State v. Smith

• Decision Date: 14 January 1986
• Docket Number: No. 9854,9854
• Citation: 712 P.2d 496,68 Haw. 304
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Michael SMITH, aka Michael Calderon, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 496

712 P.2d 496

68 Haw. 304

STATE of Hawaii, Plaintiff-Appellee, v. Michael SMITH, aka Michael Calderon, Defendant-Appellant.

No. 9854.

Supreme Court of Hawai'i.

Jan. 14, 1986.

As Amended Jan. 15, 1986.

Syllabus by the Court

1. The right of one accused of crime to be represented by an attorney is a fundamental component of our criminal justice system. But this right cannot be satisfied by mere formal appointment, for the assistance of counsel guaranteed by the United States and Hawaii Constitutions is satisfied only when such assistance is effective.

2. When a denial of the right to effective counsel is raised, the question is whether, viewed as a whole, the assistance provided the defendant was within the range of competence demanded of attorneys in criminal cases.

3. The assistance provided a defendant in a criminal case need not be errorless; nor will it be judged ineffective solely by hindsight.

4. The burden of establishing ineffectiveness rests with the defendant, and his claim of inadequate assistance will be upheld only if he can show there were specific errors or omissions reflecting counsel's lack of skill, judgment, or diligence and these errors or omissions resulted in either the withdrawal or substantial impairment of a potentially meritorious defense.

5. Matters presumably within the judgment of counsel, like trial strategy, will rarely be second-guessed by judicial hindsight. Attorneys require and are permitted broad latitude to make on-the-spot strategic choices in the course of trying a case, and defense counsel's tactical decisions normally will not be questioned by a reviewing court.

6. Where the success of the asserted defense hinged on defendant's credibility, this court cannot say curative instructions given by the trial court had the desired effect, especially when the damaging information of prior convictions and incarceration was conveyed to the jury by defense counsel and again by the defendant at the urging of counsel.

7. Invited errors generally are not reversible errors. But this court will not follow the general rule in a situation where defense counsel's demonstrated lack of skill or judgment has caused the introduction of highly prejudicial matters which otherwise would be inadmissible.

8. Although criminal trials could be turned by astute lawyers into reversible trials by simply eliciting constitutionally impermissible testimony on direct examination, Rule 13 of the rules of this court stands as a disincentive for competent attorneys to do so.

9. Defense counsel rendering ineffective assistance in a criminal case may be subject to corrective action pursuant to Rule 13 of the rules of this court. Corrective action thereunder may include a suspension of the attorney's license to practice law pending the completion of a prescribed course or courses of remedial education and other sanctions.

Sandra E. Pechter (Roehrig, Roehrig & Wilson, of counsel), Hilo, for defendant-appellant.

Charlene Y. Iboshi (Lincoln Ashida, Law Intern, with her on brief), Deputy Pros. Atty., Hilo, for plaintiff-appellee.

Before LUM, C.J., and NAKAMURA, PADGETT, HAYASHI and WAKATSUKI, JJ.

NAKAMURA, Justice.

Claiming a denial of his constitutional right to the effective assistance of counsel at trial, Michael Smith appeals from a judgment

                of conviction of Attempted Sodomy in the Second Degree entered by the Circuit Court of the Third Circuit. 1  Because we are convinced from a review of the record that the performance of defense counsel was not within the range of competence expected of lawyers in criminal cases, we vacate the judgment and remand the case for retrial
                

I.

The defendant was charged with attempting to engage in deviate sexual conduct with a person below the age of fourteen in violation of sections 705-500(1)(b) and 707-734(1)(b), Hawaii Revised Statutes (HRS), as amended. ² He sought counsel to assist in his defense, and an attorney from the Public Defender's office was appointed to represent him. Since the defendant had been convicted previously of more than several offenses and arrested for others, including several sexually related offenses, the array of pre-trial motions filed by counsel included a motion in limine seeking to exclude testimony about other offenses allegedly committed by the defendant.

