Bement v. State
| Decision Date | 29 December 1966 |
| Docket Number | No. 9890,9890 |
| Citation | 422 P.2d 55,91 Idaho 388 |
| Parties | John Henry BEMENT, Plaintiff-Appellant, v. STATE of Idaho, Defendant-Respondent. |
| Court | Idaho Supreme Court |
Roberts & Poole, Boise, for appellant.
Allan G. Shepard, Atty. Gen., and M. Allyn Dingel, Jr., Deputy Atty. Gen., Boise, for respondent.
John Henry Bement, appellant, was eighteen years old at all pertinent times related herein. He had completed the ninth grade but failed in two attempts to graduate from the tenth. His classwork in the first nine grades had been poor, with failure of a number of courses. He admitted to being 'a little slow in catching onto the subjects,' and his maternal grandmother, who acted as his foster parent, testified that he was 'awful slow' in school, and his intelligence was below average. In the summertime, he dug basements. After the habeas corpus hearing below, the trial court found 'He is of subnormal intelligence and inexperienced in and ignorant of court proceedings.'
In early June 1965, while residing in his maternal grandmother's home in Boise, he drove with her to visit his other grandmother. At Hagerman Valley the car developed motor trouble. While waiting for it to be repaired, he and another youth borrowed a car and, while driving through Jerome, consumed some beer. Appellant was arrested for illegal consumption, a misdemeanor, and placed in the Jerome County Jail.
On June 7, 1965, an incident occurred in the jail as a result of which appellant was charged with the felony of escape by one charged with or convicted of a misdemeanor; I.C. § 18-2506 (Supp.1965). 1 The alleged acts on which respondent grounded the charge are not revealed in the record, but appellant, in an affidavit supporting his petition for a writ of habeas corpus, described the incident as follows:
After this occurrence, appellant was isolated from the outside world. The sheriff refused his maternal grandmother opportunity to visit with him on three occasions. She was never informed that the felony charge was to be lodged. Jerome County Sheriff James B. Burns testified at the hearing below that he would not allow appellant visitors but would have allowed him, had he asked, to see an attorney. Between the time of the alleged offense and his conviction, appellant saw no one except jail personnel and prisoners. At no time did the prosecuting authorities interrogate or explain to him the nature of the charge.
On June 18, 1965, appellant appeared without counsel before the Probate Court of Jerome County. On the habeas corpus proceeding the trial judge found:
On June 21, 1965, appellant and two other prisoners, one of them, Ernest Charles McCurdy, also charged as a party to the alleged escape, were brought before the District Court of Jerome County. They were seated by Sheriff Burns, but the exact seating location is a matter of controversy. Appellant testified that he and the two other prisoners were seated at the rear of the courtroom, more than fifty feet from the bench. McCurdy testified the same. Sheriff Burns testified that while he sat at the rear, the three prisoners were placed on the third or fourth bench from the bar. He qualified this by stating 'I wouldn't be certain' where the prisoners were seated. McCurdy's mother, who was present and apparently seated in front of them, testified that she was approximately fifty feet from the benech.
First called before the bench was appellant's fellow prisoner, Larry Eugene Shirtz. Appellant and McCurdy remained seated where the sheriff had placed them while Shirtz pleaded guilty and was convicted of receiving stolen property, a felony. Next, McCurdy was called individually before the bench, appellant remaining seated, and after a guilty plea was convicted of the felony of burglary in the first degree. Then appellant, indigent at the time, was called before the bench and, together with McCurdy, was told by the district judge that the information
'does charge that the two of you on or about June 7, 1965, both of you being confined in the county jail, unlawfully and feloniously and by use of force did escape from said county jail, all of which is contrary to the form, force and effect of the statute in such case made and provided and against the peace and dignity of the State of Idaho.'
The judge then asked:
'Mr. McCurdy, do you want to have an attorney or again waive your right to counsel?'
The arraignment and conviction of Shirtz, and of McCurdy on the burglary charge, both of which occurred shortly before appellant was brought before the bench, followed a procedure slightly different from appellant's arraignment. When Shirtz, and McCurdy individually (to answer the burglary charge), had stood before the bench to answer the felony charges against them, the judge had informed each in turn that he could appoint an attorney to represent him at public expense. The judge spoke with Shirtz as follows:
'Mr. Shirtz, do you have an attorney to act for you and represent you in this matter?
When McCurdy appeared before the bench the following colloquy took place:
Appellant was present in the courtroom, seated where the sheriff had placed him, during Shirtz's and McCurdy's (individual) arraignments and convictions. He testified that, though interested in the proceedings, he was unable to hear the judge's statement to either Shirtz or McCurdy regarding the appointment of counsel at public expense. McCurdy testified that he did not hear the judge's pertinent advice to Shirtz. McCurdy's mother, (apparently seated ahead of the prisoners, towards the front of the courtroom), testified that, though present, she could not hear the judge's advice to Shirtz or to her son. Sheriff Burns testified that he 'had no difficulty that morning hearing' the judge, but admitted that he had known the judge for fifteen years, was well acquainted with his voice and quite familiar with felony arraignments.
Appellant was not informed of the nature of the charge, the possible punishments, or the ultimate effect of a plea of guilty. The judge, however, said the following to Shirtz and McCurdy, in turn, and whether appellant heard these statements is subject to the same conflicting evidence as set out above regarding the appointed counsel advice. The judge told Shirtz:
The judge told McCurdy:
After the habeas corpus hearing, the trial judge found 'The preponderance of the evidence is that petitioner (appellant) could have heard such arraignments and probably did.'
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State v. Tucker
...(1975); State v. Wozniak, 94 Idaho 312, 486 P.2d 1025 (1971); Pharris v. State, 91 Idaho 456, 424 P.2d 390 (1967). See, Bement v. State, 91 Idaho 388, 422 P.2d 55 (1966). The right to counsel includes the right to the effective assistance of counsel. Accord, McMann v. Richardson, 397 U.S. 7......
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State v. LePage
...without the client's informed consent. See Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966). In Bement v. State, 91 Idaho 388, 395, 422 P.2d 55, 62 (1966), the Court stated "The right to counsel, 'the most pervasive right of an accused,' has been accorded singular signif......
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State v. Lankford
...Constitution when the trial court allowed him to cross-examine his brother pro se. He claims that Idaho case law, Bement v. State, 91 Idaho 388, 395, 422 P.2d 55 (1966), and I.C. § 19-857 (1987), mandate that more than a mere affirmative waiver is needed to show that the defendant knowingly......
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State v. Bainbridge
...influences that will make him particularly susceptible to the ploys of undercover government agents." ' "In Bement v. State, 91 Idaho at 388, 395, 422 P.2d 55, 62 (1966), the Court stated 'The right to counsel "the most pervasive right of an accused," has been accorded singular significance......