IN THE MISSOURI COURT OF APPEALS EASTERN DISTRICT. STATE OF MISSOURI, ) ) Respondent, ) ) vs. ) No. ED ) ) JERRY BECK, ) Appellant.

Transcription

1 IN THE MISSOURI COURT OF APPEALS EASTERN DISTRICT STATE OF MISSOURI, ) ) Respondent, ) ) vs. ) No. ED ) ) JERRY BECK, ) Appellant. ) APPEAL TO THE MISSOURI COURT OF APPEALS EASTERN DISTRICT FROM THE CIRCUIT COURT OF ST. CHARLES COUNTY, MISSOURI ELEVENTH JUDICIAL CIRCUIT, DIVISION ONE THE HONORABLE TED HOUSE, JUDGE APPELLANT S STATEMENT, BRIEF AND ARGUMENT Ellen H. Flottman, MOBar #34664 Attorney for Appellant Woodrail Centre, 1000 West Nifong Building 7, Suite 100 Columbia, Missouri Telephone (573) , ext. 323 FAX (573) Ellen.Flottman@mspd.mo.gov

2 INDEX Page TABLE OF AUTHORITIES... 2 JURISDICTIONAL STATEMENT... 4 STATEMENT OF FACTS... 5 POINTS RELIED ON ARGUMENT CONCLUSION APPENDIX 1

3 TABLE OF AUTHORITIES Page CASES: Gonzales v. Maryland, 970 A.2d 908 (Md. 2009) Moritz v. Woods, 2012 WL (E.D. Mich., Feb. 21, 2012) People v. Bingham, 847 N.E.2d 903 (Ill. App. 2006) Powell v. Alabama, 287 U.S. 45 (1932) State ex rel. Horn v. Ray, 325 S.W.3d 500 (Mo. App., E.D. 2010)... 11, 15 State of Missouri ex rel. Wendy Wexler Horn v. the Honorable Thomas Ray, ED State v. Harvey, 692 S.W.2d 290 (Mo. banc 1985)... 11, 16, 17 State v. Justus, 205, S.W.3d 872 (Mo. banc 2006) State v. Smith, 761 N.W.2d 63 (Iowa 2009) United States v. Gonzalez-Lopez, 548 U.S. 140 (2006)... 11, 12, 15, 16, 18 United States v. Sellers, 645 F.3d 830 (7 th Cir. 2011) Wheat v. United States, 486 U.S. 153 (1988)... 11, 15, 16 CONSTITUTIONAL PROVISIONS: U.S. Const., Amend. VI... 11, 12, 15, 16, 17 U.S. Const., Amend. XIV... 11, 12 Mo. Const., Art. I, Sec. 18(a)... 11, 12 Mo. Const., Article V, Section

4 STATUTES: Section Section , 6 Section Section Section Section Section

5 JURISDICTIONAL STATEMENT Appellant, Jerry Beck, was convicted after a jury trial in the Circuit Court of St. Charles County of two counts of statutory sodomy in the first degree, Section , one count of sexual exploitation of a minor, Section , two counts of forcible sodomy, Section , one count of victim tampering, Section , one count of armed criminal action, Section , and one count of attempted victim tampering, Section The Honorable Ted House sentenced appellant to a total of two consecutive life sentences. As this appeal involves none of the issues reserved to the exclusive appellate jurisdiction of the Missouri Supreme Court, jurisdiction lies in the Missouri Court of Appeals, Eastern District. Article V, Section 3, Mo. Const. (as amended 1982); Section Statutory citations are to RSMo

6 STATEMENT OF FACTS Appellant was indicted in August 2009 for multiple counts of rape, sodomy, enticement of a child, sexual exploitation, furnishing pornography to a minor, victim tampering and armed criminal action, in the Circuit Court of St. Charles County (L.F ). Attorney Frank Carlson entered his appearance for appellant in January, 2010 (L.F. 6). Carlson filed a continuance motion on August 31, 2010, about two weeks before the cause was set to go to trial (2 nd Supp L.F ). In the motion, Carlson said he had other time commitments that had kept him from fully preparing, including briefs and other trials; that he did not have the state s 491 motion or motion in limine; and that he had not been adequately paid due to appellant s estranged wife having stolen a check from appellant s retirement account that was meant to pay Carlson (L.F. 15). Due to the delay in being paid, Carlson had not been able to take depositions or prepare for trial (L.F. 16). The continuance motion was heard in chambers and denied off the record on September 8 by Judge Nancy Schneider (L.F. 7, Supp. Tr. 5). 2 On September 9, Carlson sent a letter to Judge Schneider saying that he was not ready, and 2 The transcript referred to as Supp. Tr. was filed by undersigned counsel with this Court on May 1, It is a evidentiary hearing conducted on September 13, The cover of the transcript does not indicate the date. 5

