Thorne v. State

¶1concurring specially.

¶2I concur fully with both the reasoning employed and the result reached by the majority. I write separately merely to emphasize the clear error in the trial court’s admission of the investigator’s testimony as to what Thorne’s attorney allegedly told him.

¶3The relationship between a criminal defendant and his attorney is sacrosanct, and anything that undermines the integrity of that relationship should be soundly condemned. As the United States Supreme Court recognized in Penson v. Ohio,2

[o]f all rights that an accused person has, the right to be represented by counsel is by far the most pervasive, for it affects his ability to assert any other rights he may have. The paramount importance of vigorous representation follows from the nature of our adversarial system of justice. This system is premised on the well-tested principle that truth — as well as fairness — is best discovered by powerful statements on both sides of the question.3

¶4Here, by testifying that the attorney identified his client from the surveillance video, the investigator essentially thrust the attorney into the role of witness against his client, a role which no lawyer should be required to assume.4 Even more egregious, the investigator’s statement suggested that Thorne’s attorney thought his client was guilty. I can think of nothing that undermines an attorney’s ability to effectively represent his client more than intimating that the attorney thinks his client is guilty. Such intimation stabs at the very heart of the attorney-client privilege, which, as the oldest of privileges, serves as the bedrock of our criminal justice system.5 Clearly, *745no client would have the unfettered ability to discuss his case with his attorney if he knows that there is the slightest chance that what is discussed will not be confidential. Such would be far more egregious than a Miranda violation.

¶5By permitting the attorney to be a witness against his client, the trial court completely eviscerated that attorney’s ability to effectively represent his client. Indeed,

[i]t has been uniformly recognized by the courts which have been presented with the question, that requiring the defendant’s attorney to testify against him on a contested, material issue so diminishes the persuasive force of his advocacy on behalf of the defendant in the eyes of the jury that the defendant is denied his right to effective assistance of counsel.6

¶6Here, Thome undeniably was deprived of effective assistance. However, in addressing the attorney’s effectiveness, we employ the Strickland7standard.8 Absent a showing of prejudice, this Court will not reverse.9 And, although I am aghast at the magnitude of the error, I must agree with the majority that the overwhelming evidence of Thorne’s guilt precludes reversal.