Metropolitan News-Enterprise


Wednesday, October 4, 2017


Page 1


Court of Appeal:

Mistrial Required Where Lawyer Confessed Incompetence

Justice Duarte Says Issue Was Not Whether the Trial Court Should ‘Bail Out’ Deputy PD Who Failed To Investigate Defense Based on Mental Condition of Client, but Protection of Defendant’s Rights


By a MetNews Staff Writer


The Third District Court of Appeal declared yesterday that a judge who realized during trial that the defense lawyer had failed to investigate a possible defense based on mental illness, but opted not to “bail out” the lawyer by granting a continuance or a mistrial, neglected to protect the defendant’s rights.

Justice Elena J. Duarte wrote the opinion reversing the conviction of Shayne Austin Collins for residential burglary with an occupant present and other offenses. The reversal was based on Shasta Superior Court Judge Thomas Smith’s denial of a motion for a mistrial.

The victim, Lisa Estess, is the defendant’s mother. She telephoned 911 three times after Collins came to her trailer on Aug. 20, 2015.

Recordings of the calls, lasting more than 20 minutes, capture the defendant ranting about Satan and death—and about “Robert,” whose identity is unknown.

Lawyer Spots Defense

Trial began on Oct. 28, 2015 and the prosecution completed its case. The following morning, the deputy public defender told Smith, outside the presence of the jury, that she had talked with her client the night before and concluded he had a possible defense based on an inability to form the specific intent required for burglary.

She said she had previously dismissed the significance of the 911 conversations, thinking Collins might have been under the influence of methamphetamine.

Smith responded that the recordings illuminated “from the very outset, the very beginning of this case, that the defendant potentially could have a mental defense of some sort; and it’s clear,” noting that Collins exhibited “very bizarre behavior.” The judge said “it does not appear that this is like newly discovered evidence that would warrant a continuance.”

The deputy public defender—who is not identified—and her supervisor agreed that there had been ineffective assistance of counsel based on a failure to seek a psychiatric examination. Smith denied a mistrial, saying:

 “It is a close case; I’m the first to admit that. I guess the question is what is the court’s duty to bail out defense counsel in the event that there may be an incompetency of counsel.”

‘Rare Circumstances’

Duarte said, in an opinion that was not certified for publication:

“We have listened to these recordings and agree that any reasonable criminal defense attorney would immediately have understood this evidence raised serious questions about defendant’s mental state, requiring investigation. But the trial court characterized the issue it had to decide as whether or not it had a duty to ‘bail out’ defense counsel, instead of protecting defendant’s right to a fair trial, including the effective assistance of counsel. In these rare circumstances, we find the trial court abused its discretion, and reverse with directions to the trial court to grant the mistrial motion.”

The jurist pointed out that there were three witness and all were local residents, so it would not be difficult round them up for a retrial, and it would not be a long trial. The prosecution had presented its case in less than a day, she noted.

While those factors militated in favor of granting a mistrial, Duarte said, the compelling factor is that the tapes “strongly suggest” that Collin “is delusional” and a defense based on his mental state should have been investigated.

No Contrivance

She said in a footnote:

“We understand that if any attorney could concoct a claim of ineffectiveness to mistry a case when it was going poorly, the criminal justice system would grind to a halt. But in the rare circumstances presented by this case, a mistrial was clearly the proper remedy to protect defendant’s right to a fair trial. Here, there was no improper tactical ploy by counsel. Instead, she learned she had made a mistake, she promptly advised her supervisor, confessed the mistake to the trial court, and sought an appropriate remedy on behalf of her client. While this does not excuse her mistake, it belies any inference that she manufactured it for tactical reasons.”

The opinion notes that, as required by a Business & Professions Code section, the State Bar would be informed of the reversal based on “incompetent representation.”

The case is People v. Collins, C080814.


Copyright 2017, Metropolitan News Company