People v. Pope

• Decision Date: 22 February 1979
• Docket Number: Cr. 20359
• Citation: 23 Cal.3d 412,152 Cal.Rptr. 732
• Court: California Supreme Court
• Parties: , 590 P.2d 859, 2 A.L.R.4th 1 The PEOPLE, Plaintiff and Respondent, v. Joseph Glenn POPE, Defendant and Appellant.

Page 732

152 Cal.Rptr. 732

23 Cal.3d 412, 590 P.2d 859, 2 A.L.R.4th 1

The PEOPLE, Plaintiff and Respondent, v. Joseph Glenn POPE, Defendant and Appellant.

Cr. 20359.

Supreme Court of California, In Bank.

Feb. 22, 1979.

As Modified on Denial of Hearing March 28, 1979.

Paul N. Halvonik, State Public Defender, Clifton R. Jeffers, Chief Asst. State Public Defender, and Ezra Hendon, Deputy State Public Defender, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., W. Eric Collins and Nathan D. Mihara, Deputy Attys. Gen., for plaintiff and respondent.

BIRD, Chief Justice.

Appellant, Joseph Glenn Pope, appeals from his conviction for second degree robbery. His sole contention is that he was denied his constitutional right to the effective assistance of counsel at trial.

I

Late in the evening of February 24, 1976, Herman E. Brower was robbed in a parking lot outside a bar in Cotati. Brower had just left the Trade Winds bar where he had been drinking. Brower testified that he had paid for a drink with a $20 bill and that a black man, with whom Brower had been chatting, had picked up the change and put it in his pocket. This man suggested that they go out for dinner and started to leave. Brower followed.

Once outside the bar, Brower heard footsteps behind him. The black man said to Brower, "He's coming with us." The next thing Brower remembered was being shoved to the ground by the black man, who then held Brower's legs for a white man, who removed Brower's wallet. Although intoxicated at the time of the robbery, Brower later identified appellant from a photographic line up as his black assailant. Brower could not identify appellant at trial.

The day after the robbery, Cotati police arrested appellant and seized a wallet which contained $56. ¹ At the stationhouse, appellant was advised of his Miranda rights, with an additional admonition by the police: "Further, you have the right to make any statement you wish which might clarify or explain your position in this matter." Appellant stated that he understood his rights and signed a waiver form.

After initially denying that he had even spoken to Brower at the Trade Winds bar, appellant changed his story several times, each time admitting a greater degree of involvement as the police confronted him with additional pieces of information. Ultimately, after trying to "make a deal," appellant told police he had witnessed the robbery which he said was committed by two white men and a black. Although the two white men, Harbin and Stoker, became police suspects in the robbery, it appears that only appellant was charged with the crime.

Two and one-half months before trial, the Sonoma County Public Defender was appointed to represent appellant. However, it was not until four working days before trial that the office assigned a deputy public defender to try the case. ²

Before trial, the court appointed a psychiatrist to assist in appellant's defense. Although the augmented record on appeal does not include the psychiatrist's report, the record does contain two previous psychological evaluations which showed that appellant's mental capabilities were limited. These reports, written in 1973 and 1975, placed appellant's intelligence in the "borderline defective" category of retardation. ³ The doctors who examined appellant stated that he "function(ed) intellectually like a child"; that he could not make change or drive a car; that he was gullible and suggestible; that instructions to him must be couched in "simple, concrete terms"; and that he had a "poor tolerance for ambiguity." ⁴

No evidence as to appellant's limited intelligence was introduced at trial or used before trial to challenge the admissibility of appellant's out-of-court statements to police. The sole defense presented by appellant's counsel was that the robbery was committed by the two other suspects, Harbin and Stoker. There was testimony that the two men were troublemakers and that they had followed appellant and the victim out of the bar on the night of the robbery. Appellant's counsel did not seek to subpoena Harbin and Stoker before trial.

In cross-examining a police officer, appellant's counsel sought to elicit extrajudicial statements made by one suspect to the other. The officer had overheard Harbin tell Stoker that "we were seen leaving the Trade Winds (but the police) haven't got any evidence and we don't have anything to worry about." The prosecutor objected on the grounds that such hearsay could not be admitted unless counsel made a showing that the declarant was unavailable. ⁵ Trial was adjourned to give defense counsel an opportunity to subpoena Harbin and Stoker.

