State v. Jury

Decision Date14 February 1978
Docket NumberNo. 2632-II,2632-II
Citation576 P.2d 1302,19 Wn.App. 256
PartiesThe STATE of Washington, Respondent, v. Jerry JURY, Appellant.
CourtWashington Court of Appeals

Lar Halpern, Rochester, for appellant.

Jeremy R. Randolph, Pros. Atty., Chehalis, for respondent.

PEARSON, Chief Judge.

Defendant Jerry Jury was the driver of a sports car which crashed into a parked truck in the city of Centralia, Washington, on July 17, 1976. There were two passengers in Jury's car: Mike Perry, who escaped injury, and Laura Daarud, who was slightly injured and required emergency medical aid. Jury appeared to some witnesses to be slightly shaken up and perhaps intoxicated, but he did not require emergency care. When Centralia police arrived at the scene and asked to see Jury's license, he became belligerent and had to be placed under arrest. While handcuffed and seated in the back of a police car, he kicked out one of the door windows. Later at the police station, he got into an argument with Officer Nelson regarding a breathalyzer test, and punched Nelson in the face. Jury was charged with and convicted of first-degree malicious mischief for kicking out the car window, and third-degree assault for punching Officer Nelson. We affirm the conviction for third-degree assault, but reverse the conviction for first-degree malicious mischief.

Counsel on appeal, who was not counsel at trial, alleges that trial counsel provided ineffective assistance of counsel because he was inadequately prepared and inadequately investigated his client's case. Trial counsel was appointed on August 9, 1976 at defendant's request because defendant could no longer afford retained counsel. The trial was scheduled for September 1; both of the charges involved were felonies. By his own admission, appointed counsel was inexperienced. In an affidavit submitted with this appeal, he states that "this was my first really contested criminal trial."

His affidavit in support of attorney's fees shows that he performed the following work prior to trial: He met with defendant Jury for 1/2 hour on August 10, and for 1/2 on August 24; he spent 1/2 hour analyzing the officer's report on August 22; he labored 1 hour to prepare an insanity plea on August 25, and argued the plea in court on August 30; and on August 31, he took 6 hours to prepare for trial.

After carefully examining the record, we find no hint that counsel interviewed any of the witnesses other than Mike Perry, with whom he held a brief telephone conversation 2 weeks before trial. No attempt was made to confer with Jury's retained counsel, who had represented him at his arraignment. The general tenor of the record is that counsel made no substantial effort to research the law and the facts of the case until several days before the trial. This impression is made stronger by counsel's motions for continuance because of lack of preparation, and the number of issues raised on appeal which were not raised at trial.

Two days before trial, counsel sought a continuance in order to develop a defense of insanity which he stated had not become known to him until August 24, 1 week prior to trial. In support of his motion, he offered the affidavit of defendant Jury in which Jury stated that he suffered from "strong feelings of claustrophobia," and "a possible state of shock from being in an injury accident." There were no accompanying statements from family or friends who were familiar with Jury's history of claustrophobia. There were no affidavits or statements by persons medically qualified who would have known of or could diagnose Jury's psychiatric problems. No attempt was made to secure statements from witnesses at the accident scene regarding Jury's condition at the time, and no effort was made to contact a Dr. Burden who Jury claims treated him 2 or 3 days after the accident. The motion was denied.

On the morning of trial, counsel again moved for a continuance. The ground this time was that he had been unable to secure the presence of two defense witnesses, Mike Perry and Laura Daarud, who he claimed were "necessary for our defense." Both were residents of Lewis County, and were the only two witnesses on defendant's list. It should be pointed out that this list was filed on August 31, only after the prosecutor made a motion to compel defendant to list his witnesses and state the general nature of his defense. A subpoena had been issued for Daarud on August 31, but service was not accomplished. No subpoena was issued for Perry. The colloquy between counsel and the trial court shows that Perry had been interviewed briefly some weeks before, but no effort had been made to determine whether he would appear as a witness. No effort had been made to interview Daarud.

