Edwаrd H. HENSLEY, Appellant, v. UNITED STATES of America, Appellee.
No. 15434.
United States Court of Appeals District of Columbia Circuit.
Decided June 10, 1960.
Petition for Rehearing en Banc Denied Sept. 12, 1960.
281 F.2d 605
Mr. John D. Lane, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., and Carl W. Belcher, Asst. U. S. Atty., were on the brief, for appellee. Mr. Frank Q. Nebeker, Asst. U. S. Atty., also entered an appearance for appellee.
Before Mr. Justice REED, retired,* and EDGERTON and BASTIAN, Circuit Judges.
BASTIAN, Circuit Judge.
On December 24, 1959, we allowed an appeal from a judgment of the Municipal Court of Appeals which affirmed appellant‘s conviction for simple assault but remanded the case for further proceedings.1
At his arraignment in the Municipal Court, appellant entered a plea of not guilty and asked for a jury trial. One month latеr, on May 18, 1959, the case came on for trial, appellant being represented by retained counsel. After the completion of the voir dire examination, appellant‘s attorney approached the
The Municipal Court of Appeals affirmed appellant‘s conviction for simple assault but remanded the case for resentencing, on the ground that the trial judge imposed sentence without first giving appellant “an opportunity to make a statement in his own behalf and to present any information in mitigation of punishment,” as required by Criminal Rule 20(a) of the trial court.2 This appeal followed.
At the argument of the appeal to this court, appellant stressed two grounds for reversal, namely, (1) that he was improperly deprived of a fair trial by jury, without legal аnd intelligent waiver of the same, and (2) that he was denied effective assistance of counsel at trial as guaranteed by the Constitution.
I. Was Accused Improperly Deprived of a Fair Trial by Jury without Legal and Intelligent Waiver of Same?
In essence, the basis for this contention is that defense counsel‘s waiver of triаl by jury at the bench conference violated both appellant‘s constitutional right to trial by jury and his rights under
A case directly in point is that of Commonwealth v. Dailey & another, 12 Cush. Mass. 80. That too was an assault case and, after the trial commenced and evidence was given to the jury, one of the jurors sworn was withdrawn at his request, by consent of defendants’ counsel, of the Distriсt Attorney and of the court, on account of the dangerous sickness of his father. A verdict was returned by the remaining eleven jurors. The defendants were present in court at the
“A prisoner who defends by counsel, and silently acquiesces in what they agree to, is bound in the same manner as any other principal by the act of his agent.” 12 Cushing at page 83.
It is obvious that the word “accused,” or its synonym “defendant,” is often used to apply to a dеfendant or his counsel. Thus, while throughout the
In the instant case, the facts warrant a finding that, if appellant did not initiate the waiver of trial by jury, he did, by his conduct at least, ratify the waiver immediately upon its being made, and thus made the waiver his personal act.
Immediately upon being informed of the decision to waive trial by jury, the trial judge, in open court, informed the jury of this fact. Appellant raised no objection. Defense counsel then stated to appellant, according to appellant‘s own affidavit: “You don‘t need a jury. You have nothing to worry about, this case will be over in a few minutes.” Again appellant raised no objection to the waiver. At this juncture, after public announcement of the waiver in open court and the statements by defense counsel, sufficient time had elapsed to negate any surprise on the part of appellant. Thus he was duty bound at that time to make known to the court his repudiation of the waiver, if that wаs his intention. Significantly, his affidavit in arrest of judgment nowhere indicates that he protested his attorney‘s action, either to his attorney or to the court. He was apparently content to take his chances, and he cannot now be heard to complain after receiving an unfavorable finding.
In the case of United States еx rel. Darcy v. Handy, 3 Cir., 1953, 203 F.2d 407, defendant‘s petition for habeas corpus alleged among other things that he was not permitted by his counsel to testify in his own defense, that his counsel did not produce any witnesses as to his background, personal history, mental condition, prior good behavior, character or reputatiоn, although such evidence was available and would have assisted him, that his counsel failed to have him examined by a psychiatrist, whose testimony, if such an examination had been made, would also have been helpful to him, and that the failure of his counsel in these respects denied him a fair and impartial trial, in viоlation of the Fourteenth Amendment. In its opinion, the court stated:
“[T]he acts of counsel [become] those of his client and as such [are] so recognized and accepted by the court unless the defendant repudiates them by making known to the court at the time his objection to or lack of concurrence in them.” 203 F.2d at page 426.
Finally, an examination of the record as a whole, coupled with the fact that appellant was not unfamiliar with criminal procedure and had had the experience of two prior jury trials,6 leads one to the necessary conclusion that the
Summarizing, it seems to us that the dismissal of the jury in the presence of appellаnt fully complied with the rule as to waiver of jury trial. Since counsel was acting for him and he was present when the judge dismissed the jury, and since appellant made no objection, we construe his lack of action at that time to be an express waiver in accordance with the statute.
