People v. Wade

BROUSSARD, J.

I dissent. 1 Defendant was entitled to representation by

a zealous advocate of his defense. He received something quite different. His attorney argued against him at the guilt phase of the trial, stood mum at the sanity phase, and, at the penalty phase, virtually commended him to the gas chamber. No tactical reason can excuse such a performance. I would reverse the entire judgment.

The state and federal constitutional guarantees of the right to counsel require counsel “to represent his client zealously within the bounds of the *1001 law and to refrain from arguing against [him].” (People v. Cropper (1979) 89 Cal.App.3d 716, 720 [ 152 Cal.Rptr. 555 ]; People v. Diggs (1986) 177 Cal.App.3d 958, 970 [ 223 Cal.Rptr. 361 ], and cases cited; see Anders v. California (1967) 386 U.S. 738, 744 [ 18 L.Ed.2d 493, 498 , 87 S.Ct. 1396 ]; People v. McKenzie (1983) 34 Cal.3d 616, 631 [ 194 Cal.Rptr. 462 , 668 P.2d 769 ]; People v. Feggans (1967) 67 Cal.2d 444, 447 [ 62 Cal.Rptr. 419 , 432 P.2d 21 ]; Harders v. State of California (9th Cir. 1967) 373 F.2d 839, 842 .) “[A]t a bare minimum, . . . defense counsel [must] act as a true advocate for the accused.” (People v. Hattery (1985) 109 Ill.2d 449, 461 [ 488 N.E.2d 513 ], cert. den. (1986) 478 U.S. 1013 [ 92 L.Ed. 2d 727 , 106 S.Ct. 3314 ].) An attorney who argues against his own client seriously undermines the factfinding process. His failure “to subject the prosecution’s case to meaningful adversarial testing . . . [is] a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable.” (United States v. Cronic (1984) 466 U.S. 648, 659 [ 80 L.Ed.2d 657, 668 , 104 S.Ct. 2039 ].)

Closing argument for the defense is a “basic element of the adversary factfinding process in a criminal trial.” (Herring v. New York (1975) 422 U.S. 853, 858 [ 45 L.Ed.2d 593, 598 , 95 S.Ct. 2550 ].) At this critical phase of defendant’s trial, counsel not only failed to act as a “true advocate” for his client; he told the jury his client was revolting and his only defense was pitiful. Counsel made it perfectly clear he was only doing his job by presenting an insanity defense. In short, in order to maintain his own sense of personal integrity, counsel distanced himself from (and sacrificed) his client.

Almost at the outset of his argument, counsel informed the jury that he essentially had been drafted by the court to represent defendant. He explained that the “court is not in the same hierarchy as, say the service, for instance, where if a general tells you and a captain to do something, or if you’re [szc] admiral tells you as a commander to do something, or as enlisted person you say, ‘Yes, sir,’ or ‘Aye-aye.’ Courts don’t carry that much weight. But it behooves an attorney as one of his duties to, if a court requests him to [do] something, in my opinion it’s his ethical duty to accept the appointment.” Later, he even suggested it was not in his best interests as a human being to take the case, but it was his “duty to take on the defense of a defenseless person.”

The message conveyed by these remarks was unmistakable: counsel had not undertaken to defend his client by choice. It is difficult to imagine how such remarks could be received by any jury as supportive of the defense. As one panel of the 11th Circuit Court of Appeals has stated, “reminding a jury that the undertaking is not by choice, but in service to the public, effectively stacks the odds against the accused.” (Goodwin v. Balkcom (11th Cir. 1982) 684 F.2d 794, 806 , cert. den. (1983) 460 U.S. 1098 [ 76 L.Ed.2d *1002 364 , 103 S.Ct. 1798 ]; see also Wiley v. Sawders (6th Cir. 1981) 647 F.2d 642, 644, fn. 6 , cert. den. 454 U.S. 1091 [ 70 L.Ed.2d 630 , 102 S.Ct. 656 ].)

Counsel continued in this vein by strongly suggesting that he had presented defense evidence out of duty rather than conviction. For example, in attempting to rebut the prosecutor’s charge that the insanity defense was “sensational” and “theatrical,” counsel stated: “But it is my duty as an attorney, if doctors present evidence to me that indicates that the defendant that I’m charged with representing has a mental disease or mental defect, I have no alternative but to present that issue to you ladies and gentlemen of the jury. I can’t turn my back on that issue, whether I’m accused of contriving the defense, whether I’m accused of staging the defense, or I’m the director and producer of the defense. As my ethical duty I must present that issue for your consideration.”

