Phan v. State
| Decision Date | 27 February 2012 |
| Docket Number | No. S11A1909.,S11A1909. |
| Citation | 290 Ga. 588,12 FCDR 587,723 S.E.2d 876 |
| Parties | PHAN v. The STATE. |
| Court | Georgia Supreme Court |
OPINION TEXT STARTS HERE
Bruce S. Harvey, Jennifer S. Hanson, K. Julie Hojnacki, Atlanta, Kimberly H. Cornwell, Christopher W. Adams, for appellant.
Daniel J. Porter, Dist. Atty., Lisa A. Jones, Asst. Dist. Atty., for appellee.
This murder case, in which the State seeks the death penalty, returns to us for a second pre-trial appeal in which we must address the consequences of a financially strained indigent defense system operating within a recession-era State budget. In Phan v. State, 287 Ga. 697, 699 S.E.2d 9 (2010) (“ Phan I ”), we vacated a prior trial court order and remanded the case for a more comprehensive analysis as to Appellant Khahn Dinh Phan's claim of a constitutional speedy trial violation, grounded in his assertion of a “systemic breakdown” in the public defender system. The trial court having complied with this directive, Phan now appeals the resulting order in which the trial court denied Phan's speedy trial claim and ordered the replacement of his appointed private attorneys with salaried counsel from the capital defender's division of the Georgia Public Defender Standards Council (“GPDSC”).1 FOR THE REASONS Set forth below, we conclude that the trial court properly denied Phan's motion to dismiss on speedy trial grounds and did not abuse its discretion in replacing Phan's counsel.
As set forth in Phan I,
on December 29, 2004, Hung Thai and his two-year-old son were murdered “execution style” by gunshots to the back of the head. Hung's wife, Hoangoah Thai, was also shot in this manner, but she survived. After waking up from a seven-week coma, Hoangoah left for Vietnam, her family's native country. When interviewed by Georgia detectives over the telephone, Hoangoah identified Phan as the person responsible for the shootings.
Id. at 697–698, 699 S.E.2d 9. Phan was arrested in March 2005 and indicted in September 2005. In October 2005, the State filed its notice of intent to seek the death penalty. Attorney Christopher W. Adams, then the Director of the Office of the Georgia Capital Defender,2 filed an entry of appearance on Phan's behalf in January 2006; 3 attorney Bruce Harvey, who was originally retained in the case prior to the filing of the death notice, has remained as Adams' co-counsel.4 Phan's first Unified Appeal hearing was held in February 2006. The State produced its discovery materials in October 2006, and the defense filed more than 50 pre-trial motions in November 2006; that same month, the trial court entered an order removing the case from the trial calendar until all pre-trial motions had been heard and resolved.
In December 2007, defense counsel submitted a written request to the Capital Defender's Office for authorization of funds for the defense team—including both attorneys, a mitigation specialist, and a translator—to travel to Vietnam for investigation both as to guilt/innocence and mitigation. In January 2008, funds for the trip were approved in part, allowing for only one attorney to make the trip; this decision was apparently in accordance with a recently adopted GPDSC policy limiting funding for out-of-state mitigation travel to a single attorney per case. Believing that both attorneys were necessary to conduct a sufficient investigation in Vietnam, the defense deferred its travel plans and alerted the trial court to their problems in funding the trip.
In August 2008, the defense filed a motion 5 requesting that the trial court order the authorization of sufficient funds to cover travel for both attorneys, contending that denying the ability of both counsel to participate fully in the mitigation investigation would prevent them from providing constitutionally required effective representation in accordance with recognized standards for death penalty defense. At the August 29, 2008 hearing on this motion, the defense adduced testimony from the then-GPDSC Director to the effect that, due to the deteriorating State budget situation, there were at that time no funds available for any proposed travel for Phan's case. Noting the significance of the investigation in Vietnam to the defense strategy both in the guilt/innocence phase and at sentencing for mitigation purposes, the defense asked the trial court either to strike the death notice 6 or to continue the case indefinitely until sufficient funds were available. The court declined at that point to adopt either of these measures, but expressed concern at the funding problems and pledged to ensure a fair trial.
