People v. Dorsey
46 Cal. App. 3d 706, 1975 Cal. App. LEXIS 1803, 120 Cal. Rptr. 508 (1975)
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Rule of Law:
A defense attorney's failure to object to the admission of confidential marital communications on the proper ground of spousal privilege, when that testimony is critical to the prosecution's case, constitutes ineffective assistance of counsel.
Facts:
- Lee Daniel Dorsey (Dorsey) previously worked for Branch Realty.
- The night before Branch Realty was burglarized on July 30, 1972, Dorsey told his wife, Patricia Ann Dorsey (Mrs. Dorsey), that he was going to rob the business because they were trying to bankrupt him.
- The day after the burglary, Dorsey drove Mrs. Dorsey to a location where a pile of materials was burning and told her that this was the material he had taken from Branch Realty.
- On August 25, 1972, Dorsey told Mrs. Dorsey that he and another man were going to burn down a house on Gates Street to collect insurance money.
- On September 9, 1972, Dorsey and an accomplice, David Brown, set fire to a residence on Alta Drive; Dorsey later showed the partially damaged house to Mrs. Dorsey.
- About a week after an explosion on September 16, 1972, Dorsey told Mrs. Dorsey that he had planted the pipe bomb that caused it.
- Prior to an explosion at a shed on September 22, 1972, Dorsey told Mrs. Dorsey they should do something to themselves to make it look like someone else was committing the crimes.
Procedural Posture:
- Lee Daniel Dorsey was charged by information in a California superior court (trial court) with five counts, including burglary, arson, and exploding a destructive device.
- On Dorsey's motion, these five counts were severed from three other forgery counts.
- A jury returned guilty verdicts on all five counts.
- The trial court entered a judgment of conviction and sentenced Dorsey to state prison.
- Dorsey appealed the judgment to the California Court of Appeal, Second District.
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Issue:
Does a defense attorney's failure to object on the grounds of spousal privilege to a former spouse's testimony about confidential marital communications constitute ineffective assistance of counsel when that testimony is a critical component of the prosecution's case?
Opinions:
Majority - Loring, J.
Yes, the failure to object on the grounds of spousal privilege constituted ineffective assistance of counsel. The court distinguished between two separate spousal privileges: the privilege not to testify against one's spouse, which is held only by the witness spouse and terminates upon divorce, and the privilege for confidential marital communications, which is held by both spouses and survives the dissolution of the marriage. While Mrs. Dorsey waived her privilege to not testify, Dorsey himself retained the right to prevent her from disclosing their confidential communications made during the marriage. His counsel failed to assert this privilege, objecting instead on hearsay grounds, which was an incorrect and ineffective objection. The court rejected the prosecution's argument that this was a trial tactic, reasoning that no sound strategy would permit the admission of such critically damaging and inadmissible evidence. The prosecution's case relied heavily on the testimony of Mrs. Dorsey and an accomplice, and her testimony regarding the privileged communications was essential to securing the conviction. Therefore, counsel's failure to make the proper objection withdrew a crucial defense and was prejudicial, requiring a reversal of the judgment.
Analysis:
This case provides a crucial clarification on the distinction between the two types of spousal privilege under the California Evidence Code. It underscores that the privilege for confidential communications survives divorce and can be asserted by the non-witness spouse to bar testimony. The ruling serves as a strong precedent for ineffective assistance of counsel claims where an attorney fails to understand and apply fundamental evidentiary rules, especially when the erroneously admitted evidence is the cornerstone of the prosecution's case. It demonstrates that a tactical decision must be a reasoned one, and simply failing to make the correct objection to devastating evidence will not be excused as trial strategy.
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