Adger v. State, 4779

• Decision Date: 11 September 1978
• Docket Number: No. 4779,4779
• Citation: 584 P.2d 1056
• Parties: Mable Louise ADGER, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 1056

584 P.2d 1056

Mable Louise ADGER, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).

No. 4779.

Supreme Court of Wyoming.

Sept. 11, 1978.

Gerald M. Gallivan, Director, Wyoming Defender Aid, and John R. Green, Student

Director, Wyoming Defender Aid, Laramie, for appellant.

V. Frank Mendicino, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., Richard H. Honaker, Asst. Atty. Gen. and Sharon A. Fitzgerald, Legal Intern, Cheyenne, for appellee.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

GUTHRIE, Chief Justice.

Mable Louise Adger appeals her conviction of the crime of assault with a deadly weapon and the sentence therefor.

Defendant's major contention on appeal is that the trial court's refusal to grant her pretrial motions for continuance did not permit her attorneys adequate time in which to prepare her defense and amounted in substance to a deprivation of her right to effective assistance of counsel guaranteed by both the State and Federal Constitutions. Because of our disposal, it is unnecessary to reach the other questions.

The question presented herein is not similar to that found in many cases raising the question of ineffective assistance of counsel because we have no complaint of counsel's lack of professional skill during the course of the trial instead the focus is on the effect of the trial court's exercise of its discretion in denying such continuance.

Defendant was brought before the justice of the peace on May 27, 1976, upon a complaint charging two counts of assault with a deadly weapon. She was advised of her right to retain counsel or her right to request appointment of counsel if she were unable to retain one. She advised the justice of the peace that she had an attorney in Casper. The judge enjoined her to notify him immediately if she were unable to obtain the services of a lawyer and emphasized that in the event some counsel were appointed to represent her that they should have some time to properly prepare her defense.

At her preliminary hearing defendant was represented by an attorney who advised the court that he was making an appearance on behalf of a Casper attorney who had been retained by defendant, although he did advise the court that he was appearing "specially" and intended to limit his appearance to the preliminary hearing. Thereafter an information was filed and defendant was arraigned before the district court on July 29 and appeared at that time without her attorney. She informed the judge that she had retained a lawyer and had paid him $50 for services rendered in connection with her preliminary hearing. She explained that the attorney would be unable to attend her arraignment and had instructed her to have the court appoint an attorney if it were necessary to have one present. She was advised of her right to have such an attorney at her arraignment but was willing to continue the proceedings and agreed to waive her right to the presence of an attorney at the arraignment, and she entered a plea of not guilty. The court then advised her that she had two weeks, or until August 13, in which to file any motions and that the case would be set for trial on August 30. The judge emphasized defendant's responsibility to obtain an attorney sufficiently in advance of the trial to allow for adequate preparation and warned her of probable consequences of dilatory conduct, and stated that the case would go to trial even if she were not ready. After further colloquy, the court again asked her if she wished to hire her own attorney and to give up her right to have one appointed at public expense, and she answered affirmatively. After having the information read and her entry of a formal plea of not guilty, the judge requested her to immediately contact and retain the lawyer of her choice and have that lawyer notify the court and file his appearance. The court again insisted that she notify it if her attempts to retain counsel were not successful so that it could appoint an attorney. Defendant agreed to these conditions. The judge again warned her he would be severe if she failed to comply therewith. On August 12 defendant called the judge by telephone and informed him an attorney would represent her at the trial. The attorney later telephoned the judge on August 16 to advise the court that he would not be representing defendant unless she paid the retainer on that day. When the judge made inquiry as to his definite status, the attorney said he expected to be paid and Was not out of the case. The judge on that date telephoned the public defender's office and advised them he was not assigning the case to them but wanted them to know of the situation if it were necessary to make an appointment at the last minute. On August 18 or 19 the attorney advised the judge that he and defendant had made arrangements for another person to pay the retainer, expressing a satisfaction with the plan, but again refusing to make a formal entry of appearance in the case. On August 25 only 5 days before the trial setting the judge called the attorney to inquire if he was in the case. The attorney was noncommittal and alluded to difficulties in meeting defendant so that she could pay the fee. The court then immediately instructed the Natrona County sheriff's office to find defendant and insist that she meet with her attorney immediately and resolve the dispute. The attorney phoned the judge that evening to express his optimism that the fee would be paid but was again indefinite as to the status of his representation. The judge advised the attorney that he was being unfair to defendant inasmuch as he was creating a risk of taking her up to the time of the trial and dropping her, in which case she would be forced to go to trial with inadequately prepared counsel. That evening the attorney also telephoned the Fremont County Public Defender's office, and indicated that Probably he would not be handling the case for defendant, although he was again not definite. He gave them a brief summary of the case and what he had done in terms of work product, and assured them he would contact defendant that evening and instruct her to call them. Defendant did call the public defender's office, and they requested that she come to Lander so that they could consult with her, and on August 26 two members of the public defender's staff were appointed to represent defendant.

