Commonwealth v. Brooks

OPINION

Justice NIGRO.

Following a jury trial, Appellant Billy Brooks was found guilty of first-degree murder and possession of an instrument of- crime (“PIC”). The jury returned a verdict of death, and on January 23, 1992, the trial court formally imposed the death sentence. Appellant filed post-sentence motions, which the trial court denied. This direct appeal followed, and we now reverse and remand the matter for a new trial.¹

On December 26,1990, Appellant, an inmate at Holmesburg prison, stabbed and killed another inmate, Eric Vaughn, during an argument over a bathrobe. Appellant was subsequently charged with first-degree murder, PIC, and conspiracy. Thomas Turner, Esquire² was appointed to represent Appellant. Jury selection for Appellant’s trial began on January 7, 1992, at which time Appellant informed the trial court that he was so dissatisfied with Mr. Turner’s representation that he requested permission to represent himself.³ The trial court allowed Appellant to proceed pro se, with Mr. Turner serving as standby counsel. After Appellant was granted permission to represent himself, he and Mr. Turner essentially took turns presenting Appellant’s case to the jury.⁴ The jury ultimately found Appellant guilty of first-degree murder and PIC, but acquitted him of conspiracy. Following the penalty hearing, the jury concluded that the two aggravating circumstances it found outweighed the one mitigating circumstance it also found, and returned a verdict of death.⁵

In his appeal to this Court, Appellant raises numerous claims of the ineffective assistance of his trial counsel, including a claim that trial counsel was ineffective for failing to meet with him at all prior to his trial.⁶ As we agree with Appellant that counsel was clearly ineffective in this regard, we reverse.

The law presumes that counsel has rendered effective assistance. See Commonwealth v. Balodis, 747 A.2d 341 (Pa.2000). Therefore, to prevail on an ineffectiveness claim, Appellant must demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel’s course of conduct was without a reasonable basis designed to effectuate his interest; and (3) he was prejudiced by counsel’s ineffectiveness, ie., that there is a reasonable probability that but for the act or omission in question, the outcome of the proceeding would have been different. See Commonwealth v. Douglas, 558 Pa. 412, 737 A.2d 1188, 1199 (1999). This Court has made it clear that counsel’s failure to prepare for trial is “simply an abdication of the minimum performance required of defense counsel.” Commonwealth v. Perry, 537 Pa. 385, 644 A.2d 705, 709 (1994). Moreover, this Court has determined that in a death penalty case, “it is not possible to provide a reasonable justification for [defending a case] without thorough preparation.” Id.

Here, during the post-verdict hearings, Mr. Turner testified regarding his failure to meet with Appellant prior to trial as follows:

Q. [Appellant’s appellate counsel]: I see. Now, you tried Billy Brooks trial before a jury before Judge Halbert, isn’t that true?

A. [Mr. Turner]: That is correct.

Q. And prior to picking the jury, you had never met Mr. Brooks, isn’t that true?

A. I had never met him personally, no, face to face, no.

Q. You had spoken to him one time over the telephone, is that correct?

A. No, I probably spoke to him more than one time over the telephone.

Q. Do you have a specific recollection of more than one conversation?

A. I have a specific recollection of one long conversation and I have some of others.

Q. How long was that one conversation?

A. Probably twenty minutes to a half hour.

Q. And you have no specific recollection of any other conversation prior to that?

A. I know I talked to him. But I have no specific recollection, no.

N.T., 7/16/1996, at 9-10. As this testimony makes clear, Mr. Turner never once met with Appellant in person before his trial on capital charges. In fact, Mr. Turner testified that he could only specifically recall one telephone conversation with Appellant, and that conversation lasted just twenty minutes to one-half hour. It should go without saying that no lawyer, no matter how talented and efficient, can possibly forge a meaningful relationship with his client and obtain adequate information to defend that client against first-degree murder charges in a single thirty-minute telephone conversation. Although a lawyer can always learn certain information from his client over the telephone, we simply would be discounting the gravity of a death penalty case were we to say that a lawyer representing a defendant in such a case has done his job effectively when he has spent only limited time on the telephone with his client. Indeed, the very nature of a capital case, typically quite involved and always subjecting the defendant to the possibility of death, clearly necessitates at least one in-person meeting between a lawyer and his client before trial begins. Without such a meeting, there is little to no hope that the client will develop a fundamental base of communication with his attorney, such that the client will freely share important information and work comfortably with the lawyer in developing a defense plan. Moreover, only a fáce-to-face meeting allows an attorney to assess the client’s demeanor, credibility, and the overall impression he might have on a jury. This is of particular importance in cases in which the client may take the stand in his defense or at the penalty phase in an attempt to establish the existence of particular mitigating circumstances. As Appellant was deprived of the benefits of a face-to-face meeting here, it is clear that Appellant’s ineffectiveness claim has arguable merit.⁷ See Douglas, 737 A.2d at 1199.

It is equally clear that Mr. Turner had no reasonable basis for failing to meet with Appellant in person prior to trial. During the post-trial hearing, when Mr. Turner attempted to explain why he never went to Holmesburg to speak with Appellant, Mr. Turner conceded that he had not been “looking forward to spending any time alone with Mr. Brooks,” apparently because Appellant’s previous attorneys had indicated to Mr. Turner that Appellant was “contentious.”⁸ N.T., 7/16/1996, at 21, 27. Moreover, Mr. Turner stated that he thought it would be better to limit in-person contact with Appellant so as to avoid a potential conflict in their relationship. Id. at 27, 737 A.2d 1188. Mr. Turner also rationalized to the court that although he had intended to visit Appellant at Holmesburg a few days before the trial, he did not have time to follow through on his intention, noting: “now, I apologize for being busy, but I am. I have a full schedule.” N.T., 1/8/1992, at 28. We agree with Appellant that these explanations do not support a finding that Mr. Turner had a reasonable basis for failing to meet with him. General fear of a potential conflict in the lawyer-client relationship and a busy schedule simply cannot serve as a reasonable basis for failing to have personal contact with a client prior to that client’s trial on capital charges. To the contrary, failure to do so is “simply an abdication” of the most basic expectations of defense counsel in a capital case. See Perry, 644 A.2d at 709.

