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State v. Lopez

Supreme Court of Washington, En Banc

February 15, 2018


          GORDON McCLOUD, J.

         The trial court found that Oscar Lopez's lawyer was "fairly obvious[ly]" "severely handicapped" by depression during the pretrial and trial phases of Lopez's case.[1] That finding was supported by the trial court's own observations of defense counsel's performance-and sometimes failure to show up-at trial. That finding was also supported by declarations and testimony presented at the hearing on Lopez's motion for a new trial. That evidence revealed that defense counsel could not perform basic tasks, such as showing up to meetings with his investigator to prepare Lopez's defense, submitting routine paperwork to obtain public funding so his investigator could complete her pretrial investigation, and calling his investigator back to learn about her "important" findings.[2] Based on that evidence, the trial court concluded that Lopez was denied his constitutional right to effective assistance of counsel and granted Lopez's motion for a new trial. See U.S. Const, amend. VI; Wash. Const, art. I, § 22. We agree with the trial court. We therefore reverse the Court of Appeals' decision to reverse the trial court.

         Facts and Procedural Background

         Lopez was employed as a bus driver by an after-hours day care center. He drove children from the day care center to school in the morning, and then back again in the afternoon after school. 9 VRP (Mar. 11, 2015) at 1076, 1085. One of those children was six-and-a-half-year-old L.M. Def. Ex. 18 (Tr. of Interview of L.M.) at 2. Sometimes, due to the children's schedules and the location of their schools, Lopez would be alone with L.M. on the bus. 6 VRP (Mar. 4, 2015) at 498-509.

         On June 6, 2014, L.M. reported to her mother that Lopez had '"touched [her] butt yesterday'" morning before school when she was alone with him on the bus. 7 VRP (Mar. 5, 2015) at 663. When questioned further about that touching, L.M. explained that Lopez had "itch[ed]" and "tickl[ed]" her vagina in a way that felt as though he was "trying to pinch [her]." Def. Ex. 18, at 13. L.M.'s mother contacted the police, and the State charged Lopez with first degree child molestation. CP at 77.

         Lopez denied L.M.'s allegation of child molestation. Attorney Steven Witchley represented him, and the case proceeded to a jury trial. Lopez's defense theory was that L.M.'s claim was not believable. 10 VRP (Mar. 12, 2015) at 1198. To credit L.M.'s version, Witchley explained, the jury would have to believe four unbelievable things: (1) that Lopez, a family man, molested L.M.; (2) that the molestation occurred sometime between January and June 2014, but not "yesterday" morning before school as L.M. reported because the bus logs proved that Lopez was never alone with L.M. that morning; (3) that L.M. waited weeks or months before reporting the incident to her mother even though L.M. testified that she reported the incident immediately; and finally (4) that Lopez would be brazen enough to touch L.M. like that in public in the day care center's busy parking lot. Id. at 1185-97.

         The jury apparently believed L.M. and convicted Lopez of first degree child molestation. CP at 81.

         After the verdict but before sentencing, Lopez fired Witchley and hired a new attorney. The new attorney filed a motion for a new trial based on ineffective assistance of counsel. Id. at 292-97. To prevail on a claim of ineffective assistance of counsel, a defendant must generally show that counsel performed deficiently and that the deficient performance caused prejudice.[3] Lopez argued that he did not have to prove deficient performance or prejudice because severe mental depression coupled with contemporaneous or nearly contemporaneous disbarment[4] constitutes ineffective assistance of counsel per se. Id. at 294 (quoting In re Pers. Restraint of Brett, 142 Wn.2d 868, 883-85, 16 P.3d 601 (2001) (Talmadge, J., concurring)). Alternatively, Lopez identified Witchley's performance, including his failure to adequately investigate, id. at 121-24, and failure to call certain witnesses that Lopez had identified, id. at 295-96, as grounds for ineffective assistance.[5]

         It is undisputed that while Witchley was representing Lopez, Witchley was suffering from severe depression, had suicidal thoughts, 11 VRP (Oct. 8, 2015) at 1298, and struggled with just getting out of bed each day, CP at 291. Karen Sanderson, Witchley's longtime investigator, acknowledged that as Lopez's case neared trial, she observed Witchley's depression worsening under the weight of significant financial troubles, health problems, and a pending disbarment proceeding. 11 VRP (Oct. 8, 2015) at 1298; CP at 289-90.

