Sobel v. State, 89-1254
| Decision Date | 13 June 1990 |
| Docket Number | No. 89-1254,89-1254 |
| Citation | 564 So.2d 1110 |
| Parties | 15 Fla. L. Weekly D1577 Dawn Ann SOBEL, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Patrick C. Rastatter of Glass & Rastatter, P.A., Fort Lauderdale, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Deborah Guller, Asst. Atty. Gen., West Palm Beach, for appellee.
Dawn Ann Sobel, appellant herein, and three others were indicted for first-degree murder in the killing of a police officer during an effort to free Sobel's boyfriend, Eaton, while he was being transported from prison to a dentist. Sobel enlisted the help of a codefendant, Gombos, and participated in the plan to effectuate Eaton's escape. At the appointed time and place, Sobel and Gombos, both of whom were armed, approached the police van transporting Eaton, and Gombos fired a shotgun that killed one of the officers guarding Eaton. Gombos was convicted of second-degree murder, while Sobel was convicted of first-degree murder in a separate trial. That conviction was affirmed on appeal to this court, 410 So.2d 556, and by the Supreme Court of Florida. Thereafter, Sobel instituted this proceeding for post-conviction relief, which, after an evidentiary hearing, resulted in a denial of the motion. Based upon the record presented, appointed counsel for Sobel has made a very compelling case for post-conviction relief based upon ineffective assistance of counsel.
In her appellate presentation, Sobel contends she is entitled to relief because her counsel, Michael Cohen, failed to investigate, prepare, and try the first-degree murder case for which the defendant was indicted. As a result, Sobel sets forth four grounds that she claims prove her counsel fell below the standard required of adequate counsel in that: 1) her counsel advanced an insanity defense, knowing there was a total absence of any evidence to support it, which destroyed the credibility of the defense; 2) counsel elicited prejudicial testimony from witnesses he knew to be adverse; 3) he failed to pursue pretrial suppression of damaging physical evidence; and 4) he failed to withdraw from further representation despite being instructed to do so by the accused and her family.
Regarding the first ground asserted, although Sobel had no past or present psychiatric history, Michael Cohen had her examined by a psychologist who found she was able to differentiate between right and wrong at the time of the offense. This prompted the state to have her examined by a psychiatrist who came to the same conclusion. With no credible evidence to support such a theory, Michael Cohen, in voir dire and opening statement, announced he would rely on insanity as a defense. With no evidence to support it, the defense was eventually stricken by the court. Sobel argues that pursuing such a theory hurt her credibility with her main defense, which was that, although she had participated in the planning of the escape which included shooting Eaton's guards, she abandoned her plan to participate and was attempting to warn the deputy at the time of the shooting. She contended she never pulled out her gun.
During the course of the trial, Michael Cohen called the psychologist as a witness, but asked that he be allowed to make a proffer of his testimony, which confirmed the doctor's conclusion that, at the time of the offense, Sobel knew the difference between right and wrong. With no other testimony to support the insanity defense, the court struck it and disallowed the psychologist's testimony.
Further, Michael Cohen called Sobel's mother as a witness and she also testified that at the time of the offense Sobel knew the difference between right and wrong. Another witness called by Michael Cohen was Jean-Paul DuBois, who testified that Sobel was part of the group who planned the Eaton escape and that Sobel was to procure a shotgun and, at the appointed time, was to shoot the deputy guarding Eaton so as to effectuate the escape. Sobel's stepfather, also called by the defense, testified that he had taught her how to use firearms and that she was a proficient marksman.
After the first week of trial, during the presentation of the defense, Michael Cohen approached the bench and moved the court for a mistrial on the ground that he had been ineffective in his representation of the defendant! The trial judge denied the motion. But the anomaly did not end there. It seems Michael Cohen had employed a young lawyer, James Bonfiglio, who was three months out of law school, to assist him in the defense of the case. In support of Michael Cohen's motion for mistrial, Bonfiglio advised the court that, during the previous weekend recess, he had consulted two lawyers and a sitting judge regarding what he perceived as inadequate representation by Michael Cohen. He pointed out Michael Cohen's assertion of insanity despite no evidence to support it, and the calling of witnesses whose testimony it was known would be prejudicial to Sobel's case. As a result of his conversations and the advice he received from these other people, he decided to make a motion for mistrial and so advised both the state and Michael Cohen. This apparently prompted Michael Cohen to make the motion himself.
The final major breach of ordinary trial procedure raised by Sobel was Michael Cohen's failure or refusal to seek suppression of the physical evidence that the police obtained by searching Sobel's handbag. The items found therein ultimately led to her confession. Sobel contends that a motion to suppress had a good chance of being granted, which in turn would have precluded use of a great deal of evidence that flowed from the illegal search. At the evidentiary hearing, Michael Cohen acknowledged that he knew of the incriminating nature of that evidence, but he simply failed to take any steps to suppress it.
During the rule 3.850 evidentiary hearing leading to the order appealed from, Bonfiglio testified that he participated in the pretrial preparation of the case and, although a neophyte, he was concerned over Michael Cohen's defense strategy. He knew there was no evidence to support the insanity defense and told Michael Cohen so. He also advised Michael Cohen that, based on DuBois's pretrial statement, he would certainly hurt the defendant's case. When he questioned Michael Cohen as to why he persisted in calling the witness anyway, Michael Cohen had no explanation. Bonfiglio testified that Sobel became very dissatisfied with Michael Cohen as a result of this turn of events. Both she and her mother, who hired Michael Cohen, attempted to discharge Michael Cohen, but he refused to leave the case. Finally, Michael Cohen admitted at the rule 3.850 hearing that at the time of trial he was experiencing health problems that affected his handling of the case and militated against Sobel's best interests.
A thorough examination of the record of the proceedings in the...
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