People v. Schultheis, 80SC229

• Decision Date: 19 October 1981
• Docket Number: No. 80SC229,80SC229
• Citation: 638 P.2d 8
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Glen O. SCHULTHEIS, Respondent.
• Court: Colorado Supreme Court

Page 8

638 P.2d 8

The PEOPLE of the State of Colorado, Petitioner, v. Glen O. SCHULTHEIS, Respondent.

No. 80SC229.

Supreme Court of Colorado, En Banc.

Oct. 19, 1981.

Rehearing Denied Dec. 7, 1981.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., J. Stephen Phillips, First Asst. Atty. Gen., Litigation Section, Jeffrey Weinman, Asst. Atty. Gen., Denver, for petitioner.

Craig A. Murdock, Denver, for respondent.

Dale Tooley, Dist. Atty., Second Judicial Dist., Brooke Wunnicke, Chief Appellate Dist. Atty., Stephen S. Marsters, Chief Deputy Dist. Atty., Denver, amicus curiae.

ERICKSON, Justice.

We granted certiorari to review People v. Schultheis, Colo.App., 618 P.2d 710 (1980), which held that defense counsel has an affirmative duty to withdraw when an accused demands that defense counsel call witnesses to present perjured alibi testimony. The court of appeals also held that, under such circumstances, the trial court must grant defense counsel's motion to withdraw. We reverse and remand to the court of appeals with directions to affirm the defendant's conviction for first-degree murder.

While incarcerated at the Denver County Jail, Glen O. Schultheis was charged with murder and sexual assault of one of his fellow inmates. The victim, Joseph C. Dodrill, was dubbed a "snitch" by other inmates. Schultheis agreed to kill Dodrill for $75. However, he waived the fee with the understanding that he would "have some fun" with the victim before he killed him. A plan was made to lead Dodrill back to his cell with Schultheis shortly before 7:00 p. m. on June 10, 1977, when jail cells were automatically locked for approximately two hours. During that time, Dodrill was strangled, his throat was cut, and he was stabbed repeatedly in the head and back. The words "Life is really a trip you know" were carved on the victim's back and buttocks. The body was discovered with a homemade knife implanted in the victim's back. Schultheis subsequently described the grisly homicide to several inmates, and said that he had sodomized Dodrill before he killed him. Some of the inmates saw Schultheis in the cell with Dodrill shortly after 7:00 p. m. Apart from the physical evidence, a number of inmates, after being granted immunity, testified as to the agreement made by Schultheis to kill Dodrill and as to the events which occurred after Schultheis and Dodrill were locked in the same cell together.

The defendant initially tendered a plea of not guilty by reason of insanity. He was then examined by two court-appointed psychiatrists, and admitted his culpability to both. ¹ When both psychiatrists reported that Schultheis was sane, the initial plea was withdrawn and Schultheis entered a plea of not guilty.

On the morning of trial, Schultheis arrived in jail clothing, asked for a continuance, and announced that he would not proceed to trial because his defense counsel was inadequate and unprepared. He asserted that his lawyer refused to subpoena two alibi witnesses who would testify that he was not in the cell with Dodrill at the time of the homicide. After some discussion, court-appointed defense counsel stated that he "refused to affirmatively put on evidence that (he knew) was fabricated." Counsel then asked to make a record outside the presence of the prosecutor and the trial judge, and moved to withdraw from the case on the grounds of irreconcilable differences. The court granted counsel the right to make a record, but denied the motions for continuance and for withdrawal.

Schultheis and his counsel made a record out of the presence of the trial judge and the prosecutor to establish the basis of their disagreement. The record showed that, two days before trial, the defendant asked his counsel to call certain witnesses from the Denver County Jail to testify in his behalf. Counsel refused, declaring that he would not call the prisoners as witnesses because he "knew their testimony would be fabricated" and that, as a lawyer, he had an ethical duty to refrain from presenting perjured testimony. Defense counsel, according to the record, knew that the witnesses would lie because of his own conversations with Schultheis and because of a prior conversation Schultheis had with one of the examining psychiatrists. ²

After defense counsel made his record, he proceeded to represent Schultheis at the trial. The two alibi witnesses were not called to testify, and Schultheis was convicted of first-degree murder.