         The record supports this assessment and shows that these problems impacted his performance. Witchley failed to appear at court one day without explanation. 11 VRP (Oct. 8, 2015) at 1252. He also called in sick at the last minute on the morning of trial another day and asked to postpone trial to the afternoon. CP at 59. On the days when he did manage to show up, he was usually late. E.g., 2 VRP (Feb. 12, 2015) at 48 (10 minutes late), 3 VRP (Feb. 23, 2015) at 238 (15 to 20 minutes late). Once, he was over an hour late. 6 VRP (Mar. 4, 2015) at 521 (one hour and 20 minutes late). Witchley's inability to show up for trial alarmed the trial judge so much that he asked Lopez-either close to or in the middle of trial-if he wanted a new attorney. 11 VRP (Oct. 8, 2015) at 1252-53. At that point, Lopez declined the offer. But when Witchley continued to arrive late for trial, the trial court warned him: "[F]rankly, I'm a little baffled. We've spoken about this a number of times. You're obviously a very able trial attorney, but this continues to be an issue. So Mr. Witchley, sir, if you could ~ I really want to make sure we're communicating here. ... I expect you to be on time." 3 VRP (Feb. 23, 2015) at 238-39. That warning proved inadequate, however; Witchley continued to show up late for trial. 6 VRP (Mar. 4, 2015) at 522-24. He also failed to submit briefing specifically requested by the court. Id.

         Sanderson's testimony also supported this assessment of Witchley's mental health and its impact on Lopez's trial. Sanderson testified that she met with Witchley in October, several months before Lopez's trial, to create a checklist of matters that Witchley needed her to prepare for Lopez's defense. The checklist included interviewing certain employees at the day care center, locating witnesses from the children's schools to verify Lopez's whereabouts on the morning of the alleged incident, performing another site visit to the day care parking lot, and developing evidence regarding both L.M.'s penchant for lying or exaggerating stories and Lopez's sexual morality and decency. 11 VRP (Oct. 8, 2015) at 1289-90.

         After that October meeting, however, Sanderson explained that Witchley "checked out." CP at 289. Witchley was routinely late and often failed to show up at case development meetings scheduled with her. Id. at 288. According to Sanderson, she and Witchley "tr[ied] to set up some times to meet to go to the scene together but he almost always cancelled at the last minute, with a different excuse every time." Id. "Every time he cancelled at the last minute he offered a new excuse" that "was always something like 'I over slept and can't make it' or T didn't sleep last night' or 'I'm sick.'" Id. at 288-89.

         Eventually, Witchley stopped communicating with Sanderson altogether. 11 VRP (Oct. 8, 2015) at 1286. As a result, Sanderson was unable to give him important case information she discovered during her investigation. Sanderson said she left Witchley a voicemail, an e-mail, and text messages asking him to call her back so they could talk about the new information she learned during her last interview, which she believed was "important" to Lopez's case. CP at 289. But Witchley never called her back, so she never told him what that "important" information was. Id. She also did not document that "important" new information in a memo because Witchley stopped paying her to do so and refused to take the simple steps necessary to procure additional payments. Id.

         In fact by December 2014, Sanderson had been working on Lopez's case for two months without payment based on Witchley's promise of eventual payment. Because Lopez was indigent, Sanderson's investigative work was paid through the Office of Public Defense (OPD). Id. at 89-90. The OPD had preauthorized $1, 500 for Sanderson to develop Lopez's defense, id. at 89, but Sanderson had exceeded that amount by October 2014, id. at 289. To receive additional funding for Sanderson's investigation, Witchley had to submit a request to OPD. Id. This is a fairly routine process. Because Witchley repeatedly implied to Sanderson that he had submitted a request for additional funding, Sanderson continued to work on Lopez's case for an additional two months, from October to December, without payment. Id. After two months without payment and after Witchley stopped returning her calls, Sanderson had to stop work on Lopez's case. Id. "This meant that some things [they] had planned to do on the case prior to trial never took place. [Sanderson] had several reports that should have been written that were not typed up. There were interviews that never took place, as far as [Sanderson] kn[e]w. Demonstrative exhibits, prep for [Sanderson's] testimony and other tasks never happened." Id. According to Sanderson, Witchley claimed to have strategic reasons for not calling Sanderson as a witness at trial. Id. at 291. But he never claimed to have strategic reasons for failing to follow through on the work that he himself had deemed necessary in October before he became severely handicapped by illness- interviews, meet ups, exhibits, "other tasks" for trial preparation, and simple communication about the defense. Id. at 289.

