Sanborn v. State

• Decision Date: 16 July 1985
• Docket Number: No. 85-949,85-949
• Citation: 10 Fla. L. Weekly 1733,474 So.2d 309
• Parties: 10 Fla. L. Weekly 1733 Russell J. SANBORN, Petitioner, v. The STATE of Florida, Respondent.
• Court: Florida District Court of Appeals

Page 309

474 So.2d 309

10 Fla. L. Weekly 1733

Russell J. SANBORN, Petitioner, v. The STATE of Florida, Respondent.

No. 85-949.

District Court of Appeal of Florida,

Third District.

July 16, 1985.

Rehearing Denied Sept. 9, 1985.

Ellis S. Rubin, Miami, for petitioner.

Jim Smith, Atty. Gen., and Julie S. Thornton, Asst. Atty. Gen., for respondent.

Before NESBITT, DANIEL S., PEARSON and FERGUSON, JJ.

NESBITT, Judge.

Through a petition for writ of certiorari, the defendant's attorney, Ellis Rubin, requests this court to quash the trial court's order denying his motion to withdraw as defense counsel.

The defendant is charged with first degree murder and a number of other crimes. In April 1984, the public defender was appointed to represent the defendant. In July 1984, the defendant requested that a special public defender be appointed due to conflicts with his then-attorney. The court granted the defendant's request and appointed the attorney of the defendant's choosing. A few weeks later, the newly appointed attorney appeared before the court and asked permission to withdraw, claiming that as a one-man office, he could not adequately prepare a defense in the case. The court granted this request and appointed a third defense attorney. The case proceeded toward trial, scheduled for April 29, 1985, until the defendant decided he could no longer communicate with his attorney and, in February 1985, requested a fourth attorney, Rubin, be appointed. The trial court denied this request. Subsequently, Rubin appeared before the court and requested to be substituted as defense counsel as he had been retained by the defendant's mother (apparently for no fee). Rubin represented to the court that he would be ready for trial on April 29, 1985. After several assurances from the defendant that he would continue with Rubin as his counsel, the court allowed the substitution.

On Thursday and Friday, April 25-26, 1985, Rubin confronted the defendant and his mother (an alleged key witness) "with facts and the results of physical evidence tests gathered through discovery" and the defendant and his mother "confided new and contradictory details and heretofore unknown explanations" to Rubin. In addition, the defendant "issued certain instructions to Rubin as to the strategy and tactics to be employed at the trial." Based on these events, Rubin petitioned the trial court on April 29, 1985, just prior to jury selection, to withdraw as defense counsel. The defendant did not oppose the withdrawal. During argument on the motion, the court asked Rubin to reveal the factual matters underlying his motion. The defendant refused to consent to the disclosure and, therefore, Rubin correctly upheld his ethical obligation and refused to reveal the confidential communications. See Fla.Bar Code Prof.Resp., D.R. 4-101. Following argument, the trial court denied Rubin's motion to withdraw and ordered him to proceed to trial. ¹

It is apparent from the record before us that the basis for Rubin's motion is that the defendant has directed Rubin to present evidence and/or testimony and argue facts which Rubin knows to be false. We recognize that Rubin, as an attorney, is placed in a serious dilemma between his role as an advocate of his client's best interests and as a guardian of the integrity of the judicial system in these circumstances. The ethical obligations of an attorney require him to represent his client zealously, but this zealous representation must stay within the bounds of the law. Fla.Bar Code Prof.Resp., Canon 7. Looking first at Rubin's actions after learning of the "new ... details ... and explanations" and being directed by defendant to proceed in a particular manner, we are of the opinion that Rubin has acted according to the moral and ethical obligations required of him as a member of the legal profession.

In representing a client, an attorney is held to strict requirements under the law and Florida's Disciplinary Rules which prohibit the use of fraudulent, false or perjured testimony or evidence. A lawyer may not knowingly use perjured testimony or false evidence or make a false statement of law or fact. In addition, a lawyer may not participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false; nor may he counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent. Fla.Bar Code Prof.Resp., D.R. 7-102(A). See also Fla.Bar Code Prof.Resp., D.R. 1-102; The Florida Bar v. Agar, 394 So.2d 405 (Fla.1980). A lawyer should not make any prefatory statement before a tribunal in regard to the purported facts of the case on trial unless he believes that his statement will be supported by admissible and credible evidence. Further, a lawyer should not by subterfuge put matters before a jury which the jury should not properly consider. See Fla.Bar Code Prof.Resp., E.C. 7-25.

