Neely, In re

• Decision Date: 23 December 1993
• Docket Number: No. S015623,S015623
• Court: California Supreme Court
• Parties: , 864 P.2d 474 In re Charles Frederick NEELY, on Habeas Corpus.

Page 203

26 Cal.Rptr.2d 203

6 Cal.4th 901, 864 P.2d 474

In re Charles Frederick NEELY, on Habeas Corpus.

No. S015623.

Supreme Court of California In Bank.

Dec. 23, 1993.

[6 Cal.4th 906] [864 P.2d 475] Karen S. Sorensen, Kentfield, under appointment by the Supreme Court, for petitioner.

John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., Steve White and George Williamson, Chief Asst. Attys. Gen., Arnold O. Overoye and Robert R. Anderson, Asst. Attys. Gen., Lisbeth M.P. Bellet, Roger E. Venturi and Ward A. Campbell, Deputy Attys. Gen., for respondent.

GEORGE, Justice.

While his appeal from a judgment imposing the death penalty was pending before this court (see People v. Neely, 6 Cal. 4th 877, 26 Cal.Rptr.2d 189, 864 P.2d 460), petitioner Charles Frederick Neely filed the petition for writ of habeas corpus which gave rise to the present proceeding. This petition, in part reiterating petitioner's contentions on appeal, alleged, among other claims, that numerous failings by his trial counsel deprived petitioner of his right to the effective assistance of counsel. Concluding that the petition stated a prima facie claim for relief, we issued an order to show cause returnable before this court and ordered that the matter be argued with the automatic appeal.

For the reasons discussed hereafter, we conclude that petitioner is entitled to habeas corpus relief and that the judgment must be set aside in its entirety.

I

The factual and procedural background to petitioner's conviction and sentence of death, and to the present habeas corpus proceeding, is set forth fully in the companion case of People v. Neely, supra, 6 Cal. 4th at pages 881-892, 26 Cal.Rptr.2d 189, 864 P.2d 460, and need not be repeated here except to note that "[t]he victim, Bruce Chester, a realtor, conducted his business from his residence on Cameron Road in Cameron Park, where he also kept small amounts of marijuana and cocaine for his personal use. On March 15, 1982, [petitioner], Malcolm Centers, and Monte Handley robbed Chester at his residence, and [petitioner] shot and fatally wounded him." (Id., at p. 881, 26 Cal.Rptr.2d 189, 864 P.2d 460.)

Among petitioner's allegations in the habeas corpus petition are the following: that (1) he was deprived of the effective assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, because his trial attorney provided deficient representation in numerous respects, including counsel's failure to seek a change of venue for petitioner's trial, conduct adequate voir dire examination of the potential jurors or exercise any of the peremptory challenges available to the defense, investigate evidence from which counsel would have ascertained the basis for the suppression of the tape After reviewing the petition, we determined it stated a prima facie case for habeas corpus relief with regard to trial counsel's alleged failings involving selection of an impartial jury and suppression of the tape-recorded van conversation. Accordingly, we issued an order to show cause.

recording and transcript of a March 23, 1982, [864 P.2d 476] postarrest conversation between petitioner, Centers, and Handley in a sheriff's van (see People v. Neely, supra, at pp. 887-888, 26 Cal.Rptr.2d 189, 864 P.2d 460), ¹ or raise an objection to the admission of the tape recording and transcript under Massiah v. United States (1964) 377 U.S. 201, 206, 84 S.Ct. 1199, 1203, 12 L.Ed.2d 246 (Massiah ), and its progeny; and (2) he was deprived of his rights of confrontation, compulsory process, and a fair trial under both the state and federal Constitutions, as a result of prosecutorial misconduct in depriving petitioner of a critical defense witness by coercing codefendant Handley not to testify at petitioner's trial.

Upon the filing of a return and a traverse, we determined there were disputed factual issues requiring an evidentiary hearing with respect to the ineffective assistance of counsel claim involving trial counsel's failure to investigate and raise a Massiah objection to the admission at trial of the tape recording of the van conversation. We therefore appointed the Honorable Ronald W. Tochterman, Judge of the Sacramento County Superior Court, as a referee to take evidence and make findings of fact on seven specified questions related to the adequacy of the performance of petitioner's trial counsel.

