Murder conviction reversed because trial counsel rendered ineffective assistance by failing to move for dismissal on the grounds of excessive, 19-year, precharging delay. After a deadly gang related shooting in 1992, police identified a number of suspects but their investigation was shelved because of insufficient resources. In 2011, after receiving a grant of funds to resume investigating cold cases, the police interrogated other suspects, who pointed the finger at Booth. Booth was tried for first degree murder. At the time of Booth’s trial, Bradford, a witness who had made statements to police during their 1992 investigation exculpating Booth, could not be located. The jury convicted Booth of second degree murder. He appealed and filed a petition for writ of habeas corpus asserting that his trial counsel was ineffective because, inter alia, he failed to make a motion to dismiss on the grounds of excessive pretrial delay. Held: Reversed and remanded. In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel’s performance was deficient because his representation fell below an objective standard of reasonableness. He must also show prejudice, which is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Here, counsel’s performance was deficient. At an evidentiary hearing trial counsel testified that he contemplated making a motion to dismiss based on Bradford’s unavailability but could not recall why he did not file it. Counsel’s performance was also prejudicial. While Bradford was potentially subject to impeachment because he may have told a different story to his coworkers than he did to police, “he still had the potential to be a blockbuster witness for the defense.” And while “lack of investigative resources provides a strong justification for the precharging delay” on balance, the prejudice Booth suffered outweighed it.

The remedy for counsel’s ineffective assistance in failing to bring the motion to dismiss was remand for a retrial where the unavailable witness’ hearsay statements will be admissible. Citing People v. Conrad (2006) 145 Cal.App.4th 1175, the Court of Appeal reasoned, “Booth’s constitutional right to a fair trial can be accommodated by retrying the case and allowing the jury to hear the exculpatory statements that Bradford made to the police after the shooting. Despite the hearsay nature of those statements, their admission is necessitated by Bradford’s unavailability and the unusual circumstances presented in this case. Since Bradford’s statements have been preserved on tape, the jury will be able to hear exactly what he said and how he said it.”

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/G047986.PDF