### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE O ct obe r 28, 200 3 S es sio n

STA TE OF TEN NES SEE v. DA NIEL AN DR EW D ECK ER

Appeal f romthe Cr im inal Cou rt for Ham ilton Coun ty No. 239147 Rebec ca Ster n, Jud ge

No. E2003-00922-CC A-R10- CD Marc h 25, 2004

J OS EP H M. T I PTON , J

. , d i s s en t i n g.

I respe ctfully

dissent. I

do not believe the r ecor d justifies removing counsel fr om

re pr e se nti ng the de fe nd a nt. I se e no de sig n o r s c he me in pla c e by wh ic h M s. Go tha

rdso ug ht t o thwart justice or its prope r administration. Nor do I view the case as one by which she ma de material misrepre sentations or disobey ed trial c ourt order s. Rather, I find materia l discrepa ncies be tween the trial court’ s findings, u p o n wh i ch the majority opinion is based, and the tra nscript of trial c ourt proce eding s. For example, the m ajority opinion specifie s counsel’s failing to comply with the trial court’s “ direc tive” to have her e x pert witness i n court to support her reque st for a c ontinuance. Howeve r, the trial c ourt did not or der counsel to pr oduce the expert nor did c ounsel defy any such order

.
At the outset, it is important to note that the re cord r efle cts that the trial court had no problem

or conc ern w ith continuing the tria l from its March 18, 2003 se tting. I t was the rese tting of the trial that be c a me the pr ob le m. A t t hi s p oin t, the pr ima ry c on c e rn e xpre sse d b y

Ms. Go tha

rdre la te d to the defendant’s mit igation expert needing sufficie nt time to prepare for tria l, asserting that the expert neede d six or seve n more months. She also was c oncerned about he r existi ng trial schedule

.

Ms. G o t h ar d a s k e d t h e c o u r t t o s e t t h e t r i a l i n l a t e O c t o b e r o r e ar l y N o v e m b e r

. Th e sta te vig or ou sly

op po se d s uc h a

de la y , a nd the tr ia l c ou rt , s a y ing it d e sir e d a c omp ro mis e , s ta te d th a t it wanted the defe ndant to have his e x perts “but [wanted] to put a fire unde r the e x perts.”

Ms. Gothard iterated her

conce rn about her trial schedule
, and the tria l court re sponded that someone in her

office neede d to help her or to take over

the ca se. The tr ial court de emed Oc tober too long a time a nd decide d to look at the Jul y cale ndar. Ms. Gotha

rd noted that both she a nd the pr os e c uto r i n th e c a se ha d a ca pit a l c a se se t f

or July 7. Th e tr ia l c ou rt

the n p ro po se d A ug us t, b ut M s. Go tha rdsa id tha t sh e ha d a

c a pit a l c a se be g inn ing Se pte mbe r 2 a nd that set ti ng th is lif e -w ith ou tparole case in betwee n was “ kind of toug h.”-2-

A discu s s ion occur

red a bout Ms. Gothard’s trial sc hedule a nd her othe r major c ases. Counsel asked f or S eptember
, and in response to the court’s inquiry as to when, she sug g ested the w eek of the 23rd or the 30th. The state then a sked for J uly 22. At this point
, the t rial court commented that it w ou ld s e e if

oth e r q ua lif

ie d la wy e rs c ou ld t a ke ov e r a nd be re a dy in July
, re marking that th e pu bli c defe nd er’s of

fi c e wa s “ sw a mpe d r ig ht n ow wi th the se kin d o f c a se s. ” Whe n th e c ou rt a sk e d M s. Gothard a

bout her or a nother pe rson from he r off ice try ing the case on J uly 22, Ms. Gothard responde d to the eff

ect that the pr oblem was in expert witness pre para tion by then. The trial c ourt stated that it would like the public defe nder’ s office to try the case on J uly 22, or it would look for

a n a tto rn e y

wh o c ou ld. Af

te r ind ica ti ng that sh e didno t th ink a ny bo dy e lse c ou ld b e re a dy , M s. Go tha rd sta te d, “ We’ ll se t it fo r July 22 .” Th us , I do no t be lie ve sh e “ re

je c te d” July

or Au g us t date s,

no r d id s he sa y , a s the tr ia l c ou rt ’s or de r sta te s, that sh e “ c ou ld no t po ssi bly be pr e pa re d f or tr ia l in J uly beca use she ha d two Dea th Penalty case s” in ea

rly J uly and September

.

