*1 Loyd Eugene FRANKLIN Allen Elmer REID STATE of Arkansas S.W. 2d 760 October delivered Opinion *2 Leonard C. Smead and Streett, D. ap- for Julian pellants. Daniel, Thornton, General; Attorney Gene O.
Ray Gen., Asst. for Atty. appellee. A. filed Appellants Fogleman, Justice. John the maximum for relief from
petition postconviction imposed burglary of Chidester of the Bank for sentence only ground September 1969. their contention is consideration real merits deprived of counsel assistance of the effective rights the Sixth under constitutional of their in violation States Consti- to the United Amendments Fourteenth during I. alleged They William the trial tution. intoxicated, employed counsel, Purifoy, pocket in the view in his back full bottle had a wine courtroom, three times left the that he courtroom during the trial. course ap- against that direct evidence discloses
The record *3 overwhelming. charge pellants dis- It also the was on agree attorney prosecuting the would not closes that imposition appears It sentence less than the maximum. purpose the to us that real
obvious punishment imposed that be determine the was to escape punishment. appellants hoped to the maximum ap- hearing testimony jurors There was appellants’ pellants’ clearly petition that that indicated pocket. attorney a bottle in his and had was intoxicated stated of them observed his condition and Several lawyer incoherent, hair and his somewhat was unexplainedly clothing disheveled, from the absent was in was while the trial on several occasions courtroom progress, or heard not be either that he often could jury The foreman described he talked. understood when irregular highly Another for a courtroom. his conduct as up juror actually getting that he considered said jury leaving courtroom, he feel that a because did not required where the to sit on a case defendants’ should be attorney appeared, intoxication, in no because of jurors handling a state of mind to be case court. attorney’s them of con- differed as to the effect on duct, this ver- them but at some of indicated that least guilt sentence, dict, both, or was influenced either as to or by it. trooper
A of the Arkansas State Police to whom during a attorney a bottle of wine a drink from offered attorney taking one himself observed the recess before during the trial. in the His conduct led courtroom opinion lawyer in- to the that this officer fluence of intoxicants to drunk as occasions. The was under degree,
a as certain but not had seen him on the on other officer streets attorney prosecuting that he also testified thought give might persuaded that the have “good lawyer,” adding a he a little had less sentence attorney perform seen a criminal this as much better lawyer than he at this trial. was
During trial, Horton, a in the Bill recess one a appellants, approached relative of one circuit judge questioning getting whether fair calling judge’s trial and fact attention to the lawyer drinking pint their tle was and had a bot- one-half pocket. attorney, prosecuting of wine his reported judge another, either at this or recess to the appellants’ attorney hip pocket. had a bottle in his attorney This official testified that the the in- was under alcohol, fluence of left on a few courtroom occasions, and that Horton’s conference with the arranged by this witness after had inter- Horton with him in an ceded effort to have a mistrial declared. According judge, appellants’ he then observed closely during and his demeanor more the re- *4 mainder the At the of trial. of the state’s conclusion appellants’ attorney they evidence, also announced that judge hearing rested. The circuit then held a the ab- jury, apparently, and, presence sence of the without the attorney. appellants’ advising appellants After that questioned the on fairness had been the attorney’s condition, basis of their he them reminded arraigned that, they earlier, when some months were in- jury trial, formed of their to remain silent represented by counsel, appointed to be who be would they court, indigent. the if were He also called appointed their attention the court had one attorneys by they presently represented, whom are but they employed that torney had declined his services and at- appeared judge
who at in- the trial. The then terrogated each of felt that as to whether he represented properly adequately was court he
227 day. replied judge affirmative, each in the When nothing do, remarked that there was he could brought the matter to their was attention in accordance good justice them, with the dictates of to both attorney’s state, but if with satisfied nothing say. prosecuting services, he more judge that he had that the testified advised the object state either would a mis- declaration of proceeding trial or trial. He also said that thought ap- had no choice court in the matter if the pellants proceed attorney. elected to with their hearing postconviction
