Allen v. LeMaster

• Decision Date: 05 December 2011
• Docket Number: No. 31,100.,31,100.
• Parties: Timothy C. ALLEN, Petitioner, v. Tim LeMASTER, Warden, and State of New Mexico, Respondents.
• Court: New Mexico Supreme Court

2012 -NMSC- 001

267 P.3d 806

Timothy C. ALLEN, Petitioner,

v.Tim LeMASTER, Warden, and State of New Mexico, Respondents.

No. 31,100.

Supreme Court of New Mexico.

Dec. 5, 2011.

Melissa Hill, Corrales, NM, for Petitioner.

Gary K. King, Attorney General, M. Victoria Wilson, Assistant Attorney General, Santa Fe, NM, for Respondents.

OPINION

DANIELS, Chief Justice.

{1} Timothy Allen appeals the district court's dismissal with prejudice of his petition for writ of habeas corpus alleging ineffective assistance of counsel in connection with his death sentence. The district court did not consider the merits of Allen's claims but instead dismissed the petition as a sanction for his refusal to answer court-ordered deposition questions, which Allen claimed violated his privilege against self-incrimination and attorney-client privilege. We hold that deposing Allen was improper under Rule 5–503 NMRA, which prohibits the State from compelling witness statements from criminal defendants. We also hold that communications relevant to Allen's claims of ineffective assistance of counsel are excepted from the attorney-client privilege under evidence Rule 11–503(D)(3) NMRA and may be inquired into with his counsel and other witnesses in the habeas proceedings. We reverse the dismissal of Allen's petition for habeas corpus and remand to the district court to determine the merits of his two ineffective assistance of counsel claims.

I. FACTUAL AND PROCEDURAL BACKGROUND

{2} Allen was convicted and sentenced to death for the 1994 kidnapping, sexual assault, and murder of a seventeen-year-old victim. See State v. Allen, 2000–NMSC–002, ¶¶ 1–2, 128 N.M. 482, 994 P.2d 728. This Court affirmed his convictions and sentences on direct appeal. Id. ¶ 1.

{3} On March 20, 2002, Allen filed a petition for writ of habeas corpus that raised thirteen claims, supported by exhibits and affidavits. The district court ordered an evidentiary hearing on the two claims that alleged ineffective assistance of counsel and dismissed the petition's other eleven claims without an evidentiary hearing. Allen's ineffectiveness claims allege that his trial attorneys failed to conduct an adequate pretrial investigation of his social and mental health history and, as a result, failed to present evidence at either the guilt or penalty phase of trial that Allen had been abused as a child and currently suffered from severe neuropsychological deficits and psychiatric disorders.

{4} Discovery in preparation for an evidentiary hearing on Allen's ineffectiveness claims included (1) taking witness statements from the three attorneys who represented him at trial; (2) obtaining photocopies of his Public Defender Department file, medical and mental health files, and Department of Corrections records; (3) deposing twenty personal history witnesses who had provided affidavits in support of his petition for writ of habeas corpus; (4) deposing the psychologist who had evaluated his sanity in preparation for trial; and (5) obtaining a court-ordered psychiatric evaluation of him during which he answered all questions without limitation.

{5} The State also deposed Allen personally on two separate occasions. Despite Allen's requests for protective orders, the district court ruled that he was subject to deposition on all issues related to the habeas corpus proceedings on the theory that he waived his constitutional privilege against self-incrimination and his attorney-client privilege by filing a petition for writ of habeas corpus that raised ineffective assistance of counsel claims.

{6} At Allen's first deposition, he invoked his privilege against self-incrimination and refused to answer any questions. The district court ordered him to answer all questions relating to his communications with his trial attorneys. Allen then answered over three hundred questions addressing his communications with and observations of his trial attorneys and probing his knowledge of the attorneys' tactical and strategic decisions before and during trial. He refused to answer other questions in reliance on the self-incrimination clauses of the Fifth Amendment to the United States Constitution and Article II, Section 15 of the New Mexico Constitution.

{7} The State then moved the district court to dismiss Allen's habeas corpus petition with prejudice as a sanction for his refusal to answer all deposition questions. The district court ordered that he be deposed again to give him “one last opportunity to answer the specific questions ordered by the Court to be answered.” The court also ordered the State to present all proposed deposition questions “verbatim” so that Allen could respond with any specific objections. The State proposed twenty-eight new questions in addition to the eighty-eight questions that Allen had previously refused to answer. He objected to each of those questions on multiple grounds.

{8} The district court held a hearing on the proposed deposition questions and ordered Allen to answer specified questions. He refused to answer many of the court-approved questions. In response, the district court issued an order dismissing his petition for writ of habeas corpus with prejudice in its entirety, stating that “Defendant is in contempt of Court for failing to answer questions in his deposition as directed.”

