In re Teague

Filed 9/17/08 In re Teague CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL - FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

Michael Leyland Teague petitions for a writ of habeas corpus, asserting various claims. We issued an order to show cause. We now vacate the judgment. We conclude petitioner was denied the effective of assistance of counsel when his trial attorney failed to interview or investigate a witness whose testimony would have been highly useful to the defense.

BACKGROUND

A. Procedural History

Petitioner was convicted of battery on a cohabitant and making criminal threats. It was found true he suffered a prior serious felony conviction within the meaning of Penal Code^[1]section 667, subdivisions (a), (c)-(e)(1), and served a prior term of imprisonment within the meaning of section 667.5, subdivision (b). Petitioner was sentenced to a prison term of 12 years 4 months. He appeals and files a petition for writ of habeas corpus. The petition makes various contentions, most involving claims of ineffective assistance of counsel. This court issued an order to show cause. As to the claim defense counsel was ineffective for failing to investigate a possible defense, we submitted questions to a referee for findings of fact. At the conclusion of that hearing, the referee filed a report.

B. Evidence at Trial

1. Prosecution Case

Petitioner and Michelle Flowers dated for several years and had a daughter. The pair lived together at the home of Flowers's mother Sonya Conant from October 2002 until Flowers told petitioner to move out in January 2003.

On the evening of January 16, 2003, a few weeks after Flowers told him to leave, petitioner showed up at the house. Flowers and the couple's daughter were home alone. Flowers was washing her hair in her mother's bathroom. She heard the house door open. She looked into her mother's bedroom and saw petitioner. As he walked into the bathroom, the two argued angrily. Flowers told petitioner to leave. He pushed Flowers, and she fell backwards through a sliding shower door. Flowers attempted to call the police on her cell phone, but petitioner grabbed it. As Flowers attempted to get up, petitioner pushed her into a towel rack and slapped her face. Flowers fell to the floor. Petitioner started throwing things at her, including a hot curling iron that burned her arms.

Flowers heard the approach of a car, ran from the bathroom and out the front door. Petitioner followed, laughing and saying he would kill her. Flowers believed him and was frightened. Outside, Conant and Flowers's 14-year-old sister Lanora were returning home. Flowers told them petitioner beat her. Flowers's mother went into the house and asked petitioner what was happening. Appellant denied beating Flowers. Conant looked in the bathroom and saw a broken shower door and hair on the floor. She told petitioner to leave. He laughed. When Lanora tried to use her cell phone to call the police, petitioner grabbed her wrist and threw the phone out of her hand. Petitioner told her he would cut her throat. As he raised his fist to hit Lanora, Conant intervened and hit petitioner in the mouth. Petitioner laughed.

As petitioner left, he stated he would kill them all and he would be back. Lanora was afraid he would return and kill them. She called the police.

Sheriff's Deputy Mario Galvan arrived at Flowers's home shortly after petitioner left. Flowers was upset and crying. Galvan examined the damaged shower door in the bathroom. He noticed Flowers had scratches on her face and redness and bruising on her right arm and lower back. The injuries appeared to be fresh.

Approximately a week later, petitioner left a message on Flowers's answering machine, stating he would be back. Flowers was aware that while he was never violent with her before the January 16 incident, he beat up his boss's son.

2. Defense Case

The defense offered no evidence. In cross-examining the prosecution witnesses and in argument, defense counsel suggested the altercation between petitioner and Flowers was mutual combat. Counsel argued the incident was not a one-sided assault and Flowers suffered very little physical injury, less than would be expected from the attack she described. Counsel suggested Flowers's relationship with and attitude about petitioner was more complex than she admitted and the witnesses were coached by the prosecutor to provide consistent accounts of the incident. Counsel argued the criminal threats allegedly made by petitioner could not reasonably be taken seriously.

C. Petition for Writ of Habeas Corpus

Among other claims, petitioner asserted he was denied the effective assistance of counsel when his defense attorney, Kendal Byrd, failed to investigate and interview a witness, Deanna Weddell, who would have provided important evidence for the defense.

