Ex parte State of Alabama. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Thomas Robert Lane v. State of Alabama)
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2010-2011
____________________
1091045
____________________
Ex parte State of Alabama
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Thomas Robert Lane
v.
State of Alabama)
(Mobile Circuit Court, CC-05-1499;
Court of Criminal Appeals, CR-05-1443)
STUART, Justice.
This Court granted the State's petition for a writ of
certiorari to address whether an indigent defendant, who has
1091045
no right to choose initially a particular court-appointed
attorney,
has
a
right
to
continued
particular court-appointed counsel. 1
representation
by
a
The Court of Criminal
Appeals held that an indigent defendant has such a right.
We
reverse and remand.
In
June
2003,
Theresa
Lane
retained
an
attorney
to
initiate divorce proceedings from Thomas Robert Lane ("Lane").
On October 6, 2003, Lane retained Buzz Jordan to represent him
in the divorce proceedings and paid him $500.
On October 13,
2003, the day after Theresa was murdered, Lane, at Jordan's
request, delivered his computer tower to Jordan's office and
paid Jordan an additional
$1,000.
Lane was arrested for
Theresa's murder on October 13, 2004, and on October 14, 2004,
Lane
was
arraigned
on
a
charge
1
of
noncapital
murder;
on
This Court also granted the writ to address whether the
decision of the Court of Criminal Appeals in Lane v. State,
[Ms. CR-05-1443, February 5, 2010] ___ So. 3d ___ (Ala. 2010)
conflicts with United States v. Gonzalez-Lopez, 548 U.S. 140,
152 (2006)(recognizing that "the right to counsel of choice
does not extend to defendants who require counsel to be
appointed for them"), and Ex parte Moody, 684 So. 2d 114, 12122 (Ala. 1996)(holding that "an indigent defendant is not
entitled to legal counsel of his choice, when counsel is to be
paid by public funds, but rather is entitled to competent
legal representation").
Our resolution of the question of
first impression resolves this case; therefore, we pretermit
discussion of the ground of conflict.
2
1091045
October 7, 2005, Lane was arraigned on three counts of capital
murder.
See
§§
13A-5-40(a)(2),
40(a)(7), Ala. Code 1975.
the
trial
court
criminal proceeding.
and
13A-5-
At some point after Lane's arrest,
determined
appointed Jordan as lead
13A-5-40(a)(4),
that
Lane
was
indigent
and
counsel to represent him in the
It further appears from the record that
the trial court also appointed James J. Dailey to represent
Lane.
Approximately
19
months
after
Lane
had
initially
retained Jordan, the State moved to disqualify Jordan from
representing Lane in the criminal proceeding on the ground
that he was a necessary witness in the criminal proceeding. 2
On September 25, 2005, after
conducting a hearing on the
State's motion to disqualify, the trial court granted the
State's motion and ordered Jordan removed as Lane's trial
counsel. 3
On September 30, 2005, the trial court appointed
2
In the motion, the State argued that Jordan was a
necessary witness who would establish the following: (1) the
chain of custody of Lane's computer; (2) the fact that Lane
had paid Jordan $1,000 in cash the day after Theresa's murder;
and (3) the fact that documents relating to Lane's divorce
proceedings found in Lane's house had not been filed by Jordan
in his capacity as Lane's divorce attorney and, thus, had been
falsified.
3
The record indicates that although Jordan was removed as
counsel, Dailey's representation of Lane was continuous
3
1091045
Deborah McGowin to replace Jordan as lead counsel at Lane's
trial.
Jury selection for Lane's trial commenced on January
30, 2006.
Lane was convicted of two counts of capital murder
and the lesser-included offense of murder. 4
The trial court
sentenced Lane to death.
Lane appealed to the Court of Criminal Appeals, arguing,
among other issues, that the trial court erred in removing
Jordan as his trial counsel.
agreed
and,
finding
the
The Court of Criminal Appeals
error
Lane's convictions and sentence.
to
be
structural,
reversed
Lane v. State, [Ms. CR-05-
1443, February 5, 2010] ___ So. 3d ___ (Ala. Crim. App. 2010).
Specifically,
indigent
the
defendant
Court
who
of
has
Criminal
Appeals
developed
an
held
that
an
attorney-client
relationship with appointed counsel has a right to continued
representation
by
that
counsel
and
that
a
trial
court's
erroneous removal of appointed counsel denied an indigent
defendant his Sixth Amendment right to counsel.