Finally, it is also clear that Appellant was prejudiced by Mr. Turner’s failure to meet with him in person prior to trial. See id. As we have highlighted above, in order to prepare a defense to a charge of murder in the first degree, it is essential that at the very least, counsel meet with his client in person to, inter alia, gather information from the client, evaluate the client’s demeanor, and try to establish a working relationship.

Accordingly, we agree with Appellant that he was denied effective assistance of counsel when Mr. Turner failed to meet with him even once before his trial on capital charges. Appellant’s judgment of sentence is reversed, and we remand this case to the trial court for a new trial.

Justice CASTILLE flies a concurring opinion. Justice EAKIN files a concurring opinion. Justice LAMB files a concurring opinion.

1 . Pursuant to 42 Pa.C.S. § 9711(h), this Court has automatic jurisdiction to review a judgment of a sentence of death.

2 . It appears that Mr. Turner was suspended from the practice of law on October 26, 1993, and has not applied for readmission.

3 . On the first day of jury selection, Appellant informed the trial court that he had never met his attorney and that he did not believe that Mr. Turner was prepared to defend him. N.T., 1/7/1992, at 113-15, 118-19. The next day, at the outset of the proceedings, Mr. Turner informed the court that Appellant wished to represent himself. N.T., 1/8/1992, at 4. The court asked Appellant to reconsider his request to proceed pro se, given that Mr. Turner wanted to obtain an acquittal for him. N.T., 1/8/1992, at 10. Appellant responded: “well, let me say this here: how would you say he’s trying to get me acquitted, sir, when he has been my lawyer for four months, I talked to him one time on the phone, he never returned my phone calls, he never returned my mail....” Id. A few days later when the Commonwealth commenced its case-in-chief, Appellant was again questioned about his decision to represent himself, to which he responded: "I'm saying the reason that I chose to represent myself is because I know that I will put forth an effort.... Now, the reason why I don’t feel as though Thomas Turner is with me all the way is because he has been my lawyer for four months and I have never got to speak even to him. I’ve never got to see him concerning this case, but on the day that we started picking the jury. This is why I chose to go ahead and represent myself.” N.T., 1/13/1992, at 10-11.

4 . During voir dire, Mr. Turner conducted the questioning of prospective jurors. N.T., 1/8/1992, at 43-44. At the suppression hearing, Appellant began representing himself, but when the court strongly advised Appellant to let Mr. Turner take over, Appellant agreed. N.T., 1/10/1992, at 65-66. When the trial began, Appellant made his opening statement and cross-examined the Commonwealth's witnesses throughout the first day, but ceded his representation to Mr. Turner on the second day, and for the remaining ten days of the trial.

5 . Specifically, the jury found: (1) that Appellant had a significant history of felony convictions involving the use or threat of violence, 42 Pa.C.S. § 9711(d)(9); and (2) that he had been convicted of another federal or state offense for which a sentence of life imprisonment or death was imposable, or was undergoing a sentence of life imprisonment at the time of the commission of the offense, 42 Pa.C.S. § 971 l(d)(l0). Although Appellant did not permit Mr. Turner to present any evidence of mitigating circumstances, the trial court instructed the jury to consider whether there was any evidence of mitigation concerning the character and record of Appellant and the circumstances of his offense, 42 Pa.C.S. § 9711(e)(8), and the jury found this mitigating circumstance.

6 . In Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831, 855 (2003), this Court concluded that notwithstanding the general rule announced in Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726, 738 (2002), that claims of ineffective assistance of counsel should be raised on collateral appeal, we may consider an ineffectiveness claim on direct appeal where the lower court has addressed that claim on the merits. Given that the trial court below addressed Appellant’s ineffectiveness claim, we will likewise do so here pursuant to Bomar.

7 . The Commonwealth argues that while Mr. Turner did not meet with Appellant in person prior to trial, this fact is not in itself dispositive as to whether counsel rendered ineffective assistance. In support of its argument, the Commonwealth points to this Court’s decision in Commonwealth v. Mason, where we stated that "it is well settled that, by itself, the amount of time an attorney spends consulting with his client before trial is not a legitimate basis for inferring the total extent of counsel's pre-trial preparation, much less the adequacy of counsel’s preparation.” 559 Pa. 500, 741 A.2d 708, 715 (1999), cert. denied, 531 U.S. 829, 121 S.Ct. 81, 148 L.Ed.2d 43 (2000), citing Commonwealth v. Bundy, 491 Pa. 607, 421 A.2d 1050 (1980). In the first instance, the attorney in Mason met with his client on at least two or three occasions, whereas here, Mr. Turner did not meet with Appellant even once. In any event, while it may generally be true that the amount of time an attorney spends consulting with his client before trial does not necessarily indicate how prepared that attorney might be, an attorney who does not meet in person with his client at all prior to a capital trial simply cannot be deemed sufficiently prepared to defend his client's life.

8 . Prior to Mr. Turner's appointment, Appellant had been represented by Robert Moreno, Esquire, who withdrew from the case after Mr. Turner's appointment. Appellant had also been represented by William James, Esquire during his preliminary hearing. Mr. Turner explained that these attorneys had told him that they had problems with Appellant and had labeled him as "hard headed.” N.T., 1/8/1992, at 24.