Moore v. Hinkle
| Decision Date | 03 March 2000 |
| Docket Number | Record No. 990912. |
| Citation | 259 Va. 479,527 S.E.2d 419 |
| Court | Virginia Supreme Court |
| Parties | Sylvester MOORE v. George M. HINKLE, Warden. |
Jonathan Shapiro, Alexandria, for appellant.
Eugene Murphy, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Present: CARRICO, C.J., COMPTON,1 LACY, HASSELL, KEENAN, KOONTZ, and KINSER, JJ.
In this appeal from the denial of a petition for writ of habeas corpus in the trial court, we primarily consider whether an attorney's failure to prepare adequately for trial because of professional and personal concerns constitutes a "conflict of interest" with respect to his representation of the client, resulting in a presumption of prejudice to the client, and requiring that the conviction of the client be vacated.
On March 18, 1996, the grand jury of the Circuit Court of Fairfax County (the trial court) returned an indictment against Sylvester Moore for the abduction of Nina C. Heckler with intent to defile in violation of Code § 18.2-48. On July 30, 1996, the trial court conducted a jury trial on the indictment. Moore was represented by his retained counsel, Dominick A. Pilli. Moore elected not to testify or put on any other evidence at this trial. The jury was unable to reach a unanimous verdict and, consequently, the trial court declared a mistrial. The case was continued for retrial on September 9, 1996.
In the six weeks between the mistrial and the scheduled retrial, Pilli devoted his time exclusively to other professional matters, travelling out of state on business "for another practice" during the first half of August. While Pilli was out of state, his grandmother died. Pilli delayed his return to Virginia for another two weeks, returning to Virginia on September 5, 1996.
During Pilli's absence, Moore repeatedly contacted Pilli's office by telephone, leaving messages for Pilli. In these messages, Moore indicated that he believed he had a "valid defense" and that he wanted Pilli to prepare a motion to suppress a statement Moore had made to the police and a motion to exclude Moore's prior criminal record. Moore further expressed a desire to present "his side of the story" through his own testimony.
On Friday, September 6, 1996, Pilli filed a motion for a continuance, asserting that he had not had time to prepare the motions Moore had requested or to discuss with Moore his desire to testify. In arguing for the continuance, Pilli was candid in stating that his "family was more important" to him than his duty to Moore. The Commonwealth opposed any continuance because Heckler had moved to Texas and had to make special arrangements with her employer to return for trial.
The trial court denied the motion for a continuance, indicating that a written motion to suppress could be heard on the morning of trial. Pilli then stated that he would not be able to adequately represent Moore and requested to withdraw as Moore's counsel. The trial court indicated that his motion to withdraw could also be considered on the day of trial and that Pilli should "spend a good deal of the weekend working on the case."
On Monday, September 9, 1996, Pilli arrived late for court and again requested a continuance, asserting that he had not had time to prepare the suppression, exclusion, and withdrawal motions and had not been able to consult with Moore except briefly the previous day. Pilli further asserted that if the trial court would not grant the continuance, he would ask the trial court to permit him to withdraw because "Mr. Moore is not going to want me as his counsel." The trial court denied both the motion for a continuance and the motion to withdraw. Pilli then responded, Pilli further stated that "emotionally and mentally, ... I'm not prepared."
Thereafter, Moore, who was wearing jail clothing, was brought to the courtroom. The trial court asked if he had been given the opportunity to dress in street clothes, and Moore responded that he "would like to address the court." Moore contended that he had not dressed in street clothes because "Mr. Pilli wasn't all for my case." Moore then asked the trial court to permit Pilli to withdraw and appoint new counsel because "I ain't getting no fair trial, cause he's not ready."
