State v. Palmer

Connolly, J.,

concurring

In assignments of error Nos. 16 through 19, Palmer contends that he received ineffective assistance of counsel in his first trial and on his first direct appeal. He argues that if he had received effective assistance of counsel, the evidence would have been insufficient to support his conviction and sentence and that this court would therefore have dismissed the charges. Therefore, Palmer first asks this court to address whether his counsel was ineffective, and second, had counsel been effective, would the evidence have been sufficient to support his conviction and sentence.

The majority opinion concludes that Palmer’s retrial corrected any errors resulting from the ineffectiveness of counsel and that this court’s review of the sufficiency of the evidence considers all the evidence admitted in the first trial, citing Lockhart v. Nelson, 488 U.S. 33 , 109 S. Ct. 285 , 102 L. Ed. 2d 265 (1988). Thus, the majority does not address whether Palmer’s counsel was effective or whether the evidence would have been sufficient to support the conviction and sentence had counsel been effective. Although I agree with the majority’s conclusion, I believe additional analysis is warranted.

In Lockhart , the Court considered “whether the Double Jeopardy Clause allows retrial when a reviewing court determines that a defendant’s conviction must be reversed because *734 evidence was erroneously admitted against him, and also concludes that without the inadmissible evidence there was insufficient evidence to support a conviction...” 488 U.S. at 40 . Thus, the concern in Lockhart was the effect of the erroneous admission of evidence in and of itself, not the erroneous admission of evidence resulting from the ineffective assistance of counsel. The erroneous, prejudicial admission of evidence does not necessarily render the assistance provided by counsel ineffective. It must also be shown that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668 , 104 S. Ct. 2052 , 80 L. Ed. 2d 674 (1984).

The guarantee of counsel is rooted in the Sixth Amendment, which “recognizes the right to the assistance of counsel because it envisions counsel’s playing a role that is critical to the ability of the adversarial system to produce just results.” Strickland v. Washington, 466 U.S. at 685 . Lockhart did not purport to examine the relationship between the Double Jeopardy Clause and the Sixth Amendment, and thus, Lockhart does not directly address the circumstances at issue herein. Palmer is alleging more than a prejudicial error in the admission of evidence — he is alleging that his Sixth Amendment right to counsel was violated. Thus, the question presented is whether the holding in Lockhart extends to ineffective assistance of counsel claims.

An examination of the Sixth Amendment right to counsel reveals that the rationale underlying Lockhart is indeed applicable to ineffective assistance of counsel claims. In Lockhart , the Court distinguished actual insufficiency of the evidence from “trial errors”:

While the former is in effect a finding “that the government has failed to prove its case” against the defendant, the latter “implies nothing with respect to the guilt or innocence of the defendant,” but is simply “a determination that [he] has been convicted through a judicial process which is defective in some fundamental respect.”

Lockhart v. Nelson, 488 U.S. 33, 40 , 109 S. Ct. 285 , 102 L. Ed. 2d 265 (1988), quoting Burks v. United States, 437 U.S.l, 98 S. Ct. 2141 , 57 L. Ed. 2d 1 (1978). The Court noted that an error in admitting a particular piece of evidence was a “trial error,” *735 which implied nothing with respect to the defendant’s guilt or innocence. Indeed, as the Court recognized, had the trial court in Lockhart made the appropriate ruling concerning the disputed evidence, “the trial judge would presumably have allowed the prosecutor an opportunity to offer [additional] evidence.” 488 U.S. at 42 . Thus, the Court’s holding that retrial is permitted merely “recreates the situation that would have been obtained if the trial court had excluded the evidence.” Id.

Despite the Court’s use of the term “trial error,” it is clear that Lockhart focuses on the distinction between error in the trial process and error in considering whether the quantum of evidence was sufficient to support the conviction and sentence (which is also a “trial error,” but of a different kind). Although ineffective assistance of counsel is of fundamental importance, counsel’s failure to render effective assistance nevertheless results in an error in the trial process, see Strickland v. Washington, supra, not an error in judgment concerning the quantum of evidence needed to convict and sentence. Insofar as the Double Jeopardy Clause is concerned, it makes little difference whether the prejudicial error in the trial process was merely the result of an error in the admission of evidence or due to the ineffectiveness of counsel. Indeed, had counsel been effective, the State would have had an opportunity to offer other evidence. Were we to address Palmer’s ineffectiveness/sufficiency concerns now, without having given the State such an opportunity (as was provided the State in Palmer’s subsequent trials), we would put Palmer in a better position than if his counsel had been effective. That result is clearly not required by the Double Jeopardy Clause or by the Sixth Amendment.

Because I conclude that the holding in Lockhart v. Nelson, supra, applies to ineffective assistance of counsel claims, I concur.