II. Was Appellant Denied Effective Assistance of Counsel?
The principal bаsis for this contention is the premise that counsel failed to consult with appellant regarding the waiver and, as well, failed to call appellant‘s wife as a witness. In this connection, the Municipal Court of Appeals aptly said:
“We have studied the record in the light of these allegations and contentiоns. In the management and conduct of the defense counsel was confronted with situations requiring judgment, thought and tactical decisions. Even with the wisdom of hindsight it cannot be said with assurance whether the decisions and strategy of counsel were wise or unwise. But they were not such as to justify a ruling by us that defendant did not have effective assistance of counsel and is entitled to have a second trial of his case [Citing cases.]” 155 A.2d at page 79.
In United States ex rel. Darcy v. Handy, supra, when faced with a similar contention, the court stated:
“A defendant cannot seemingly acquiesce in his counsel‘s defense of him or his lack of it and, after the trial has resulted adversely, have the judgment sеt aside because of the alleged incompetence, negligence or lack of skill of that counsel.” 203 F.2d at page 426.
Appropos also is United States ex rel. Weber v. Ragen, 7 Cir., 1949, 176 F.2d 579, where the following language appears:
“As to the requirement under the Fourteenth Amendment, the services of counsel meet the requirements of the due process clause when he is a member in good standing at the bar, gives his client his complete loyalty, serves him in good faith to the best of his ability, and his service is of such character as to preserve the essential integrity of the proceedings as a trial in a court of justice. He is not required to be infallible. We know that some good lawyer gets beat in every lаw suit. He made some mistakes. The printed opinions that line the walls in our offices bear mute testimony to that fact. His client is entitled to a fair trial, not a perfect one.” 176 F.2d at page 586.
The judgment of the Municipal Court of Appeals will be affirmed.
Affirmed.
EDGERTON, Circuit Judge (dissenting).
The statute quoted in the court‘s third footnote provides that in prosecutions in whiсh the Constitution entitles the accused to a jury trial, “the trial shall be by jury, unless the accused shall in open court expressly waive such trial by jury and request to be tried by the judge * * *.” The opinion of the court says: “Since counsel was acting for him and he was present when the judge dismissed the jury, and since appellant made no objection, we construe his lack of action at that time to be an express waiver in accordance with the statute.” This seems to me erroneous in fact and in law.
I think it an error of fact to infer from appellant‘s lack of action that he was willing to be tried by a judge. I see no
I think it an error of law to hold that if he so intended, he showеd it in the way the statute requires. I think “the accused” did not, as the statute requires, “in open court expressly waive such trial by jury and request to be tried by the judge.” Within constitutional and statutory limits, the accused is bound by his counsel‘s acts. But it does not follow that the statutory term “expressly” includes “impliedly“, and it does not follow that the statutory term “the accused” includes someone else. Nor do I think a statement not heard, and not meant to be heard, throughout the room is made “in open court“.
Rule 32(a) of the
We are dealing in the present case with the fundamental constitutional right of trial by jury. “It has been pointed out that ‘courts indulge every reasonable presumption against waiver’ оf fundamental constitutional rights and that we ‘do not presume acquiescence in the loss of fundamental rights.‘” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461.
from the Court‘s instructions. And in making up your mind as to what the facts are it must be within the type of law that the Court gives you. It isn‘t just a question of fact. It is a question of fact in accordance with the law that is given to you by thе Court. Now, please remember that. Well, does that satisfy you? [To counsel.]
“Counsel for appellant: That is satisfactory, Your Honor.”
Thereupon, the case continued. It was argued to the jury, the court‘s charge was given, trial counsel expressed himself satisfied with the charge (which was, in our opinion, entirely fair and correctly stated the jury‘s function as fact finder), and a verdict of guilty was returned.
Assuming that the newspaper article may have had the effect suggested in the statement of the question presented on appeal—an assumption in which we by no means indulge—the failure of trial counsel, not only to object to the sufficiency of the court‘s statement but, as well, his failurе to move for mistrial and his expressed satisfaction with the court‘s instruction regarding the article itself, waived the claim of error, if any error in fact existed. Trial counsel used his best judgment. In Hensley v. United States, — U.S.App.D.C. —, 281 F.2d 605, in affirming Hensley v. United States, D.C.Mun.App., 155 A.2d 77, we approved the following language of that court:
“In the management and conduct of the defense counsel was confronted with situations requiring judgment, thought and tactical decisions. Evеn with the wisdom of hindsight it cannot be said with assurance whether the decisions and strategy of counsel were wise or unwise.” 155 A.2d at page 79.
Certainly, the decision of appellant‘s trial counsel was not such as to justify a ruling that he did not have effective assistance of counsel. The problem was one which, when presented to а trial lawyer in the swift movement of trial, must be determined by his best judgment. No criticism can attach to counsel for the choice he made.
Appellant having proceeded with the trial without objection, he cannot now ask for reversal when the original trial went against him. The ends of justice are not promoted by allowing parties to lie by and not make objections, taking a chance on acquittal, and then to use an alleged error known at the trial as ground for reversal. See
Present counsel, court appointed, vigorously pressed upon us the points we have described. We have carefully considered them but find no reversible error. We are reinforced in our decision to affirm this case by the fact that the evidence of appellant‘s guilt was overwhelming, and no error is even suggested in other rulings of the trial judge or in his conduct of the trial.
Affirmed.