Baugh v. Swenson

• Decision Date: 13 February 1968
• Docket Number: No. 1050.,1050.
• Citation: 279 F. Supp. 642
• Parties: Ray Leo BAUGH, Petitioner, v. Harold R. SWENSON, Warden, Respondent.
• Court: U.S. District Court — Western District of Missouri

279 F. Supp. 642

Ray Leo BAUGH, Petitioner, v. Harold R. SWENSON, Warden, Respondent.

No. 1050.

United States District Court W. D. Missouri, Central Division.

February 13, 1968.

Granville Collins, Edward H. Hunvald, Jr., Columbia, Mo., for petitioner.

Norman H. Anderson, Atty. Gen., Courtney Goodman, Asst. Atty. Gen., Jefferson City, Mo., for respondent.

MEMORANDUM AND ORDER

JOHN W. OLIVER, District Judge.

Petitioner, an inmate at the Missouri State Penitentiary at Jefferson City, seeks relief by a petition for a writ of habeas corpus.

There is no question but that petitioner has exhausted his available state court remedies. See State v. Baugh, Mo. 1964, 382 S.W.2d 608. We so find.

The historical facts about which the legal issue of this case arises were stated by the Supreme Court of Missouri:

On October 15, 1957, appellant was tried and convicted in the St. Louis Circuit Court as a habitual criminal of statutory rape. In accordance with the habitual criminal act then effective (Sections 556.280, 556.290, RSMo 1949, V.A.M.S.), the jury returned the mandatory sentence of imprisonment for life. The conviction was affirmed by the Supreme Court en banc. State v. Baugh, 323 S.W.2d 685.

The basis of the proceeding here under consideration was an incident which occurred during the trial and which was not reported in the transcript on the appeal from the conviction.

On October 15, 1957, after the case had been submitted to the jury and the jury had retired to the jury room for its deliberations, appellant's trial counsel, Mr. C. Arthur Anderson, returned to his office to await the jury's verdict. While Mr. Anderson was absent and appellant was in the custody of the sheriff, and about an hour after the jury had retired to consider its verdict, the following transpired, as recorded in the notes of the official court reporter:

(* * * `4:05 P.M. Jury returns to ask legal question. Present: Brady and Reardon for State. No one appearing for Defendant. Defendant appearing in person.')

THE COURT: Now, gentlemen of the jury, the sheriff has informed me that the jury desires to ask a legal question. While Mr. Anderson is not present, I think we can probably entertain your question and endeavor to answer it, even in his absence.

A JUROR: Your Honor, the jury have not come to a verdict. We wish to ask this question of law, quoting: `Do we, the jury, have any right to assess the penalty other than life even if we find the defendant guilty as charged of both the Illinois and St. Louis offenses.'

THE COURT: Now, the answer to this is shown necessarily in the instructions already given you. You have three forms of verdict besides those instructions. The law provides what you stated there, if the jury considers it more appropriate to use the form of verdict that does not refer to the prior conviction we would have no objection to their using that form of verdict. That, I think, with the reference to the instructions, is the only answer that I can properly give, and I think that probably is clear enough to you as to what you should do. You may use that form of verdict.

A JUROR: I think that answers our question, Your Honor. May we be excused?

THE COURT: The sheriff will take the jury to their deliberating room, and when the jury again departs, we will again be in temporary recess.

(Reporter's note: Verdict was returned at 4:35 P.M. of the same day).

Appellant's counsel not having become aware of the communication until nearly four years after its occurrence, no assignment of error based upon this communication between the judge and the jury was made in appellant's motion for a new trial. 382 S.W.2d 608, 609-610.

The question presented is whether, under the facts and circumstances of this case, petitioner was denied his constitutionally guaranteed right to the assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

The right to counsel, as established in Gideon, attaches to any stage in the proceedings where the lack of counsel "might derogate the accused's right to a fair trial." United States v. Wade, 388 U.S. 218, 226, 87 S.Ct. 1926, 1932, 18 L.Ed.2d 1149 (1967). See also Powell v. Staate of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961); White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963); Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), in regard to the particular stages of a criminal proceeding that must be deemed critical in the sense that counsel must be present.

Hamilton v. State of Alabama reiterated the long-standing rule of Powell v. State of Alabama that an accused "requires the guiding hand of counsel at every step of the proceedings against him." Hamilton v. State of Alabama held that if a critical stage of a criminal proceeding is in fact involved, then, because "the degree of prejudice can never be known," a court will not "stop to determine whether prejudice resulted" (368 U.S. at 55, 82 S.Ct. at 159). In other words, it becomes impossible to say that prejudice did not in fact occur, under such circumstances. Gideon v. Wainwright proceeded on the implicit assumption that all parts of an actual trial are critical stages and that one's constitutional right is violated if he is forced "to face his accusers without a lawyer to assist him" (372 U.S. at 344, 83 S.Ct. at 797). Compare Swenson v. Bosler, 386 U.S. 258, 87 S.Ct. 996, 18 L. Ed.2d 33, in which it was held that whether or not a defendant requests counsel is immaterial.

We believe, and we so find, that when the trial judge in this case attempted to answer the jury's legal question he did so at a critical stage of the actual trial, that the possibility of prejudice automatically arose, and that, therefore, the constitutional right to have counsel present attached.

The Supreme Court of Missouri determined on petitioner's appeal from a denial of his Rule 27.26, V.A.M.R., motion that the communication made by the trial judge to the jury in this case was not legally an "instruction" within the meaning of Mo.S.Ct. Rule 26.02 (6) which requires all instructions to the jury to be in writing. The Supreme Court of Missouri stated:

Mere reference by the judge to the instructions previously given is not an instruction within the meaning of this provision. * * * In our opinion, the communication here was of that nature. 382 S.W.2d at 612.

We accept the Supreme Court of Missouri's determination that the trial judge did not give the jury an "instruction" of law within the meaning of Mo.S.Ct. 26.02 (6).

However, the undisputed facts of this case sharply distinguish it from a case in which the trial judge might have simply stated that the answer to the jury's legal question was contained in the instructions already given. Certainly, it can not fairly be said that the trial court did not do more in this case. Here the trial judge must be said to have attempted to answer the jury's question by emphasizing, or perhaps even interpreting, the written instructions that had been given the jury. There can be no...