The court
further held that such an error was structural, precluding a
throughout the criminal proceeding.
4
At the sentencing hearing, the trial court vacated the
murder conviction.
4
1091045
harmless-error
analysis
and
requiring
reversal
of
Lane's
convictions without a showing of prejudice.
The State petitioned this Court for a writ of certiorari,
alleging, among other grounds, a material question of first
impression: Does the Sixth Amendment to the United States
Constitution provide an indigent defendant who has developed
an
attorney-client
relationship
with
appointed
counsel
a
constitutional right to continued representation by the same
appointed counsel?
Initially, we note that Lane contends that the State does
not present this Court with a question of first impression and
in support cites Ex parte Tegner, 682 So. 2d 396 (Ala. 1996).
In Ex parte Tegner, a defendant charged with murder petitioned
this Court for a writ of mandamus directing the Morgan Circuit
Court to revoke its order granting the State's motion
remove
his
appointed
counsel
representing him at trial.
and
issued
the
writ
and
prevent
counsel
to
from
This Court granted the petition
because
the
trial
court,
when
it
considered the State's motion, did not evaluate the evidence
regarding the question of disqualification and did not weigh
the
constitutional
rights
at
5
issue.
This
Court
did
not
1091045
address the constitutional issue whether an indigent defendant
has a Sixth Amendment right to continued representation by the
same appointed counsel.
Indeed, this Court specifically noted
that the trial court had not considered any constitutional
issues before removing Tegner's counsel.
Therefore, we reject
Lane's argument that this Court has previously addressed the
question presented in this case.
The State's question -- Does an indigent defendant, who
does
not
have
a
right
to
counsel
of
choice
but
who
has
developed an attorney-client relationship with court-appointed
counsel,
have
a
Sixth
Amendment
right
to
continued
representation by the same court-appointed counsel? -- is
indeed a question of first impression.
It is well established that an indigent defendant, who
requires that counsel be appointed for him or her, does not
have a Sixth Amendment right to counsel of the defendant's own
choice.
In Wheat v. United States, 486 U.S. 153, 159 (1988),
the United States Supreme Court discussed a defendant's right
to counsel of his or her own choice, stating:
"The
Sixth
Amendment
to
the
Constitution
guarantees that '[i]n all criminal prosecutions, the
accused shall enjoy the right ... to have the
Assistance of Counsel for his defence.' In United
6
1091045
States v. Morrison, 449 U.S. 361, 364 (1981), we
observed that this right was designed to assure
fairness
in
the
adversary
criminal
process.
Realizing that an unaided layman may have little
skill in arguing the law or in coping with an
intricate procedural system, Powell v. Alabama, 287
U.S. 45, 69 (1932); United States v. Ash, 413 U.S.
300, 307 (1973), we have held that the Sixth
Amendment secures the right to the assistance of
counsel, by appointment if necessary, in a trial for
any serious crime. Gideon v. Wainwright, 372 U.S.
335 (1963).
We have further recognized that the
purpose of providing assistance of counsel 'is
simply to ensure that criminal defendants receive a
fair trial,' Strickland v. Washington, 466 U.S. 668,
689 (1984), and that in evaluating Sixth Amendment
claims, 'the appropriate inquiry focuses on the
adversarial
process,
not
on
the
accused's
relationship with his lawyer as such.'
United
States v. Cronic, 466 U.S. 648, 657, n. 21 (1984).
Thus, while the right to select and be represented
by one's preferred attorney is comprehended by the
Sixth Amendment, the essential aim of the Amendment
is to guarantee an effective advocate for each
criminal defendant rather than to ensure that a
defendant will inexorably be represented by the
lawyer whom he prefers. See Morris v. Slappy, 461
U.S. 1, 13-14 (1983); Jones v. Barnes, 463 U.S. 745
(1983).
"The Sixth Amendment right to choose one's own
counsel is circumscribed in several important
respects. Regardless of his persuasive powers, an
advocate who is not a member of the bar may not
represent clients (other than himself) in court.
Similarly,
a
defendant
may
not
insist
on
representation by an attorney he cannot afford or
who for other reasons declines to represent the
defendant.
Nor may a defendant insist on the
counsel of an attorney who has a previous or ongoing
relationship with an opposing party, even when the
opposing party is the Government."
