attorney would have called Sutch and Francesky if he knew about them.
Kline, however, said that Mann’s reasoning was flawed, and that his ruling “effectively absolved Quinn of the investigative responsibilities imposed by the professional guidelines and case law.”
Court ‘on Notice’
With respect to the lack of adequate assistance available to contract public defenders in the county, Kline added, “Quinn’s testimony put the trial court on notice of a conflict of interest that may prejudice not just Jones, but many other indigent defendants in Lake County.”
The defense attorney’s duty, Kline explained, is not to acquiesce in the county’s failure to provide him with adequate resources, and thereby “participate in the denial of his client’s Sixth Amendment rights,” but to force the issue by moving to withdraw, and thus putting the county to the choice of either providing adequate funds for private investigators or adequately funding a public defender’s office.
Haerle argued that the trial court’s ruling should be affirmed. While sharing the majority’s concern about the need for appropriate steps to cure a lack of resources for investigations on behalf of indigent defendants, he wrote, “those appropriate steps do not include reversing a trial court which, after a two-day hearing which included numerous witnesses and exhibits, determines that a preponderance of evidence was not produced showing ineffective assistance of counsel.”
It was reasonable, the dissenting justice wrote, for Quinn to rely on his own familiarity with the Clearlake area in proceeding to walk around and photograph the scene and observe the terrain and foliage to prepare his argument that the officer could not have observed what he testified to. Jones, he added, waited until months after the suppression hearing to complain about Quinn not calling witnesses. It was unfair, Haerle wrote, for the panel to dismiss Quinn’s testimony at the hearing after remand, when the trial judge reasonably chose to credit it.
It was also reasonable, Haerle wrote, based on several of the photographs taken by the investigator for Jones’ new lawyer, for the trial judge to determine that Piccini could have seen Jones run the stop sign.
The case is People v. Jones, 10 S.O.S. 3623.
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