After the extensive on the motion, clear the circuit found that was evidence appellants’ employed appeared shabby trial in a condition and under the influence of degree, disgrace pro- intoxicants to some fession of of his degradation system and bar and to the of our justice. judge again that, concluded in view of expressions by appellants, of satisfaction there nothing more that he could have done. longer
There can no doubt that Amendment requires 6 to the United States Constitution that a de fendant in a state trial have the effective assistance Alabama, counsel. 55, 45, See Powell v. U. S. Ct. 287 S. 53 (1932); Wainwright, L. Ed. 158 77 Gideon v. 372 335, 792, U. S. 2d 733 83 799, 9 S. Ct. L. Ed. R. 93 A. L. 2d (1963); Stephens, (8th Mitchell v. 353 F. 129 2d 1965), denied, 1019, 1042, Cir. cert. S. 384 U. 16 L. Ed. 2d (1966). also, 86 S. Ct. State, See Reece v. S. 350 U. 85, (1955). S. 76 Ct. L. Ed. Effectiveness counsel is not to be measured reflected success Pey Stephens, supra; results of the trial. Mitchell v. Ellyson, ton (1966). Va. 150 E. As S. pointed retrospective Mitchell, out in ef evaluation usually appellate fectiveness of counsel is difficult for an depends court, upon judgment because so much *5 judgment factors which influence at the moment. Normally, any responsibility is state absolved of to see competent that a ef- defendant’s counsel is appearance privately non-ap- fective after of retained 228 F. v. 2d Maroney, United States
pointed counsel. 423 108, Overlade, Lunce F. 865 v. 2d (3rd 1970); Cir. 244 v. United States L. R. 1384 Cir. (7th 1957); A. 74 2d denied, 338 cert. 1953), F. Cir. Handy, (3rd 407 203 2d 862, 528, S.U. Ed. 96 (1949), U. S. 94 L. 70 S. Ct. 342 865, 837, 632, S. Ed. 61 346 U. (1951), 96 L. S. Ct. 72 454, 375, aff’d, S. S. 103 351 U. 98 L. Ed. Ct. (1953), 74 v. 1331, United States 100 L. Ed. Ct. 965 (1956); S. 76 Yet, pro F. when the 166 Cir. Ragen, (7th 1948). 2d 976 lacking of counsel is so non-appointed fessional conduct faith that it shocks the conscience competence good or to or and the trial is reduced court prosecutors, sham, a pro farce or mockery justice, permitting to will of due ceedings continue constitute a denial v. process. United States v. Wilson Maroney, supra; Phend, F. v. (7th Cir. United States 1969); 417 2d 1197 States, supra. also, Cardarella v. United Ragen, See 375 F. Cir. Cross v. (8th 1967); States, 2d 222 United 392 F. Maroney, 360 (8th 1968); Cir. Commonwealth v. 2d 599, Pa. Ellyson, A. 427 235 349 v. (1967); Peyton supra.1 duty It then becomes the of the intervene state to to see that are pre essential of the rights accused Overlade, Keller, D. served. Lunce v. State v. N. 57 supra; 645, 698, United N. W. 64 A. L. R. 434 (1929); States v. Handy, It has been said that the constitu supra. tional counsel invokes protection 458, Zerbst, trial Ct. court. 304 U. S. S. Johnson 1019, L. Ed. 1461 (1938). case, ap- the effectiveness In this evaluation of record no difficulty. trial pellants’ presents is that both the prosecutor clear condition. The attorney’s postconviction shocked this judge, who was also trial finding by judge, circuit a this he was condition that attorney was such our and degrading to the legal profession disgrace was finding to a is tantamount system justice re- occasion, so incompetent, strict after judge, duced to justice. mockery demeanor, felt of the lawyer’s surveillance compelled State, Ark. implication an 1There is at least in Barnhill v. post- that an accused S. W. 2d would be entitled relief conviction in such circumstances. *6 229 submitting action, the before the take some case clearly jury. Appellants if their to relief are entitled continuing acquiescence in the trial did not constitute right of of their effective assistance a waiver counsel. point in- the It to be remembered that at this is given settled, be the structions to Obviously, begin. arguments of counsel would soon question the there was a in the minds of both serious prosecuting as to the fairness showing up point. After the the trial to this made present proceeding, appellants, in bur- behalf of den' rested knowing, intelligent upon a show state to there by appellants, upon
waiver based warning rights. adequate State, as to Jackson (1970), Ark. 249 whether 653 460 S. W. 319. The 2d determination depends upon par- a there was such waiver including case, ticular facts and circumstances of the background, experience and conduct of accused. Jack- supra. Every State, presumption son v. reasonable must indulged against waiver fundamental consti- rights. States, 60, tutional Glasser v. United U. S. 315 (1942), 457, denied, S. Ct. L. Ed. 680 reh. 315 U. S. 827, (1942. L. 62 S. Ct. Ed. previously
