State v. Tucker
| Decision Date | 22 July 1975 |
| Docket Number | Nos. 11093,11139,s. 11093 |
| Citation | 97 Idaho 4,539 P.2d 556 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Ernest H. TUCKER, Defendant-Appellant. Ernest H. TUCKER, Plaintiff-Appellant, v. STATE of Idaho, Defendants-Respondent. |
| Court | Idaho Supreme Court |
W. Anthony Park, Atty. Gen., J. Dennis (J. D.) Williams and Lynn E. Thomas, Deputy Attys. Gen., and William F. Lee and James P. Kaufman, Asst. Attys. Gen., State of Idaho, for respondent.
ON REHEARING
The previous opinion in this case is withdrawn and this opinion is hereby substituted.
This case arises from the conviction after a jury trial and sentencing of Ernest H. Tucker, defendant-appellant. Tucker was convicted of the crime of unlawful sale of a narcotic (I.C. § 37-2717, repealed by S.L.1971, Ch. 215). The appellant appeals from the judgment of conviction, denial of his motion for a new trial, and judgment dismissing his petition for post-conviction relief under I.C. § 19-4901. Upon the basis of the appeal from the judgment of conviction and denial of the motion for a new trial, we remand for further evidentiary hearings. The trial court is directed to dismiss without prejudice his petition for post-conviction relief.
On the night of November 19, 1970, Tucker went to the apartment of an acquaintance and met two undercover agents of the Boise City-Ada County vice and Narcotics Squad who represented themselves as purchasers interested in buying 'lost' explosives. An undercover agent testified that Tucker told the agents that the explosives were inaccessible, that Tucker asked if they were interested in narcotics, and that the agents replied affirmatively. According to the agents' testimony, Tucker left to make a phone call to arrange for the sale of 'six lids' of marijuana at an agreed price. The agents testified that, shortly afterwards, one Lucas (originally a co-defendant who pleaded guilty) arrived with the marijuana and that Tucker told Lucas to sell it to the agents. The agents gave Lucas money in the agreed amount and took the marijuana from Lucas.
Tucker testified that he met with the undercover agents to discuss the possible lawful sale of guns and ammunition. According to Tucker, the agents inquired as to the availability of marijuana and Tucker told the agents that the knew nothing about drugs or their availability. Tucker testified that Lucas arrived at the apartment while he was in the bathroom, that when he returned to the living room Lucas was talking with the agents in the corner of the room, and that he did not hear their conversation. According to Tucker, Lucas left shortly thereafter and then he left the apartment. Tucker denied making any phone calls to arrange the sale of drugs.
At trial, the jury returned a verdict finding Tucker guilty of the crime of unlawful sale of narcotics. Judgment of conviction was entered and Tucker was sentenced to a term in the state penitentiary.
During the pre-sentence investigation, an undercover agent disclosed to the pre-sentence investigator the existence of a tape recording of the conversations between Tucker and the agents on the night of November 19, 1970. Tucker moved for a new trial claiming discovery of the existence of the tapes. This motion was denied. Tucker filed a petition for post-conviction relief under I.C. § 19-4901 which was also denied.
Tucker appeals from the judgment of conviction, the denial of his motion for a new trial, and the judgment dismissing his petition for post-conviction relief. Tucker assigns numerous errors on appeal. Although primarily this opinion will be focused on the issue of whether Tucker was denied the competent assistance of counsel prior to and during this trial, such other assignments of error will be considered as are necessary for the disposition of the appeal. Before analyzing the specific facts by which the assistance of counsel issue arises, we must discuss the standard by which questions of competent assistance of counsel should be reviewed.
The right to counse in criminal actions brought by the state of Idaho is guaranteed by the Sixth Amendment 1 to the United States Constitution and Article 1, Section 13 of the Idaho State Constitution. 2 Accord, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); State v. McClellan, 96 Idaho 569, 532 P.2d 574 (1975); State v. Wozniak, 94 Idaho 312, 486 P.2d 1025 (1971); Pharris v. State, 91 Idaho 456, 424 P.2d 390 (1967). See, Bement v. State, 91 Idaho 388, 422 P.2d 55 (1966). The right to counsel includes the right to the effective assistance of counsel. Accord, McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); United States v. DeCoster, 159 U.S.App. D.C. 326, 487 F.2d 1197 (1973). See, Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); State v. McClellan, supra; State v. Wozniak, supra.
In the past, this court has reviewed issues relating to the competency of counsel by the 'farce or mockery' standard:
'"' State v. Wozniak, 94 Idaho 312, 320, 486 P.2d 1025, 1033 (1971).
