Motion for a New Trial Prior to the Penalty Phase - Ineffective Assistance of Counsel

Motion for a New Trial Prior to the Penalty Phase Based on an Ineffective Assistance of Counsel Claim: In People v. Dickey (2005) 35 Cal.4th 884, after defendant was convicted of murder and other charges, but prior to the penalty phase of trial, defense counsel informed the court the defendant wished to move for a new trial based partially on a claim of ineffective assistance of counsel. Defense counsel suggested the appointment of separate counsel to represent the defendant in that effort. (Id. at pp. 918-920.) The trial court appointed the defendant separate counsel to assist him in his preparation of a new trial motion filed after the penalty phase which was based on purported ineffective assistance of counsel and the court's ostensible error in neglecting to hold a Marsden hearing at the time the subject was initially broached. The trial court denied the motion. (Id. at pp. 920, 922.) The California Supreme Court held the trial court did not commit Marsden error. (Dickey, supra, 35 Cal.4th at p. 920.) The Court reasoned, "Defendant did not clearly indicate he wanted substitute counsel appointed for the penalty phase. To the extent he made his wishes known, he wanted to use counsel's assertedly incompetent performance in the guilt phase as one of the bases of a motion for new trial, and he wanted to have separate counsel appointed to represent him in the preparation of such a motion. As his expressed wishes were honored, he has no grounds for complaint now." (Id. at pp. 920-921.) In addition, the court concluded any "Marsden motion would have been baseless" because "we do not find Marsden error where complaints of counsel's inadequacy involve tactical disagreements." (Id. at pp. 921, 922.) This was because the new trial motion was based on defendant's contention certain witnesses who were not called to testify should have been and that during the defendant's testimony he should have been asked questions he was not. (Id. at pp. 919-922.)