7 intended to announce not ready for trial (L.F , Supp. Tr. 5-6, 3 rd Supp. L.F. 3). The parties appeared for a pretrial evidentiary hearing on the state s motion to admit testimony pursuant to Section and appellant s motion to suppress on September 13 (Supp. Tr. 1). The state announced ready (Supp. Tr. 1). When Judge Schneider inquired if the defendant was ready, Carlson said No, your Honor. (Supp. Tr. 1). He said he had not been able to do discovery and had not gotten tapes made by the police officers (Supp. Tr. 1). Because appellant s estranged wife stole money intended to pay counsel, he had been unable to afford to do depositions (Supp. Tr. 1). He referenced the letter he had written (Supp. Tr. 1-2). The prosecutor responded that Carlson had all the discovery, and there were no tapes made by the police officers (Supp. Tr. 2-3). Judge Schneider said she had denied the continuance motion and read Carlson s letter, and they were going to proceed with the hearing (Supp. Tr. 5-6). As the state called its witnesses, Carlson declined to cross-examine them, stating Your Honor, I can t participate in this hearing. (Supp. Tr. 11, 20, 24, 28, 32, 33). He said that appellant was being denied his rights to counsel, confrontation, compulsory process, and to present a defense (Supp. Tr. 28). The judge said she was calling the case for trial the next day and ordered Carlson to be there (Supp. Tr. 38). He said he would make those same statements in front of the jury (Supp. Tr. 38). He said that appellant s wife forged a check 6

8 from his retirement account and cashed it, and now there was no money to pay Carlson (Supp. Tr. 40). Judge Schneider told Carlson he was basically admitting he had not competently represented appellant because of the money situation; Carlson said that it was only the money for depositions that was at issue (Supp. Tr ). Carlson made an oral motion to withdraw (Supp. Tr. 47). The judge wanted something in writing from Carlson and appellant, so they took a five minute recess (Supp. Tr. 48). On the record, appellant said that he would agree to Carlson s withdrawal and understood it would be for another trial date (Supp. Tr ). The judge granted the motion to withdraw (Supp. Tr. 57, 3 rd Supp. L.F. 1-2). After Carlson left the courtroom, appellant s son told the judge that they had paid Carlson $12,000 (Supp. Tr ). The judge had Carlson brought back in by the bailiff, and he admitted that he had received $12,000, but said that was insufficient (Supp. Tr ). The prosecutor asked that Carlson be ordered to appear and represent appellant the next day at the trial; the judge said she was loathe to allow Mr. Carlson to stay on this case and take it to trial some other time (Supp. Tr ). She asked appellant if he still wanted Carlson to withdraw, and he replied at the present time, yes (Supp. Tr. 69). The judge told Carlson, yes, you are off the case (Supp. Tr. 70). The jury trial was cancelled (L.F. 8). 7

9 The docket sheets indicate that on September 23, a counsel status hearing was set for September 27 (L.F. 8). On that date, the counsel status hearing was passed to October 25 (L.F. 8). However, on October 6, Frank Carlson filed an entry of appearance and a notice to take depositions (L.F. 8). The cause was thereafter reassigned to Division I, the Honorable Ted House (L.F. 9). On October 20, the state filed a motion to disqualify Carlson, citing the letter and the hearing, and saying that the prosecutor and the court had both filed bar complaints against Carlson (Supp. L.F. 1). Carlson filed a memo in opposition, citing to appellant s right to counsel of his choice, and saying that the state did not have standing to request his disqualification (Supp. L.F. 9). 3 Carlson asserted that he now had money in his trust account from appellant s mother to conduct depositions (Supp. L.F. 15). A hearing was held on the state s motion to disqualify on December 2, 2010 (Tr ). On December 14, 2010, Judge House entered an order disqualifying Carlson and continuing the cause (L.F ). The order stated, The decision to disqualify counsel lies within the sound discretion of the trial court. (cite omitted). That discretion is abused only where the trial 3 Carlson also requested that the motion and his response be sealed (Tr ). They were kept sealed in the Circuit Court file, and the first supplemental legal file was filed under seal with this Court. Appellant is tendering his brief under seal since it mentions the bar complaint. 8

