Brooks v. State, G-64

• Citation: 172 So.2d 876
• Decision Date: 16 March 1965
• Docket Number: No. G-64,G-64
• Parties: Wayne H. BROOKS, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 876

172 So.2d 876

Wayne H. BROOKS, Appellant, v. STATE of Florida, Appellee.

No. G-64.

District Court of Appeal of Florida, First District.

March 16, 1965.

Wayne H. Brooks in pro. per.

Earl Faircloth, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for appellee.

RAWLS, Judge.

Wayne Brooks, in proper person, has perfected an appeal in this cause from a conviction of breaking and entering and grand larceny.

We first consider Brooks' complaint about the quality of the lawyer furnished to him by the trial court. The Public Defender for the Eighth Judicial Circuit, pursuant to Court Order, represented defendant prior to and during the trial of this cause. After a verdict of guilty was rendered by the jury and upon being adjudged guilty by the trial court, the defendant decided that 'court appointed counsel during the trial of the cause had been ineffective and ineffectual.'

We are by no means the first jurisdiction to be confronted with the problem posed by Brooks's allegations of 'ineffectual and ineffective counsel.' It is significant in reviewing federal and state cases dealing with analogous situations, that in almost every instance the complainant is one well seasoned and versed in court procedure as a result or prior bouts with trial courts.

The Tenth Circuit Court of Appeals in disposing of a similar complaint in Frand v. United States, ¹ stated:

'Lake of effective assistance of counsel in the trial of a criminal case constitutes impingement upon a constitutional right of the accused and lays the judgment and sentence open to collateral attack by motion under the statute. But the constitutional right to the effective assistance of counsel does not vest in the accused the right to the services of an attorney who meets any specified aptitude test in point of professional skill. And common mistakes of judgment on the part of counsel, common mistakes of strategy, common mistakes of trial tactics, or common errors of policy in the course of a criminal case do not constitute grounds for collateral attack upon the judgment and sentence by motion under the statute. It is instances in which resulting from the substandard level of the services of the attorney the trial becomes mockery and farcical that the judgment is open to collateral attack on the ground that the accused was deprived of his constitutional right to effective assistance of counsel. Mitchell v. United States, 104 U.S.App.D.C. 57, 259 F.2d 787, certiorari denied, 358 U.S. 850, 79 S.Ct. 81, 3 L.Ed.2d 86; Black v. United States, 9 Cir., 269 F.2d 38, certiorari denied, 361 U.S. 938, 80 S.Ct. 379, 4 L.Ed.2d 357.'

And a like decision was reached in Hickock v. Crouse wherein it was held: ²

'Of course, as said in Gideon v. Wainwright, 372 U.S. 355, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 722, the right to counsel in criminal cases is a fundamental right guaranteed by the due process clause of the Fourteenth Amendment to the Constitution. This means good faith representation, with all the skill which counsel possesses, but it does not contemplate that miracles will be performed or that counsel, court-appointed or otherwise, should be subject to criticism by the courts when a guilty client is convicted and brought to justice, if he has performed his duty to the best of his ability. Counsel's duty in a criminal case is to demand and obtain a fair trial for the accused.

Although it may often appear otherwise, he has no duty to use devious means to secure an acquittal of a guilty person or to harass a court with unwarranted objections and motions. What we said in Hester v. United States, 10 Cir., 303 F.2d 47, 49, cert. denied 371 U.S. 847, 83 S.Ct. 80, 9 L.Ed.2d 82, is appropriate here: (Emphasis supplied.)

"* * * Neither vigor nor skill can overcome truth. Success is not the test of effective assistance of counsel. Mitchell v. United States, 104 U.S.App.D.C. 57, 259 F.2d 787.' See, also, Floyd E. Johnson v. Crouse, Warden, 10 Cir., 332 F.2d 417.'

We pause to note that the transcript of this trial reveals able and vigorous representation on the part of the public defender. Further, the record supports the sagacity of the jury in reaching its verdict of guilty. We paraphrase an excerpt from Reid v. United States ³ in holding that a review of the record indicates that Brooks was provided adequate trial representation and that his conviction was not due to the lack of such representation but to the evidence which was overwhelmingly against Brooks.