         OPD records show that Witchley did not submit the request for additional funding until after Lopez's trial ended. Id. at 89. In that request for additional, retroactive, funding, Witchley acknowledged that Sanderson had reminded him continuously throughout Lopez's case that he needed to secure extra OPD funding for her continued investigation and that he "simply failed to appropriately prioritize submission of [the request]" "[f]or a variety of not-very-good reasons." Id. at 92-93.

         After considering all this evidence, the trial court granted Lopez's motion for a new trial due to ineffective assistance of counsel and denial of due process clause protections. 11 VRP (Oct. 30, 2015) at 1309-10, 1315-17. The trial court found, based largely on Sanderson's testimony and declaration, that it was "fairly clear that had [Witchley] not been handicapped by his depression, he would have been more effective, " id. at 1316, in "[his] handling of the entire case, including pretrial investigation and communications with his client, " id. at 1311. Witchley's depression, the trial court found, "fairly obvious[ly]" "severely handicapped" his representation of Lopez. Id. at 1315.

         One of the failures that the trial court cited was Witchley's failure to investigate reputation evidence or call reputation witnesses. Regarding this failure, Witchley specifically acknowledged that "[he] did not have any tactical reasons for not calling reputation witnesses." CP at 347. That acknowledgement corresponded with Sanderson's testimony. Sanderson testified that she developed reputation evidence in other cases for Witchley before, 11 VRP (Oct. 8, 2015) at 1297, and that it was her understanding, based on her 15 plus years of experience working with Witchley, CP at 285, that it was his intent to pursue credibility evidence regarding L.M. and sexual morality reputation evidence regarding Lopez in this case, 11 VRP (Oct. 8, 2015) at 1293.[6] But Sanderson never performed this investigation because Witchley stopped paying her and stopped communicating with her. CP at 289.

         The trial court found this failure particularly troubling since Witchley did not have to even search for the reputation witnesses because Lopez told him who they were, though Lopez described these witnesses' anticipated testimony in terms of character rather than reputation evidence. 11 VRP (Oct. 30, 2015) at 1309. According to the trial court, Witchley "simply failed to spot the issue." Id. Witchley, in dismissing Lopez's request that he call "certain character witnesses, " "never took the additional step [in] asking whether the proposed testimony might be recast as admissible reputation testimony." Id. (emphasis added). Based on this evidence, on the trial court's own observations of Witchley's performance before and during trial, and on the new evidence heard and reviewed at the hearing on the motion for a new trial-including the evidence showing Witchley's failure to communicate, failure to prepare, and sometimes failure to perform at all-the trial court granted Lopez's motion for a new trial.

         The Court of Appeals reversed. State v. Lopez, No. 74333-3-1, slip op. at 2 (Wash.Ct.App. Mach 20, 2017) (unpublished),, review granted, 189 Wn.2d 1001, 400 P.3d 1263 (2017). It interpreted the trial court's finding of ineffective assistance of counsel as being based solely on Witchley's failure to call reputation witnesses to testify about Lopez's sexual morality and decency. Id. at 4. Because the fact that Witchley failed to call reputation witnesses was not in dispute, the issue that the Court of Appeals identified was solely a question of law, which it reviewed de novo. See id. at 4-6. On that purely legal question, the Court of Appeals held that Witchley's failure to investigate and present sexual morality and decency evidence could not be classified as deficient performance because such evidence is not admissible under a published decision from that division: State v. Jackson, 46 Wn.App. 360, 365, 730 P.2d 1361 (1986). Id. at 6. This Division One panel recognized that Divisions Two and Three of the Court of Appeals have reached an opposite conclusion regarding the admissibility of sexual morality evidence[7] but determined that that conflict was immaterial because "counsel has ... no duty to pursue strategies that appear unlikely to succeed, and no duty to anticipate changes in the law." Id. (citing State v. Brown, 159 Wn.App. 366, 371-72, 245 P.3d 776 (2011)).

