McFarland v. State

BAIRD, Judge,

dissenting.

In his sixth point of error, appellant contends he was denied effective assistance of counsel because his attorney, John Benn, slept during trial. See, Appellant’s Brief, pp. 43-45. The State contends Benn’s sleeping did not affect the outcome of the trial because appellant was represented by two attorneys. See, State’s Brief, pp. 50-51. The Majority agrees with the State, holding appellant “failed to show that he was prejudiced to the extent that the result of his trial would have been different_” Ante, 928 S.W.2d at 505. For the following reasons, I respectfully dissent.

I.

In Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), the Supreme Court adopted a two-step analysis to review claims of ineffective assistance of counsel. The appellate court must first determine whether trial counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms. If so, the appellate court must then determine whether there is a reasonable probability the result of the trial would have been different but for counsel’s deficient representation. A reasonable probability is nothing more than a “probability sufficient to undermine the confidence in the outcome.” Id., 466 U.S. at 694 , 104 S.Ct. at 2064 . See, Ex parte Menchaca, 854 S.W.2d 128, 131 (Tex.Cr.App.1993); and, Boyd v. State, 811 S.W.2d 105, 109 (Tex.Cr.App.1991).

The Supreme Court has recognized situations where prejudice should be presumed once trial counsel’s deficient representation is shown. Strickland, 466 U.S. at 692 , 104 S.Ct. at 2067 (“In certain Sixth Amendment contexts, prejudice is presumed. Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice.”). In United States v. Cronic, 466 U.S. 648 , 104 S.Ct. 2039 , 80 L.Ed.2d 657 (1984), the Supreme Court stated: *526 makes the adversary process itself presumptively unreliable. 1

*525 ... There are ... circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified. Most obvious, of course, is the complete denial of counsel. The presumption that counsel’s assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial. Similarly, if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that

*526 Id, 466 U.S. at 658-659, 104 S.Ct. at 2046-2047. Appellant contends the instant case is one where prejudice should be presumed.

II.

After his arrest, appellant retained the services of John Benn, an attorney for forty-two years. However, while in a holding cell, appellant was visited by Sandy Melamed who stated he was going to be appellant’s attorney. When Melamed asked appellant to “sign some papers,” appellant refused and asked to speak to Benn. The transcript includes a Request for Appointment of Counsel and Order of Court. Although the request purports to have been sworn to before a Harris County deputy district clerk, appellant did not execute this request. Instead, there appears a notation that appellant refused to sign the Request for Appointment of Counsel. In spite of this the trial judge found appellant “executed an affidavit stating he is without counsel and is too poor to employ counsel_” The trial judge appointed Melamed to represent appellant. 2

Both attorneys understood Benn was to be lead counsel. After his appointment, Me-lamed contacted Benn to determine “if he wanted to have a discussion about who would do what.” However, Benn wanted no such discussion. According to Benn, the attorneys’ joint preparation for trial was “three or four hours.” 3 As the trial began, Benn indicated after the State’s examination of each witness whether he wished to cross-examine that witness. If not, Melamed handled the cross-examination. The attorneys did not discuss the witnesses’ examinations.

Benn testified his preparation for appellant’s trial consisted of “reading the State’s case and briefing a few points of law on evidence.” Benn could not remember the number of times he visited appellant, but believes it was fewer than five. 4 Benn prepared no motions, made no request for the issuance of subpoenas, and did not seek to talk to any witnesses, nor did he contact any of the co-defendants in appellant’s extraneous offenses.

Because of the circumstances in which he was appointed, and because of Benn’s unwillingness to discuss the ease with him, Me-lamed testified he felt he had to be prepared “to do everything.” However, Melamed further testified he felt constrained to obtain an agreement from Benn and appellant on any decision. Melamed testified his preparation for appellant’s trial consisted of a seven hour review of the State’s files, visiting appellant once in the Harris County Jail, and conferring with appellant on the telephone and during trial. Melamed attempted to contact a list of witnesses provided by appellant but was not successful. 5 Melamed prepared and filed several motions in appellant’s behalf and made a request to have a subpoena issued for several witnesses but did not speak to any of the State’s witnesses or the co-defendants in appellant’s extraneous offenses.

Finally, the uncontroverted evidence before us establishes that Benn slept during appellant’s trial. Appellant and Melamed testified Benn slept. Indeed, Benn testified: *527 Melamed testified that as Benn slept at trial, he thought perhaps the jury would feel sorry for appellant.

*526 Q. Do you have an illness that has caused you to sleep?