This standard has been modified, but not rejected by State v. McClellan, supra. However, other jurisdictions have chosen a different standard of review. Coles v. Peyton, 389 F.2d 224 (4th Cir., 1968); Moore v. United States, 432 F.2d 730 (3d Cir., 1970); West v. Louisiana, 478 F.2d 1026 (5th Cir., 1973); United States v. DeCoster, 159 U.S.App.D.C. 326, 487 F.2d 1197 (1973); Beasley v. United States, 491 F.2d 687 (6th Cir., 1974); State v. Gilmore, 76 Wash.2d 293, 456 P.2d 344 (1969); State v. McCarthy, 112 N.H. 437, 298 A.2d 740 (1972); State v. Mahoney, 16 Md.App. 193, 294 A.2d 471 (1972); State v. Kahalewai, 54 Haw. 28, 501 P.2d 977 (1972); State v. Harper, 57 Wis.2d 543, 205 N.W.2d 1 (1973); State v. Williams, 207 N.W.2d 98 (Iowa 1973); Commonwealth v. Saferian, 315 N.E.2d 878 (Mass.1974); Ex parte Gallegos, 511 S.W.2d 510 (Tex.Cr.App., 1974); State v. Thomas 203 S.E.2d 445 (W.Va.1974); Pitts v. Glass, 231 Ga. 638, 203 S.E.2d 515 (1974); Risher v. State, 523 P.2d 421 (Alaska 1974); Rook v. Culp, 526 P.2d 605 (Or.App., 1974).
The 'farce or mockery' standard has been criticized on the grounds that the standard does not adequately protect the right to the assistance of counsel. The standard pleaces an undue burden upon the defendant and is vague and difficult to apply. Accord, Risher v. State, 523 P.2d 421 (Alaska 1974); United States v. DeCoster, 159 U.S.App.D.C. 326, 487 F.2d 1197 (1973). See, Finer, Ineffective Assistance of Counsel, 58 Cornell L.Rev. 1077 (1973). One Commentator suggests that 'the 'mockery' test requires such a minimal level of performance from counsel that it is itself a mockery of the sixth amendment'. Bazelon, 'The Defective Assistance of Counsel', 42 Cincinnati L.Rev. 1, 28 (1973). Accordingly, we reject the 'farce or mockery' standard. To the extent that the following cases are in conflict with this opinion, we overrule State v. McClellan, supra; State v. Wozniak, supra; Pulver v. State, 93 Idaho 687, 471 P.2d 74 (1970).
It is our opinion that the best enunciation of defense counsel's obligation is found in United States v. DeCoster, 159 U.S.App.D.C. 326, 487 F.2d 1197, 1202 (1973)-'a defendant is entitled to the reasonably competent assistance of an attorney acting as his diligent conscientious advocate'. We adopt this standard.
Other courts have chosen to frame their standard of review of the adequacy of the assistance of counsel in terms of the 'reasonably effective assistance of counsel'. 3 West v. Louisiana, 478 F.2d 1026 (5th Cir., 1973); State v. Gilmore, 76 Wash.2d 293, 456 P.2d 344 (1969); State v. Kahalewai, 54 Haw. 28, 501 P.2d 977 (1972); Ex parte Gallegos, 511 S.W.2d 510 (Tex.Cr.App., 1974); Pitts v. Glass, 231 Ga. 638, 203 S.E.2d 515 (1974). See, State v. Mahoney, 16 Md.App. 193, 294 A.2d 471 (1972); State v. Williams, 207 N.W.2d 98 (Iowa 1973). We draw no distinction between the terms 'reasonably competent assistance of counsel' and 'reasonably effective assistance of counsel'; the result of rendering 'reasonably competent assistance of counsel' must be 'reasonably effective assistance of counsel'. However, the phrase, 'reasonably effective assistance of counsel,' raises a problem of semantics in that 'effectiveness' may be equated with success. No implications regarding the competency of counsel should be drawn from counsel's failure to win acquittal for his client. Thus, we frame the standard in terms of 'reasonably competent assistance of counsel'.
The words, 'reasonably competent assistance of counsel,' provide only a shorthand label to summarize the standard. The American Bar Associations' 'Standards for the Defense Function' suggest the duties owed by counsel to his client and to the court. We recognize these standards, 4 insofar as they are applicably to define the duties owed by defense counsel to his client, as an authority by which questions of the competent assistance of counsel may be analyzed. ABA Standards, 'The Defense Function' (1971). Accord, State v. Harper, 57 Wis.2d 543, 205 N.W.2d 1 (1973); United States v. DeCoster, supra. See, Coles v. Peyton, 389 F.2d 224 (4th Cir., 1968). In recognizing these standards, we expressly reserve for future determination whether a violation of any one standard will constitute a denial of the right to the reasonably competent assistance of counsel. 5
Tucker was represented by appointed counsel at his preliminary hearing; he retained counsel for trial and then retained different counsel for his motion for a new trial, his petition for post-conviction relief, and for this appeal. It is the conduct of the retained counsel who represented Tucker at trial (hereinafter referred to as trial counsel) that is questioned on appeal. 6
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