7
1091045
486 U.S. at 158-59 (footnote omitted).
Drysdale,
Chartered
v.
United
See also Caplin &
States,
491
U.S.
617,
624
(1989)("The [Sixth] Amendment [right to counsel] guarantees
[impecunious]
defendants
in
criminal
cases
the
right
to
adequate representation, but those who do not have the means
to hire their own lawyers have no cognizable complaint so long
as they are adequately represented by attorneys appointed by
the courts.").
Likewise,
in
Alabama,
"an
indigent
defendant
is
not
entitled to legal counsel of his choice, when counsel is to be
paid by public funds, but rather is entitled to competent
legal representation."
(Ala. 1996).
Ex parte Moody, 684 So. 2d 114, 121-22
See also Steeley v. State, 622 So. 2d 421, 425
(Ala. Crim. App. 1992)(stating that the right to counsel of
one's choice is not absolute, as is the right to assistance of
counsel); and Briggs v. State, 549 So. 2d 155 (Ala. Crim. App.
1989)(stating that an indigent defendant has no absolute right
to be represented by any particular counsel or by counsel of
his choice).
The United States Supreme Court has held that a defendant
who retains counsel has a Sixth Amendment right to counsel of
8
1091045
his or her choice, and, when a trial court unjustly violates
that
right,
the
error
is
harmless-error analysis.
548 U.S. 140, 152
structural
--
not
subject
to
a
In United States v. Gonzalez-Lopez,
(2006), the United State Supreme Court
addressed a criminal defendant's Sixth Amendment right to
retained
counsel
considered
of
whether
his
a
choice.
trial
Specifically,
court's
erroneous
the
Court
removal
of
retained counsel, which resulted in the defendant's right to
counsel
of
his
choice
being
violated,
defendant's conviction be reversed.
required
that
the
In that case, Gonzalez-
Lopez had retained out-of-state counsel; the trial court,
however, refused to grant counsel's application for admission
pro hac vice, causing Gonzalez-Lopez to be represented by
different counsel at trial.
On appeal Gonzalez-Lopez argued
that the trial court, by refusing to admit his chosen counsel
pro hac vice, had denied him his right to paid counsel of his
choosing. The Government conceded that the trial court erred
when it denied Gonzalez-Lopez his counsel of choice.
The
United States Supreme Court, recognizing that a defendant who
retains counsel has a right to counsel of the defendant's own
choosing and accepting the Government's concession of error,
9
1091045
held that the trial court had erroneously denied GonzalezLopez his right to counsel of choice, that the error was
structural, and that reversal of Gonzalez-Lopez's conviction
was
required.
The
United
States
Supreme
Court,
however,
specifically stated:
"Nothing we have said today casts any doubt or
places any qualification upon our previous holdings
that limit the right to counsel of choice .... [T]he
right to counsel of choice does not extend to
defendants who require counsel to be appointed for
them. See Wheat [v. United States], 486 U.S. [153],
at 159 [(1988)]; Caplin & Drysdale[, Chartered v.
United States], 491 U.S. [617], at 624, 626
[(1989)].
Nor
may
a
defendant
insist
on
representation by a person who is not a member of
the bar, or demand that a court honor his waiver of
conflict-free representation. See Wheat, 486 U.S.,
at 159-160. ... We have recognized a trial court's
wide latitude in balancing the right to counsel of
choice against the needs of fairness, id., at
163-164, and against the demands of its calendar,
Morris v. Slappy, 461 U.S. 1, 11-12 (1983).
The
court has, moreover, an 'independent interest in
ensuring that criminal trials are conducted within
the ethical standards of the profession and that
legal proceedings appear fair to all who observe
them.' Wheat, supra, at 160."
548 U.S. at 151-52.
The question before us, however, is distinguishable from
the question before the Court in Gonzalez-Lopez.
Gonzalez-
Lopez had a right to retain counsel of his choosing, and the
Government conceded that Gonzalez-Lopez's right to counsel of
10
1091045
choice had been violated; therefore, as the United States
Supreme Court concluded, the "erroneous deprivation of the
right
to
counsel
of
choice,
'with
consequences
that
are
necessarily unquantifiable and indeterminate, unquestionably
qualifies as "structural error."' [Sullivan v. Louisiana, 508
U.S. 275,] 282 [(1993)]." 548 U.S. at 150.