Counsel next lamented that “[i]t’s a pitiful defense when you say that your client is insane.” He then attempted to further justify his advocacy of this “pitiful” defense. He did not do so in the usual manner, however, by explaining how defendant’s multiple personality and dissociative disorders had each of the elements required under the law’s definition of insanity. Rather, he told the jurors (inaccurately) that “our California Supreme Court has said that it is inadequate representation of counsel not to raise [the insanity] defense at [the guilt phase].” 2 Again, counsel’s message was that he might not have argued the insanity defense at the guilt phase if this court’s peculiar rules had not imposed a duty to do so, regardless of his personal convictions as to the merits of the defense. It was highly improper for counsel to imply he was arguing the insanity defense only to avoid a malpractice or disciplinary action. His silence at the sanity phase only confirmed his disbelief in the merits of his client’s defense.

Counsel was not content with merely telling the jury he was saying what he was saying because he had a job to do. He went further. He told the jury how “appalled and disgusted” he was by the crime. He also told how his wife shared his revulsion. She opposed his involvement in the case, he said, and “had some derogatory remark to make about it, said I was defending him. I corrected her saying that I was representing him. And she asked me not to confuse her with any of my legalisms, [fl] As the conversation continued she started to cry, and she informed me that [she] had read an account in the newspaper about how the family [ofj Irabell [Cookie] Strong needed money for food and lodging and whatever. But she didn’t send any money and she informed me that she sent my money, and a sizable sum of it, to buy *1003 flowers to decorate the grave of that little thing, as she put it, because she could not see Joyce Toliver going to her grave without some flowers . . . If this appeal to the passions of the jury had been made by the prosecutor, it would be condemned as misconduct. (See People v. Fields (1983) 35 Cal.3d 329, 362-363 [ 197 Cal.Rptr. 803 , 673 P.2d 680 ].) There can be no excuse for defense counsel engaging in such an argument to the detriment of his client. (See King v. Strickland (11th Cir. 1984) 748 F.2d 1462, 1464 , cert. den. (1985) 471 U.S. 1016 [ 85 L.Ed.2d 301 , 105 S.Ct. 2020 ] [ineffective assistance of counsel during penalty phase].) Defendant was certainly entitled to representation by an attorney who would argue for rather than against him.

Counsel’s ineffectiveness also is evident in his omissions at the guilt phase closing argument. Most importantly, he failed to argue evidence showing the murder was not premeditated or deliberate or committed with the malice required for first degree murder. For example, the evidence showed that defendant had a history of abusing his children, and that he had consumed a full bottle of wine on the day of the homicide. His wife, Cookie, said he was “crazy” and acting “like a madman” at the time of the killing. During the beating, defendant shouted that he was “Michael the Archangel” and that he would kill Joyce because she was a “devil.” Cookie’s daughter, Penny, remarked that defendant had acted “strange” on the day of the killing and appeared to be drunk that evening. Even one of the prosecution’s experts, Dr. Hacker, testified that defendant lacked the specific intent to kill, that he “was overwhelmed by . . . uncontrollable, aggressive impulses[,]” and that he had “totally lost control.” Counsel inexcusably neglected to argue much of the considerable evidence supporting a verdict short of first degree murder.

The majority nevertheless assert that counsel’s argument was appropriate and tactically proper. “[T]rial counsel had little choice but to candidly acknowledge guilt, concede the heinous nature of the offense, and concentrate instead on convincing the jury of the legitimacy of defendant’s mental defenses. . . . [ft] . . . Counsel’s argument carefully developed his own conversion from an initial skepticism to an eventual acceptance of defendant’s peculiar mental state. . . . [1f] . . . Moreover, it was clearly a tactical matter whether counsel advocated a reduced degree or instead sought an outright acquittal based on diminished capacity or insanity.” (Maj. opn., ante, at pp. 988-989, italics in original.)

If counsel’s strategy was, as the majority suggest, to convert the jury by example, his argument was not a competent execution of that strategy. Counsel did not simply admit the heinous nature of the crime, briefly say he was at first skeptical about the defense, and then demonstrate how he had become convinced by overwhelming evidence of defendant’s insanity. In *1004 stead, he waxed eloquently about the horrendous details of the crime, emphasized the tragic results, and repeatedly alluded to his appointed status. Far more forceful a message than counsel’s conversion was his and his wife’s disgust at the crime and at the distasteful task of “representing” defendant. The jury surely detected that even counsel was not wholly “converted.” If counsel sought acquittal by conversion, his strategy backfired.