1. Deanna Weddell's Declaration

In her declaration attached to the petition, Weddell stated she and Flowers worked together and became good friends about a month after the January 16 incident. Flowers spoke to her often before petitioner's trial about those events. Flowers told Weddell petitioner did not hit her and did not throw her through the shower door. Flowers stated the two were simply arguing. Flowers explained petitioner "cheated" on her, and she was angry with petitioner when he came to her house on January 16. Flowers stated that because she was angry with petitioner about his infidelity, she falsely claimed he hit her and pushed her through the shower door. Flowers told Weddell she and petitioner were angry and may have pushed each other.

Weddell stated she also talked to Conant, Flowers's mother, before petitioner's trial. Conant told Weddell petitioner did not hit anyone. Conant bragged to Weddell she was the one who "'kicked [petitioner's] ass.'"

Weddell concluded petitioner, who Weddell never met, was falsely accused. She visited him in jail in May 2004, months before petitioner's trial. When she related her information to petitioner, he gave her his attorney's telephone number and asked her to call him.

Weddell repeatedly called counsel to relate her information. Counsel did not return her calls.

Weddell was prepared to testify for petitioner. Because counsel did not communicate with her, Weddell did not know when petitioner's trial was going to be held. Weddell spoke with petitioner's mother. Counsel provided petitioner's mother with information concerning a court date. However, when Weddell and petitioner's mother went to the courthouse on that date, the matter was not on calendar.^[2]

2. Petitioner's Declaration

Petitioner related his pretrial contacts with Weddell. He noted that before his trial she visited him in jail and related her information concerning Flowers's and Conant's allegations. Petitioner stated he knew Flowers fabricated her claims because he did not hit her or push her through the shower door. Petitioner stated that on the date of the incident he and Flowers argued angrily and pushed each other. Petitioner stated that in his anger he knocked a shower rack off the wall and threw it against the shower door, knocking the door off its track.

When he next met with trial counsel, he related what Weddell said, gave counsel her telephone number and asked him to contact her. On every occasion when petitioner saw his attorney, he asked if counsel talked to Weddell. His attorney stated Weddell's testimony would not be helpful. Petitioner continued to request counsel contact Weddell concerning his defense.

3. Tamara Teague's Declaration

Petitioner's mother Tamara Teague (Teague) stated Weddell called her in June 2004, months before petitioner's trial. Weddell related to Teague her conversations with Flowers and Conant. Weddell stated she tried to contact petitioner's attorney without success. Teague related Weddell's information to petitioner's attorney. He seemed excited and stated her testimony would be good for the defense. Teague gave counsel Weddell's telephone number and asked him to call her. Teague repeatedly asked counsel to contact Weddell. Teague, who lives in Arizona, wanted to attend her son's trial, but counsel did not inform her of the date.

4. Habeas Counsel's Declaration

Petitioner's present counsel, Danalynn Pritz, filed a declaration. She states she repeatedly and without success attempted to contact trial counsel. She sent him a letter to which he did not respond asking him to provide her with his file concerning petitioner's case. Eventually, at Pritz's request, this court filed an order that trial counsel communicate with her concerning allegations of ineffective assistance and provide her with his file concerning petitioner's case. When counsel still did not respond, this court issued an order to show cause, stating that if he did not appear at the hearing on the order, a warrant would be issued for his arrest. The order stated no hearing would be required if trial counsel contacted Pritz by March 31, 2006. On March 31, 2006, Byrd contacted Pritz.

Trial counsel declined to provide a declaration concerning the allegations of his ineffective assistance. In her declaration, Pritz quoted counsel, who stated he did not have a clear recollection of petitioner's case, as telling her he did not know of Weddell's existence until after petitioner's trial.

D. Return

In his return, respondent argued petitioner failed to make a prima facie case counsel was ineffective for failing to contact and investigate Weddell. Respondent argued, in any case, any ineffective assistance was harmless in light of the strong evidence of petitioner's guilt and problems with Weddell's credibility.