Because Gonzalez-
Lopez addressed the erroneous removal of retained counsel from
a defendant who had a right to counsel of choice and the
question presented to us addresses the erroneous removal of
counsel
appointed
by
the
court
to
represent
an
indigent
defendant who has no right to counsel of choice, the decision
in Gonzalez-Lopez provides little guidance.
Two federal courts of appeals have addressed whether an
indigent defendant, who does not have a right to counsel of
choice but who has developed an attorney-client relationship
with
appointed
counsel,
has
a
Sixth
Amendment
right
continued representation by that same appointed counsel.
United
States
Court
of
Appeals
for
the
Sixth
Circuit
to
The
in
Daniels v. Lafler, 501 F.3d 735, 740 (6th Cir. 2007), in
analyzing
whether
the
trial
court
violated
an
indigent
defendant's Sixth Amendment right to counsel of choice when it
11
1091045
removed appointed counsel, observed that in Powell v. Alabama,
287 U.S. 45, 53 (1932), and in Gonzalez-Lopez, the United
States Supreme Court recognized the Sixth Amendment right to
counsel of choice only in relation to criminal defendants who
had retained counsel.
Specifically, the Daniels court noted
that the Court in Powell stated that "a criminal defendant who
hires, and pays for, an attorney has the right to select that
attorney," and in Gonzalez-Lopez held that "a defendant could
obtain a new trial without showing prejudice when the trial
court arbitrarily denied him the services of his retained
counsel –- in that case, by erroneously refusing to grant the
chosen attorney admission pro hac vice."
501 F.3d at 739.
The Daniels court concluded that "neither Powell nor GonzalezLopez suggests that the choice-of-counsel right at issue is
universal to all defendants,"
501 F.3d at 739, and
supported
its conclusion by noting that "[t]he Gonzalez-Lopez Court
explicitly stated that the basis for its decision was 'the
right of a defendant who does not require appointed counsel to
choose who will represent him,' indicating that the erroneous
or arbitrary exclusion of court-appointed counsel might not
12
1091045
trigger the same constitutional scrutiny."
501 F.3d at 739.
Therefore, the Daniels court held:
"[A] defendant relying on court-appointed counsel
has no constitutional right to the counsel of his
choice.
This does not mean that an indigent
defendant never could establish that the arbitrary
replacement of court-appointed counsel violated his
constitutional
rights.
The
replacement
of
court-appointed counsel might violate a defendant's
Sixth Amendment right to adequate representation or
his Fourteenth Amendment right to due process if the
replacement prejudices the defendant -- e.g., if a
court replaced a defendant's lawyer hours before
trial or arbitrarily removed a skilled lawyer and
replaced him with an unskilled one.
But because
Daniels does not even allege prejudice here, we must
affirm the denial of his Sixth Amendment claim."
501 F.3d at 740.
In United States v. Basham, 561 F.3d 302 (4th Cir. 2009),
the United States Court of Appeals for the Fourth Circuit
addressed whether the trial court exceeded the scope of its
discretion when it disqualified Basham's appointed counsel
based on a conflict of interest.
"the
only
right
implicated
The Basham court held that
by
the
district
court's
disqualification of [the court-appointed attorney] was the
right to effective assistance of counsel."
561 F.3d at 324.
In reaching this conclusion the Basham court also relied upon
its holding in Miller v. Smith, 115 F.3d 1136, 1143 (4th Cir.
13
1091045
1997),
that
"'an
indigent
criminal
defendant
has
no
constitutional right to have a particular lawyer represent
him.'"
561 F.3d at 324.
See also United States v. Van Anh,
523 F.3d 43, 48 n.3 (1st Cir. 2008) (holding that indigent
defendants have no right to counsel of their own choosing).
Recognizing that an indigent defendant does not have the right
to counsel of his or her choosing, the Basham court agreed
with the Daniels court that the erroneous removal of appointed
counsel and replacement by alternate counsel may violate an
indigent defendant's right to adequate representation -- i.e.,
effective assistance of counsel -- and held that the proper
inquiry
included
consideration
of
whether
the
defendant
suffered prejudice by the removal of appointed counsel.
561
F.3d at 321-25.
Similarly, in State v. Reeves, 11 So. 3d 1031 (La. 2009),
the Supreme Court of Louisiana held that a criminal defendant
for whom counsel has been appointed has only the right to
effective representation.