The reference order directed that the referee take evidence and make findings on the following questions:

"1. What was the understanding, if any, between Malcolm Centers and the El Dorado County Sheriff's office concerning Centers' actions in connection with the conversation in the police van between defendant, Centers, and Monte Handley on March 23, 1982?

"2. What facts were known by defense counsel relating to the question whether the conversation of March 23, 1982, in the police van could have been suppressed under the Sixth Amendment on the ground that Centers was acting as a police agent?

"3. What inquiry, if any, did counsel undertake to determine whether Centers was acting as a police agent?

"4. What further inquiry, if any, should counsel have undertaken?

"5. What additional facts, if any, would such an inquiry reveal?

"6. Why did counsel refrain from moving to suppress evidence of the March 23 conversation on the ground that the evidence of that conversation was procured in violation of the Sixth Amendment?

"7. In light of those facts known, or which should have been known, to counsel, should counsel have moved to suppress the March 23 conversation on the ground that the evidence of that conversation was procured in violation of the Sixth Amendment?"

Judge Tochterman heard testimony, received exhibits, and submitted a report with extensive factual findings. As discussed in detail, post, he concluded that the facts known to petitioner's trial counsel relating to the tape recording of the van conversation should have prompted further investigation, and, in light of the facts that would have been discovered following diligent investigation, trial counsel should have raised an objection to the admission of the tape recording on the ground it was procured in violation of the Sixth Amendment to the United States Constitution as that provision has been interpreted by Massiah and its progeny.

As we explain, we conclude that petitioner's claim of ineffective assistance of counsel, based upon counsel's failure to raise a Massiah objection to the tape recording, has merit and that petitioner is entitled to habeas corpus relief on that ground. We therefore need not and do not discuss the other claims of ineffective assistance of counsel raised by petitioner.

II

To establish ineffective assistance of counsel, a petitioner must demonstrate that (1) counsel's representation was deficient in falling below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation subjected the petitioner to prejudice, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the petitioner. (Strickland v. Washington (1984) 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674; In re Wilson (1992) 3 Cal.4th 945, 950, 13 Cal.Rptr.2d 269, 838 P.2d 1222.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, supra, 466 U.S. at p. 694, 104 S.Ct. at p. 2068.)

Applying this standard, we review petitioner's claim of ineffective assistance based upon trial counsel's failure to seek suppression of the tape recording of the March 23 van conversation on the ground of Massiah error.

1. Background.

The factual and procedural background established by the appellate record relevant to petitioner's claim is set forth in our opinion in the companion case of People v. Neely, supra, 6 Cal. 4th at pages 881-892, 26 Cal.Rptr.2d 189, 864 P.2d 460. We shall summarize below the pertinent declarations submitted in support of the petition, the return, and the traverse, the evidence adduced at the evidentiary hearing, and the general factual findings set forth in the referee's report. " 'Our standard of review of the referee's report is settled. The referee's conclusions of law are subject to independent review, as is his resolution of mixed questions of law and fact. [Citations.] ... The referee's findings of fact, though not binding on the court, are given great weight when supported by substantial evidence. The deference accorded factual findings derives from the fact that the referee had the opportunity to observe the demeanor of witnesses and their manner of testifying. [Citation.]' " (In re Jackson (1992) 3 Cal.4th 578, 585, 11 Cal.Rptr.2d 531, 835 P.2d 371.)

At the time of his arrest on March 15, 1982, on charges related to the crimes in the present case, Centers had been acquainted with Deputy Erol Harnage for approximately 10 years. Centers had assisted Harnage or, through him, other law enforcement officers, by providing information relating to criminal activities, including unsolved crimes in which Centers was implicated. Approximately two weeks prior to his arrest on March 15, Centers furnished Deputy Harnage with information relating to several burglaries committed in Placer and El Dorado Counties, including the location of the items stolen. Although Centers was suspected of personal complicity in the commission of these crimes, no ensuing charges were filed against him. In connection with the investigation of these burglaries, Harnage informed a fellow deputy (Chalmer DeCecco) that he was acquainted with Centers sufficiently to know that, if implicated in the commission of a crime, Centers "would give everybody up, except his mother."

Based upon his preexisting relationship with Centers, Deputy Harnage believed that, if pressure were brought to bear upon him, Centers would ...