The return did not include declarations from Flowers, Conant, Weddell or trial counsel. It did include, however, a declaration from Shannon Williams, a Special Agent with the California Department of Justice. In her declaration, Agent Williams related the details of her interviews of Flowers and Weddell.

Flowers admitted a friendship with Weddell. The two often did drugs together. Flowers denied a sexual relationship existed between the two women. Flowers stated she did not know why Weddell contacted petitioner but noted the two women had a complex and difficult relationship in large part because of their use of drugs. Flowers stated that while she discussed with Weddell her relationship with petitioner, she did not discuss her trial testimony and never stated her testimony was a lie. Flowers told Agent Williams she and Weddell lost contact for a time in part because of their drug usage and in part because of Weddell's contacts with petitioner. Flowers stated she and Weddell were now seeing each other again.

Weddell reported to Williams she and Flowers used drugs together and at one point developed a sexual relationship. Weddell did not know either Flowers or petitioner at the time of the January 2003 incident. Weddell stated Flowers often talked about the events that led to petitioner's arrest. Flowers told Weddell the incident only involved the two shoving each other around the bathroom, Flowers stated she was not injured that evening and injuries she had around the time of the altercation were the result of a car accident. Flowers told Weddell she was upset with petitioner because of his unfaithfulness. After hearing these statements, Weddell visited petitioner in jail approximately six times and left money in his jail account.

Weddell stated she made numerous attempts to contact petitioner's attorney.

In her declaration, Agent Williams states Weddell admitted some of the assertions in her prior declarations were incorrect. Weddell stated that while it is her opinion Flowers lied about her altercation with petitioner, Flowers never stated she lied. Neither did Flowers state she lied about the incident to get back at petitioner.

The return also included the declaration of Deputy Attorney General Ivy Fitzpatrick. That declaration indicated Fitzpatrick talked briefly with trial counsel on one occasion. A letter was sent to counsel requesting he contact the Attorney General's office to discuss his representation of petitioner. Counsel was telephoned three times and messages were left for him to contact Fitzpatrick about submitting a declaration concerning this matter. Trial counsel did not return those calls.

E. Traverse

Appended to petitioner's traverse was a second declaration from Weddell. Weddell stated Flowers never specifically stated her allegations against petitioner were lies. Weddell stated that because she knew Flowers, her character and disposition, she knew she was lying. Weddell stated Flowers did not tell her petitioner threw her through a shower door. Flowers stated the only person hurt during the altercation was petitioner. When Weddell asked Flowers how she could put someone on trial when she did not get hurt, Flowers said, "'nobody cheats on me and gets away with it.'" In her declaration, Weddell stated: "It seemed to me that the criminal proceeding against [petitioner] was Flowers way of getting even with her boyfriend for 'cheating' on her." Weddell stated it was clear to her that Flowers "[a]t a minimum" was exaggerating to make the situation worse.

F. Reference Hearing

Weddell, Teague, petitioner and trial counsel testified at the reference hearing. Flowers and Conant did not.

1. Weddell, Teague, Petitioner

To a great extent, the testimony of Teague and petitioner were consistent with their declarations contained in the petition. Weddell's testimony was consistent with her declaration attached to the traverse. Weddell testified Flowers never specifically stated she was lying about the altercation with petitioner. Flowers, however, made many statements from which Weddell concluded her accusations against petitioner were lies, e.g., "'Nobody cheats on me and gets away with it." Weddell testified that when she discussed the altercation, Flowers never stated she was hurt or beaten or kicked. Flowers stated there was mutual shoving. When Weddell asked Flowers if appellant hit her, she said "no."

Petitioner testified he told trial counsel that the night of the altercation he and Flowers were pushing each other but he did not slap her, throw her through the shower door or pull her hair.

