King v. State

• Decision Date: 29 April 1991
• Docket Number: No. 90-176,90-176
• Citation: 810 P.2d 119
• Parties: Jeffrey Allen KING, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 119

810 P.2d 119

Jeffrey Allen KING, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 90-176.

Supreme Court of Wyoming.

April 29, 1991.

Leonard D. Munker, State Public Defender, Gerald M. Gallivan, Director, Wyoming Defender Aid Program, and Donald F. Carey, Student Intern, for appellant.

Joseph B. Meyer, Atty. Gen., Sylvia L. Hackl, Deputy Atty. Gen., Karen A. Byrne, Senior Asst. Atty. Gen., Theodore E. Lauer, Director, Prosecution Assistance Program, and Daniel L. Darlow, Student Intern, for appellee.

Before URBIGKIT, C.J., and THOMAS, CARDINE, MACY and GOLDEN, JJ.

URBIGKIT, Chief Justice.

Jeffrey Allen King (King) claims he was denied effective assistance of counsel to the point of reversible error.

We agree and reverse and remand.

I. ISSUES

King argues that reversible error occurred in his trial because:

ARGUMENT I

The defendant was denied effective assistance of counsel as guaranteed by the Sixth Amendment.

This claim was supported by three arguments:

A. Defense counsel's failure to effect service of process on an eye witness, or in the alternative, to request a continuance until that eye witness could be compelled to testify, is per se ineffective assistance of counsel.

B. Defense counsel's failure to invoke the use of compulsory process to obtain witnesses on behalf of defendant is a failure to provide the defendant with effective assistance of counsel.

C. Defendant was denied effective assistance of counsel when the trial court failed to investigate possible conflicts of interest which may have affected defense counsel's ability to provide a defense.

ARGUMENT II

The State interfered with the defendant's right to effective assistance of counsel.

II. FACTS

Pamela Thompson (Thompson) and King related sexually with one another for several months. Thompson had considered their relationship as one of lovers, but King said he considered himself more akin to a male prostitute than her lover. Whatever the quality of their relationship, it abruptly ended in April of 1989 when Thompson found King in bed with another person. One month later, Thompson was charged with delivery of a controlled substance. She quickly agreed to participate in a sting operation that targeted her former friends, King and Grant Judd.

While she was in jail, an attorney came to represent her and arranged to get her out of jail and into the Pineridge Hospital for treatment. Two other attorneys appear to have handled her felony charges and to have negotiated a plea bargain agreement that required Thompson to cooperate in a sting operation that targeted King and to testify against him. For her full cooperation, she received a deferred prosecution of the charges against her, which could then be dismissed. Thompson became the principal witness against King. Her initial attorney, who had made the arrangements that freed her from jail, then became King's defense attorney while other counsel, apparently from the public defender's office, continued her representation. See Allen v. District Court In and For Tenth Judicial Dist., 184 Colo. 202, 519 P.2d 351 (1974). See also Steinberg and Sharpe, Attorney Conflicts of Interest: The Need for a Coherent Framework, 66 Notre Dame L.Rev. 1 (1990); and Webster, The Public Defender, The Sixth Amendment, and The Code of Professional Responsibility: The Resolution of a Conflict of Interest, 12 Am.Crim.L.Rev. 739, 742 (1975).

During trial, Thompson testified to one version of events. She began her cooperation in the sting operation against King by going to the Riverton police station. Her vehicle was searched and an electronic transmitter was placed into her purse. She said she then went in search of King and found him in the home of Linda King, King's ex-wife, along with their two children. She described asking King if she could buy some marijuana and, at his direction, Linda King went into the kitchen and brought her a canning jar filled with the illegal plant. Following agreement to pay $40 dollars per quarter ounce and to buy a quarter pound of marijuana for six hundred dollars, she left, saying she would return later. Upon return, she found King alone, working on his car in the alley. She related that they talked for awhile before returning to his car to retrieve a towel containing sixteen baggies of marijuana for which she paid him $750.

Although all conversations between Thompson and King were said to have been secretly recorded by the police, apparently the recording was garbled to the point that it was useless as trial evidence. The absence of a mechanical recording made particularly critical the issue of credibility between prosecution and defense witnesses.