On the following day, the deputy public defender produced Harbin and called him as a witness. On advice of a newly appointed private counsel, Harbin invoked his Fifth Amendment privilege. ⁶ Stoker, on the other hand, was not located and the prosecution questioned whether the public defender's office had exercised "reasonable diligence" in seeking to procure Stoker's attendance. ⁷ Defense counsel acknowledged that the only efforts to obtain Stoker's presence at trial had been made by telephone. When the court asked if counsel had reached Stoker, counsel responded: "No, your Honor, we were unable to. We did attempt to contact him last week. This case was actually assigned to an attorney on Tuesday. That particular attorney, being myself, was in hearing on Tuesday, Wednesday, Thursday and Friday, so the calls were made in the late afternoon, when he was apparently still at work, but those messages were not returned." ⁸

Counsel also offered an explanation as to why the calls were not returned: "Unfortunately, you see, Harbin's a client of ours, and he knows we are representing Pope, and he is not answering the phone calls."

The court accepted the deputy public defender's explanation and held that there had been due diligence in seeking to secure Stoker's presence. Later, Harbin's extrajudicial statement to Stoker was admitted into evidence.

In closing argument, defense counsel argued that the only direct evidence of appellant's participation in the robbery was the identification by the victim, who had been drinking on the night of the incident. At one point, counsel sought to minimize the significance of appellant's inconsistent statements to the police, suggesting that the inconsistency resulted from appellant's limited mental capacity. However, the court ordered her to discontinue that line of argument since no evidence had been introduced on that issue.

The jury found appellant guilty of second degree robbery. Following a diagnostic study and recommendation by the Department of Corrections, appellant was sentenced to state prison.

II

This court must determine whether appellant's legal representation at trial was inadequate. Two basic grounds are advanced by appellant: (1) the failure by counsel to make use of the record of appellant's limited intelligence; and (2) her failure to interview or subpoena the two other suspects, Harbin and Stoker, before trial commenced. In order to assess the adequacy of the legal assistance appellant received, this court must determine the proper standard by which trial counsel's performance is to be measured. ⁹

In People v. Ibarra (1963) 60 Cal.2d 460, 464, 34 Cal.Rptr. 863, 866, 386 P.2d 487, 490, this court articulated a strict standard to measure the constitutional right to " 'effective aid in the preparation and trial of the case.' (Powell v. State of Alabama, 287 U.S. 45, 71, 53 S.Ct. 55, 77 L.Ed. 158.)" In order to obtain relief on appeal, "(i)t must appear that counsel's lack of diligence or competence reduced the trial to a 'farce or a sham.' (Citations.)" (People v. Ibarra, supra, 60 Cal.2d at p. 464, 34 Cal.Rptr. at p. 866, 386 P.2d at p. 490.)

In several cases, this court has moved away from the "farce or sham" standard. For example, some decisions of this court have held that a defendant is entitled to counsel " 'reasonably likely to render, And rendering reasonably effective assistance.' (Citations.)" (In re Saunders (1970) 2 Cal.3d 1033, 1041, 88 Cal.Rptr. 633, 638, 472 P.2d 921, 926, original emphasis; In re Williams (1969) 1 Cal.3d 168, 176, 81 Cal.Rptr. 784, 460 P.2d 984.) Other decisions employ the alternative test of whether counsel "effectively suppl(ied) to a defendant those skills and legal knowledge which we can reasonably expect from any member of the bar." (People v. Cook (1975) 13 Cal.3d 663, 672-673, 119 Cal.Rptr. 500, 506, 532 P.2d 148, 154; People v. Steger (1976) 16 Cal.3d 539, 551, 128 Cal.Rptr. 161, 546 P.2d 665; People v. Camden (1976) 16 Cal.3d 808, 815, 129 Cal.Rptr. 438, 549 P.2d 1110.) ¹⁰

Insofar as it survives, the "farce or sham" standard (or its alter ego, the "farce and mockery" standard) has been widely criticized by legal scholars. (See generally, e. g., Bazelon, The Defective Assistance of Counsel (1973) 42 U.Cin.L.Rev. 1, 28; Finer, Ineffective Assistance of Counsel (1973) 58 Cornell L.Rev. 1077, 1078-1081; Note, Ineffective Representation as a Basis for Relief from Conviction: Principles for Appellate Review (1977) 13 Colum.J. of L. & Soc. Prob. 1, 32-37.) A growing number of other jurisdictions have repudiated it outright. (E. g., Moore v. United States (3d Cir. 1970) 432 F.2d 730, 737 (en banc); United States ex rel. Williams v. Twomey (7th Cir. 1975) 510 F.2d 634, 641; State v. Harper (1973) 57 Wis.2d 543, 552, 557, 205 N.W.2d 1, 6, 9; People v. Garcia (1976) 398 Mich. 250, 266, 247 N.W.2d 547, 553.) Significant among these jurisdictions is the federal Court of Appeals for the District of Columbia, the very court which enunciated the "farce and mockery" rule in the first instance. (See United States v. DeCoster (1973) 159 U.S.App.D.C. 326, 330-331, 487 F.2d 1197, 1201-1202; Beasley v. United States (6th Cir. 1974) 491 F.2d 687, 693-694.)

The...