10 court s decision is clearly against the logic of the circumstances is so arbitrary and unreasonable that it shocks the sense of justice and indicates a lack of careful consideration by the trial court. (cite omitted). Defense counsel s 9/9/10 letter to the Court states that defense counsel will announce not ready at trial and will not participate in the trial, thus resulting in the need to try the case twice. This necessity, defense counsel suggests, is based, among other things, on defendant s right to effective assistance of counsel. In State of Missouri ex rel. Wendy Wexler Horn v. the Honorable Thomas Ray, ED 94968, the Court of Appeals for the Eastern District of Missouri found that dual representation of a defendant and the victim in a case is improper and directed the trial court to grant the State s motion to disqualify defendant s counsel. Although not the same, defense counsel s conduct in this case is also improper and requires disqualification of defense counsel. This Court cannot tolerate a defense counsel flatly refusing to participate in the trial. Disqualification of defense counsel is among the options available to the Court in order to maintain the integrity of the judicial system and to protect the defendant s Sixth Amendment right to counsel. If defense counsel felt aggrieved by the Court s denial of his motion for a continuance, he is nevertheless obligated by the Rules of Professional Conduct to do his best to represent the defendant. He cannot be allowed to sabotage the trial. The State s Motion 9

11 to Disqualify Counsel for the Defendant is sustained. Attorney Frank Carlson is disqualified from representing defendant herein. (L.F ). Appellant s case proceeded to trial before a jury and Judge House on June 21, 2011 (Tr. 168). Appellant was represented by Nick Zotos (L.F. 11). The jury found appellant guilty of two counts of statutory sodomy in the first degree, one count of sexual exploitation of a minor, two counts of forcible sodomy, one count of victim tampering, one count of armed criminal action, and one count of attempted victim tampering (Tr , L.F ). The Honorable Ted House sentenced appellant to a total of two consecutive life sentences (Tr , L.F ). Notice of appeal was filed August 22, 2011 (L.F. 90). 10

12 POINT RELIED ON The trial court erred in disqualifying appellant s counsel of choice, Frank Carlson, upon the motion of the prosecuting attorney, because this structural error denied appellant his right to counsel of choice guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 18(a) of the Missouri Constitution, in that the stated ground for removal of counsel, the threat of Carlson s nonparticipation in trial, was no longer at issue. United States v. Gonzalez-Lopez, 548 U.S. 140 (2006); Wheat v. United States, 486 U.S. 153 (1988); State v. Harvey, 692 S.W.2d 290 (Mo. banc 1985); State ex rel. Horn v. Ray, 325 S.W.3d 500 (Mo. App., E.D. 2010); U.S. Const., Amends. VI and XIV; and Mo. Const., Art. I, Sec. 18(a). 11

13 ARGUMENT The trial court erred in disqualifying appellant s counsel of choice, Frank Carlson, upon the motion of the prosecuting attorney, because this structural error denied appellant his right to counsel of choice guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 18(a) of the Missouri Constitution, in that the stated ground for removal of counsel, the threat of Carlson s nonparticipation in trial, was no longer at issue. Standard of review The question of whether appellant s Sixth Amendment right to counsel of his choice was violated is a mixed question of law and fact, and appellant asserts that, as with Confrontation Clause error, it should be reviewed de novo. See, State v. Justus, 205, S.W.3d 872 (Mo. banc 2006). Where a criminal defendant's right to be assisted by counsel of one's choice is wrongly denied, it is unnecessary for a reviewing court to conduct an ineffectiveness or prejudice inquiry to establish a Sixth Amendment violation. Moritz v. Woods, 2012 WL (E.D. Mich., Feb. 21, 2012), citing United States v. Gonzalez-Lopez, 548 U.S. 140, 148 (2006). Facts Frank Carlson was appellant s attorney (L.F. 6). He filed a continuance motion about two weeks before the cause was set to go to trial (2 nd Supp L.F