In April 2009, on the day before a long-scheduled motions hearing, the defense filed a constitutional speedy trial demand and a motion to dismiss for the State's failure to provide sufficient resources for the defense. At the outset of the hearing, defense counsel requested a continuance on the basis that the GPDSC had stopped paying their fees in the case. The defense presented testimony to the effect that the then-Director of the GPDSC, having received a recent State audit report indicating potential constitutional problems with the funding structure for GPDSC's arrangements with outside counsel, had suspended further payments for Phan's case and approximately ten other similarly situated cases. Further testimony revealed that the GPDSC had asked the legislature for a special appropriation to address the situation but had been unsuccessful. Thus, at that point in time, there was no funding available for any aspect of Phan's defense, nor was there any money appropriated for it in the budget for the following fiscal year, ending June 30, 2010. Arguing against dismissal, the District Attorney candidly conceded that Phan was not being afforded sufficient resources for his defense; nonetheless, the prosecution contended that dismissing the case and striking the death notice were not appropriate remedies and suggested that appellate guidance would ultimately be necessary to resolve the issues.
The trial court denied the defense's motions in a May 2009 order which also purported to certify the case for interlocutory or interim review. In its order, the trial court made various findings of fact regarding the progression of the case, concluding that the GPDSC was at that time unable to provide any further funds for the defense and that there was “[n]o end ... in sight to this situation.” The court further concluded that “by a systemic failure GPDSC is denying Mr. Phan the basic resources to mount an effective defense.” However, uncertain of its authority to undertake the remedies requested by the defense, the trial court denied the requested relief and stated that it would “await [ ] further direction from the Georgia Supreme Court on how to proceed.”
On appeal, this Court vacated the trial court's order and remanded the case with instructions to (1) conduct further analysis on the existence of a “systemic breakdown” in the public defender system, see Vermont v. Brillon, 556 U.S. 81, 94–95(III)(C), 129 S.Ct. 1283, 173 L.Ed.2d 231 (2009), and (2) apply its findings in resolving the merits of Phan's speedy trial claim. In addressing the first issue, we directed the trial court specifically to determine “whether, with regard to the individualized facts of this specific case, the entire public defender system has broken down such that no publicly-funded and constitutionally-effective attorney from any source was available to represent Phan.” Phan I, supra, 287 Ga. at 697, 699 S.E.2d 9. We further instructed:
The trial court's assessment should include an analysis of alternative sources of funding and alternative representation if necessary under the circumstances of this particular case.... The trial court may also want to consider alternatives to travel to Vietnam, such as phone or internet interviews of witnesses.
Id. at 698–699, 699 S.E.2d 9. The determination as to the existence of a “systemic breakdown” in the public defender system, we explained, “becomes part of the balance in determining whether a speedy trial violation has occurred” under the well established framework of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Phan I, supra, 287 Ga. at 700, 699 S.E.2d 9.
The trial court held a remand hearing in October 2010. By that time, a limited pool of funds had been located from which the GPDSC had been able to pay all of Adams' past-due bills in full. Testimony was adduced that this pool of funds was potentially available for Phan's defense going forward, though whether this was a legally legitimate use of these particular funds was the subject of debate. Further testimony was presented that funding for the defense could also potentially be made available from Gwinnett County. Another option, according to the hearing testimony, was for the GPDSC to terminate its contract with Adams and Harvey and bring the case back “in house” to the GPDSC capital defender division. The director of the capital defender division testified that his office had recently hired an additional staff attorney, and that, while his “first choice” would be to keep the case in Adams' and Harvey's hands for the sake of continuity, his office, if necessary, would be able to fully staff the case within a few months.
Based on this testimony, the trial court found that the public defender system was not irretrievably broken, as constitutionally effective attorneys were then available to represent Phan. Noting that Adams had recently relocated his law practice to South Carolina, the court further ordered that Adams and Harvey be removed as counsel and that staff attorneys from the capital defender division be “immediately assigned” to Phan's case. Having found no systemic breakdown in the public defender system, the trial court proceeded to conduct a speedy trial analysis and rejected Phan's claim of a speedy trial violation. The case is now ripe for our review.
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