On August 27 defense counsel filed a written motion for continuance, asserting that three days, two of which fell on a weekend, were insufficient to allow for adequate preparation for trial. The trial judge denied the motion in chambers but ordered the prosecution to make a complete disclosure of all information regarding the case, including an inculpatory statement which defendant gave to the Riverton Police Department following her arrest. The court also offered and did provide its assistance to locate witnesses over the weekend. On the morning of the trial (August 30) defense counsel renewed its motion for continuance, stating that they did not have adequate time to prepare themselves to protect her interests in the case, to properly present defenses which she may have, and to properly cross-examine the State's witnesses. Counsel presented no factual information showing how more time would improve her defense but discussed specific areas where preparation was insufficient, some of which will be mentioned later in this opinion. The trial judge, while expressing sympathy for the public defender's position, denied the motion, stating defendant's situation was one of her own making.

A criminal defendant's right to effective counsel is inviolate and the court has a duty to provide such counsel. This duty "is not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case," Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 65, 77 L.Ed. 158, 84 A.L.R. 527; Avery v. State of Alabama, 308 U.S. 444, 60 S.Ct. 321, 322, 84 L.Ed. 377; United States ex rel. Washington v. Maroney, 3 Cir., 428 F.2d 10, 13. The right of assistance by counsel necessarily includes a reasonable and adequate time for counsel to prepare, Klockenbrink v. State, Alaska, 472 P.2d 958, 965; State v. Miller, 111 Ariz. 321, 529 P.2d 220, 221; People v. O'Neill, 185 Colo. 202, 523 P.2d 123, 124.

We have earlier held that a motion for continuance based upon lack of time to prepare for trial is within the discretion of the trial court, Ash v. State, Wyo., 555 P.2d 221, 225, and in that case upheld the action of the trial court in appointing an attorney who had an acquaintance with the incident the morning of the trial. Additionally the trial judge had insisted that the lawyer appointed consult with the defendant the day before even though he had no definite knowledge of the defendant's desire for an attorney in that case until 8:30 the morning of the trial.

Among other facts which distinguish this case from Ash is that in this case the judge was cognizant of defendant's desire to be represented by a certain attorney from the date of the preliminary hearing and she in no way waived or surrendered such right. This is entirely unlike Ash, where we held that defendant by his actions had waived the right to appointment of counsel until the morning of the trial.

The Supreme Court of the United States has consistently avoided the adoption or invocation of any presumption or any per se rule to aid in the disposal of the question of determination of adequate time being allowed for counsel to prepare for the trial of a case. Beginning with Avery v. State of Alabama, supra, decided in 1939, we find that Court calling attention to the fact that the Constitution does not contemplate any specific period of time required for the appointment of counsel and that the case must be decided in light of its particular facts. This is...