11 So. 3d at 1056.
In Reeves, a
retrial had been ordered in an indigent defendant's case.
The
trial
had
court
refused
to
appoint
the
same
counsel
who
represented the indigent defendant at the earlier trial to
14
1091045
represent
him
represented
convicted.
on
by
retrial.
different
The
indigent
counsel
at
the
defendant
retrial
was
and
was
On appeal, the indigent defendant argued that the
trial court's refusal to allow continued representation by
appointed counsel who had represented him at his earlier trial
denied his right to counsel of his choice and that that denial
constituted a structural error.
defendant
was
represented
Recognizing that the indigent
by
appointed
counsel
and,
consequently, that the defendant did not have a right to
counsel of choice, the Louisiana Supreme Court held that the
trial court's actions, in refusing to appoint counsel who had
represented
the
defendant
at
his
earlier
trial
and
in
appointing alternate counsel to represent the defendant in his
retrial, did not result in structural error.
The Louisiana Supreme Court also considered whether the
defendant had a right to counsel of his own choice, which
would have been violated because the trial court refused to
permit
his
existing
counsel to continue.
close
relationship
with
his
initial
The Louisiana Supreme Court held that no
constitutional violation had occurred, stating:
the
"The Supreme Court has rejected any claim that
Sixth
Amendment
guarantees
a
'meaningful
15
1091045
attorney-client relationship' between an accused and
his counsel. See Morris v. Slappy, 461 U.S. 1, 14,
103 S.Ct. 1610, 1617, 75 L.Ed.2d 610 (1983). The
fact situation in Morris concerned an indigent
defendant who was appointed an attorney from the
public
defender's
office.
Appointed
counsel
represented the defendant at preliminary hearings
and supervised an extensive investigation into the
case. However, shortly prior to trial, appointed
counsel was hospitalized for emergency surgery and
the public defender assigned a senior trial attorney
in that office to take over the defendant's
representation. The defendant objected at trial to
his newly-appointed counsel, arguing that substitute
counsel could not be as prepared as his original
counsel, and refusing to aid substitute counsel in
his defense. The defendant was convicted and
subsequently sought federal habeas relief. Although
the pro se federal habeas petition couched the
alleged errors in other terms, the federal appellate
court granted habeas relief, finding the Sixth
Amendment guarantees a right to counsel with whom
the accused has a 'meaningful attorney-client
relationship.' Further, the federal appellate court
found that the trial court abused its discretion and
violated this right by denying a motion for
continuance based on the substitution of appointed
counsel shortly before trial. In reversing the
federal appeals court ruling, the Supreme Court
stated:
"'The Court of Appeals' conclusion that the
Sixth Amendment right to counsel 'would be
without substance if it did not include the
right to a meaningful attorney-client
relationship, [citation omitted] (emphasis
added), is without basis in the law. No
authority
was
cited
for
this
novel
ingredient of the Sixth Amendment guarantee
of counsel, and of course none could be.'
16
1091045
"Similarly, we have found nothing in our state
constitution,
or
in
our
review
of
state
jurisprudence, which shows that a criminal defendant
has
a
right
to
a
particular
attorney-client
relationship separate from the right to counsel of
choice. In [State v.] Scott, [921 So. 2d 904 (La.
2006), overruled in part on other grounds, State v.
Dunn, 974 So. 2d 658 (2008)], the defendant argued,
as here, that the removal of his appointed counsel
approximately
one
month
prior
to
trial
unconstitutionally
interfered
with
the
attorney-client relationship and violated his right
to counsel of choice.
In Scott, a conflict
developed between Scott's lead appointed counsel and
second-chair appointed counsel. The district court
granted lead counsel's motion and appointed new
second-chair counsel over the defendant's objection.
After reviewing the consistent jurisprudence holding
that an indigent defendant does not have the right
to choose his appointed counsel, and that lead
appointed
counsel
had
provided
constitutionally-effective assistance to Scott, this
court
found
'no
interference
with
the
attorney-client relationship and no violation of
defendant's right to counsel of choice.' Here, we
similarly find that Reeves did not have a right to
choose his appointed counsel. Moreover, there is
nothing in our state constitution which supports the
defense's argument that a criminal defendant has a
right to a particular attorney-client relationship.
