Abercrombie v. State
| Decision Date | 31 May 1967 |
| Docket Number | No. 9817,9817 |
| Parties | Ronald Roma ABERCROMBIE, Plaintiff-Appellant, v. STATE of Idaho, Defendant-Respondent. |
| Court | Idaho Supreme Court |
Madden, Randall, Bengtson & Peterson, Lewiston, for appellant.
Allan G. Shepard, Atty. Gen., and William D. Collins, Asst. Atty. Gen., Boise, for respondent.
Appellant, Ronald Roma Abercrombie, whose complete education consists of intermittent attendance at public schools for three or four years and completion of the eighth grade in prison, has spent some twenty of his thirty-five years in different jails. On April 15, 1962, while serving a sixty day sentence in the Nez Perce County jail for petit larceny (shoplifting), he participated in a disturbance during which he admittedly tore up his mattress and engaged in 'yelling and singing and cussing.'
Owen Knowlton, then Nez Perce County prosecuting attorney, testified at the habeas corpus hearing that he visited appellant on the day after the alleged felony had been committed, and two or three times afterwards. On the first visit, he testified, he 'told Mr. Abercrombie (appellant) that when he got into district court, an attorney could be appointed.'
On May 3, 1962, appellant appeared without counsel in Nez Perce County justice court, and was charged with the violation of injuring a jail, I.C. § 18-7018. 1 Appellant's name, the date of the offense, stated to be a felony, and the following clause comprise the only factual matter in the charging provision of the criminal complaint: 'Who then and there being, did then and there willfully, intentionally, knowingly, unlawfully and feloniously injure a public jail, to-wit: Nez Perce County Jail in the Courthouse, Lewiston, Idaho.' Justice of the Peace John H. Maynard presided at this arraignment. It was his practice, he testified at the hearing below, to tell the defendant that he 'was not going to be found guilty or not guilty in the justice court, but a determination was to be made of whether or not he should answer to the charge in the district court.' He would then state 'that in the district court he (a defendant) would be entitled to be represented by counsel, and in that court if he had no funds and he desired counsel, one would be provided for him, that this was not the case in the justice court.' However, Justice Maynard could not recall having so 'advised this particular defendant (appellant).' He also testified that since appellant appeared before him on May 3, 1962, he has altered his method of advising an indigent defendant regarding appointment of court compensated counsel. In light of recent United States Supreme Court decisions and state legislation providing that counsel may now be appointed to defend the indigent accused in the justice court, Justice Maynard now tells defendants that 'if they do not have funds or credit and wish an attorney' one will be appointed, and he carefully assesses their reactions to this advice. If an indigent accused 'even hints' that he so desires, counsel is provided. Appellant testified that Judge Maynard did not inform him that if he reached district court he would have the right to a court compensated attorney. At the end of this proceeding he advised the judge that he would defend himself in justice court, and refused to waive preliminary examination.
On the habeas corpus hearing appellant testified twice, and his testimony was uncontradicted, that after the preliminary examination, during the afternoon of the same day, he conferred, at his request, with a Lewiston attorney. In the sheriff's office in the Nez Perce County jail, he and the attorney discussed the charge against him. The attorney advised him, appellant testified, that legal services would cost fifty dollars in the justice court, and two hundred dollars if appellant had to appear in the district court. Seeking to hire the attorney, appellant testified, he then made a fruitless telephone call to raise money for this purpose, and for this reason was prevented from obtaining the services of counsel. The next day, May 4, 1962, appellant waived his preliminary examination before the justice court. On the habeas corpus proceeding below, the court made no finding regarding the occurrence of either the conference or the telephone call. The judge refused to amend his findings, upon appellant's motion, by adding a statement that these events had happened.
On May 15, 1962, appellant wrote a letter to an aunt and uncle in California, which he never mailed. In part it stated, From the testimony of appellant and prosecuting attorney Knowlton, it appears that Knowlton had informed appellant that California authorities were instituting extradition proceedings for some offense which appellant had committed there. Knowlton testified that appellant was in mortal fear of returning to Folsom prison where inmates blamed him for the death of several convicts. Appellant testified that he had indicated to Knowlton that he preferred to be sent to Boise rather than California, but denied fear of any danger there.
On May 25, 1962, appellant, still without counsel, was brought before the Nez Perce County District Court, Judge John W. Cramer presiding. The charging clause of the information presented to the court and to appellant was identical to the criminal complaint charge set forth above. The complete district court arraignment proceedings took four minutes. The proceedings, with the brief sentencing portion omitted, were as follows:
'BE IT REMEMBERED that on the 25th day of May, 1962, at the hour of 10:10 o'clock a. m., the above-entitled cause came on regularly for hearing before the Honorable John W. Cramer, sitting without a jury, in the District Courtroom of the Nez Perce County Courthouse, Lewiston, Idaho.
'Mr. Owen L. Knowlton, prosecuting attorney of Nez Perce County, appeared for and on behalf of the plaintiff.
'The defendant, Ronald Roma Abercrombie, was present in the court and without counsel.
'The following proceedings were had:
Upon his conviction, appellant was sentenced to a maximum term of five years in the state penitentiary. On July 28, 1965, he filed a petition for a habeas corpus writ with the district court of Ada County, and on August 3, 1965, the writ issued. On August 23, 1965, at the end of a hearing held on the writ, the judge granted a continuance in order to procure the court minutes and records of appellant's conviction. The cause was trnasferred to the Nez Perce County District Court, counsel appointed by that court, and a hearing held before Judge Paul W. Hyatt on October 11, 1965. At the end of the hearing, the judge ordered the writ quashed and dismissed and appellant remanded to the state penitentiary. This is an appeal from that order.
Even before Idaho had been admitted to the Union our legislators enacted legislation relating to the right to counsel:
I.C. § 19-1512. (First enacted in 1887; R.S. 1887, § 7721).
The policy embodied in this statute predated by half a century the United States Supreme Court's pronouncement of the similar federal rule in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357 (1938). In Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942), the United States Supreme Court refused to extend the federal rule to the states via the Fourteenth Amendment, and Idaho was cited as one of eighteen states affording counsel to an indigent accused of a crime. This statute was enacted seventy-six years before the United States Supreme Court overruled Betts v. Brady, supra, and declared in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733 (1963):
'The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.' 372 U.S. at 344, 83 S.Ct. at 796.
(Italics in original), 372 U.S. at 342, 83 S.Ct. at 795.
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