The law requires honest, loyal, genuine, and faithful representation of a defendant by his attorney, whether employed or court-appointed. A lawyer's professional duty requires him to be honest with the court and to conform his conduct to recognized legal ethics in protecting the interests of his client. Counsel, however, is never under a duty to perpetrate or aid in the perpetration of a crime or a dishonest act to free his client. Neither is he required to stultify himself by tendering evidence or making any statement which he knows to be false as a matter of fact in an attempt to obtain an acquittal at any cost. In conducting his task, counsel should be guided by the standard [of using] "all fair and honorable means" ... in discharging the duty ... "to present every defense that the law of the land permits, to the end that no person may be deprived of life or liberty, but by due process of law." [citations omitted]

State v. Henderson, 205 Kan. 231, 468 P.2d 136, 140 (1970). Accord Carr v. State, 180 So.2d 381 (Fla. 2d DCA 1965). See also Thornton v. United States, 357 A.2d 429, 437-38 (D.C.App.), cert. denied, 429 U.S. 1024, 97 S.Ct. 644, 50 L.Ed.2d 626 (1976).

The high ethical standards required of a criminal defense attorney are not inconsistent with the zealous representation which is guaranteed an accused and which the attorney is obligated to provide. Instead, both are designed to achieve the truth-finding goal of our legal system. People v. Schultheis, --- Colo. ----, 638 P.2d 8, 12 (1981) (En Banc). See also Henderson, 468 P.2d at 141. Our legal system provides for the adjudication of disputes governed by rules of substantive, evidentiary and procedural law. The objective of our system is to ascertain an accused's guilt or innocence in accordance with established rules of evidence and procedure designed to develop the facts truthfully and fairly. An adversary presentation counters the natural human tendency to judge too swiftly in terms of the familiar that which is not yet fully known. The duty of a lawyer to his client and his duty to the legal system are the same: to represent his client zealously within the bounds of the law. See Fla.Bar Code Prof.Resp., E.C. 7-19; Schultheis, 638 P.2d at 12. Henderson, 468 P.2d at 141.

The foregoing analysis does not mandate that a trial court allow an attorney to withdraw from a case whenever his client insists on presenting false testimony or evidence through either the client's own testimony or another witness' testimony. Regardless of the client's wishes, defense counsel must refuse to aid the defendant in giving perjured testimony and also refuse to present the testimony of a witness that he knows is fabricated. When a serious disagreement arises between defense counsel and the accused, and counsel is unable to dissuade his client from insisting that fabricated testimony be presented, counsel should request permission to withdraw from the case. If the motion to withdraw is denied, however, he must continue to serve as defense counsel. So long as the attorney performs competently as an advocate under the circumstances, the defendant is represented effectively and the integrity of the adversary system of justice is not compromised. Schultheis, 638 P.2d at 13. See State v. Lee, 142 Ariz. 210, 689 P.2d 153, 163 (1984) (En Banc).

Rubin does not face such a serious dilemma with regard to the defendant's instructions regarding trial strategy and tactics. The power to decide questions of trial strategy and tactics ultimately rests with counsel. Lee, 689 P.2d at 158. One such tactical, strategic decision concerns counsel's determination of what witnesses to call and what evidence to present. Id.; Schultheis, 638 P.2d at 12. Thus, a defendant cannot compel his counsel to call witnesses to present a fabricated alibi or any other false testimony, nor compel the introduction of false evidence. Schultheis, 638 P.2d at 12. See People v. Williams, 2 Cal.3d 894, 88 Cal.Rptr. 208, 471 P.2d 1008 (1970) (In Bank), cert. denied, 401 U.S. 919, 91 S.Ct. 903, 27 L.Ed.2d 821 (1971); State v. Robinson, 290 N.C. 56, 224 S.E.2d 174 (1976). See also United States v. Curtis, 742 F.2d 1070, 1074-75 (7th Cir.1984). Since a defendant's right to effective assistance of counsel does not include the right to require his attorney to perpetrate a fraud on the court, it is generally considered that a refusal to call a particular witness because of obedience to ethical standards which prohibit the presentation of fabricated testimony does not constitute ineffective assistance of counsel. See Schultheis, 638 P.2d at 12 and authorities cited. In fact, the Supreme Court of Arizona has held that succumbing to a client's demand to elicit obvious perjurious testimony from witnesses amounts to ineffective assistance of counsel since the attorney, thereby, fails to fulfill his duty to make the tactical, strategic decisions at trial. Lee, 689 P.2d at 159.

Tactical decisions require the skill, training and experience of the advocate. A criminal defendant, generally...