Schultheis appealed to the court of appeals, which reversed his conviction. People v. Schultheis, supra. The court of appeals held that a lawyer has an affirmative duty to withdraw from a case in which his client is intent upon presenting perjured witness testimony, and, under such circumstance, the court must grant the lawyer's motion to withdraw. The court of appeals also held that a lawyer who withdraws from such a situation may not state the factual basis for the motion to withdraw. In its view, if counsel knows that his continued employment will result in a disciplinary violation, he must refer to the specific provisions of the Code of Professional Responsibility that prohibit a lawyer from using perjured testimony or false evidence. We granted certiorari, and for the reasons set forth in this opinion, we reverse the court of appeals.

I.

We first address the court of appeals' holding that a lawyer has an affirmative duty to withdraw from a case when his client insists upon presenting perjured testimony through alibi witnesses. In reaching its decision, the court of appeals concluded that Schultheis was denied effective assistance of counsel because his lawyer acted as an amicus curiae rather than as an active advocate. See generally, Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We disagree and conclude that, in this instance, the concepts of professional ethics and effective representation of a client are not inconsistent. ³

A.

The American adversary system of criminal justice is not inquisitorial, but accusatorial. It consists of the presentation of evidence to the judge or jury by trained advocates, according to established rules, so that conflicting factual issues may be resolved to arrive at the truth. The integrity of the adversary system can be maintained only if both prosecution and defense counsel present reliable evidence to guide the trier of fact. Honesty and candor are essential to the fair and impartial administration of justice. Consequently, a lawyer has a professional duty not to perpetrate a fraud upon the court by knowingly presenting perjured testimony or other false evidence. See C.R.C.P. 220; Code of Professional Responsibility, DR 7-102(A)(4), EC 7-26; ABA, Standards Relating to the Defense Function § 4-7.5(a) (2d ed. 1980) (hereinafter cited as ABA Defense Standards); People v. Radinsky, 176 Colo. 357, 490 P.2d 951 (1971); Herbert v. United States, 340 A.2d 802 (D.C.1975); People v. Pike, 58 Cal.2d 70, 372 P.2d 656, 22 Cal.Rptr. 664 (1962). See generally, M. Freedman, Lawyers' Ethics in an Adversary System, 32 (1975). It is unprofessional conduct for a lawyer, while representing a client, to perpetrate or aid in the perpetration of a crime or a dishonest act. See Code of Professional Responsibility, DR 7-102(A)(7), (8). A lawyer who presents a witness knowing that the witness intends to commit perjury thereby engages in the subornation of perjury. ⁴ We will not permit the truth-finding process to be deflected by the presentation of false evidence by an officer of the court. Therefore, we hold that a lawyer may not offer testimony of a witness which he knows is false, fraudulent, or perjured.

A lawyer's belief that a witness intends to offer false testimony, however, must be based upon an independent investigation of the evidence or upon distinct statements by his client or the witness which support that belief. A mere inconsistency in the client's story is insufficient in and of itself to support the conclusion that a witness will offer false testimony. In this case, the record shows a substantial basis for defense counsel's knowledge that the alibi witnesses would present perjured testimony. The reports of the examining psychiatrists and the defendant's own conversations with his lawyer are inconsistent with the allegation that defense counsel was usurping the province of the jury by judging the credibility of the proposed alibi witnesses. Accordingly, counsel was correct in refusing to call the witnesses which the defendant located to support his spurious defense of alibi.

B.

The court of appeals concluded that defense counsel departed from his role as an advocate and became an amicus curiae by continuing to represent Schultheis in light of their disagreement over calling the alibi witnesses. In its view, the continued representation deprived the defendant of the effective assistance of counsel guaranteed by the United States and Colorado Constitutions. ⁵ The weight of authority does not support such a conclusion. Defense counsel is not the alter-ego or mouthpiece of the accused, but is a trained advocate charged with representing an accused within the parameters of the Code of Professional Responsibility and according to his obligations and duties as an officer of the court. ABA Defense Standards § 4-1.1, Commentary at 4.9; Johnson v. United States, 360 F.2d 844 (D.C.Cir.1966) (Burger, J. concurring). It is the function of defense counsel, and not the defendant, to determine what witnesses will be called to support the defense case:

"The decisions on what witnesses to call, whether and how to conduct cross-examination, what jurors to accept or strike, what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with the client." ABA Defense Standards § 4-5.2(b). See also, ABA Defense Standards § 4-3.1(b).

The defendant, therefore, could...