The next grievance lodged by Brooks is that the trial court deprived him of a basic constitutional right in that it did not furnish him counsel for taking a direct appeal. Brooks was duly adjudged to be insolvent. It is well settled that an indigent is entitled to be provided with counsel for taking a direct appeal when he makes known to the trial court his intention to appeal. ⁴ In disposing of this grievance, it is necessary to examine certain proceedings that occurred in the trial court. On June 9, 1964, immediately after being adjudicated guilty by the trial judge, Brooks moved the court for appointment of counsel, other than the public defender, for purposes of appeal. Subsequently, in proper person, he filed notice of appeal, directions to the clerk, and directions to the court reporter. On July 10, 1964, the court entered an order appointing R. A. Green, Jr., Public Defender for the Eighth Judicial Circuit, as counsel for defendant for purposes of appeal, and on the same date Brooks again moved the court to appoint someone other than the Public Defender. On August 10, 1964, the trial judge discharged the court-appointed counsel by an order stating:

'1. * * * That this Court on the 10th day of July, 1964, entered an Order appointing R. A. GREEN, JR., Public Defendant for the Eighth Judicial Circuit, counsel for Defendant for purposes of appeal.

'2. That in the above mentioned Motion for Appointment of Counsel other than the Public Defender and in Defendant's Assignment of Errors, petitioner, R. A. GREEN, JR., was charged with incompetence and negligence in handling of the Defendant's case; That these Assignment of Errors are those which the Defendant intends to rely on in his appeal and that to put petitioner, R. A. GREEN, JR., in a position of having to argue to the Court of Appeals his own incompetence would be incomprehensible and would not serve the best interest of justice.

'3. The Court finds that each and every complaint filed against petitioner in Defendant's Assignment of Errors by Defendant is completely without merit or foundation; That petitioner, R. A. GREEN, JR., rendered Defendant Brooks competent, zealous, and enthusiastic legal counsel from the day of his first appointment up to and through the day of Defendant's trial. That from the first, Defendant Brooks was incorrigible, stubborn, and completely uncooperative with petitioner, and this Court was advised before trial that petitioner was unable to induce Defendant to follow his legal advice. Defendant was rude and otherwise incorrigible to petitioner as well as to this Court.

'4. That this Court also finds that the jury conviction complained of by Defendant was justified by the evidence and as evidence of the zealous manner in which petitioner defended Defendant, it is pointed out that the co-defendant in this case, ROBERT WAYNE CHAPMAN, was convicted of the identical offense when said ROBERT WAYNE CHAPMAN was defended by highly reputed and highly paid legal counsel.

'5. That to continue to require petitioner to prosecute this appeal with the attitude and wishes of Defendant would be both personally obnoxious to petitioner and not in the best interest of the Defendant Brooks.'

As we view this question, Brooks is of the opinion that an indigent may unilaterally determine that counsel appointed to represent him has been ineffective and ineffectual in the trial of a cause, discharge such counsel, and demand that other counsel be appointed to represent him on appeal.

The Sixth Amendment to the United States Constitution has for a long period of time been construed to require appointment of counsel for those indigents accused of committing a crime in violation of federal laws; therefore, the federal courts have had considerable experience in wrestling with such contentions. In 1945 in an opinion authored by the learned Augustus Hand, and concurred in by his able colleague and cousin Learned Hand, the Second Circuit Court of Appeals stated in United States v. Gutterman: ⁵

'What he [indigent defendant] apparently wanted was the assignment of another lawyer who, he hoped, would conduct the case just as he directed. His failure to take the risk of acting on his own behalf while retaining Mr. Packer to conduct his defense gave him the advantage of being represented by counsel and at the same time of preserving an objection to the failure of the court to accede to his primary wish of obtaining counsel more to his personal liking.

'If a defendant is unable to employ an attorney he must accept such counsel as the court assigns unless he can furnish a better reason for requiring a change than he has given here or unless he chooses to dispense with counsel and undertake his own defense.'

A similar situation was presented to the Eighth Circuit Court of Appeals in Johnson v. United States. ⁶ There the trial court appointed a Mr. Joseph L. Flynn as counsel for Defendant. Immediately prior to trial the following colloquy was held between the court and the defendant:

"The Court: * * * I have appointed Mr. Flynn as your attorney and he is a good lawyer. He was in the District Attorney's office for a number of years. He is in the practice and I know of no man who is more capable of advising you as to the law than Mr. Flynn. You say you do not want Mr. Flynn to represent you?

"Defendant Johnson: No, sir, he has had six months and he has done nothing.'

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"Defendant Johnson: That is what I say. I believe Mr. Flynn would do it...