People v. Cole, 87SA293

• Decision Date: 05 June 1989
• Docket Number: No. 87SA293,87SA293
• Citation: 775 P.2d 551
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Henry R. COLE, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 551

775 P.2d 551

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Henry R. COLE, Defendant-Appellee.

No. 87SA293.

Supreme Court of Colorado En Banc.

June 5, 1989.

Rehearing Denied July 17, 1989.

Barney Iuppa, Dist. Atty., David H. Zook, Chief Deputy Dist. Atty., Colorado Springs, for plaintiff-appellant.

Elvin L. Gentry, P.C., Elvin L. Gentry, Colorado Springs, for defendant-appellee.

ROVIRA, Justice.

The People challenge the trial court's order granting the defendant a new trial on the grounds that he did not receive effective assistance of counsel. ¹ Because the record supports the trial court's ruling, we affirm.

I.

Defendant, Henry R. Cole, was charged with felony theft and forgery arising from a transaction between Cole and the Cripple Creek-Victor School District (school district). Cole was an insurance agent in Cripple Creek, Colorado, and was affiliated with Advantage II, a licensed insurance agency in Colorado Springs, Colorado.

In July 1984, Cole persuaded the school district to purchase its insurance coverage from him. Cole accepted a premium payment from the school district and submitted an application for coverage with several insurance companies. Although none of the companies approved the application for coverage, Cole gave the school district several papers purporting to provide coverage.

Clifford Young, the school district superintendent, became suspicious that the papers he was given did not provide coverage and attempted to ascertain whether the school district was in fact covered under any insurance policy. When he was unable to verify coverage by any of the insurance companies that Cole purported to represent, Young initiated an investigation with the sheriff's department and the district attorney's office. As a result of the investigation, theft and forgery charges were filed.

On November 21, 1985, a jury trial began in Teller County District Court. Throughout the proceedings, Cole was represented by Richard Payne who was licensed to practice law in Colorado at the time. Cole was convicted of felony theft and acquitted of forgery. On January 24, 1986, after the trial court denied his motion for new trial, Cole was sentenced to two years with the department of corrections.

After sentencing, Cole was released on bond pending appeal. Payne, however, failed to perfect an appeal. Cole then retained new counsel to represent him. On October 9, 1986, Payne was suspended from the practice of law in Colorado based on disciplinary proceedings in Indiana which culminated in his disbarment in that state. After complaints were filed against Payne in Colorado, including a grievance filed by Cole, the Colorado Supreme Court Grievance Committee recommended that Payne be disbarred. On June 15, 1987, this court approved that recommendation, and Payne was disbarred. See People v. Payne, 738 P.2d 374 (Colo.1987).

Through his new counsel, Cole moved to set aside his conviction pursuant to Crim.P. 35(c) on the ground that Payne failed to provide effective assistance of counsel. At the hearing on his motion, before the same judge who presided at the trial, numerous witnesses testified regarding Payne's failure to adequately prepare for trial, his misconduct during trial, and the prejudice to Cole resulting from Payne's representation.

Rulon Larsen, a shareholder of Advantage II with whom Cole was affiliated, stated that, before he testified at trial, he was not contacted by Payne regarding documents which could possibly have been exculpatory. Clifford Young, the school district superintendent, stated that he was not contacted by Payne regarding the nature of his testimony and did not speak to Payne until the trial. George Scott Briggs, an attorney appointed by the grievance committee to inventory Payne's files, testified that he found a small disorganized file for Cole's case that contained no significant work product and indicated no preparatory work by Payne. Furthermore, the Teller County Sheriff and two investigators from the district attorney's office, all of whom investigated the case, testified that they were not contacted or interviewed by Payne regarding the case.

Willard Hinkley, an insurance agent subpoenaed by Payne to testify as an expert on insurance matters, stated that he did not meet Payne or speak to him before the trial. According to Hinkley, after sitting outside the courtroom during the first day of trial, he was introduced to Payne by the deputy district attorney who was trying the case. Payne did not ask him what his expert opinion was regarding several documents in the case until that time, and prior to that time, Hinkley was not asked to review any documentation in the case.

Frieda Owens, Payne's former secretary, testified that she made no appointments for Payne to interview witnesses in Cole's case, and on the Friday before the trial was set to begin, Payne asked her to go to the district attorney's office to copy documents from the district attorney's files. Because she was unfamiliar with the case and the documents were numerous, she asked Payne to assist her. Instead of doing so, Payne sent Cole to the district attorney's office to help Owens copy the relevant documents. Owens also testified that Payne was irrational and was using cocaine at the time of his representation of Cole. Finally, Owens testified that she did not know of any positive steps that Payne took to investigate the case.

Dennis Hartley, an experienced criminal defense attorney, testified as an expert in criminal defense matters. Based on his investigation of the case and his review of the trial transcript, Hartley testified that it was his opinion that Payne failed to provide effective assistance of counsel. Not only did Hartley testify that Payne made several tactical errors which generally do not support a finding of ineffective assistance of counsel, but he also pointed out that Payne failed to interview witnesses, failed to prepare an expert witness, failed to introduce certain documents which could have been exculpatory, and failed to investigate the case. Payne also failed to timely file the notice of appeal which, in Hartley's opinion, constituted ineffective assistance of counsel by itself. In addition, Hartley testified that if Payne had properly prepared the case, then the trial would have had a different result.

Finally, Cole testified that he only met with Payne four or five times, and none of the meetings lasted more than 15 minutes. Cole also testified to the following examples of misconduct by Payne. After receiving $1,000 to submit a motion attacking the trial court's finding of probable cause, Payne did not file the motion, but instead used the money to go to a party in another state. Less than a week before trial, Cole went to Payne's office to discuss the case and found that Payne had not subpoenaed witnesses or prepared any exhibits for trial. During the trial, Payne told Cole that he would not proceed unless Cole paid him more money. Cole also formulated the questions to be asked of each witness based on his perception of what each witness should know because Payne had gathered no information about the witnesses. When questioned about why he did not attempt to retain another attorney, Cole responded that Payne was a "very good talker" and was able to convince him that he knew what he was doing. According to Cole, it was not until later that he learned of the extent to which Payne's representation was incompetent.

After hearing the testimony of these witnesses, the trial court took the matter under advisement. In ruling that Payne failed to provide effective assistance of counsel, the trial court applied Strickland v. Washington, 466 U.S. 668, 104...