State v. Lopez

• Decision Date: 15 February 2018
• Docket Number: No. 94418-1,94418-1
• Citation: 190 Wash.2d 104,410 P.3d 1117
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Oscar Raul LOPEZ, Petitioner.

190 Wash.2d 104

410 P.3d 1117

STATE of Washington, Respondent,

v.Oscar Raul LOPEZ, Petitioner.

No. 94418-1

Supreme Court of Washington.

Argued Nov. 16, 2017

Filed Feb. 15, 2018

George Paul Trejo Jr., The Trejo Law Firm, Inc., 701 N. 1st St., Ste. 100, Yakima, WA, 98901-2296, Rick Hernandez, Hernandez Law Office, P.O. Box 1039, Sunnyside, WA, 98944-3039, for Petitioner.

James Morrissey Whisman, Prosecuting Atty. King County, King County Prosecutor's Office, 516 3rd Ave., W554 King County Courthouse, Seattle, WA, 98104-2385, for Respondent.

Thomas E. Weaver Jr., Attorney at Law, P.O. Box 1056, Bremerton, WA, 98337-0221, as Amicus Curiae on behalf of Washington Association of Criminal Defense Lawyers.

GORDON McCLOUD, J.

¶1 The trial court found that Oscar Lopez's lawyer was "fairly obvious[ly]" "severely handicapped" by depression during the pretrial and trial phases of Lopez's case.¹ That finding was supported by the trial court's own observations of defense counsel's performance—and sometimes failure to show up—at trial. That finding was also supported by declarations and testimony presented at the hearing on Lopez's motion for a new trial. That evidence revealed that defense counsel could not perform basic tasks, such as showing up to meetings with his investigator to prepare Lopez's defense, submitting routine paperwork to obtain public funding so his investigator could complete her pretrial investigation, and calling his investigator back to learn about her "important" findings.² Based on that evidence, the trial court concluded that Lopez was denied his constitutional right to effective assistance of counsel and granted Lopez's motion for a new trial. See U.S. CONST . amend. VI ; WASH. CONST. art. I, § 22. We agree with the trial court. We therefore reverse the Court of Appeals' decision to reverse the trial court.

FACTS AND PROCEDURAL BACKGROUND

¶2 Lopez was employed as a bus driver by an after-hours day care center. He drove children from the day care center to school in the morning, and then back again in the afternoon after school. 9 VRP (Mar. 11, 2015) at 1076, 1085. One of those children was six-and-a-half-year-old L.M. Def. Ex. 18 (Tr. of Interview of L.M.) at 2. Sometimes, due to the children's schedules and the location of their schools, Lopez would be alone with L.M. on the bus. 6 VRP (Mar. 4, 2015) at 498-509.

¶3 On June 6, 2014, L.M. reported to her mother that Lopez had " ‘touched [her] butt yesterday’ " morning before school when she was alone with him on the bus. 7 VRP (Mar. 5, 2015) at 663. When questioned further about that touching, L.M. explained that Lopez had "itch[ed]" and "tickl[ed]" her vagina in a way that felt as though he was "trying to pinch [her]." Def. Ex. 18, at 13. L.M.'s mother contacted the police, and the State charged Lopez with first degree child molestation. CP at 77.

¶4 Lopez denied L.M.'s allegation of child molestation. Attorney Steven Witchley represented him, and the case proceeded to a jury trial. Lopez's defense theory was that L.M.'s claim was not believable. 10 VRP (Mar. 12, 2015) at 1198. To credit L.M.'s version, Witchley explained, the jury would have to believe four unbelievable things: (1) that Lopez, a family man, molested L.M.; (2) that the molestation occurred sometime between January and June 2014, but not "yesterday" morning before school as L.M. reported because the bus logs proved that Lopez was never alone with L.M. that morning; (3) that L.M. waited weeks or months before reporting the incident to her mother even though L.M. testified that she reported the incident immediately; and finally (4) that Lopez would be brazen enough to touch L.M. like that in public in the day care center's busy parking lot. Id. at 1185-97.

¶5 The jury apparently believed L.M. and convicted Lopez of first degree child molestation. CP at 81.

