Wilson, In re

• Decision Date: 12 November 1992
• Docket Number: No. S027645,S027645
• Citation: 13 Cal.Rptr.2d 269,3 Cal.4th 945,838 P.2d 1222
• Court: California Supreme Court
• Parties: , 838 P.2d 1222 In re Robert Paul WILSON on Habeas Corpus.

Page 269

13 Cal.Rptr.2d 269

3 Cal.4th 945, 838 P.2d 1222

In re Robert Paul WILSON on Habeas Corpus.

No. S027645.

Supreme Court of California In Bank.

Nov. 12, 1992.

Munger, Tolles & Olson, Bradley S. Phillips, Amalie Moses Reichblum, and Jana Winograde, Los Angeles, for petitioner.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Acting Sr. Asst. Atty. Gen., Margaret Garnand Venturi and Harry Joseph Colombo, Deputy Attys. Gen., Sacramento, for respondent.

GEORGE, Justice.

While his appeal from a judgment imposing the death penalty was pending before this court, petitioner Robert Paul Wilson filed the petition for writ of habeas corpus which gave rise to the present proceeding. As noted in our opinion in the accompanying decision in the appeal (People v. Wilson, 3 Cal.4th 926, 13 Cal.Rptr.2d 259, 838 P.2d 1212), the habeas corpus petition reiterated petitioner's contention, raised on appeal, that numerous failings by his trial counsel deprived him of his constitutional right to the effective assistance of counsel. Concluding that the petition stated a prima facie claim for relief, we issued an order to show cause returnable before this court and ordered that the matter be argued with the automatic appeal.

For the reasons discussed hereafter, we conclude that petitioner's claim is meritorious and that the judgment must be set aside in its entirety.

FACTUAL AND PROCEDURAL BACKGROUND

The factual and procedural background leading to petitioner's conviction, sentence of death, and the present habeas corpus proceeding, is set forth in full in the companion case of People v. Wilson, at pages 261 to 264 of 13 Cal.Rptr.2d, at pages 1214 to 1217 of 838 P.2d and need not be repeated here.

In the habeas corpus petition, petitioner alleges, among other things, that he was deprived of the effective assistance of counsel guaranteed by the Sixth Amendment to the federal Constitution and article 1, section 15, of the California Constitution, because his trial counsel provided deficient representation in numerous respects, which included the failure: (1) to object to or in any other way seek exclusion from evidence of the testimony of inmate Donald Raymond Loar and government witness Frank Kovacevich, and the tape recordings of telephone conversations between petitioner and Kovacevich; (2) to investigate evidence which would have undermined the reliability of the testimony of Loar and inmate Farrell Torregano; (3) to cross-examine Torregano; and (4) to give a competent closing argument. ¹

Concluding the petition stated a prima facie case entitling petitioner to habeas corpus relief, we issued an order to show cause, directing the filing of a return and a traverse. We determined, on the basis of the return and the traverse, that there were no disputed factual issues requiring an evidentiary hearing with respect to the ineffective-assistance-of-counsel claim that was based upon trial counsel's failure to raise an objection under Massiah v. United States (1964) 377 U.S. 201, 206, 84 S.Ct. 1199, 1203, 12 L.Ed.2d 246 and Massiah 's progeny, to the testimony of Loar and Kovacevich and the tape recordings.

As we explain, we conclude that petitioner's claim of ineffective assistance of counsel, based upon counsel's failure to raise a Massiah objection to the testimony and tape recordings, has merit and that petitioner is entitled to habeas corpus relief on that ground. We therefore need not and do not discuss the other alleged failings of trial counsel set forth in the habeas corpus petition.

DISCUSSION

Petitioner contends he was deprived of effective assistance of counsel guaranteed by the Sixth Amendment to the federal Constitution and by article I, section 15, of the California Constitution, because his counsel failed to object to the admission of the testimony of Loar and Kovacevich, relating petitioner's incriminating statements, and to the tape recordings of the telephone conversations between petitioner and Kovacevich. Petitioner contends this evidence, as the product of state action deliberately designed to elicit from him incriminating statements in the absence of counsel, was inadmissible under Massiah v. United States, supra, 377 U.S. 201, 206, 84 S.Ct. 1199, 1203, 12 L.Ed.2d 246, and its progeny.

To establish ineffective assistance of counsel, a petitioner must demonstrate that (1) counsel's representation was deficient in falling below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation subjected the petitioner to prejudice, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the petitioner. (Strickland v. Washington (1984) 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674; People v. Mitcham (1992) 1 Cal.4th 1027, 1057-1058, 5 Cal.Rptr.2d 230, 824 P.2d 1277.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, supra, 466 U.S. at p. 694, 104 S.Ct. at p. 2068.)