{9} Allen filed a petition for writ of certiorari in this Court raising twenty-three issues. We granted certiorari and requested briefing on four issues: (1) whether the district court erred by finding that Allen waived his state and federal privileges against self-incrimination by filing a petition for writ of habeas corpus; (2) whether the deposition questions exceeded the scope of his waiver of the attorney-client privilege; (3) whether his depositions were ordered in violation of Rule 5–503 that prohibits the State from compelling statements from criminal defendants; and (4) whether dismissal of his ineffective assistance of counsel claims was an excessive and unconstitutional sanction for contempt of court.

{10} We hold that Rule 5–503 of the Rules of Criminal Procedure for the District Courts precludes taking a compelled statement or deposition of a criminal defendant, including one who is in the postconviction habeas corpus phase of a criminal proceeding. We also hold that communications specifically relevant to Allen's ineffective assistance of counsel claims are “relevant to an issue of breach of duty by the lawyer to the lawyer's client” and are therefore not protected under the attorney-client privilege by the explicit terms of Rule 11–503(D)(3). Because our application of established procedural and evidentiary rules requires reversal of the district court's dismissal of Allen's habeas corpus claims, we need not address any further issues in this certiorari proceeding.

II. DISCUSSIONA. Standard of Review

{11} This case requires us to interpret and apply the New Mexico Rules of Criminal Procedure and Rules of Evidence. The proper interpretation of our Rules of Criminal Procedure is a question of law that we review de novo. See State v. Lohberger, 2008–NMSC–033, ¶ 18, 144 N.M. 297, 187 P.3d 162. We likewise review de novo both “the trial court's construction of the law of privileges,” Estate of Romero ex rel. Romero v. City of Santa Fe, 2006–NMSC–028, ¶ 6, 139 N.M. 671, 137 P.3d 611, and “[t]he question of whether a party has waived the attorney-client privilege,” Gingrich v. Sandia Corp., 2007–NMCA–101, ¶ 12, 142 N.M. 359, 165 P.3d 1135. When construing our procedural rules, we use the same rules of construction applicable to the interpretation of statutes. See Walker v. Walton, 2003–NMSC–014, ¶ 8, 133 N.M. 766, 70 P.3d 756. “We first look to the language of the rule.” In re Michael L., 2002–NMCA–076, ¶ 9, 132 N.M. 479, 50 P.3d 574. “If the rule is unambiguous, we give effect to its language and refrain from further interpretation.” Id. (citation omitted). We also seek guidance from the rule's language, history, and background. See Roark v. Farmers Group, Inc., 2007–NMCA–074, ¶ 50, 142 N.M. 59, 162 P.3d 896.

B. Rule 5–503 Precludes Compelling a Statement from a Defendant in a Criminal Proceeding, Which Includes Habeas Corpus Review Under Rule 5–802 NMRA

{12} In order to understand the issues of this case, it is helpful to review the origins and development of the writ of habeas corpus that has become an integral phase of modern criminal proceedings, including those in New Mexico. Habeas corpus procedures have been used over the centuries in England and the United States to bring a person before a court for various purposes. See In re Forest, 45 N.M. 204, 208, 113 P.2d 582 584 (1941) (“The right [to a habeas corpus proceeding] antedated the Magna Carta.”); Charles Alan Wright, Law of Federal Courts § 53 at 350–52 (5th ed. 1994); Eric M. Freedman, Habeas Corpus: Rethinking the Great Writ of Liberty 1 (2001); William F. Duker, A Constitutional History of Habeas Corpus 7 (1980). The most significant form, historically called habeas corpus ad subjiciendum, is to test the lawfulness of a prisoner's conviction and confinement; and this form has earned recognition in the law as the “Great Writ.” David L. Shapiro, Habeas Corpus, Suspension, and Detention: Another View, 82 Notre Dame L. Rev. 59, 59 n. 2, 66–67 (2006); Lyn S. Entzeroth, Struggling for Federal Judicial Review of Successive Claims of Innocence: A Study of How Federal Courts Wrestled With the AEDPA to Provide Individuals Convicted of Non–Existent Crimes With Habeas Corpus Review, 60 U. Miami L. Rev. 75, 78 (2005).

{13} Historically, common-law writs of habeas corpus had been civil in form. In 1965 this Court adopted a new procedural rule governing postconviction relief, Rule 93, in our Rules of Civil Procedure. See NMSA 1953, § 21–1–1(93) (Vol. 4, 1969 Pocket Supp.). Under Rule 93, a prisoner could “[move] the court that imposed his or her sentence to ‘vacate, set aside or correct the sentence’ ” under certain...