Thursday, September 20, 2018
Court of Appeal:
Defendant Wasn’t Derived of Assistance of Counsel Where She Was Restricted to Narrative Testimony
By a MetNews Staff Writer
A criminal defendant who was restricted to testifying in narrative form, with her attorney mum, was not denied representation of counsel at a critical stage, the Third District Court of Appeal held yesterday.
The lawyer explained in chambers, with the prosecutor absent, that defendant Cynthia Louise Hayes— charged with assault with a deadly weapon, vandalism with damage exceeding $400, and misdemeanor battery—at first told him she was not at the scene of the crime. She told him 13 days before trial was slated to start that she was, in fact, present, but was the victim, he recounted, and provided a list of persons who could testify to that effect.
An investigation created doubt in his mind, the lawyer related, as to whether the persons were actually witnesses.
The lawyer told Tehama Superior Court Judge Matthew C. McGlynn:
“ I don’t know what the truth is at this point and it places me in an ethical dilemma about whether or not I am going to present or purge her testimony and the ethics of my profession are I cannot do that.
“So I have tried to explain this to Ms. Hayes about her witnesses, about the new version of what she is telling me and that it places me in a very prickly position as her advocate.”
McGlynn told Hayes at a later juncture:
“You have a Constitutional right to testify in this case. You also have a Constitutional right not to testify. You have a privilege against self-incrimination, no one can call you as a witness. You have a right to testify over your attorney’s recommendation not to or objection to.
“Your attorney has indicated that he has an ethical concern that he put on this record that prohibit[s] him, based on what he has put on the record, from participating in the examination of you in front of a jury. So if you do choose to testify, then basically [the attorney] will let me know that when the People conclude their case when it’s appropriate for your decision to have been made, and you will be called to the witness stand again, if you so choose. And I will just simply turn to you and say you may now testify. He may not ask you questions.”
In an opinion affirming the convictions (while reversing the sentence in an unpublished portion of the opinion), Justice Coleman Blease said:
“Trial counsel did not know defendant was going to commit perjury, but suspected it and gave reasons for that suspicion. Those reasons, defendant’s sudden and dramatic change in her narrative of events and counsel’s difficulty in finding the supporting witnesses she claimed to have, support that suspicion and the trial court’s deference to it. Allowing defendant to testify in narrative form and informing her of that decision did not deprive her of the right to counsel.”
The case is People v. Hayes, 2018 S.O.S. 4602.
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