I note t hat at this point, the prosecutor requested that the public de fende r be r emoved f rom the c a se. He a sse rt e d th a t in thepo st- c on vic tio n c a se fo r L e ro y Ha ll s e ve ra l mo nth s e arl ie r, Ms. Go tha rdte sti fi e d th a t she wa s in e ff e c tiv e a s tr ia l c ou ns e l be c a us e sh e wa s to o b us y a nd didno t te ll the court of the problem. I n response , Ms. Gothard stated, “ That’s not the total story of that

. . . .” The majority

opinion appare ntly

considers this sig nificant, but I fa i l t o s ee the re levanc e of he r conduct in a tr ial that occur red some e leven y ear s ear lier.

The trial c ourt continued to discuss lookin g fo r another lawy er, a nd counsel c ontinued ref e rr in g to th e a mo u n t o f w o rk th e e xp e r ts h a d to d o

. T h e c o u r t th e n d e f e rr e d th e h e aring for a

we e k, un til F e br

ua ry 24
, 20 03 , s ta tin g that it wo uldse e if

a no the r atto rn e y

c ou ld t ry the c a se in Jul y and if Ms. Gothar d could g et some help fr om the publ ic defender ’s office. I n closing , the trial court noted that if one of the defe ndant’s experts w as g oing to be in court a t that time on another matter
, as the prose cutor a sserted, “ it might be something w e nee d to take up while she is here.” The trial

c ou rt didno t “ or de r” the e xpe rt to b e pr e se nt.

On F e br ua ry 24
, Ms. Go tha

rd pr e se nte d a n a ff

ida vit fr om a n e xpe rt to the trial cou rt in chambe rs. I n open court, she ag ain ar g ued for a continuanc e. Upon i n q u i ry , s he ac knowledg ed having told her expert to prioritize other ca ses but asserted t hat she did not tell the expert to ignor e this case. Sh e also e x plained that a de arth of e x perts existed, the impli cation being that one particula r expert was be ing use d on the var ious cases. The trial court state d t hat the expert’s aff idavit was insufficie nt and that the only question would be whe ther the e x pert was examined ex parte or in open c ourt with the prosec utor prese nt. Ms. Gothard assert ed that she had no problem with the trial court que stioning th e expert except that it should be done ex parte be cause of work product an d c o n f

id e n ti a l c o mm u n ic a ti o n s

. A f te r f u r th e r d is c u s s io n s , th e tria l c o u r t r u le d th a t the expert would have to a

ppear in open court and testify

in order to justify

t h e am o u n t of time being reque s te d b y c o u n s e l. T h e ma jo r it y o p in io n s tate s th a t M s

. G o th ar d th e n “ in s is te d ” on an int e rl oc uto ry

app e a l. In f

a c t, s he sa id, “ We w ou ld l ike to t a ke a n in te rl oc ut ory app eal on that, J udg e,” to which the trial court rea dily ag ree d. The trial c ourt told Ms. Gothard to have the order g ranting the interlocutory appea l pr ep ar ed bythe following Monday , and upon re quest by the prosec utor, Ms. Gothard state d that she would send a copy of the orde r t o him by Thursday

. The trial-3-

court wa rned Ms. Gotha

rd that if the or der g ranting an interl o cutory appea l was not prepa

red by Monday , she would have to proce ed by an extraordinary

appea l without the trial c ourt’s per mission.

As the majority

opinion recounts, Ms. G othard subseque ntly appea red w ithout an order a nd advised the tria l court that she wa s not pursuing an appeal. Ms. Gothard’ s expl anation appe ars a s fo llo ws :

THE COURT: And we knew the tr ial date wa s canc elled in Marc h.

Ms. Gothard: That’ s corr ect. But in try ing to do the order to state the

reas o ns for the a

ppeal, the r easons f

or the a ppeal wa s the Court

se tti ng of the tr ia l date, J uly

22 nd , a nd no t g ra nti ng a n e x part e hearing to show tha t that date wa s unrea sonable.

THE COURT: I

thought t h e ap peal wa s because I was saying y our expert had to come in a nd explain the rea sons he couldn’t be re ady by J uly 22nd.

Ms. Gothard: Well, I

g uess that’s part of the problem. T h at’s the confusion to me. The problem is -- the pr oblem is in hav ing discussed this with the appellat e people here and else wher e in the State, the deter mination - - o n ce I said I was g oing to a

ppeal, that’ s when t h e t ri al date of

J uly the 22nd was c ance lled, it was ca ncelled last wee k. I n essenc e, what every body is te lling me, g rea t, y ou have g ot an appe llate issue but y ou have no ve hicle for g etting it ther e.

Wit h the trial date having been canc elled, then in essenc e any arg ument that I

have in terms of that not bei ng a fa ir date, ha s been

ma de moo t or

it i s n ot ripe a t th is p oin t.