"Consequently, there is nothing in either the
federal or state constitutions which would provide
Reeves with the right to maintain a particular
attorney-client relationship in the absence of a
right to counsel of choice."
11 So. 3d at 1065-66 (footnotes omitted).
We
Daniels,
agree
and
with
the
Reeves.
holdings
An
and
indigent
17
analyses
defendant
in
has
Basham,
a
Sixth
1091045
Amendment right to effective assistance of counsel but does
not have a Sixth Amendment right to court-appointed counsel of
choice.
Because an indigent defendant does not have a right
to counsel of choice or a right to a "meaningful attorneyclient
relationship"
with
particular
counsel,
we
cannot
conclude that the erroneous removal of court-appointed counsel
constitutes a structural error. An indigent defendant may be
able to show that the removal of court-appointed counsel with
whom
the
defendant
had
developed
an
attorney-client
relationship has caused prejudice, resulting in the reversal
of his or her conviction, but the mere removal of the courtappointed
attorney,
even
if
erroneous,
is
not
structural
error, i.e., it does not "affect[] the framework within which
the trial proceeds."
(1991).
Arizona v. Fulminante, 499 U.S. 279, 309
See Perkins v. State, 808 So. 2d 1041, 1060-1062
(Ala. Crim. App. 1999).
defendant
suffered
Consideration of whether the indigent
prejudice
by
the
erroneous
removal
of
court-appointed counsel is the proper inquiry.
In this case, the trial court determined that Lane was
indigent and appointed counsel to represent him.
Lane had no
constitutionally protected right to counsel of his choice or
18
1091045
to continued representation by a particular court-appointed
counsel.
trial
Wheat, supra; Ex parte Moody, supra.
court's
erroneous
removal
of
Lane's
Therefore, the
court-appointed
counsel was not structural error, and the Court of Criminal
Appeals erred in failing to determine whether the trial court
committed plain error when it removed Lane's court-appointed
counsel.
Accordingly, we reverse the judgment of the Court of
Criminal Appeals and remand this case to the Court of Criminal
Appeals for that court to determine whether the trial court
committed plain error when it removed Jordan as Lane's lead
counsel.
If the Court of Criminal Appeals determines that the
trial court did not commit plain error in this regard, then
the court shall complete its review of the case as required by
Rule 45A, Ala. R. App. P.
Conclusion
The
judgment
of
the
Court
of
Criminal
Appeals
is
reversed, and this case is remanded for proceedings consistent
with this opinion.
REVERSED AND REMANDED WITH DIRECTIONS.
Bolin and Parker, JJ., concur.
19
1091045
Houston, Special Justice,* concurs in the result.
Cobb, C.J., and Woodall and Murdock, JJ., dissent.
Shaw, Main, and Wise, JJ., recuse themselves.**
*Retired Associate Justice Gorman Houston was appointed
on May 16, 2011, to serve as a Special Justice in regard to
this petition.
**Justice Shaw, Justice Main, and Justice Wise were
members of the Court of Criminal Appeals when that court
considered this case. Note from the reporter of decisions:
Section 12-2-14, Ala. Code 1975, provides that "[w]hen by
reason of disqualification the number of judges competent to
sit in a case is reduced to ... six and there is equal
division among them" a member of the bar shall be appointed to
sit as a judge in the determination of the case.
Rule
16.6(b), Ala. R. App. P., provides that "when, by reason of
disqualification the number of justices competent to sit in
the determination of a case is reduced ... a majority of the
justices sitting shall suffice; but, in no event, may a cause
be determined unless at least four justices sitting shall
concur therein.
20
1091045
HOUSTON, Special Justice (concurring in the result).
I do not believe that the trial court erred in granting
the State's motion to dismiss Thomas Robert Lane's appointed
counsel
on
the
basis
of
the
existence
of
a
conflict
of
interest. Because I believe no error occurred, I do not reach
the issue decided by the Court of Criminal Appeals -- whether
the error was structural.
I agree, however, with the main
opinion that the Court of Criminal Appeals erred in reversing
Lane's
conviction
committed
counsel.
on
structural
the
basis
error
in
that
the
removing
trial
Lane's
court
had
appointed
Accordingly, I concur in the result reached by the
main opinion to reverse the judgment of the Court of Criminal
Appeals.