14 17). Among other grounds, Carlson said he had not been able to take depositions or prepare for trial because he had been inadequately paid (2 nd Supp. L.F ). The continuance motion was denied (L.F. 7, Supp. Tr. 5). Carlson then sent a letter to Judge Schneider saying that he was not ready, and intended to announce not ready for trial (L.F , Supp. Tr. 5-6, 3 rd Supp. L.F. 3). The parties appeared for a pretrial evidentiary hearing on September 13 (Supp. Tr. 1). The state announced ready (Supp. Tr. 1). When Judge Schneider inquired if the defendant was ready, Carlson said No, your Honor. (Supp. Tr. 1). He said he had not been able to do discovery and had been unable to afford to do depositions because he had not been adequately paid (Supp. Tr. 1). Judge Schneider said she had denied the continuance motion and read Carlson s letter, and they were going to proceed with the hearing (Supp. Tr. 5-6). As the state called its witnesses, Carlson declined to cross-examine them, stating Your Honor, I can t participate in this hearing. (Supp. Tr. 11, 20, 24, 28, 32, 33). The judge said she was calling the case for trial the next day and ordered Carlson to be there (Supp. Tr. 38). He said he would make those same statements in front of the jury (Supp. Tr. 38). Carlson made an oral motion to withdraw (Supp. Tr. 47). Appellant said that he would agree to Carlson s withdrawal and understood it would be for another trial date (Supp. Tr ). The judge granted the motion to withdraw (Supp. Tr. 57, 3 rd Supp. L.F. 1-2). After Carlson left the courtroom, appellant s son told the judge that they had paid Carlson $12,000 (Supp. Tr ). The judge had Carlson brought back 13

15 in by the bailiff, and he admitted that he had received $12,000, but said that was insufficient (Supp. Tr ). The prosecutor asked that Carlson be ordered to appear and represent appellant the next day at the trial; the judge said she was loathe to allow Mr. Carlson to stay on this case and take it to trial some other time (Supp. Tr ). She asked appellant if he still wanted Carlson to withdraw, and he replied at the present time, yes (Supp. Tr. 69). The judge told Carlson, yes, you are off the case (Supp. Tr. 70). The jury trial was cancelled (L.F. 8). A counsel status hearing was set for September 27 (L.F. 8). On that date, the counsel status hearing was passed to October 25 (L.F. 8). However, on October 6, Frank Carlson filed an entry of appearance and a notice to take depositions (L.F. 8). The cause was thereafter reassigned to Division I, the Honorable Ted House (L.F. 9). The prosecutor filed a motion to disqualify Carlson, citing the letter and the hearing, and saying that the prosecutor and the court had both filed Bar complaints against Carlson (Supp. L.F. 1). Carlson filed a memo in opposition, citing to appellant s right to counsel of his choice, and saying that the state did not have standing to request his disqualification (Supp. L.F. 9). Carlson asserted that he now had money in his trust account from appellant s mother to conduct depositions (Supp. L.F. 15). 14

16 A hearing was held on the state s motion to disqualify (Tr ). Judge House entered an order disqualifying Carlson and continuing the cause (L.F ). Appellant was represented by Nick Zotos at his jury trial (L.F. 11). In his motion for new trial, attorney Zotos asserted that the trial court erred in removing appellant s attorney of choice, Frank Carlson, in violation of his right to counsel under the United States and Missouri Constitutions (L.F. 76). The state s motion to disqualify Carlson was erroneously granted The Sixth Amendment right to counsel includes the right of a defendant who does not require appointed counsel to choose who will represent him. Gonzalez-Lopez, 548 U.S. at 144; Wheat v. United States, 486 U.S. 153, 159 (1988); Powell v. Alabama, 287 U.S. 45, 53 (1932). Exceptions to this rule include where counsel is suffering under a conflict of interest. Wheat, 486 U.S. at 159. Where a court justifiably finds an actual conflict of interest, it can deny a waiver of the conflict and insist, for example, that co-defendants be represented separately. Id. at 162. In State ex rel. Horn v. Ray, 325 S.W.3d 500 (Mo. App., E.D. 2010), relied upon by Judge House in making his ruling here (L.F ), this Court held further that it was not error to disqualify defense counsel where counsel was representing both a defendant and his alleged victim. 325 S.W.3d at

