Blauvelt v. State, 2 Div. 457

• Citation: 276 Ala. 671,166 So.2d 399
• Decision Date: 25 June 1964
• Docket Number: 2 Div. 457
• Parties: George E. BLAUVELT v. STATE of Alabama.
• Court: Alabama Supreme Court

Page 399

166 So.2d 399

276 Ala. 671

George E. BLAUVELT v. STATE of Alabama.

2 Div. 457.

Supreme Court of Alabama.

June 25, 1964.

George E. Blauvelt, pro se.

Richmond M. Flowers, Atty. Gen., and John C. Tyson, III, Asst. Atty. Gen., for the State.

GOODWYN, Justice.

Appellant petitioned the circuit court of Sumter County for a writ of error coram nobis to set aside a judgment of that court rendered on April 10, 1959, adjudging him guilty of murder in the second degree and sentencing him to imprisonment for 40 years. After an oral hearing on the petition, the circuit court rendered a judgment denying the petition. This appeal is from that judgment. See: Ex parte Wilson, 275 Ala. 439, 440(2), 155 So.2d 611; Ex parte Keene, 275 Ala. 197, 153 So.2d 631.

The coram nobis petition, as originally filed, was based on three grounds, viz.:

'1. For that the trial court erred, to the prejudicial injury of petitioner, by failing to protect his rights when not affording him an impartial jury. (Note) The jury had heard the case prior to petitioner's trial.

'2. For that petitioner alleges that he is not guilty of the offense for which he stands convicted.

'3. For that petitioner alleges that he was placed under a state of duress.'

In support of these grounds, the petition contains the following 'Statement of the Facts,' viz:

'This case, being of the nature of a capital offense, came to trial April 10, 1959 before the Honorable Emmett F. Hildreth upon the return of a first degree murder indictment.

'George Blauvelt (petitioner in this cause) and James H. Parkerson (an accomplice) were indicted separately for the said offense and brought to trial separately with James Parkerson being tried first.

'After the prosecution had rest [sic] the jury deliberated and returned with a verdict of second degree murder, and Parkerson was sentenced by the court to forty (40) years in an Alabama Prison.

'That case having been heard separately and fully by a jury, lasting approximately three days, and disclosing testimony pertaining to both defendants, the State proceeded to prosecute said petitioner in this case.

'This petitioner was brought to trial for first degree murder. An offer or compromise of fifty (50) years was presented to him by his state appointed counsel, which he did not accept. Shortly thereafter, a new offer of forty (40) years was presented--that being the same as the already sentenced Parkerson. It was point out by counsel for Blauvelt the possible consequences should he stand trial and that an arrangement could be made if he would compromise. Upon the advice of his counsel he consented. Such compromise was arranged with the jury who had formerly heard the case when Parkerson went to trial.

'Petitioner contends that he was immediately placed under a state of duress after noting his court appointed attorney's lack of interest in the case and his over willingness to enter a guilty plea. On one hand he was being offered tolerance and on the other, severe consequences.

'Petitioner further contends that he, his case being the nature of a capital offense, could not properly enter a plea of guilty to a jury who had formerly heard the case while he was not present to defend himself; and that the mere formality of a trial by jury did not meet the requirements of justice. It is his contention that such compromising under such circumstances took away the discretion of the jury, and that in his case such circumstances existed which might have brought about a lesser verdict had it not been for his being persuaded to compromise.'

On the hearing in the trial court, petitioner expressly withdrew the third ground of the petition. No evidence whatever was offered in support of the second ground.

The only question left for consideration relates to the first ground of the petition, that is, whether appellant was denied his right to be tried by an impartial jury. Amendment VI, Constitution of the United States; § 6, Alabama Constitution 1901.

The trial court appointed competent counsel to represent appellant on the hearing. The circumstances of the appointment are set forth in the court's statement set out hereinafter.

From a consideration of the record, it is clear that appellant voluntarily entered a plea of guilty and that he and his counsel agreed to the procedure followed in his trial.

In short, the circumstances were these: Appellant and James H. Parkerson were separately indicted for the offense of murder in the first degree involving the death of William G. Shirley. Parkerson was tried first. The jury found him guilty of murder in the second degree and fixed his punishment at imprisonment for 40 years. The verdict was returned late in the day, after the other jurors had been dismissed for the day. After announcement of Parkerson's verdict, appellant's counsel, with appellant's consent, opened negotiations with the solicitor whereby appellant would plead guilty on condition that he receive the same sentence as Parkerson. At first, the solicitor insisted on a sentence of 50 years for the reason that he considered the case against appellant to be more serious than the one against Parkerson. After further discussion, appellant's offer was agreed to. At this time, the only jurors immediately available were those who had tried Parkerson. As appears from the trial judge's statement in connection with the denial of the petition, appellant 'agreed with counsel in open court and so stated to the court that he desired to plead guilty to murder in the second degree, which was an offense embraced in the indictment in his case,' and 'he agreed, he and his counsel, in open court that the matter be submitted to the same jury that heard the Parkerson case.'

The trial judge, in ruling on the coram nobis petition, made the following comprehensive statement:

'Petitioner's request that an attorney be appointed several days prior to the hearing in this matter in order that he might confer with said attorney and further prepare his defense was granted by the Court. Approximately one week prior to the hearing of this petition, petitioner was brought from Kilby prison and placed in jail at Eutaw, Alabama, the residence of his former attorney, Hon. David M. Hall. Petitioner was carefully questioned by the Court at that time before the appointment of an attorney to represent him in ...