In the present case, the Attorney General argues with respect to the first prong, i.e., deficient performance of trial counsel, that petitioner's contention fails because the Massiah claim cannot be sustained on its merits, and, thus, trial counsel was not deficient in failing to raise a nonmeritorious objection. The Attorney General further argues, with respect to the second prong, i.e., prejudice, that even if counsel's performance was deficient, the failure to raise the Massiah objection was not prejudicial under the applicable standard. We address each of these points in turn.

A. Merits of the Massiah claim.

In Massiah, supra, 377 U.S. 201, 84 S.Ct. 1199, the United States Supreme Court held that once an adversary criminal proceeding has been initiated against the accused, and the defendant's constitutional right to the assistance of counsel has attached, any incriminating statement the government deliberately elicits from the defendant in the absence of counsel is inadmissible at trial against that defendant. (Id., at pp. 206-207, 84 S.Ct. at p. 1203.) Subsequent to its decision in Massiah, the high court elucidated the scope of its proscription against affirmative governmental conduct designed to elicit incriminating statements from a defendant entitled to the assistance of counsel. In Kuhlmann v. Wilson (1986) 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364, the court stated that in order to prevail on a Massiah claim involving use of an informant, the defendant must demonstrate that both the government and the informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks. (477 U.S. at p. 459, 106 S.Ct. at p. 2630.) For example, no violation of Massiah occurs where an informant-cellmate is simply a "listening post" and does not ask questions or solicit information. (Id., at pp. 459-460, 106 S.Ct. at p. 2630; People v. Hovey (1988) 44 Cal.3d 543, 561, 244 Cal.Rptr. 121, 749 P.2d 776.)

Furthermore, attachment of the right to counsel with regard to one charge does not immunize a defendant from investigation of other criminal conduct, and "[i]ncriminating statements pertaining to other crimes, as to which the Sixth Amendment right has not yet attached, are ... admissible at a trial of those offenses." (Maine v. Moulton (1985) 474 U.S. 159, 180, fn. 16, 106 S.Ct. 477, 489, fn. 16, 88 L.Ed.2d 481; see McNeil v. Wisconsin (1991) 501 U.S. 171, ----, 111 S.Ct. 2204, 2207, 115 L.Ed.2d 158; People v. Sully (1991) 53 Cal.3d 1195, 1234, 283 Cal.Rptr. 144, 812 P.2d 163.) Incriminating statements obtained in circumvention of a defendant's right to counsel with respect to a charged offense, however, are inadmissible at the trial of that charged offense even if they pertain to a new and uncharged crime. (Maine v. Moulton, supra, 474 U.S. at pp. 178-180, 106 S.Ct. at pp. 488-489; Mealer v. Jones (2d Cir.1984) 741 F.2d 1451, 1453-1454.)

Maine v. Moulton, supra, 474 U.S. 159, 106 S.Ct. 477, illustrates the foregoing principles. There, Moulton pleaded not guilty to charges of theft. He subsequently met with his codefendant, Colson, to prepare for the upcoming trial. According to Colson, Moulton suggested the possibility of killing a state witness. Thereafter, Colson met with the police and confessed to his participation with Moulton in the commission of the thefts, agreeing to testify against Moulton and cooperate with the police if no further charges would be brought against him. He told the police about Moulton's proposal to kill the witness.

Having learned from recorded telephone conversations that Colson and Moulton were going to meet in order to plan defense strategy, the police obtained Colson's consent to be equipped with a body-wire transmitter to enable the officers to record the meeting. A government officer later testified at trial that one of the purposes in doing so was to record any further conversations relating to threats to witnesses. Although Colson was instructed not to attempt to question Moulton, Colson's remarks during the meeting in fact tended to elicit incriminating statements from Moulton relating to the pending charges. Moulton also referred to, but then rejected, the idea of eliminating witnesses.

At trial, the state offered into evidence portions of the tape recordings of this meeting relating to the pending charges. The state did not offer the portion during which the two men discussed the possibility of killing witnesses. Following a conviction and appeal, the high court reversed, holding the state had violated Moulton's Sixth Amendment right to counsel when it arranged to record conversations between Moulton and its undercover informant, Colson. The court stressed that "because Moulton thought of Colson only as his codefendant, Colson's engaging Moulton in active conversation about their upcoming trial was certain to elicit...