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Name: People v. Keller
Case #: C033613
District 3 DCA
Opinion Date: 02/14/2001
Subsequent History: rev. granted 5/23/01 (S096233); Rev. dismissed 1/23/02 and remanded.

Editor’s Note: Review granted. Appellant did not receive ineffective assistance of counsel because his attorney failed to object to the introduction of taped conversations appellant had with an undercover officer while appellant was in jail after arraignment for false imprisonment offenses committed against his wife. Appellant, who already had counsel appointed on the false imprisonment offenses, attempted to hire a “hit man” to keep his wife from testifying against him, without realizing that the hit man was an undercover officer who was recording his statements. On appeal, he argued that counsel should have moved to exclude the tapes because his right to counsel had already attached when the statements were made, and the offenses were “inextricably intertwined.” The appellate court disagreed, finding no exception to the offense-specific rule regarding the right to counsel, and thus no exception to its corollary that evidence of crimes for which the right had not yet attached is admissible at a trial on those offenses. Even if there were an “inextricably intertwined” exception, it would be so narrow as to apply only when an uncharged offense is impossible to distinguish from the charged offense to which the right to counsel has already attached. Using that narrow a test, appellant’s argument here failed. The solicitation was conceived and pursued by defendant subsequent to and distinct from the original offenses. The evidence was therefore admissible as to the solicitation offense. The fact that trial counsel failed to seek a limiting instruction that the evidence was only admissible as to the solicitation offense was deficient, but it was not prejudicial, since appellant was acquitted of the false imprisonment offenses, and the statements were not incriminating regarding those offenses.