2. Trial Counsel

Trial counsel at first testified he did not become aware of Weddell until after petitioner's trial was over. After his memory was refreshed, he stated he first became aware of Weddell before trial. Petitioner told trial counsel Weddell visited him in jail. Petitioner told trial counsel Weddell would testify Flowers was not being truthful. Teague also told trial counsel Weddell would testify for the defense.

Trial counsel testified that before trial, petitioner told him he and Flowers were pushing and shoving in the bathroom and petitioner shoved Flowers through the shower. Trial counsel assumed this was how Flowers was injured.

Trial counsel testified he did not call Weddell as a witness because he concluded she was impeachable. Trial counsel knew Weddell visited petitioner many times at the jail and knew jailhouse conversations are recorded. He stated the prosecutor would review those recordings. He believed those recordings might be unfavorable. Trial counsel was also concerned there was physical evidence of Flowers's injuries and photographs of damage in the bathroom where the altercation occurred and Flowers immediately reported to Conant petitioner assaulted her. Trial counsel was afraid in light of that evidence the jury would conclude Weddell's testimony was a defense fabrication.

When asked, trial counsel stated he came to these conclusions and decided not to call Weddell as a witness without interviewing her. The referee asked trial counsel if it would not have been better to interview her and ask why she contacted petitioner to see what she knew about the case and whether he believed she was credible. Trial counsel agreed that in retrospect that would have been better. The referee asked if he made any effort to have Weddell interviewed by an investigator. Counsel stated he did not, he talked with Teague about Weddell on several occasions. Counsel eventually testified he could not remember if he talked to Weddell before trial or not.

Trial counsel testified about supporting exhibits that showed between September 2004 and February 2005 six complaints were filed against him by the Office of the Trial Counsel of the State Bar alleging 21 different matters. The matters alleged failures to perform with competence, failures to cooperate in a State Bar investigation, improper withdrawals from employment, failures to release files, aiding the unauthorized practice of law, failures to refund unearned fees, failures to inform client of significant developments, failures to disclose a conflict and failures to respond to client inquires. Trial counsel testified he resigned from the State Bar but not because of the complaints.

G. Factual Findings

This court submitted 10 questions to the referee. In response, the referee found Weddell and Flowers and Weddell and Conant discussed the events of January 16, 2003, before petitioner's trial. The referee found Weddell made numerous efforts to convey her information to trial counsel. The referee found Weddell left a series of "vague" messages for Byrd and also conveyed her information before petitioner's trial to Teague and to petitioner. Trial counsel was aware before trial Weddell claimed Flowers told her she was not hurt in the altercation, there was merely shoving between her and petitioner, there was no pulling of hair, no criminal threats and Flowers was attempting to get even with petitioner.

The referee found trial counsel did not offer Weddell as a defense witness because in counsel's opinion "the physical evidence, that is, the broken shower door, the towel rack ripped from the wall, and Flowers' hair on the floor, was portrayed in photographs. Also trial counsel did not offer Weddell as a defense witness because Weddell visited petitioner approximately 10 times while he was in jail before trial, and these visits were tape-recorded." The referee found, however, with respect to the tape-recorded jail visits, "there was no mention of suborning perjury by defense counsel, nor did defense counsel investigate what was said or recorded."

Although not in response to a question asked by this court, the referee also found "that petitioner's statements to . . . trial counsel were consistent with Flowers' testimony at trial and her statements to police."

The referee concluded by stating: "This court also finds that defense counsel did not sit down face-to-face with Weddell to assess her credibility and counsel failed to have a formal statement taken from her. This court finds that trial counsel's acts and/or omissions with respect to Weddell, are all troubling to the trier of fact in this instance."

DISCUSSION

The issue is whether trial counsel provided prejudicially ineffective assistance of counsel by failing to interview Weddell and investigate her claims concerning the statements of Flowers and Conant. We conclude the representation provided was prejudicially deficient.

