Baxter v. Rose

• Decision Date: 19 May 1975
• Citation: 523 S.W.2d 930
• Parties: Robert BAXTER, Petitioner, v. J. H. ROSE, Warden, Respondent.
• Court: Tennessee Supreme Court

Page 930

523 S.W.2d 930

Robert BAXTER, Petitioner, v. J. H. ROSE, Warden, Respondent.

Supreme Court of Tennessee May 19, 1975.

Hughie Ragan, Jackson, for petitioner.

R. A. Ashley, Jr., Atty. Gen., William J. Haynes, Jr., Asst. Atty. Gen., Nashville, for respondent.

OPINION

HENRY, Justice.

We granted certiorari in this case to review the action of the Court of Criminal Appeals in affirming the dismissal of petitioner's pro se petition for post-conviction relief without an evidentiary hearing.

Our grant was for the primary purpose of clarifying the law in this jurisdiction with respect to the proper standard of competence to be applied to counsel in criminal representations, and to determine whether privately retained counsel and counsel appointed to represent the indigent are subject to the same standards.

Petitioner was convicted of murder in the first degree and his punishment fixed at confinement in the State Penitentiary for ninety-nine years. This conviction was affirmed by the Court of Criminal Appeals, and certiorari was denied by the Supreme Court on November 19, 1973. On January 11, 1974, petitioner filed his pro se petition for post-conviction relief, predicated upon an alleged denial of his Sixth Amendment right to the effective representation of counsel. It should be noted that on his initial trial, he was represented by privately retained counsel, and that counsel so retained appealed his case to the Court of Criminal Appeals, and filed a petition for the writ of certiorari. It is the conduct of retained counsel that forms the basis of his present complaint. The trial judge dismissed the petition for post-conviction relief without appointing counsel to represent petitioner, and without holding an evidentiary hearing. The Court of Criminal Appeals subsequently appointed counsel, and counsel so appointed, pursued this matter through the Court of Criminal Appeals and now represents petitioner in this Court.

I.

The Tennessee standard for gauging the competency of counsel was laid down in State ex rel. Richmond v. Henderson, 222 Tenn. 597, 439 S.W.2d 263 (1969) wherein this Court adopted '(t)he standard applied by the overwhelming majority of federal courts', as follows:

Incompetency of counsel such as to be a denial of due process and effective representation by counsel must be such as to make the trial a farce, sham, or mockery of justice. 439 S.W.2d at 264.

In support of the adoption of this standard, the Court cited cases from the Second, Third, Fourth, Sixth, Seventh, Eighth, Ninth and District of Columbia Circuits.

Since State ex rel. Richmond was bottomed on the holdings of the 'overwhelming majority of federal courts', as of 1969, it is necessary that we trace the developments in the various circuits of the federal appellate system.

II.

(A) The District of Columbia Circuit

The 'farce and mockery rule' had its origin in Diggs v. Welch, 80 U.S.App.D.C. 5, 148 F.2d 667 (1945), wherein the Court stated:

It must be shown that the proceedings were a farce and a mockery of justice. Id. at 669

The same standard was applied in Jones v. Huff, 80 U.S.App.D.C. 254, 152 F.2d 14 (1945).

In Bruce v. United States, 126 U.S.App.D.C. 336, 379 F.2d 113 (1967), the District of Columbia Circuit started on its retreat from the 'farce and mockery' rule by stating:

These words are not to be taken literally, but rather as a vivid description of the principle that the accused has a heavy burden in showing requisite unfairness. Id. at 116.

In Scott v. United States, 138 U.S.App.D.C. 339, 427 F.2d 609 (1970), decided within one year after State ex rel. Richmond, Supra, the D.C. Circuit declared that the farce and mockery standard was 'no longer valid as such but exists in the law only as a metaphor that the defendant has a heavy burden to show requisite unfairness'. Further the Court declared:

The appropriate standards for ineffective assistance of counsel . . . is whether gross incompetence blotted out the essence of a substantial defense. Id. at 610.

In 1973, there came before this Circuit, the case of United States v. DeCoster, 159 U.S.App.D.C. 326, 487 F.2d 1197 (1973). The Court noted that the Supreme Court of the United States, in Wade v. United States, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), has implied and that this Circuit had explicitly held in Scott, supra, that effective assistance, like the right to counsel itself, derives not only from the due process clause, but from the Sixth Amendment's more stringent requirements. The Court, in DeCoster, adopted the following standard:

A defendant is entitled to the reasonably competent assistance of an attorney acting as his diligent conscientious advocate. 487 F.2d at 1202.