Arguably, some of counsel’s dismal performance at the guilt phase argument might have been excusable as a tactical move to set the stage for a sanity phase in which the guilt phase evidence would be used to demonstrate his client’s insanity under the American Law Institute standard adopted in People v. Drew (1978) 22 Cal.3d 333, 345 [ 149 Cal.Rptr. 275 , 583 P.2d 1318 ]. Had that been counsel’s intention, however, he would have at least argued that evidence at the sanity phase. Instead, he assumed that because the jury had rejected the diminished capacity defense it would automatically reject the insanity defense. As he explained to the court before waiving argument at the sanity phase: “[Y]esterday I argued to the jury as an analogy that the world was round, that the earth was round. And to now go before them in the sanity phase and ask them to believe that, well, if it isn’t round, would you consider that it may be oval, I think would be wasted on this jury.”

Given counsel’s unprofessional guilt phase argument, his complete silence at the sanity phase cannot be justified on the ground that he “reasonably could have deemed it unnecessary or unwise to repeat those matters” pertaining to the insanity issue that were argued at the guilt phase (maj. opn., ante, at p. 989, fn. 8). In the face of testimony by three experts (including a prosecution expert) strongly supporting the theory that defendant lacked substantial capacity to conform his conduct to the requirements of the law as the result of a mental disease or defect, competent counsel would have attempted to explain to the jury how it could find defendant insane even if it had rejected the diminished capacity defense. Competent counsel probably also would have explained what defendant’s fate would be if found insane. Competent counsel would not have simply assumed that the jury’s guilty verdict rendered any such efforts hopeless.

If defendant had a chance of escaping the death penalty after counsel’s argument against him at the guilt phase and his silence at the sanity phase, counsel did little to save him at penalty closing. His argument started off well enough, pleading, as the majority observe, for “a continued existence until death” (maj. opn., ante, at p. 998). Counsel’s final words to the jury, however, seriously undermined his earlier “reasonable and tactical [argument], aimed at gaining the jury’s sympathy for defendant” (maj. opn., ante, at p. 998). Counsel concluded as follows: “I just want to conclude *1005 with, considering the disorder, the emotional disturbance that the evidence has suggested to you by way of the physicians in this case and the psychologists, I don’t think that Melvin Wade, Melvin Meffery Wade, can actually, can be said to lose this case, [fl] As has been expressed to me by Melvin on many occasions, he can’t live with that beast from within any longer and if in your wisdom you think the appropriate punishment is death, you may be also giving an escape once again by analogy the gift of life to Melvin Meffery Wade to be free from this horror that he and only he knows so well.”

To the extent such an argument is directed at “gaining the jury’s sympathy for defendant,” it does so only by commending him to death. A defense attorney who argues death as “an escape” and “the gift of life” for his client is not an adversary of the prosecution. Rather, he comes very close to being exactly what counsel told the jury he was not: a second prosecutor. Instead of endeavoring to assure that the jury fully comprehended the awesome nature of their life-or-death determination, counsel offered the jurors an excuse for executing defendant, effectively minimizing their sense of responsibility for the consequences of rendering a death verdict. I cannot imagine a reasonable tactical purpose to justify such an argument.

To paraphrase Justice Mosk, the “conclusion is inescapable that counsel’s [argument] was neither ‘effective’ nor ‘assistance’ in any sense of those terms. Under these circumstances counsel’s actions deprived defendant of his constitutional right to counsel.” (People v. McKenzie, supra, 34 Cal.3d at p. 637 .) The denial of that right requires reversal of the judgment. (Strickland v. Washington (1984) 466 U.S. 668, 692 [ 80 L.Ed.2d 674, 696 , 104 S.Ct. 2052 ]; United States v. Cronic, supra, 466 U.S. at pp. 656-659 [80 L.Ed.2d at pp. 666-668].)

Appellant’s petition for a rehearing was denied May 19, 1988, and the opinion was modified to read as printed above. Broussard, J., was of the opinion that the petition should be granted.

This opinion adopts much of the reasoning of the dissenting opinion filed by Chief Justice Bird before this court granted rehearing.

Counsel’s “strategy” in seeking a complete acquittal at the guilt phase is incomprehensible. It is difficult to imagine any experienced criminal attorney who understands the difference between diminished capacity and insanity adopting such a tactic in a case such as this.