However, were I to reach the structural-error issue, I
would conclude that, although an indigent defendant is not
entitled to choose a particular court-appointed attorney at
the outset of the case, once counsel has been appointed an
attorney-client relationship is established that is no less
inviolable than if defendant himself had retained counsel.
21
1091045
Thus, I also agree with the rationale in Justice Woodall's
dissent.
22
1091045
WOODALL, Justice (dissenting).
The Court of Criminal Appeals concluded that "there is no
difference between retained counsel and appointed counsel when
it comes to the right to continued representation by counsel
of choice."
Lane v. State, [Ms. CR-05-1443, February 5, 2010]
___ So. 3d ___, ___ (Ala. Crim. App. 2010) (emphasis added).
This Court, on the other hand, has concluded that, although
the
erroneous
removal
of
retained
counsel
constitutes
structural error, the erroneous removal of court-appointed
counsel does not but, instead, requires a showing that the
removal of court-appointed counsel prejudiced the defendant.
I cannot agree with such disparate treatment based solely on
whether the defendant can afford to retain his or her own
attorney.
"To
allow
trial
courts
to
remove
an
indigent
defendant's court-appointed counsel with greater ease than a
non-indigent
defendant's
retained
counsel
[stratifies]
attorney-client relationships based on defendants' economic
backgrounds."
2004).
Weaver v. State, 894 So. 2d 178, 189 (Fla.
Therefore, I respectfully dissent.
According to Thomas Robert Lane, "[m]ost jurisdictions
that have addressed this issue acknowledge that an indigent
23
1091045
defendant
is
not
entitled
to
choose
a
particular
court-
appointed attorney at the outset of the case, but reason that
once counsel is appointed, an attorney-client relationship is
established and '"is no less inviolable than if counsel had
been retained by the defendant himself."' McKinnon v. State,
526 P.2d 18, 24 (Alaska 1974) (quoting Smith v. Super. Ct. of
Los
Angeles
County,
Lane's brief, at 17.
440
P.2d
65,
74
(1968)
(en
banc))."
Lane appears to be correct. See, e.g.,
People v. Shari, 204 P.3d 453, 460 (Colo. 2009) ("While a
defendant's
Sixth
Amendment
right
to
counsel
does
not
guarantee the right to select his appointed counsel, 'once
counsel is appointed, the attorney-client relationship is no
less inviolable than if the counsel had been retained by the
defendant.'"); Weaver, 894 So. 2d at 188-89 ("[T]he attorneyclient
relationship
is
independent
of
the
source
of
the
compensation because an attorney's responsibility is to the
person he represents rather than the individual or entity
paying for his services."); State v. Huskey, 82 S.W.3d 297,
305 (Tenn. 2002) ("We are persuaded ... that any meaningful
distinction
right
to
between
indigent
representation
and
by
non-indigent
counsel
24
ends
defendants'
once
a
valid
1091045
appointment of counsel has been made."); Clements v. State,
306 Ark. 596, 608, 817 S.W.2d 194, 200 (1991) ("[W]here ... a
trial court terminates the representation of an attorney,
either private or appointed, over the defendant's objection
and under circumstances which do not justify the lawyer's
removal
and
which
are
not
necessary
for
the
efficient
administration of justice, a violation of the accused's right
to particular counsel occurs."); Stearnes v. Clinton, 780
S.W.2d 216, 222 (Tex. Crim. App. 1989) ("[A] defendant has the
right
to
retain
counsel
of
his
attorney-client relationship.
once
an
attorney
is
choice
and
establish
an
It logically follows ... that
appointed
the
same
attorney-client
relationship is established and it should be protected.");
People v. Davis, 114 Ill. App. 3d 537, 543, 449 N.E.2d 237,
241 (1983) ("We ... believe that for purposes of removal by
the trial court, a court-appointed attorney may not be treated
any differently than privately retained counsel."); English v.
State, 8 Md. App. 330, 335, 259 A.2d 822, 826 (1969) ("[O]nce
counsel has been chosen, whether by the court or the accused,
the accused is entitled to the assistance of that counsel at
trial.").
25
1091045
I would adopt the reasoning of these cases. Unlike the
main opinion and the cases upon which it relies, these cases
properly
focus
on
the
nature
of
the
attorney-client
relationship, a relationship that is independent of the manner
in which the attorney is selected and paid.
Cobb, C.J., and Murdock, J., concur.
26
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