17 But where there is not an actual conflict of interest or another exception such as unlicensed counsel (see, Wheat, 486 U.S. at 159), then the right to counsel of choice is a procedural protection it is not derived from the Sixth Amendment s purpose of ensuring a fair trial. Gonzales-Lopez, 548 U.S. at 147. It is the root meaning of the constitutional guarantee. Id. at Where the right to be assisted by counsel of one s choice is wrongly denied, therefore, it is unnecessary to conduct an ineffectiveness or prejudice inquiry to establish a Sixth Amendment violation. Deprivation of the right is complete when the defendant is erroneously prevented from being represented by the lawyer he wants, regardless of the quality of the representation he received. To argue otherwise is to confuse the right to counsel of choice which is the right to a particular lawyer regardless of comparative effectiveness with the right to effective counsel which imposes a baseline requirement of competence on whatever lawyer is chosen or appointed. Id. at 148. This is why the State s reliance in its motion to disqualify counsel on State v. Harvey, 692 S.W.2d 290 (Mo. banc 1985) is misplaced (Supp. L.F. 9-20). In Harvey, the Missouri Supreme Court found defense counsel ineffective where he sat mute at a capital murder trial and failed to participate. As did Carlson at the 491 hearing in this case, Harvey s counsel requested a continuance, saying he was 16

18 unprepared to proceed. 692 S.W.2d at 290. When that was denied, he attended the trial but refused to participate in the proceedings. Id. Unquestionably, Judge Schneider at the 491 hearing was between a rock and a hard place. She could not allow Carlson to represent appellant ineffectively at trial, as he threatened to do. But she did what the Harvey Court suggested: a trial court can meet the threat of nonparticipation by ascertaining if the defendant is knowingly and understandingly waiving his right to effective assistance of counsel. In appropriate cases, the court s contempt power or the attorney disciplinary mechanism may be invoked. 692 S.W.2d at 290. But the error in this case is later it is the grant of the state s motion to disqualify Carlson after he entered his appearance at a later point after he was prepared to go to trial. Unquestionably the trial court was angry with Carlson s behavior, although it can be characterized as strong advocacy for his client. But punitive measures lay in the disciplinary process, which had already been instituted not in denying appellant his right to counsel of choice. In State v. Smith, 761 N.W.2d 63 (Iowa 2009), the Iowa Supreme Court held that the trial court violated the defendant s Sixth Amendment rights by disqualifying his lead attorney for a speculative conflict of interest three weeks before trial. See also, Gonzales v. Maryland, 970 A.2d 908 (Md. 2009) (Where a defendant has exercised his right to select the private counsel of his choice, the defendant may not be forced to either accept an attorney that was not retained or to proceed pro se in the event the chosen attorney does not appear on the date of the 17

19 defendant s trial); People v. Bingham, 847 N.E.2d 903 (Ill. App. 2006) (defendant was entitled to further inquiry into his motion for continuance to substitute counsel prior to trial court s denial); and United States v. Sellers, 645 F.3d 830 (7 th Cir. 2011) (arbitrary denial of defendant s motion for continuance to substitute new counsel was structural error). Denial of the right to counsel of choice is structural error. Sellers, supra; Gonzales-Lopez, 548 U.S. at 150. The violation requires no prejudice be shown, and no harmless error analysis be conducted. Id. at Frank Carlson was prepared to proceed to trial and represent appellant effectively. Other sanctions existed for his earlier conduct. The trial court erred in granting the state s motion to disqualify Carlson, denying appellant counsel of his choice. This Court must therefore reverse and remand for a new trial. 18

20 CONCLUSION For the reasons presented, appellant respectfully requests that this Court reverse his convictions and remand for a new trial. Respectfully submitted, /s/ Ellen H. Flottman Ellen H. Flottman, MOBar #34664 Attorney for Appellant Woodrail Centre, 1000 W. Nifong Building 7, Suite 100 Telephone: (573) , ext. 323 FAX: (573) Ellen.Flottman@mspd.mo.gov 19

21 Certificate of Compliance and Service I, Ellen H. Flottman, hereby certify to the following. The attached brief complies with the limitations contained in Rule 84.06(b) and Local Rule 360. The brief was completed using Microsoft Word, Office 2007, in Times New Roman size 13 point font. Excluding the cover page, the signature block, this certificate of compliance and service, and appendix, the brief contains 3,545 words, which does not exceed the 15,500 words allowed for an appellant s brief. On this 20 th day of June, 2012, electronic copies of Appellant s Brief and Appellant s Brief Appendix were placed for delivery through the Missouri e-filing System to Shaun Mackelprang, Assistant Attorney General, at Shaun.Mackelprang@ago.mo.gov. /s/ Ellen H. Flottman Ellen H. Flottman 20