         As for the trial court's finding that Witchley's depression had "fairly obvious[ly]" "severely handicapped" his representation of Lopez, 11 VRP (Oct. 30, 2015) at 1315, the court interpreted that finding as relating solely to Lopez's per se prejudice/quasi-due process argument and held that defendants have no right to counsel free from mental illness. Id. at 2.

         Lopez petitioned this court for review, which we granted. Lopez, 189 Wn.2d 1001.


         I. Ineffective Assistance of Counsel Requires a Showing of Deficient Performance and Prejudice; Whether Counsel's Performance Was Deficient and Prejudicial Is a Mixed Question of Fact and Law, Which We Review De Novo

         A. The Test for Ineffective Assistance of Counsel

         A criminal defendant is entitled to effective assistance of counsel. U.S. CONST, amend. VI; WASH. CONST, art. I, § 22; In re Pers. Restraint of Yung-Cheng Tsai, 183 Wn.2d 91, 99, 351 P.3d 138 (2015). Effective assistance includes many things. "It is thus impossible to 'exhaustively define the obligations of counsel [ ]or form a checklist for judicial evaluation of attorney performance.'" Tsai, 183 Wn.2d at 99-100 (alternation in original) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

         Nevertheless, effective representation 'entails certain basic duties, ' such as

a duty of loyalty, a duty to avoid conflicts of interest[, ]. . . the overarching duty to advocate the defendant's cause and the more particular duties to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution. Counsel also has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process.

Id. at 100 (alterations in original) (quoting Strickland, 466 U.S. at 688). In addition, the "right to effective assistance includes a 'reasonable investigation' by defense counsel." State v. Boyd, 160 Wn.2d 424, 434, 158 P.3d 54 (2007) (citing Strickland, 466 U.S. at 684; Brett, 142 Wn.2d at 873). Reasonable investigation "includes expert assistance necessary to an adequate defense." State v. Punsalan, 156 Wn.2d 875, 878, 133 P.3d 934 (2006) (citing Ake v. Oklahoma, 470 U.S. 68, 72, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985)).

         If an attorney's performance is deficient, the next question is whether it caused prejudice. "Prejudice exists if there is a reasonable probability that 'but for counsel's deficient performance, the outcome of the proceedings would have been different.'" State v. Estes, 188 Wn.2d 450, 458, 395 P.3d 1045 (2017) (quoting State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009) and citing Strickland, 466 U.S. at 694). "[A] 'reasonable probability' is lower than a preponderance standard." Id. (citing Strickland, 466 U.S. at 694; State v. Jones, 183 Wn.2d 327, 339, 352 P.3d 776 (2015)). "Rather, it is a probability sufficient to undermine confidence in the outcome." Id. (citing Strickland, 466 U.S. at 694).

         B. The Standard of Review for Trial Court Rulings on Ineffective Assistance of Counsel

         "[C]laims of ineffective assistance of counsel present mixed questions of law and fact." Brett, 142 Wn.2d at 873 (citing State v. S.M.,100 Wn.App. 401, 409, 996 P.2d 1111 (2000)). We review a trial court's factual findings made in the course of deciding an ineffective assistance issue for substantial evidence.[8]See id. (citing In re Pers. Restraint of Gentry, 137 Wn.2d 378, 410, 972 P.2d 1250 (1999) (citing RAP 16.14(b))). But we review "[t]he legal conclusions flowing from such findings and testimony . . . de novo." Id. at 873-74 (citing State v. Davis,25 Wn.App. 134, 137 n.1, 605 P.2d 359 (1980)). Because the ultimate conclusion of whether counsel's performance was ineffective constitutes an application of law to established facts, it is "a mixed question of fact and law reviewed de novo." Statev. Sutherby,165 Wn.2d 870, 883, 204 P.3d 916 (2009) (citing In re Pers. Restraintof Fleming,142 Wn.2d 853, 865, 16 P.3d 610 (2001)); accord Ornelas v. UnitedSta ...

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