After further discussion, the trial court stated that it shoul d be re ceiving a stipulation of fac ts and an order rea dy to sign re g arding the interlocutory appea l. I n response , Ms. Got h ar d s t ated the fo l l o wi n g:

I n attempting, in my office, i n attempting to put tog ether a stipulation of facts, we started talking about the fa ct that, in essenc e, proce durally

this was so scre wed up at t his point beca use t he re ason -- the reas on th at I

wa s sa y ing that my

e xpe rt -- the wh ole re a so n th is

came about is because the Court wa s setting a trial date tha t was not g ivi ng my e xpe rt su ff ic ie nt t ime

. No w the Cou rt ha s d on e a wa y wi th any trial date.

The trial c ourt stated that Ms. Gothard was pl ay ing ga mes and orde red he r re moved from the c ase.-4-

I see no or der by

the trial court that Ms. Gothard disobey ed. The trial court did not “order” the e xpe rt to a pp e ar i n c ou rt

a nd did no t “ or de r” the de fe ns e to pu rs ue a n int e rl oc uto ry app e a l. I a lso believe the rec ord pre pondera tes ag ainst any finding that Ms. G othard made materia l repre sentations reg arding the expert, the appeara nce of the ex pert, or the appeal. I acknow ledg e that the record doe s not preponde rate ag ainst the t rial court’s deter mination that Ms. Gothard’ s assertion that Mr. Acuf f had bee n “lea d counsel” on the ca se in the trial court was not believable

. Howeve r, t he trial c ourt stated fr om the very

beg inning that it had no pr oblem with continuing the c ase from the Marc h 18 trial date. Thus, w ho had bee n “lea d counsel” was of no c onsequenc e to the issues of c oncern.

Moreove r, I view her

rea soning le ading to her de cision not to appeal to be a ny thing but g amesmanship or pr eplanne d. The fa ct that a c ontinuance was already g rante d could be sig nificant in this court’s deter mining whe ther a n interlocutory appea l was nec essary . This court doe s not give

a dv iso ry op ini on s. On the oth e r h a nd
, I be lie ve Ms. Go tha rd sh ou ld ha ve pu rs ue d a n a pp e a l be c a us e she knew that the t rial court’s removing the case from the trial docket wa s for the ve ry purpose of an interloc utory

appea l. The ce ntral thing to r emember rela tive to the trial court’ s actions is that the
court wa s removing the def endant’ s counsel to which he was e ntitled. As demonstrated in State v. Hu sk e y , 8 2 S. W.3 d 2 97 , 3 09 (T e nn . Cr im. Ap p. 20 02 ), the tr ia l c ou rt ma y no t re mov e c ou ns e l un le ss less drastic mea sures a

re una vailing. In this respec t, we should not l o s e s i gh t o f t he fa ct that the motion before the court wa s one for a continuance. Once notified by Ms. Gothard of her intent not
to a pp e a l, the tr ia l c ou rt

c ou ld e a sil y

ha ve se t th e c a se fo r t

ri a l on J ul y 22 and be do ne wi th i t. Counsel would then be lef t with onlythe option of seeking an extraordinary appea l. Howeve r, she should not have bee n remove d.

L a stl y , alt ho ugh the re c or d s ho ws Ms. Go tha rdha d a c apit a l c a se in e arl y

July a nd on e in

ear ly September, I simply cannot conclude that it shows that she was overw orked o r c o u l d n ot oth e r w is e c o mp e te n tl y h a n d le th e p r e s e n t c a s e

. T h u s , I d o n o t b e li e v e th a t h e r c a s e loa d justified

remova l from the ca se.

As for the appropr iate re medy , the re cord ref lects a peculiar situation. The majority opinion
sta te s th a t su bs tit ute c ou ns e l ha s con tin ue d to pro vid e se rv ic e s to the de fe nd a nt de sp ite thi s a pp e a l. Although the rec ord re flec ts that substitute counsel obtained an order for e x pert ser vices on May 8, 2003, this court enter ed a sta y of all proce eding s in the t rial court on May 16, 2003. The e x tent of substitut e counse l’s service s is ope n to question. I t may or may not be that substitute counsel has develope d a ra

pport with the defe ndant by which the defenda nt prefe rs substitute counsel to proce ed. Under these c ircumstance s, I wo u l d rema nd the ca se to the trial court for it to determine if the defe ndant pre fer

red substi tute counsel and allow counsel acc ording to the defe ndant’s pre fer ence

.

____________________________________ J OSEPH M. TI PTON, J UDGE