State v. Regan, 25184-5-III.

• Citation: 143 Wn. App. 419,177 P.3d 783
• Decision Date: 26 February 2008
• Docket Number: No. 25184-5-III.,25184-5-III.
• Court: Court of Appeals of Washington
• Parties: STATE of Washington, Respondent, v. Eric Patrick REGAN, Appellant.

177 P.3d 783

143 Wn. App. 419

STATE of Washington, Respondent, v. Eric Patrick REGAN, Appellant.

No. 25184-5-III.

Court of Appeals of Washington, Division 3.

February 26, 2008.

Carolyn Jones Fair, Law and Justice Center, Teresa Jeanne Chen, Grant County Prosecutors Office, Ephrata, WA, for Respondent.

David L. Donnan, Washington Appellate Project, Gregory Charles Link, Washington Appellate Project, Seattle, WA, for Appellant.

SCHULTHEIS, J.

¶ 1 Eric Patrick Regan was arrested for driving with a suspended license. In a search incident to arrest, police found methamphetamine, marijuana, and drug paraphernalia in the car, which belonged to Mr. Regan's girl friend. Mr. Regan was convicted of possession of the drugs, use of paraphernalia, and bail jumping. On appeal, Mr. Regan challenges the court's order that his defense counsel testify against him to prove that he knowingly failed to appear for trial. We conclude that due to defense counsel's involvement as both a witness and attorney, Mr. Regan was adversely affected by his counsel's actual conflict of interest. We therefore reverse his convictions.

FACTS

¶ 2 While stopped for a red light in downtown Moses Lake at 1:30 a.m. on September 20, 2005, city police officer Greg Nevarez recognized a driver, Eric Regan, whose license Officer Nevarez believed to be suspended. After confirming the suspension with dispatch, Officer Nevarez stopped Mr. Regan in a hospital parking lot. Officer Nevarez approached Mr. Regan and informed him that he was under arrest for driving with a suspended license.

¶ 3 Sergeant Brian Jones arrived and assisted in the search of the car incident to arrest. Beneath clothes and newspapers on the front passenger seat, he found a camera case that contained methamphetamine, marijuana, a marijuana pipe, and a methamphetamine pipe.

¶ 4 On March 8, 2006, Mr. Regan proceeded to trial on charges of possession of a controlled substance other than marijuana (methamphetamine), possession of 40 grams or less of marijuana, and use of drug paraphernalia.¹ Attorneys Elizabeth Vasiliades and Alan White appeared for Mr. Regan.² Ms. Vasiliades acted as primary counsel and, because it was only her second felony trial, Mr. White assisted as her supervising attorney.

¶ 5 Mr. Regan arrived for his trial more than one hour late. The trial court released the jury and issued a bench warrant for his arrest for failure to appear. The information was amended to charge Mr. Regan with bail jumping. He was detained pending trial to ensure his attendance.

¶ 6 On April 18, the court heard Mr. Regan's motion to quash a subpoena. The State wanted Mr. White to testify against Mr. Regan concerning the bail jumping charge to show that defense counsel told Mr. Regan to arrive early for court on March 8. The court held that it was not "unduly oppressive" to compel Mr. White to testify under the circumstances because Mr. White had made arrangements for another attorney to supervise Ms. Vasiliades if the trial date fell on Mr. White's vacation, so it was not necessary for Mr. White to personally supervise Ms. Vasiliades. Report of Proceedings (RP) (Apr. 18, 2006) at 9. The court continued Mr. Regan's trial, which was scheduled to start the next day, to accommodate Mr. White's vacation as well as the prosecutor's vacation. ¶ 7 When trial commenced on May 3, Mr. White again objected to having to act as a witness against his client. The judge held that he was aware of no authority that prohibited compulsion of the testimony. Concerned it might be error to have Mr. White seated at the counsel table, however, he directed Mr. White not to present argument before the jury or assist in witness examination.

¶ 8 At trial, the jury heard evidence that Mr. Regan had driven his eight-month-pregnant girl friend, Ronna Bruce, to the hospital at 8 p.m. on September 19, 2005 for treatment of a 104 degree Fahrenheit fever. He was returning to visit Ms. Bruce in the early morning of September 20 when he was pulled over. Mr. Regan testified that the car was not his but his girl friend's and claimed that he never noticed a camera case in the front passenger seat that day.

¶ 9 The State called Mr. White as part of its case in chief. After again hearing argument on Mr. White's objections to testifying, the court ruled that the communication was not privileged and ordered him to testify. Witnesses other than Mr. White testified that Mr. Regan received notice of the conditions of his release requiring his attendance at trial as well as a trial scheduling order indicating that his trial would begin on March 7, and that he was in court on March 7 for the trial readiness docket, where he was informed that trial was to begin the next morning at 9 a.m. The State also presented evidence outside of Mr. White's testimony that when Mr. Regan was not in court on March 8 at 9 a.m., that the court recessed at 9:21 a.m. to give Ms. Vasiliades a chance to locate Mr. Regan. When the court reconvened at 9:34 a.m., the judge released the jury panel and issued a bench warrant for Mr. Regan's arrest before recessing at 9:49 a.m.

