Government of Virgin Islands v. Zepp

• Decision Date: 13 November 1984
• Docket Number: No. 83-3201,83-3201
• Citation: 748 F.2d 125
• Parties: GOVERNMENT OF the VIRGIN ISLANDS v. ZEPP, Jo-Ann. Appeal of Jo Ann ZEPP.
• Court: U.S. Court of Appeals — Third Circuit

Page 125

748 F.2d 125

GOVERNMENT OF the VIRGIN ISLANDS v. ZEPP, Jo-Ann Appeal of Jo Ann ZEPP.

No. 83-3201.

United States Court of Appeals Third Circuit.

Argued April 23, 1984.

Decided Nov. 13, 1984.

Judd C. Iversen, P.C. (argued), Michael T. Citara, San Francisco, Cal., for appellant.

James W. Diehm, U.S. Atty., Douglas L. Capdeville, Asst. U.S. Atty. (argued), Christiansted, St. Croix, V.I., for appellee.

Before SEITZ, Chief Judge, GARTH and HIGGINBOTHAM, Circuit Judges.

OPINION OF THE COURT

A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

Defendant Jo Ann Zepp appeals from a judgment and conviction for destruction of evidence in violation of 14 V.I.C. Sec. 1506, simple possession of a controlled substance in violation of 19 V.I.C. Sec. 607 and from the denial of her motion for a new trial. Following a jury trial, ¹ she was sentenced to one-year imprisonment on the destruction of evidence count and fined $5,000.00 on the simple possession count.

This appeal challenges, inter alia, the constitutionality of the trial proceedings below. ² Specifically, the defendant asserts that her sixth amendment right to effective assistance of counsel was violated because trial counsel had an actual conflict of interest due to (1) his potential liability for the same charges on which she was tried and (2) the fact that he was a witness for the prosecution. Thus, the defendant challenges the failure of counsel to withdraw from representation and also questions the propriety of the trial judge's failure either to disqualify trial counsel or to obtain a knowing waiver of effective assistance of counsel.

We reverse the judgment and conviction and remand the matter with directions to grant a new trial.

I.

Jo Ann Zepp ("Zepp") was placed under arrest on December 18, 1982 following a "raid" on 38 Estate Little Fountain, property which Zepp owned since 1978 and where she resided with co-defendant Glenn Williams ("Williams"). The raid conducted by three officers from the Department of Public Safety (DPS) and four Narcotics Strike Force (NSF) agents was the culmination of an undercover operation and investigation in St. Croix which began in early December of 1982 for the purpose of infiltrating drug and stolen property rings. ³

On December 18, 1982, at approximately 7:30 a.m., narcotics agents arrived at 38 Estate Little Fountain to arrest Williams on drug-related charges, without warrants. The armed officers surrounded the house with a canine unit. David Sibilly, the agent-in-charge, testified that he was positioned near the front door. He also testified that he identified himself, asked the occupants to open the door, and heard a female voice respond, "I'm coming." Shortly thereafter, Sibilly again called for the occupants to come out. He further testified that "suddenly" the toilets in bathrooms on opposite ends of the house were heard flushing simultaneously. The agents waited and the door was finally opened by Zepp. Williams, standing in the doorway, was arrested immediately.

The agents conducted a sweep search of the premises for safety reasons but the results were negative. Williams was then taken to police headquarters, during which time Zepp's attorney, Jack James ("James") arrived at 38 Estate Little Fountain. Zepp and James then entered the residence and closed the front door. According to testimony at trial, moments later police officers heard a toilet flush several times. Within one hour after James' arrival, Zepp was arrested by agents at the direction of an Assistant United States Attorney.

A search warrant for the house was later obtained and executed on the same day, but only one small plastic bag was discovered and it tested negative for cocaine. On December 21, 1982, a search warrant for the septic tank connected to the house was executed. The search produced 40 triangular-shaped plastic bags, 20 of which tested positive for cocaine residue.