A. Law

A petitioner for habeas corpus relief bears the burden of establishing the judgment under which he or she is restrained is invalid. To do so, he or she must prove, by a preponderance of the evidence, facts that establish a basis for such relief. (In re Cudjo (1999) 20 Cal.4th 673, 687.)

To prove ineffective assistance of counsel, petitioner must show counsel's performance was deficient because his representation fell below an objective standard of reasonableness under prevailing professional norms and it is reasonably probable, but for counsel's deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. The question, however, is not solely a matter of outcome determination but is concerned with whether the deficient representation renders the result unreliable or the proceedings fundamentally unfair. (In re Hardy (2007) 41 Cal.4th 977, 1018-1019.)

Trial counsel has a duty to make reasonable investigations or to make a reasonable decision that a particular investigation is unnecessary. A decision not to investigate is assessed in light of all the circumstances with great deference given to counsel's judgments. (In re Cudjo, supra, 20 Cal.4th at p. 692.)

We accord great weight to the factual finding of a referee when supported by substantial evidence. (In re Lucas (2004) 33 Cal.4th 682, 694.)

B. Analysis

1. Ineffective Assistance

Respondent essentially concedes trial counsel provided ineffective assistance when he failed to interview and investigate Weddell's claims concerning the truth of the crucial incriminating statements made by Flowers and Conant.

It may be, as the referee found, petitioner told counsel he pushed Flowers through the shower door. It may be Flowers had some documented injuries and the investigating officer saw damage to the bathroom consistent with Flowers's and Conant's accounts of what occurred. It may be Weddell's frequent visits to the jail raised questions concerning her biases. Nonetheless, the alleged crimes in this case were the result of a domestic dispute. It is reasonable to believe the accounts offered by Flowers, her mother and sister of what occurred were not completely accurate or fully honest. Weddell's claims required her to be interviewed and every aspect of the case be evaluated in light of her statements. It would have taken little time or effort to do so. Trial counsel's failure to interview Weddell and investigate her claims was unreasonable under prevailing professional norms. Counsel provided petitioner ineffective assistance.

2. Prejudice

We conclude counsel's professional failure was prejudicial.

This case involved a domestic dispute that became, to some degree, physical. The dynamics of such confrontations can be complex. They may have long histories, mutual antagonisms and equally shared responsibility.

The nature of domestic disputes provides a ready defense to assault charges arising from them. The defense attempts to raise a reasonable doubt of guilt by suggesting the altercation was essentially mutual combat and the dispute was complex and long standing. Given the emotional context of such disputes, the defense can suggest the complaining party is morally and legally as culpable as the defendant. The defense can suggest the complaining party's allegations are at least exaggerated and simply the next "blow" in the couple's on-going folie a deux.

This was the defense trial counsel offered here. Weddell's claim that both Flowers and Conant were, at the very least, exaggerating their claims fit this defense perfectly. Weddell's testimony would have provided palpable substance to what was, without her testimony, to a great extent, merely an invitation to the jury to find reasonable doubt based on the general nature of domestic disputes.

There is nothing in the record suggesting Weddell was a particularly impeachable witness. She did visit petitioner a number of times in jail, but that certainly did not devastate her credibility. It does not appear that whatever her complex relationship with Flowers eventually became, it was complex at the trial. Trial counsel apparently feared her conversations with petitioner at the jail, which were recorded, might impeach her. Trial counsel, however, did not review those conversations, and nothing in the record indicates the recordings would have been harmful to Weddell's credibility.

The referee found trial counsel did not contact Weddell or offer her testimony because counsel believed photographs taken of the bathroom the evening of the altercation substantiated Flowers's version of events. This reason for not contacting Weddell is not compelling. Trial counsel did not know exactly what Weddell was claiming, because he did not talk to her. In any event, given that both petitioner and Flowers agreed there was mutual pushing in the bathroom, a jury might, in light of Weddell's testimony, have believed the physical evidence was the result of a mutual confrontation that did not warrant a finding petitioner was guilty of a crime.