We have requisites outlined the essential adopting of a waiver in applying definition its “*** Corpus found in It voluntary is: aban- Juris. by surrender, donment capable or person, right right a of a by known exist, him to with the intent that such shall be person surrendered and deprived such forever benefits; its or such conduct as warrants an inference relinquishment right, of such or the intentional doing of an act inconsistent claiming Thus, it. ‘waiver’ possession occurs where right, one of a wheth- er conferred contract, law or knowledge with full facts, the material something, does or forbears to do doing of which or failure or forbearance to do which is inconsistent with rely or his intention to upon it.” Roberts, Sirmon v. 209 Ark. 191 S. W. We do 824. not feel that it can be said that the ac- representa- quiescence appellants in their continued a in this constituted tion their retained counsel case question undisputed, wheth- are so the waiver. facts one of law. er there was waiver is *7 finding We find evidence insufficient to sustain a law. matter of Before we could sustain of waiver as a such say finding, a we have to be able to would knowingly intelligently made. the waiver was supra. State, clear- While the record v. indicates Jackson explained ly thoroughly appellants the trial to arraignment, is no to at their there counsel explanation rights any even- indication of of their in the tuality only during presented in- trial. was appellants they quiry felt that was made of was whether adequately they properly represented. There is no indication that were made aware of continuing representa- alternative to trial with that tion. judge’s there the trial remark that
We do not take nothing do to mean that he was could could appellants’ have firmative in the af done otherwise absence of particular inquiry responses to addressed beyond separately. them That were alternatives is there place, that, con it is certain with the doubt. In first appellants, acquiescence would mistrial sent or have a 546, State, in order. Franklin Ark. 233 v. 149 may proper declare a be for court to It also 688. S.W. mistrial whenever necessity a in the administration upon justice during demanding arises the trial action part safeguard rights a defendant court to though case, in a criminal declines even defendant object might prejudicial him. to that which be plea 423, State, Martin Ark. A v. 161 S. W. 367. 256 jeopardy unavailing double be event. would either supra; supra. State, State, Martin Franklin While v. v. necessity “overruling” we have said that must be an just presents one,2 a The re this case such situation. necessity quisite it is exists whenever manifest that discharged rendering a verdict before must 143; State, 15, v. Cody 2See v. Ark. S. W. Jones State, 645. 230 Ark. S. W. 2d prevent justice being from defeated. order ends In case State, 163 Ark. S. W. 6. Martin holding pointed contrary just a it was out cited require proceed a that the court to with trial would presiding judge a realizing all, a
knows is not permitted not be We that a conviction could think that mistrial to stand. would have been in order and appellants jeopardy on not have claimed could double present situation, retrial. But were not proceeding this alternative to advised of intoxicated coiinsel. appellants’ alternative, if
Another
cause
not al
ready irreparably damaged,
suspension
would have been a
permit
of the trial for a reasonable
time
to be
properly repre
to a
restored
condition in which he could
*8
steps
sent his
in further
clients
in
course
the trial.
procedure
proper
This
has been held to be
other
in
jurisdictions
parallel
in
situations. O’Brien v.
Com
Ky.
608,
monwealth,
(1903);
115
N. Y. One cannot said S. 890 State, knowledge. 65 no Carr that of which had (1938). say 201, P. Okla. 84 42 We cannot Cr. 2d adequate knowledge appellants upon base which to a waiver in this case. appellants suggested
It has prejudiced. too said be to counsel has been permit indulgence nice and absolute to fundamental prejudice arising from to the extent of calculations as States, S. v. United U. S. its denial. Glasser (1942); States, United L. Ed. Cross v. Ct. 392 (8th 1968). F. fact Cir. punishment maximum at the hands of
received the speculation prejudicial enables us avoid as to the particu- attorney’s condition, effect of their conduct and larly light testimony of the when viewed in the jurors prosecuting attorney.