The motion was granted in part. Essentially, counsel succeeded in preventing the introduction of evidence of prior offenses that did not result in convictions, as well as that of prior convictions for crimes in which "fraud, deceit or other forms of dishonesty" were not implicated. The order entered by the circuit court also precluded references by the State to any prior incarceration of the defendant or any pending charge against him for lewdness or other sexually motivated conduct. ³ Before the case proceeded to trial, however, the court found it necessary to appoint other counsel to represent defendant. ⁴

At trial the State adduced evidence from which a reasonable inference could be drawn that the defendant lured a five-year- Michael Smith testified he had no intention of engaging in deviate sexual activity with the victim, he did not ask her to perform an act of fellatio, and he was only exposing himself when the witness entered the "laundromat room." The testimony followed an opening statement delivered by counsel in which the defendant was characterized, inter alia, as a fantasizer, a former convict, a pervert, and an exhibitionist. ⁵ Counsel thus opened the defense of the charge of attempted sodomy by setting to naught his predecessor's effort to keep the jury from hearing evidence of certain aspects of defendant's criminal history, evidence which the former attorney and the trial court thought might be more prejudicial than probative. And he followed up by eliciting testimony from the defendant corroborating what he had imparted to the jury in his opening remarks. Though Michael Smith thereafter denied he had sodomy in mind and insisted he was only exposing his sexual organ to the little girl, the jury evidently found his testimony unworthy of belief and returned a guilty verdict.

old girl who had been playing at a playground in South Hilo to the "laundromat room" of a nearby hotel with intent to have the child perform an act of fellatio, but this design was foiled by the sudden appearance of the owner of the liquor establishment located above the basement room. The bar owner testified that when he opened the door to the room he saw the girl kneeling in a corner with her back to the wall. The defendant, the witness said, was in a crouched position over the kneeling child; her face, according to the witness, was several inches away from the defendant's groin area. When the bar owner approached the pair he saw the defendant's exposed and erect penis and the victim's frightened countenance. [68 Haw. 308] The defendant hurriedly attempted to cover the exposed organ and fled despite the witness' attempt to question him. However, he was apprehended shortly thereafter by the police and identified by the witness as the culprit.

Although the defendant urges a reversal of the judgment on grounds that the prosecution failed to demonstrate his intent to commit sodomy, ⁶ his primary contentions on appeal are that he was deprived of his constitutional right to counsel and he should be afforded a new trial.

II.

The right of one accused of crime to be represented by an attorney "is a fundamental component of our criminal justice system." United States v. Cronic, 466 U.S. 648, ----, 104 S.Ct. 2039, 2043, 80 L.Ed.2d 657 (1984). But this right "cannot be satisfied by mere formal appointment," When a denial of this right is raised, the question is "whether, viewed as a whole, the assistance provided [the defendant was] 'within the range of competence demanded of attorneys in criminal cases.' State v. Kahalewai, 54 Haw. 28, 30, 501 P.2d 977, 979 (1972) quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970)." State v. Antone, 62 Haw. 346, 348, 615 P.2d 101, 104 (1980). Of course, the "assistance need not be errorless nor will it be judged ineffective solely by hindsight." Id.

                Avery v. Alabama, 308 U.S. 444, 446, 60 S.Ct. 321, 322, 84 L.Ed. 377 (1940), for "the assistance of counsel ... guaranteed by the United States and Hawaii Constitutions 'is satisfied only when such assistance is "effective." ' "   State v. Morishige, 65 Haw. 354, 369, 652 P.2d 1119, 1130 (1982), quoting  State v. Kahalewai, 54 Haw. 28, 30, 501 P.2d 977, 979 (1972);  see McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970) ("the right to counsel is the right to the effective assistance of counsel")
                

The burden of establishing ineffectiveness rests with the defendant. State v. Morishige, 65 Haw. at 369, 652 P.2d at 1130; State v. Antone, 62 Haw. at 348, 615 P.2d at 104; State v. McNulty, 60 Haw. 259, 269, 588 P.2d 438, 446 (1978). And his claim of inadequate assistance will be upheld only if he can show there were "specific errors or omissions ... reflecting counsel's lack of skill, judgment or diligence[,]" and "these errors or omissions resulted in either the withdrawal or substantial impairment of a potentially meritorious defense. State v. Kahalewai, 54 Haw. at 32, 501 P.2d at 980; People v. Pope, 23 Cal.3d at 425 590 P.2d [68 Haw. 310] at 866." State v. Antone, 62 Haw. at 348-49, 615 P.2d at 104 (footnote omitted). ⁷

III.

We are convinced from a review of the record that the assistance rendered by trial

counsel was not within the range of competence demanded of attorneys in criminal cases and there were errors or [68 Haw. 311] omissions reflecting a lack of skill or judgment that substantially impaired a potentially meritorious defense.

A.

Michael Smith's defense to the charge of attempted sodomy was that he had no intention of committing such act and he was merely exposing himself to the five-year-old girl...