Both trial counsel and the defendant plainly indicated to the trial court that the defense was unprepared for trial. At the hearing on the motion for continuance on the day of the trial, the defendant told the court, "I really feel that this is completely unprepared and totally unready to go to court." The defendant's mother, Mrs. Stallman, was also allowed to testify at the hearing. She stated:

I'm not degrading (defense counsel's) capabilities, but I think he was under the impression that it was a misdemeanor at the time. . . . 'I don't see the seriousness of it,' he said, 'because there are only two charges, the malicious mischief and the second degree (sic ) assault.' He said that should only take a couple of days to prepare, and then, if he recalls our conversation, I informed him that it was now a felony . . .

The motion for continuance was denied.

Counsel also raised his own unpreparedness as grounds in a motion for a new trial. At the hearing on this motion, defendant claimed to have 3 lay witnesses, all of whom could testify as to his physical and/or mental condition shortly before and after the accident. These witnesses, according to defendant, would have supported his testimony (1) that he had not consumed sufficient alcohol prior to the accident to produce intoxication, and (2) that his bizarre post-accident behavior was the result of shock, due to injuries received in the accident, as well as from claustrophobia. Defendant also asserted that Dr. Burden, who examined him several days after the accident, would have supported his contention that he suffered a concussion, dizziness, and nausea from the accident.

The motion for new trial was not supported by affidavits from any of the potential witnesses, but the following colloquy took place at that time.

(DEFENSE COUNSEL): I have had discussions on one occasion with a Mr. Mike Perry, and he indicates he was a passenger in the defendant's car, and he was in the car prior to the incident, but they left shortly thereafter; returned for a period of five minutes and then left again. His testimony would have been concerning, perhaps, the state of shock, but his time sequence should have been taken into account in that regard. . . . The second was a passenger in the car, the injured party by the name of Laurie Daarud, who was also subpoenaed and unable to be served. We understand that she has moved out of the county. We were unable to serve her as a result, and I have had no contacts with her.

THE COURT: But taking it at its best, the testimony would have been that there was some kind of shock, or whatever.

(DEFENSE COUNSEL): That is correct. I have talked to a Dr. Burden, who the defendant had requested that we make contact with. He indicates that he had some prior discussions with the defendant, but did not treat the defendant for a state of shock. He indicated to me there was a period in which Mr. Jury was evidencing concern over dizziness and nausea, and that would have been his testimony. We have had no other contacts with any other witnesses. It is my understanding that Mr. Jury has also had, at the time at which he was placed in the jail in Centralia City Jail, there was a contact with a third police officer whom we were unable to identify at the time.

Defendant mentioned a third witness who was at the scene, named "Kitty," who lived at the "Dodge Garage," who would have testified that defendant had a substantial "knot on the head as well as a bloody nose." Defense counsel did not locate or talk with this witness.

The right to assistance of counsel is contained in the sixth amendment to the United States Constitution and article 1, section 22 of the Washington Constitution. The United States Supreme Court has stated that the substance of this guaranty is that courts must make "effective" appointments of counsel. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). However, the court has never set explicit guidelines for determining what constitutes effectiveness. Instead, it has been left to each state to fashion its own standards.

For a time, our Washington courts held that counsel's representation was ineffective only if it made a farce or mockery of justice. See, e. g., State v. Wilkinson, 12 Wash.App. 522, 530 P.2d 340 (1975); Fleetwood v. Rhay, 7 Wash.App. 225, 498 P.2d 891 (1972); State v. Keller, 65 Wash.2d 907, 400 P.2d 370 (1965); State v. Mode, 57 Wash.2d 829, 360 P.2d 159 (1961). However, our Supreme Court now has devised the following test: After considering the entire record, can it be said that the accused was afforded an effective representation and a fair and impartial trial? State v. Myers, 86 Wash.2d 419, 424, 545 P.2d 538 (1976). See State v. Gilmore, 76 Wash.2d 293, 456 P.2d 344 (1969); State v. Robinson, 75 Wash.2d 230, 450 P.2d 180 (1969); State v. Johnson, 74 Wash.2d 567, 445 P.2d 726 (1968); State v. Thomas, 71 Wash.2d 470, 429 P.2d 231 (1967); State v. Roberts, 69 Wash.2d 921, 421 P.2d 1014 (1966); State v. Rhodes, 18 Wash.App. 191, 567 P.2d 249 (1977); State v. Price, 17 Wash.App. 247, 562 P.2d 256 (1977); State v Haynes, 16 Wash.App. 778, 559 P.2d 583 (1977); State v. Darnell, 14 Wash.App. 432, 542 P.2d 117 (1975). This...

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