Granting against ev new whom those overwhelming guilt case pre1 idence is as as it is this duty. unpleasant Yet, always is an one of basic cepts system upon even which is that our founded day in criminal entitled to his worst is court may ef which he fectively be heard counsel. He cannot speech through so drunk that his can heard one or, best, is not be heard incoherent. Clear constitu protected rights tional must be for the benefit of all though may us, guilty even it result case that some some *9 eventuality punishment. may escape person That appears appel slight case, where seems lants were in' this it that caught “red-handed.” Appellants they also contend should relieved consequences pleas guilty of the of their other of to charges their after trial had concluded. do We agree. prosecuting appellants the The record discloses advised
attorney pleas change of their desire to judge in these other cases. The circuit then recalled .to appellants ar- his to them were instructions when raigned penalties relating charges nature, the on these as to elements presumption offenses,
to these the rights right by jury, impartial innocence, to trial right self-incrimination, indigent, counsel, and, as to to if appointment previous appoint- counsel, appellants ment of for counsel them. One of the an- by clearly inquiries saying swered stated he had no employ attorney cases, in these that he did not desire appointed pleas one or one him, to have for that his guilty voluntary, of promise, coercion, threat, were and without any person, or
abuse enticement from and with- being by out influenced his other incarceration. inquiries except way, answered similar in the same he present had an but did not care to have him refusing and that he was counsel, the assistance of even though he was mindful of the fact that he could have appointed by one lants Burch appel- court if desired. These
clearly waived their these cases. States, (8th
v. United
1966).
359 F.
Cir.
being put
The contention that
to trial on informa-
tion
prosecuting áttorney
filed
than
rather
rights
indictment violated constitutional
merits no dis-
Cassady State,
cussion.
(1971),
The conviction burglary of the of the Bank of Chidester is set aside and the case remanded respects for a new In trial. all judgment deny- other ing postconviction relief is affirmed. George dissent. JJ., Smith, Byrd, Rose Jones dissenting. in this Conley facts Justice, Byrd, adage you can lead me of the old case remind you In this him drink. make horse to instance both but can’t water prosecuting attorney and the repre- adequately petitioners see that did their best to steadfastly petitioners by capable counsel but sented clung lawyer. their alcoholic defense
During trial after both the State and presence rested, trial court out proceeding: following conducted record, purpose “THE For the COURT: *10 completed chief, in and has its case State any put on not to evidence defendant elected declaring Mr. recess, stand, one at a and pur- approached this bench for Bill Horton questioning mind pose not his whether or in of receiving im- a and fair defendants were representation de- of the partial due to the Purifoy, at- by one I. an Mr. William fendants torney Camden, He related of Arkansas. further drinking time at the that to me half-pint of pocket a bottle had his and mind, I am not familiar With that wine. de- procedure that has outlined the fendants, July reflects that but the record you now 14, 1969, of and the defendants each arraigned, bar, which appearing at at the were you of- of informed the nature time were offense, you, against penalties of fense right to presumption innocence, the trial and the your impartial jury, fair and a you self-incrimination, is, rights do any persons any to have to make whatsoever. You statements right to had a constitutional further, silent, remain you might statement give against you could be used right you case, to coun- a trial of the had directory or the time this case became sel at clearly, you, accusatory or more towards you a your Further, arrest. time attorney by appointment of an to an this. indigent you At that if defendants. Court appointed Mr. Leonard Smead the Court time plea 'not represent you, I entered that, Subsequent your guilty’ set bonds. appointment you time, refused the each of have employed Mr. and have now of Mr. Smead represent Purifoy you. Is William I. correct? Yes,
MR. FRANKLIN: sir. Yes,
MR. REID: sir. THE COURT: Now based on statement your morning, brother-in-law me this are *11 you you are re- aware of the trial that
each today? you you properly ceiving Do feel like are represented in court? Yes, sir.