A. I’m 72 years old. I customarily take a short nap in the afternoon.

Q. Did you inform your client that you had to take a nap during the afternoon?

A. No, I did not. I had capable co-counsel all the time with me.

*527 III.

I find the majority’s suggestion that it was somehow reasonable trial strategy for appellant’s lead counsel to take a “short nap” during trial utterly ridiculous. Ante, 928 S.W.2d at 505, n. 20. The possibility of jury sympathy can never be a reasonable alternative to effective representation. A sleeping counsel is unprepared to present evidence, to cross-examine witnesses, and to present any coordinated effort to evaluate evidence and present a defense. In my view, a sleeping attorney is no attorney at all. 6 See, Javor v. United States, 724 F.2d 831, 833 (9th Cir. 1984) (“When an attorney ... sleeps through a substantial portion of the trial, such conduct is inherently prejudicial....”) In such situations prejudice should be presumed. See, Cronic, supra.

Even if prejudice could not be presumed in this case, I believe appellant satisfied his burden under Strickland . There can be no doubt that Benn’s representation fell below any objective standard of reasonableness. And I believe the representation appellant received in this case was sufficient to “undermine the confidence in the outcome.” Strickland, 466 U.S. at 694 , 104 S.Ct. at 2064 .

The Supreme Court has recognized the importance of an attorney to the trial process:

... Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment was good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he may have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he may not be guilty, he faces the danger of conviction because he does not know how to establish his innocence.

Gideon v. Wainwright, 372 U.S. 335, 345 , 83 S.Ct. 792, 797 , 9 L.Ed.2d 799 (1963). Thus, as the Gideon Court recognized, the assistance of counsel is essential to the fair administration of justice. The trial judge had so little confidence in Benn’s ability to represent appellant that Melamed was appointed to assist Benn. But Benn remained the lead attorney. And considering the lack of communication between Benn and Melamed, the lack of preparation for trial, and the uncon-troverted evidence of Benn’s sleeping, I have no confidence in the hand that guided appellant’s representation. Ibid. Stated differently, I have no confidence that appellant was represented by counsel with adequate skill or knowledge to prepare his defenses, if any, and to prevent his conviction upon incompetent or irrelevant evidence.

In my view, Melamed’s presence did not excuse or rehabilitate Benn’s incompetent representation. Melamed’s preparation for this trial consisted of only a seven hour review of the State’s files. He visited appellant once before trial and prepared some pre-trial motions. Such preparation cannot be what the Sixth Amendment contemplates for a capital murder trial where the death penalty is possible. Neither attorney interviewed a witness and neither attorney reviewed the extraneous offenses that were to be later admitted. Benn decided which witnesses he would cross-examine and he informed Me-lamed of his decision only after the State’s examination. Thus, Melamed’s preparation for cross-examination of his witnesses could not have been effective because he did not know which witnesses he was to question. And considering the role to which he was relegated, Melamed was in no position to put forth a coordinated defense strategy. Even more disturbing, Benn could sleep during the direct examination and still elect to conduct *528 cross-examination. It seems to me that Me-lamed’s belief the jury might feel sympathy for appellant was more a desperate hope than reasonable trial strategy. 7

IV.

I believe appellant has established that he received ineffective assistance of counsel and is entitled to a new trial. See, Cronic, supra; and, Strickland, supra. However, because the majority holds a defendant may receive effective representation from slumbering counsel, I respectfully dissent.

OVERSTREET, J., joins this opinion.

. All emphasis is supplied unless otherwise indicated.

. The trial judge did not explain his appointment of Melamed over appellant’s refusal. However, the State argued this appointment occurred "by the Court's caution in making sure [Benn] had an additional attorney to assist him in light of his age.”

. Melamed testified he and Benn did not discuss the case "very often.”

. Appellant testified Benn visited him once at the Harris County Jail and once in the courtroom holding cell.

. The trial judge appointed an investigator to assist Melamed, but the investigator was not asked to locate these witnesses.

. This view was expressed in Ex parte Burdine, 901 S.W.2d 456, 457-458 (Tex.Cr.App.1995) (Maloney, Baird and Overstreet, JJ., dissenting).

. I focus on Benn's representation of appellant because Benn was the lead counsel. But even assuming it is possible that second counsel's representation may somehow allay the harm caused by the lead counsel’s sleeping, such is not the case here. Clearly the circumstances in the instant case, such as Benn’s refusal to discuss the case and his continued control over the case, prevented Melamed from assuming control and insuring competent representation.