A suppression hearing was conducted on January 26, 1983. The government informed the trial judge that it intended to call Jack James, Zepp's attorney, as a government witness. James objected. The trial judge stated that it was not necessary to rule on defense counsel's objection until he was actually called. ⁴ At the suppression hearing, while representing his client, James was called as a prosecution witness. He requested a proffer whereupon the government stated that there was a question as to whether or not he had occasion, while in the house with Zepp, to use the bathroom. James objected on the ground of relevancy and on the ground that if called upon to be a witness, it would jeopardize his position as defense counsel. ⁵ The parties ultimately agreed to a stipulation wherein James stated that at no time when he was in the house were any of the bathrooms used by him. ⁶

The stipulation entered into by defense counsel at the suppression hearing was introduced into evidence at trial. ⁷ At trial, the judge made the following statement to the jury:

THE COURT: Ladies and gentlemen of the jury, the parties have entered into a stipulation, and a stipulation is an agreement by the parties that in this particular instance, if Attorney John F. James were called as a witness and sworn, that he would testify that during the period of time that he was in the premises at 38 Estate Little Fountain on December 18th, 1982, he did not flush any toilets, that he did not personally flush any toilets.

Is that a correct statement of the stipulation, Mr. James?

ATTORNEY JAMES: Correct, as far as I'm concerned.

THE COURT: Mr. Capdeville?

ATTORNEY CAPDEVILLE: Yes.

App. at 202 (emphasis added).

The jury found Jo Ann Zepp guilty of simple possession of cocaine and destruction of evidence. She then filed a timely motion for a new trial which was denied after an evidentiary hearing. This appeal followed.

II.

From the standpoint of basic human rights, the framers of our nation's Bill of Rights wanted to make the new government of the United States fundamentally different from that of its former ruler, England. In the sixth amendment, they enumerated, with specificity, several critical rights guaranteed the accused "in all criminal prosecutions" by the federal government. Among these rights were the assurances that the accused would have an "impartial trial" and the "Assistance of Counsel for his defence." U.S. Const. amend. VI.

This amendment was a significant break from tradition because "[o]riginally, in England, a person charged with treason or felony was denied the aid of counsel, except in respect of legal questions which the accused himself might suggest." Powell v. Alabama, 287 U.S. 45, 60, 53 S.Ct. 55, 61, 77 L.Ed. 158 (1932). ⁸ Several colonies, Maryland as an example, declared "[t]hat, in all criminal prosecutions, every man hath a right ... to be allowed counsel", Md. Const. of 1776, art. XIX, but it was not until 1836, when by act of Parliament, that "the full right was granted in respect of felonies generally" to citizens of England. See, 1 Cooley's Const. Lim. 8th ed., 698, et seq., and notes.

While the right to assistance of counsel was assured in federal criminal prosecutions, the earliest jurisprudential debates in America pertained to whether the states were similarly obligated to appoint effective counsel for defendants in capital cases. Later the question arose as to whether adult defendants and minor defendants in criminal prosecutions by the state were entitled to counsel in non-capital felony cases. The trilogy of Powell v. Alabama, supra, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) established the American foundation that under the due process clause of the fourteenth amendment all persons are entitled to assistance of counsel when prosecuted in state courts.

During the last two decades, the major jurisprudential focus has shifted from the issue of the right to counsel to the more subtle and problematic question of effective assistance of counsel under the fifth, sixth and fourteenth amendments. With difficulty and divisiveness our courts have attempted to define what constitutes deficient performance by counsel, and whether counsel's errors were so serious as to deprive the defendant of a fair trial. See, e.g., Strickland v. Washington, --- U.S. ----, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980); McMann v. Richardson, 397 U.S. 759, 770-771, 90 S.Ct. 1441, 1448-1449, 25 L.Ed.2d 763 (1970).

A.

The recent Supreme Court decisions of Strickland v. Washington, supra, and United States v. Cronic, --- U.S. ----, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) now set forth "the proper standards for judging a criminal defendant's contention that the Constitution requires a conviction ... to be set aside because counsel's assistance at the trial ... was ineffective." Strickland, 104 S.Ct. at 2056.

By virtue of the sixth amendment right to effective assistance of counsel, principles of due process, applicable to legal proceedings generally, are preserved and reinforced. Justice Stevens, writing for the majority in United States v. Cronic, observed that "the right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial." 104 S.Ct. at 2046. In the Strickland decision, handed down the same day, Justice O'Connor elaborated on the intricate relationship of the sixth amendment right to effective assistance of counsel and the fifth amendment due process guarantee to a fair trial:

[T]he Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial. The Constitution guarantees a fair trial through the Due Process Clauses, but it defines the basic elements of a fair trial ... through the several provisions of the Sixth Amendment, including the...