MR. FRANKLIN: Yes, sir. REID: MR. Frank- I believe as to the defendant
THE COURT: repre- you you properly lin, feel that are do today in sented court? Yes, FRANKLIN: sir.
MR. Adequately represented? THE COURT: Yes, MR. sir. FRANKLIN: you Reid, THE As COURT: to the defendant are properly adequately represented? and MR. REID: Yes. nothing I
THE Then COURT: there is I can do. simply bring, your you wanted to this to and complaint being attention with made to good simply Court, I am in and accord with justice, justice you and to see that is done to you employed Now as well as State. have you’re if his this satisfied with nothing say. services, I have is all. That you.” Thank post petitioners’ hearing M. conviction
At Mr. John Attorney, Prosecuting Graves, on cross- testified follows: examination as you if Let me ask for the Court
“Q. —describe you beginning apprehension would, with the points suppose or whatever are convenient or regard just what went on with to Reid justice Franklin as to how the wheels of ground out their result. Well, remember,
A. briefly, as I were ar- they
raigned which time they apprehended arraigned at which time Judge Grump- ier Leonard appointed Smead represent them. later me They advised re- tained Mr. There were several dis- Purifoy. cussions with both Reid and Franklin re- *12 to whether or gards they were satisfied with Mr. Purifoy’s representations. What was the nature
Q. of these discussions? A. At certain I times that discussed it with them
they weren’t sure they were him satisfied with representing them. It I is my understanding, believe, that one of their wives had Mr. paid Purifoy retained him —that I it discussed them, with whether or not me to they wanted to the go Court and ask the Court to appoint them another lawyer. Did offer
Q. you to do this?
A. Yes. What was their
Q. answer? A. Their answer was that to have they wanted
Mr. Purifoy try case . . . The it same as during trial.” Noia, 391, In Fay 822, U. S. 83 S. 9 L. Ct. 372 Ed. (1963), 2d 837 reference to a conviction post petitioner who might deliberately by-pass orderly courts, procedure of the state it was said: we hold that “Although jurisdiction of the fed- eral courts on habeas is corpus not affected by pro- cedural defaults incurred applicant during the state court we proceedings, limited recognize a discretion in the federal judge to relief to an deny applicant under certain circumstances. is Discretion in the implicit command statutory the judge, hearing holding granting the writ after 'dispose law scope, as the matter" .appropriate 2243; require,’ justice discretion USC § concept employed the federal flexible was the developing Further- rule. the exhaustion courts more, regarded traditionally corpus has habeas principles. by equitable governed States United as 573, Ed. 561, Baldi, L. 344 U. S. ex rel. Smith v. Among opinion). (dissenting S. Ct. re- principle conduct that a suitor’s them is lation may him disentitle at hand the matter circumscribed, Narrowly in con- he seeks. the relief habeas formity corpus role the writ of historical remedy imperative for de- an effective and as principle contrary law, the to fundamental tentions unexceptionable. fed- that the We therefore hold is eral habeas deny judge may relief in his discretion deliberately by-passed applicant who has to an doing orderly procedure in so of the state courts and remedies.” has forfeited his state court *13 Mississippi, Henry To same effect see v. State of (1965). U. S. S. Ct. Ed. 13 L. petitioners Thus when we ar- remember were morning early rested inside the Bank of Chidester in the large opening hours, that a had been cut into a door including burglarly the bank and that ac- vault tools cetylene cutting bottles and a torch the floor of were on readily apparent vault, the bank near the it is petitioners hope only no real and defense that their demanding in a trial was to recéive a sentence as small possible. petitioners elect as since Furthermore did testify postconviction hearing, at their the trial court every Fay supra, deny Noia, -had reason to follow any postconviction them relief. only jurors,
It is that the human the trial court and disgusted petitioners’ this court would be with counsel However, under the remains that circumstances. the fact they capable by appointed refused sober and counsel steadfastly clung employed court and notwithstanding to their attorney prosecuting
that both the the trial court them that the advised of their effectiveness questioned. they Thus, horse, counsel was like were only led to water but refused to drink for reasons known Consequently upon to them. the trial court the record properly any here them denied relief. opinion I also concur Justice Jones’ logic proposition thereof is most demonstrable rape yell peti- that the time to tioners here did not is when The it occurs. complain adequacy of their
