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Name: In re Burton
Case #: S034725
Court: CA Supreme Court
District CalSup
Opinion Date: 12/18/2006

In this habeas action, the Supreme Court, relying on the holding in People v. Frierson (1985) 39 Cal.3d 803, ruled that in a capital trial defense counsel cannot ignore his client’s wish to present a certain defense at the guilt/special circumstance stage of the trial when the defendant openly, and, thus, unequivocally, expresses a desire to present the defense at that stage and when there exists credible evidence to support that defense. But it is only in the case of an express conflict arising between the defendant and counsel as to the defense, that the defendant’s desires must prevail and, even then, only when the defense requested has credible evidentiary support. In this case, defense counsel presented no evidence at the guilt portion as he believed, in light of the strength of the state’s case and the weakness of his potential witnesses, that to do so would reduce the credibility of the defense presented at the penalty phase. He asserted that he had discussed this trial strategy with defendant and that defendant had not objected to it. The record itself did not reflect that defendant expressed to counsel that any particular defense to be presented – unlike Frierson where it was clearly apparent that Frierson wished a diminished capacity defense presented but his counsel refused.