We are impressed by Chief Judge Bazelon's language in this most excellent case, and because of its relevance and the conciseness of the expression, we quote from it as follows:

In General--Counsel should be guided by the American Bar Association Standards for the Defense Function. They represent the legal profession's own articulation of guidelines for the defense of criminal cases.

Specifically--(1) Counsel should confer with his client without delay and as often as necessary to elicit matters of defense, or to ascertain that potential defenses are unavailable. Counsel should discuss fully potential strategies and tactical choices with his client.

(2) Counsel should promptly advise his client of his rights and take all actions necessary to preserve them. . . . Counsel should also be concerned with the accused's right to be released from custody pending trial, and be prepared, where appropriate, to make motions for a pre-trial psychiatric examination or for the suppression of evidence.

(3) Counsel must conduct appropriate investigations, both factual and legal, to determine what matters of defense can be developed. The Supreme Court has noted that the adversary system requires that 'all available defenses are raised' so that the government is put to its proof. This means that in most cases a defense attorney, or his agent, should interview not only his own witnesses but also those that the government intends to call, when they are accessible. The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities. And, of course, the duty to investigate also requires adequate legal research. Id. at 1203--04

Thus it will be seen that the farce and mockery rule has been abandoned in the court of its creation.

(B) First Circuit

In Allen v. VanCantfort, 436 F.2d 625 (1st Cir. 1971), the Court held that the appropriate test is whether counsel's actions were so incompetent as to shock the conscience of the reviewing court. This holding was reiterated in United States v. Stamas, 443 F.2d 860 (1st Cir. 1971).

In Moran v. Hogan, 494 F.2d 1220 (1st Cir. 1974), the Court applied the mockery, sham or farce rule, but, in a footnote, after noting that the Fifth and Sixth Circuits had adopted a different rule, indicated future reevaluation of its position by stating '(t)he instant case is an inappropriate one for reassessment of this circuit's standard . . .'.

(C) Second Circuit

The rule in the Second Circuit as set forth in United States v. Yanishefsky, 500 F.2d 1327 (2nd Cir. 1974) is that in order to be of constitutional dimensions, the representation must be so 'woefully inadequate 'as to shock the conscience of the Court and make the proceedings a farce and mockery of justice".

(D) Third Circuit

In this Circuit he test, as announced in Moore v. United States, 432 F.2d 730 (3rd Cir. 1970), is 'whether counsel's performance was at the level of normal competency.'

This standard was reiterated in 1972, in the case of United States ex rel. Watson v. Lindsey, 461 F.2d 922 (3rd Cir. 1972) and, according to our investigation continues to be the standard in that jurisdiction.

(E) Fourth Circuit

The rule or standard applied in the Fourth Circuit is not entirely clear. In Snead v. Smyth, 273 F.2d 838 (4th Cir. 1959), the Court held that a deprivation of the constitutional right to counsel occurs only 'where the representation has been so inadequate as to make a farce of the trial'.

In Coles v. Peyton, 389 F.2d 224 (4th Cir. 1968), the Court, while not adopting a specific standard of 'reasonable competence' suggests that standard in the following language:

The principles may be simply stated: Counsel for an indigent defendant should be appointed promptly. Counsel should be afforded a reasonable opportunity to prepare to defend an accused. Counsel must confer with his client without undue delay and as often as necessary, to advise him of his rights and to elicit matters of defense or to ascertain that potential defenses are unavailable. Counsel must conduct appropriate investigations, both factual and legal, to determine if matters of defense can be developed, and to allow himself enough time for reflection and preparation for trial. An omission or failure to abide these requirements constitutes a denial of effective representation of counsel unless the state, on which is cast the burden of proof once a violation of these precepts is shown, can establish lack of prejudice thereby. Id. at 226

Without citing Coles, supra, the same court in Bennett v. State of Maryland, 425 F.2d 181 (4th Cir. 1970), stated that '(i)t is only in such extreme instances where the representation has been so inadequate as to make a farce of the trial that it can be said that the prisoner was deprived of his constitutional rights'.

(F) Fifth Circuit

In Herring v. Estelle, 491 F.2d 125 (5th Cir. 1974), the Court traces the history of the applicable standards; points out that since the decision in MacKenna v. Ellis, 280 F.2d 592 (5th Cir. 1960), that Court has applied the 'reasonably effective assistance' standard many times; that for several years following the decision in Williams v. Beto, 354 F.2d 698 (5th Cir. 1965), the Court used...