representation instead brought in, even after the but with verdict was negotiated plea years a concurrent of 21 prosecuting charges. on other respectfully stated, I dissent. the reasons For dissenting part. George Smith, J., Rose partial appellants. costly victory reversal this case is a for the majority new have trial which the possibly seen fit to them award cannot do them good, may but it do them a That vast amount of harm. 21-year majority is, the reverse the sentence maximum appellants’ having repre- that resulted from the lawyer, majority sented two a drunken but affirm companion 21-year maximum sentences that upon appellants’ pleas guilty entered charges good to other earthly burglary grand larceny. What they appellants? can a new trial do the if Even acquitted they they are will are be no better off than 21-year facing now, two concurrent sentences them. they may given hand, an On other be convicted and consecutively additional sentence to after the other run majority Obviously two. off if the would better this case fir to affirm in toto instead of had seen versing re- *14 part. actually Pyrrhic it in The reversal is a victory only appellants’ that can enhance the bewilder- they solemnly being ment at the manner in which are by treated the courts. pleas upon
I think it that the the obvious sentences guilty presumed of also be set should aside. Error is prejudicial say to unless we can confidence with prejudice that it not. cannot be That disclaimer of made here. originally pleaded guilty appellants not charges. At of first the conclusion the
two additional mockery majority correctly trial, treat as a which the very day trial, justice, the the of that by prosecuting brought judge at- the were before the. torney, who the had “advised” stated defendants change pleas. they to their him that would like undoubtedly thought judge, to the trial trial first who compliance constitution, went in with the then have been informing through their defendants motions at in the other I find it not two cases. surprising defendants, with the first trial all just greatly minds, in finished fresh were not by yet impressed provide the court’s offer to them with lawyer. Certainly say another we with cannot assurance pleas guilty any that the de- of by not influenced to gree whatever the mock which trial to the accused * just subjected. been equally judge,
Moreover, it is clear the trial believing one, maximum first sentence to be a valid impose any punishment up- did not mean to additional pleas guilty, on the as a defendants result of their explicitly for he directed run that all three sentences concurrently. else, heaven, What under the trial could judge straight face, not, have done? could He imposed years, sentences, have concurrently run lesser such as five 21-year
with the other sentence. He did impose mean to an con- additional sentence to run secutively. perfectly it is that the Hence clear put pleas guilty did not intend for defendants’ position already them worse than the one occupied having represented as a result of lawyer. majority say a drunken then How can the declared error trial had no what- effect upon companion pre- course, ever cisely Of sentences? post- prevailed
the same considerations hearing below, conviction court because when judge upheld original jury rea- verdict there was no companion son for him In reconsider the sentences. only say deeply conclusion, I can I am disturbed injustice insensitivity apparent the demonstrable apparent majority’s to the facts that are in the decision. *15 dissenting. Justice, would affirm Fred Jones, I J. way the in convictions this case. The no
knowing pellants appear Purifoy employed by ap- whether was the appointed by Certainly or the court. it would judge might attorney that the trial have sent the jail postponed up, the trial until he sobered but judge position the trial in a better to view situation as the events occurred in the than courtroom they appear we are from the record of the events on as printed page. appellants apprehended halfway through were building. They wall of a vault inside a bank were by cutting paraphernalia surrounded torches and other burglary profession including pistol in- found partially through side the hole cut the wall of the vault. nothing There ap- is in the record to indicate pellants b$ow average were mentality, in with the possible exception were satisfied with their at- torney’s representation. Certainly if a mistrial had been subsequently declared appointed and counsel had represent appellants them, good would have had , complain cause to of the denial of their employed services of counsel. nothing With otherwise, the record to indicate willing appellants capable I am to assume that the measuring the effect their counsel’s conduct was having jury. attorney’s If the effect of their con- duct resulted in disdain for the than rather sympathy appellants, ap- for that is a chance the pellants affirmatively upon. took and insisted The trial position was in a much better than we are evaluating surrounding all the circumstances the trial including intelligence case, of this and reasoning proceeding in Purifoy attorney. as I would affirm.