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Jose Gilberto v. United States

March 21, 2013

JOSE GILBERTO PORTILLO, APPELLANT,
v.
UNITED STATES, APPELLEE.



Appeal from the Superior Court for the District of Columbia (CF1-6048-09) (Hon. Michael L. Rankin, Trial Judge) (

The opinion of the court was delivered by: Blackburne-rigsby, Associate Judge:

Argued September 25, 2012

Before GLICKMAN, BLACKBURNE-RIGSBY, and OBERLY, Associate Judges.

Appellant, Jose Portillo, was convicted after a jury trial of two counts of first-degree felony murder while armed.*fn1 Appellant contends, inter alia, that the trial court failed to conduct an adequate inquiry into his pretrial ineffective assistance of counsel claim as required by the Monroe-Farrell line of cases. We agree and remand the case so that the trial court may conduct further inquiry into appellant‟s pretrial ineffective assistance of counsel claim.

I.

On November 20, 2008, appellant was drinking beer and using drugs with his friends Angela and Peiro at Angela‟s house.*fn2 Appellant was armed with a handgun. Later that night, appellant and his friends left Angela‟s house and drove in Peiro‟s car towards a restaurant in Silver Spring, Maryland. While they were driving, they changed direction because Angela knew of a house where they could go and "hang out." Angela directed Peiro to Belt Road and then instructed him to park a few houses down from the Spevaks‟ house. All three of them exited the car and were walking towards the house when Angela instructed Peiro to go back to the car and retrieve a baton. Angela then realized she already had the baton in her pocket and they continued towards the house. Peiro testified that, at that point, he knew they were not going to the house to hang out because if they were just going there to drink they would not need weapons.

When they reached the front porch, Peiro stood in front of the door, Angela was next to him, and appellant was standing behind him on the steps. As instructed by Angela, Peiro knocked on the front door and when an elderly man, Michael Spevak, answered, Peiro asked for "Anna."*fn3 Mr. Spevak told him that Anna did not live there. Peiro then forced the door open, pushed Mr. Spevak inside the house, and began choking him, and then appellant and Angela walked in behind him. After appellant and Angela entered the home, an elderly woman, Virginia Spevak, asked what was going on, and appellant pointed his gun in her face. Appellant, Angela, and Peiro then took turns guarding the Spevaks and looking around the home for valuables to steal. Eventually, both Spevaks were tied up and gagged. Angela said that they would have to kill the Spevaks because they had recognized her. Angela retrieved a knife from the kitchen and stabbed the Spevaks. Peiro used the baton to beat them. Appellant waited inside of the front door while the murders took place. Angela and Peiro carried the stolen items to Peiro‟s car, and then appellant joined them. After getting in the car, appellant said, "Whatever we did, they had to be dead because if not we were going to end up going to jail." Angela and Peiro brought appellant back to his house and then later returned to the Spevaks‟ home to make sure that they were dead. After observing the Spevaks‟ lifeless bodies through windows, Angela and Peiro stole the Spevaks‟ car.

The Spevaks‟ bodies were discovered two days later when police responded to concerned calls from the Spevaks‟ daughter and neighbor. Shortly after discovering the Spevaks‟ bodies, the police discovered a burning car, which they identified as the Spevaks‟ missing car, in the alley behind Angela‟s house. The police also discovered burnt items related to the Spevaks, including a wallet and credit card, in the same alley. Angela voluntarily accompanied the police to be interviewed. The information provided by Angela led the police to focus on Peiro and appellant, who was known to his friends as "Chancho."

Appellant was represented at trial by two court-appointed attorneys, Ferris Bond and John Machado. Mr. Bond was initially appointed to represent appellant on March 16, 2009. Because appellant does not speak or read English, Mr. Bond requested that a Spanish-speaking attorney be appointed to assist in the representation. On October 23, 2009, after a bench conference addressing Mr. Bond‟s request, the court appointed attorney John Machado as co-counsel.

On October 7, 2010, before trial began, a hearing was held to address a letter that the trial court received from appellant.*fn4 The following exchange took place:

THE COURT: So we‟re rapidly approaching trial. And I got a correspondence from Mr. Portillo which I forwarded to -- a copy to the government and a copy to counsel for Mr. Portillo.

And because it raises issues that could conceivably affect the trial moving forward, I thought it wise that the government‟s suggestion to hold a hearing now and see what the problems are and how best to resolve it [sic].

So let me defer to defense counsel.

MR. BOND: Well, I suspect Mr. Portillo is going to have some things he wants to say to the court. Let me start by telling you that the letter and alleged pleading you received was not written by Mr. Portillo. Apparently there are a group of prisoners at the jail that spend a lot of time in the law library and they indicated to Mr. Portillo that they could help him by writing this letter. The signature on there is also not Mr. Portillo‟s.

Mr. Portillo as I think the court and the United States is aware does not speak English, doesn‟t write English. He has had some concerns. And we have talked about those concerns. And I think we‟ve straightened them out. But he can speak to that himself. And I can go into more detail about his concerns if the court would like or the court‟s pleasure.

THE COURT: Well, let me defer to Mr. Portillo. And if I reach a point I rather hear [sic] from you I‟ll come back to you.

MR. BOND: Very well.

THE COURT: Yes, sir.

THE DEFENDANT: I want to tell him that I have requested some papers with [sic] in Spanish from him. I don‟t know how to write or read in the English language. And I was never given those papers. I would like to request that each time I‟m given a paper that it be written in English and in Spanish. Because I don‟t understand. I do have some papers, but I don‟t know what is written in them. I feel that this is an attorney who‟s very busy and he‟s not trying hard regarding my case.

THE COURT: Well, you‟ve said a few things. Let me see if I could address them perhaps in reverse order. Ferris Bond is an attorney who‟s very busy and I‟m not sure he speaks any Spanish.

Do you speak Spanish?

MR. BOND: Poquito.

THE COURT: He speak[s] very little Spanish.

MR. BOND: Some. I understand --

THE COURT: You just went from very little to some. MR. BOND: Both of the above. I understand --

THE COURT: Well, in that case you should have put ...


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