¶ 10 Mr. Regan presented evidence that he arrived to court and met with counsel at approximately 10 a.m. on March 8. The State presented evidence through Mr. Regan's neighbor that Mr. Regan did not leave for court until 9:15 or 9:30 a.m. on March 8, and that it is a 30-minute drive from Moses Lake to the courthouse in Ephrata.

¶ 11 The jury convicted Mr. Regan on all four counts after a two-day trial.

DISCUSSION

¶ 12 On appeal, Mr. Regan contends that his rights were denied under the Sixth Amendment, which provides a criminal defendant with the right to effective assistance of counsel at trial. U.S. Const. amend. VI. This right includes the entitlement to representation that is free from conflicts of interest. Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Dhaliwal, 150 Wash.2d 559, 566, 79 P.3d 432 (2003) (citing Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981)).

¶ 13 The trial court has a duty to investigate potential attorney-client conflicts of interest if it knows or reasonably should know that a potential conflict exists. Mickens v. Taylor, 535 U.S. 162, 167-72, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002) (citing Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978); Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Wood, 450 U.S. 261, 101 S.Ct. 1097, 67 L.Ed.2d 220). Reversal of a conviction is required if a defendant or his attorney makes a timely objection to a claimed conflict and the trial court fails to conduct an adequate inquiry. Holloway, 435 U.S. at 488, 98 S.Ct. 1173. But if the defendant does not make a timely objection in the trial court, a conviction will stand unless the defendant can show that his lawyer had an actual conflict that adversely affected the lawyer's performance. Cuyler, 446 U.S. at 350, 100 S.Ct. 1708; Wood, 450 U.S. at 272-74, 101 S.Ct. 1097. A harmless error analysis is not required. Holloway, 435 U.S. at 489, 98 S.Ct. 1173 (citing Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). The State argues that prejudice must be shown. We disagree.

¶ 14 In Mickens, the United States Supreme Court criticized lower courts that "`unblinkingly'" applied these conflict of interest rules to "`all kinds of alleged attorney ethical conflicts,'" rather than a Strickland analysis, which requires a showing of both deficient performance and prejudice. Mickens, 535 U.S. at 174, 122 S.Ct. 1237 (quoting Beets v. Scott, 65 F.3d 1258, 1266 (5th Cir. 1995)). The Court noted that it had applied the conflict of interest rules in cases of multiple concurrent representation, but the issue of whether those rules are properly extended to other cases was, as far as the jurisprudence of the Supreme Court was concerned, an open question. Id. at 175-76, 122 S.Ct. 1237.

¶ 15 This is not an open question, however, in Washington. In In re Personal Restraint of Richardson, 100 Wash.2d 669, 675 P.2d 209 (1983), overruled on other grounds by Dhaliwal, 150 Wash.2d at 568, 79 P.3d 432, an attorney represented both a witness and the criminal defendant. The court held: "The application of these [conflict of interest] rules is not limited to joint representation of codefendants. While most of the cases have involved that fact situation, the rules apply to any situation where defense counsel represents conflicting interests." Richardson, 100 Wash.2d at 677, 675 P.2d 209 (emphasis add'ed). More recently, in State v. McDonald, 143 Wash.2d 506, 513, 22 P.3d 791 (2001), where there was a conflict of interest between a defendant and standby counsel, the court held: "These [conflict of interest] rules apply to any situation where defense counsel represents conflicting interests."

¶ 16 As to the application of the conflict of interest rules in cases where defense counsel is called as a witness, our courts have recognized that "[t]he right of the prosecutor to call defense counsel as a witness is within the broad discretion of the trial court; however, a weather eye must be kept on the constitutional rights of the defendant in a criminal trial at all times." State v. Stiltner, 61 Wash.2d 102, 104, 377 P.2d 252 (1962). "There must always be a sensitive balance between the right of the state to prove its case, in the best manner possible, and the right of the accused to have unhampered and effective representation." State v. Sullivan, 60 Wash.2d 214, 221, 373 P.2d 474 (1962). Mr. Regan's Sixth Amendment claim is properly considered under the conflict of interest rules.

¶ 17 In order to establish any violation of the Sixth Amendment based on a conflict of interest, a defendant must demonstrate that an actual conflict of interest adversely affected his lawyer's performance. Cuyler, 446 U.S. at 348, 100 S.Ct. 1708; Richardson, 100 Wash.2d at 677, 675 P.2d 209. If...