The referee made one significant finding of fact that was not in response to a question asked by this court. The referee found petitioner's statements to trial counsel were consistent with Flowers's testimony at trial and her statements to the police. In other words, the referee found petitioner told trial counsel he assaulted Flowers and made criminal threats.

Given that trial counsel was totally uncooperative with the parties and provided no prehearing statement, it is understandable his testimony would raise new questions. While it was appropriate for the referee, given the matters at issue, to comment on what petitioner told trial counsel concerning the altercation, we conclude the referee's findings in that regard are only in part supported by substantial evidence.

In his declaration, petitioner stated he neither hit Flowers nor pushed her through the shower door. Petitioner stated he knocked the shower doors off their track when he hit them with the towel rack. During his testimony, trial counsel was asked if this was what petitioner told him before trial. Trial counsel responded petitioner told him: "[T]here was an argument between him and Ms. Flowers in the bathroom, pushing and shoving, and then he shoved her into the shower."

It is unreasonable to conclude based on this evidence that petitioner's account of the altercation to trial counsel was fully consistent with Flowers's trial testimony. We have reviewed the record, however, and conclude there is substantial evidence to support the referee's implied finding petitioner told trial counsel he pushed Flowers through the shower doors.

That petitioner told trial counsel he threw Flowers through the shower door does nothing to change our conclusions concerning the prejudicial nature of counsel's failure to interview Weddell and offer her as a witness. First, trial counsel did not cite any discrepancy between what petitioner told him and what he knew about Weddell's claims as a basis for not interviewing her. Second, and more importantly, as Weddell's account was refined in her second declaration and at the reference hearing, there was nothing inherently contradictory between that account and what petitioner told trial counsel.

In her first declaration, Weddell made categorical statements that Flowers told her petitioner neither hit her nor threw her through the shower doors. However, when she was questioned by Agent Williams and by counsel at the reference hearing, she was less categorical. Weddell stated Flowers never directly admitted her allegations against petitioner were lies. Weddell merely concluded they were based on things Flowers told her, e.g., "nobody cheats on me and get away with it." Weddell stated Flowers told her that during the altercation there was mutual shoving. Flowers never told Weddell petitioner beat her or hit her or pushed her through a shower door or hurt her in any way. Weddell stated she asked Flowers directly if petitioner hit her and Flowers stated "no." Weddell's point was that if petitioner had hit Flowers and pushed her through a shower door, Flowers would have told her.

Had trial counsel interviewed Weddell, he would undoubtedly have similarly refined her account of what Flowers told her. Lay witnesses often come to conclusions based on their observations that in a legal evidentiary sense are unwarranted. This does not mean they are lying. It may simply mean that while their report of foundational facts is admissible, their personal conclusions based on them are not. Witnesses often in good faith do not draw this distinction.

Ultimately, there was no direct contradiction between petitioner's statement to trial counsel and Weddell's account of what Flowers did and did not tell her. Weddell's testimony would have been highly useful to the defense. It might have led the jury to at least conclude Flowers had a motive for making a false or at least exaggerated claim concerning her altercation with petitioner and she was not being completely honest. We conclude counsel's deficient performance makes the result in this case unreliable and the proceedings fundamentally unfair. We also conclude there is a reasonable probability that but for counsel's deficient performance, the results of petitioner's trial would have been different.

The judgment is vacated, and the matter is remanded to the superior court for further proceedings.

BENKE, Acting P. J.

WE CONCUR:

HUFFMAN, J.

NARES, J.

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^[1] All further statutory references are to the Penal Code unless otherwise specified.

^[2] After petitioner's conviction, trial counsel filed a motion for new trial based on a claim of jury misconduct. The evidentiary basis for the motion was a letter, not a declaration, from Weddell to the trial judge. Weddell explained she worked with Flowers. After the trial, Flowers told Weddell she knew one of the jurors. Trial counsel attached his declaration to the motion, stating the juror had been the jury foreperson. Counsel argued the juror committed misconduct by failing to reveal that he knew Flowers. The motion was denied.