At trial, King testified to an entirely different version of events. Among other things, he testified that when Thompson came to Linda King's house he was out in back with his brother Ike King, Ross Moore, Melvin Jewart, and Grant Judd. He also said that Ike King and others had been with him working on his car in the alley when Thompson came back. He indicated at trial that he had avoided non-alcoholic drug use since his urine was being tested weekly because of federal drug charges and that he tried to avoid Thompson since she was known to be an informant. He also testified that she tried unsuccessfully to sell him sixteen baggies of marijuana when she pulled up in the alley as he and others worked on his car.

Two other defense witnesses testified that Thompson pulled into the alley and motioned for King to come over to her car and that he soon began to yell at her. Thompson had testified that King had gone back to his car to get a green towel containing marijuana, but both defense witnesses testified that King never went back to his car.

Only four days before trial, King's attorney issued a subpoena for the Sheriff's office to serve on Linda King. The Sheriff's department reported that several unsuccessful attempts were made to serve her, although the house lights were on and no one appeared at the door on the date service was attempted. When Linda King did not appear at trial, King's attorney did not move for a continuance. Consequently, the potential eye witness to the alleged illegal transaction was not made available to testify at King's trial. There is no indication in the record that King's defense attorney had tried, in advance, to interview Linda King to determine her availability for a trial appearance or even what her testimony might be.

Ike King was also not subpoenaed to testify. Ike King was on probation in Colorado when he called Bud Waldron, a Wyoming Probation Officer, leaving a message on Waldron's recorder that he wanted to return to Wyoming. Waldron called the Department of Corrections in Colorado to tell them Ike King should not be allowed to return to Riverton. Mr. Waldron said he had asked an associate to call the Department of Corrections in Colorado back to tell them Ike King could return once he discovered Ike King wanted to testify. But he also said he was unaware if that had been done. The defense attorney never issued a subpoena to compel Ike King to appear to testify, nor did he move for a continuance until that testimony could be compelled. This was potentially the second eye witness to the alleged illegal transaction who did not testify at King's trial. There is also no indication in the record that King's defense attorney had interviewed Ike King who could have been a very significant witness to address the clear testimonial conflict.

At trial, King asked the trial court to appoint a new defense attorney. King argued that his attorney had not procured eye witnesses in his behalf and that there was a conflict of interest because his defense attorney had represented Thompson when she was transferred from jail to the Pineridge Hospital. The trial court refused and the trial continued. King was convicted and sentenced to six to ten years for both counts, to be served concurrently with one another but consecutive to all other sentences for convictions entered previously to the extent permissible by law.

King appealed.

III. DISCUSSION

The Sixth Amendment guarantees effective assistance of counsel. United States v. Cronic, 466 U.S. 648, 654, 104 S.Ct. 2039, 2044, 80 L.Ed.2d 657 (1984). The United States Supreme Court reviews claims of ineffective assistance of counsel due to incompetency under the standard of review adopted in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh'g denied 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984) and reviews claims of ineffective assistance of counsel due to conflicts of interest under the standard of review adopted in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). See Strickland, 466 U.S. at 692, 104 S.Ct. at 2067 and State v. Jenkins, 148 Ariz. 463, 715 P.2d 716, 718 (1986).

The criminal defendant's Sixth Amendment right to effective assistance of counsel coincides with the state's compelling interest in assuring that a prosecutor is countered at trial by a defense attorney who is aggressive and effective enough to make the adversarial process perform as designed. See Frias v. State, 722 P.2d 135, 147 (Wyo.1986) and Cronic, 466 U.S. at 655-56, 104 S.Ct. at 2044-45. The adversarial process is designed to both produce the truth and reveal what methods the government is employing in its attempt to deprive an individual of life, liberty, or property. When the adversarial process breaks down, the results are unreliable and can be tragic. See White v. Frank, 855 F.2d 956 (2nd Cir.1988); Charles v. Wade, 665 F.2d 661 (5th Cir.1982), cert. denied 460 U.S. 1036, 103 S.Ct. 1426, 75 L.Ed.2d 787 (1983); and Ross v. Kemp, 260 Ga. 312, 393 S.E.2d 244 (1990). See also Bedau & Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 Stan.L.Rev. 21 (1987). Cf. Burden v. Zant, 498 U.S. 433, 111 S.Ct. 862, 112 L.Ed.2d 962 (1991).

Because the defendant's guarantee of effective co...