An Odessa man in prison on assault charges after he was shot by police officers will get a new trial, after the Texas Court of Criminal Appeals this week determined his defense attorney provided ineffective counsel.
Gregory Heath Stoneman was shot by Odessa Police Department snipers on June 6, 2012 at his home on Conley Avenue after police say he pointed a shotgun at officers from his front porch. Stoneman’s ex-wife had called police to report he was suicidal.
Stoneman, who was shot once in the neck and once in the chest, pleaded guilty in 2014 to four counts of aggravated assault of a public servant and was sentenced to 10 years in prison. But his appellate attorney Randy Schaffer argued Stoneman made that choice without getting critical information from his defense attorney.
Ector County District Judge James Rush, and ultimately the appeals court, agreed that Midland-based court-appointed attorney Raymond Fivecoat provided “ineffective assistance.” In May 2017, Rush determined Fivecoat failed to properly prepare and left his client unaware of facts including the possibility of lesser charges that could have led him to reject a plea deal.
Fivecoat, who had explained his work in a court filing, did not respond to a request for comment on Friday.
If Stoneman is convicted in a new trial, he could face a longer sentence. He had been eligible for parole, but was denied it earlier this month and remains in prison, Schaffer said.
Ector County District Attorney Bobby Bland said the appeals court ruling had nothing to do with the case against Stoneman and prosecutors still believe he is guilty.
“We’ll look at the case again and make a decision on how we will prosecute — but yes, we have every intention of proceeding forward with the prosecution,” Bland said.
Schaffer alleges police “fabricated a story to cover up a bad shooting” and says his client never pointed a gun at police and didn’t see them that night before he was shot.
“He’s suicidal, he’s fired a couple shots into the back porch, he’s intoxicated, but he’s not threatening the officers,” Schaffer said, adding later that “They overacted, they shot him and then what are they going to do, say ‘Oops?’”
Police have also maintained that the shooting was justified.
The appeals court separately rebuked Schaffer, writing in an order passed along to the state bar that he “behaved unprofessionally” and appeared “to violate his duty of candor toward this tribunal.” That stemmed from a motion Schaffer filed in March to expedite Stoneman’s case. He wrote that “The case has been pending for almost ten months on a recommendation to grant relief with no opposition filed by the State.”
Prosecutors countered the claims of no opposition “are completely false.”
And then Schaffer, who said his comment was misconstrued, went on the offensive, responding that the “… prosecutor should consider taking English as a second language, if it is not too late.” He also accused Fivecoat of “aggravated perjury and, perhaps, tampering with evidence” when he provided an inaccurate account of his representation of Stoneman.
“The Ector County District Attorney’s Office obviously has no problem with a lawyer lying under oath as long as he is trying to help the State,” Schaffer wrote in his reply, which was cited by the appeals court.
Schaffer apologized but said his position remains the same.
“I wear it as a badge of honor,” Schaffer said of the appeals court rebuke, adding that he is sorry for his comment about the prosecutor studying English. “My comment was probably unnecessary as it related to the prosecutor but after all he did file a response calling me a liar.”
Asked to respond, Bland said “the response of the Criminal Court of Appeals speaks for itself.”
“They obviously chastised him but not us,” Bland said. “We did nothing wrong. We stand by that.”