¶6 After the verdict but before sentencing, Lopez fired Witchley and hired a new attorney. The new attorney filed a motion for a new trial based on ineffective assistance of counsel. Id. at 292-97. To prevail on a claim of ineffective assistance of counsel, a defendant must generally show that counsel performed deficiently and that the deficient performance caused prejudice.³ Lopez argued that he did not have to prove deficient performance or prejudice because severe mental depression coupled with contemporaneous or nearly contemporaneous disbarment⁴ constitutes ineffective assistance of counsel per se. Id. at 294 (quoting In re Pers. Restraint of Brett, 142 Wash.2d 868, 883-85, 16 P.3d 601 (2001) (Talmadge, J., concurring) ). Alternatively, Lopez identified Witchley's performance, including his failure to adequately investigate, id. at 121-24, 16 P.3d 601, and failure to call certain witnesses that Lopez had identified, id. at 295-96, 16 P.3d 601, as grounds for ineffective assistance.⁵

¶7 It is undisputed that while Witchley was representing Lopez, Witchley was suffering from severe depression, had suicidal thoughts, 11 VRP (Oct. 8, 2015) at 1298, and struggled with just getting out of bed each day, CP at 291. Karen Sanderson, Witchley's longtime investigator, acknowledged that as Lopez's case neared trial, she observed Witchley's depression worsening under the weight of significant financial troubles, health problems, and a pending disbarment proceeding. 11 VRP (Oct. 8, 2015) at 1298; CP at 289-90.

¶8 The record supports this assessment and shows that these problems impacted his performance. Witchley failed to appear at court one day without explanation. 11 VRP (Oct. 8, 2015) at 1252. He also called in sick at the last minute on the morning of trial another day and asked to postpone trial to the afternoon. CP at 59. On the days when he did manage to show up, he was usually late. E.g., 2 VRP (Feb. 12, 2015) at 48 (10 minutes late), 3 VRP (Feb. 23, 2015) at 238 (15 to 20 minutes late). Once, he was over an hour late. 6 VRP (Mar. 4, 2015) at 521 (one hour and 20 minutes late). Witchley's inability to show up for trial alarmed the trial judge so much that he asked Lopez—either close to or in the middle of trial—if he wanted a new attorney. 11 VRP (Oct. 8, 2015) at 1252-53. At that point, Lopez declined the offer. But when Witchley continued to arrive late for trial, the trial court warned him: "[F]rankly, I'm a little baffled. We've spoken about this a number of times. You're obviously a very able trial attorney, but this continues to be an issue. So Mr. Witchley, sir, if you could - - I really want to make sure we're communicating here. ... I expect you to be on time." 3 VRP (Feb. 23, 2015) at 238-39. That warning proved inadequate, however; Witchley continued to show up late for trial. 6 VRP (Mar. 4, 2015) at 522-24. He also failed to submit briefing specifically requested by the court. Id.

¶9 Sanderson's testimony also supported this assessment of Witchley's mental health and its impact on Lopez's trial. Sanderson testified that she met with Witchley in October, several months before Lopez's trial, to create a checklist of matters that Witchley needed her to prepare for Lopez's defense. The checklist included interviewing certain employees at the day care center, locating witnesses from the children's schools to verify Lopez's whereabouts on the morning of the alleged incident, performing another site visit to the day care parking lot, and developing evidence regarding both L.M.'s penchant for lying or exaggerating stories and Lopez's sexual morality and decency. 11 VRP (Oct. 8, 2015) at 1289-90.

¶10 After that October meeting, however, Sanderson explained that Witchley "checked out." CP at 289. Witchley was routinely late and often failed to show up at case development meetings scheduled with her. Id. at 288. According to Sanderson, she and Witchley "tr[ied] to set up some times to meet to go to the scene together but he almost always cancelled at the last minute, with a different excuse every time." Id. "Every time he cancelled at the last minute he offered a new excuse" that "was always something like ‘I over slept and can't make it’ or ‘I didn't sleep last night’ or ‘I'm sick.’ " Id. at 288-89.

¶11 Eventually, Witchley stopped communicating with Sanderson altogether. 11 VRP (Oct. 8, 2015) at 1286. As a result, Sanderson was unable to give him important case information she discovered during her investigation. Sanderson said she left Witchley a voicemail, an e-mail, and text messages asking him to call her back so they could talk about the new information she learned during her last interview, which she believed was "important" to Lopez's case. CP at 289. But Witchley never called her back, so she never told him what that "important" information was. Id. She also did not document that "important" new information in a memo because Witchley stopped paying her to do so and refused to take the simple steps necessary to procure additional payments. Id.

¶12 In fact by December 2014, Sanderson had been working on Lopez's case for two months without payment based on Witchley's promise of eventual payment. Because Lopez was indigent, Sanderson's investigative work was paid through the Office of Public Defense (OPD). Id. at 89-90. The OPD had preauthorized $1,500 for Sanderson to develop Lopez's defense, id. at 89, but Sanderson had exceeded that amount by October 2014, id. at 289. To receive additional funding for Sanderson's investigation, Witchley had to submit a request to OPD. Id. This is a fairly routine process. Because Witchley repeatedly implied to Sanderson that he had submitted a request for additional funding, Sanderson continued to work on Lopez's case for an additional two months, from October to December, without payment. Id. After two months without payment and after Witchley stopped returning her calls, Sanderson had to stop work on Lopez's case. Id. "This meant that some things [they] had planned to do on the case prior to trial never took place. [Sanderson] had several reports that should have been written that were not typed up. ...