The trial court asked Pilli to explain again why he was not prepared for trial. Pilli reiterated that his "unique practice" required him to travel and that following the death of his grandmother he had focused his attentions on his personal life. Pilli indicated that when Moore had contacted him about the case, Pilli had told Moore, "Mr. Moore, at this time I just don't care." Pilli further told the trial court that
The trial court denied Moore's motion, stating that neither Moore nor Pilli had adequately explained why Pilli would not be able to represent Moore in a retrial of a case Pilli had tried only six weeks before. Pilli again asserted that "I cannot have a trial today ... I just can't do a trial today." The trial court indicated that Pilli was "verging right on the border of contempt." After another extended colloquy between Pilli and the trial court, Pilli concluded by stating "Mr. Moore does not want me to represent him." The trial court indicated that it would not change its prior ruling and that the matter would have to be resolved on appeal.
After Moore entered a plea of not guilty, he again told the trial court that he was not satisfied with Pilli's representation and that he was not ready for trial. The trial court proceeded with the trial. Pilli actively participated in the voir dire of the potential jurors and made an opening statement. The Commonwealth called Heckler as its first witness. During the direct examination of Heckler, Pilli raised an objection to certain aspects of her testimony. The trial was recessed for the day before the conclusion of the Commonwealth's direct examination of Heckler.
The following morning, Pilli was again late for court. When the trial court requested an explanation, Pilli asserted that he "had five cases to get continued this morning" and complained that the trial court was not sympathetic to his circumstances, stating, At that point, the trial court interrupted Pilli and held him in summary contempt of court.
The trial continued, with Pilli again actively participating in cross-examination of Heckler and the Commonwealth's other witnesses. The evidence as developed at trial showed that Moore, a stranger to Heckler, had entered her vehicle while she was stopped at a gasoline station. Although Heckler screamed for him to get out of the car, Moore refused. Heckler drove for several blocks hoping that Moore would then leave the car. Heckler stopped at another gasoline station, got out of her car, and demanded that Moore leave the vehicle. Moore responded that she should "[g]et back in the car, or I'm going to kill you." Heckler obeyed and after driving several more blocks, Moore grabbed Heckler's thigh and told her that he planned to engage in sexual activity with her.
Heckler was ultimately able to escape from Moore by feigning acquiescence and then taking refuge in the home of a stranger who assisted her in calling the police. Moore attempted to follow Heckler inside this home, but was arrested outside the home by police responding to Heckler's call. In a statement to police, Moore admitted that he had "been smoking marijuana and drinking and that he just got into the car to get himself together." Moore denied touching Heckler and making sexually suggestive comments to her.
At the conclusion of the Commonwealth's evidence, Pilli made a motion to strike the Commonwealth's evidence, which was denied. Pilli then indicated that the defense would not present any evidence. Pilli offered jury instructions, opposed the Commonwealth's instructions, and made a closing statement to the jury. After the jury returned a verdict against Moore, the Commonwealth, without objection, presented evidence of Moore's prior criminal record. Pilli presented no evidence during the sentencing phase, but did argue to the jury that Moore was a "productive citizen" and that the jury should impose a lenient sentence.
The jury returned a verdict for life imprisonment. The trial court confirmed the verdict and sentenced Moore to a term of life imprisonment, suspending all but ten years of the sentence.
Moore filed an appeal in the Court of Appeals of Virginia asserting, inter alia, that the trial court erred in denying the two motions for continuances and that Pilli had been ineffective as counsel. The Court of Appeals refused Moore's petition with respect to the continuances issue, holding that "[d]espite [Pilli's] assertion that he was unprepared for trial, he never demonstrated how the circumstances had changed after having represented [Moore] at trial six weeks earlier ... [Pilli] did not proffer the evidence he claimed [Moore] wanted him to present at the second trial, nor did he vouch how that evidence might affect his representation of [Moore]." The Court further noted that claims of ineffective assistance of counsel may not be raised on direct appeal. Although Moore was awarded an appeal on another issue, he subsequently sought to withdraw his appeal, and the appeal was ultimately dismissed for failure to file an opening brief.
On October 26, 1998, Moore filed a pro se petition for a writ of habeas corpus in the trial court. In a supporting brief, Moore asserted that Pilli's representation of Moore had been adversely affected by a "conflict of interest" as a result of Pilli's having devoted his time between Moore's first and second trial to...
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