Burton v. State, 6 Div. 972

• Decision Date: 07 June 1966
• Docket Number: 6 Div. 972
• Citation: 187 So.2d 808,43 Ala.App. 249
• Parties: John E. BURTON v. STATE.
• Court: Alabama Court of Appeals

Page 808

187 So.2d 808

43 Ala.App. 249

John E. BURTON v. STATE.

6 Div. 972.

Court of Appeals of Alabama.

June 7, 1966.

John E. Burton, pro se.

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

JOHNSON, Judge.

This is an appeal from an order of the Circuit Court of Walker County denying appellant's petition for writ of error coram nobis.

An indictment was returned against the appellant at the January, 1958, term of the Grand Jury of Walker County, Alabama, charging him with the offenses of grand larceny and receiving and concealing stolen property. On February 27, 1958, the case was called for trial, a severance was granted, there being co-defendants, and appellant was then tried. The jury found appellant guilty of grand larceny, and he was adjudged guilty by the court in accordance with the verdict and sentenced to five years in the penitentiary. Appellant gave notice of appeal, but later withdrew the appeal.

In his petition for writ of error coram nobis, appellant assigned the following as grounds therefor: (1) Representation by trial counsel, Harvey S. Jackson, Jr., was ineffective in that said counsel did not have sufficient time to prepare a defense; (2) the prosecuting officers knowingly used perjured testimony to secure appellant's conviction; (3) the district attorney coerced appellant's co-defendants into giving false testimony against appellant; and (4) the trial court erred by not granting a continuance, which was sought on the ground that one of appellant's main witnesses, his wife, who was also a co-defendant, was sick and not able to testify.

Appellant, through his court-appointed attorneys, moved for a continuance of the hearing on the petition for writ of error coram nobis on the ground that some of appellant's witnesses were not subpoened. The first of these witnesses, Ralph Keene, was incarcerated in the State penitentiary at the time of the hearing. The right to have prisoners who are serving sentences in the State penitentiary appear and testify is in the sound discretion of the trial court. Tit. 45, Sec. 61, Code of Alabama as recompiled, 1958, reads in part as follows:

'* * * Moreover, upon the sworn petition of the defendant in a criminal prosecution showing that a convict serving sentence in the penitentiary knows facts which would be beneficial to him, the judge may, If he believes the ends of justice will be served thereby, order the issuance of such a writ to secure the appearance of the convict to testify on behalf of the defendant. The writ shall be served on the director at least one week before the day appointed to have the witness in court. * * *' (Emphasis ours.)

We do not believe that the court abused such discretion since the State offered to stipulate as to Keene's testimony, and since it appears that Keene's proposed testimony was not relevant or material to the allegations in the petition, and was hearsay.

The Order and Judgment of the Court reads, in pertinent part, as follows:

'In regard to requested witness Ralph Keene, the petitioner reported to the Court that Keene had told him some one else had told him (Keene) certain information about the case indicating that Martins put the blame on Burton in return for the promise from someone--unknown to the petitioner, promising them probation. Attorneys for the respondent contended that Keene's testimony would be hearsay. The Court denied the request of petitioner to have Keene returned to testify in his behalf on the grounds that even if Keene was present in Court, his testimony would not be admissible in as much as it was hearsay.'

The court did not err in refusing to grant the continuance because two other witnesses for appellant, Powell Martin and Lucille Martin, were not present in court. It appears that these witnesses were in the State of Florida, and that service of the subpoenas could not be had upon them. See Allen v. State, 42 Ala.App. 9, 150 So.2d 399, cert. den. 275 Ala. 691, 152 So.2d 439.

The attorney who represented appellant at the original trial, Harvey Jackson, Jr., was called as a witness by appellant. Jackson's testimony tends to show the following: Jackson has been a practicing attorney in Walker County, Alabama, since 1952, and has tried many civil and criminal cases. He served at one time as district attorney. On the morning of appellant's trial, Jackson was in court and was asked by the court if he would assist the appellant in striking the jury, which Jackson did. After the jury was struck and seated in the box, appellant pulled Jackson's coat sleeve and asked Jackson to stay and help defend the case on the merits, which Jackson did. Jackson talked with appellant about the case before the jury was struck, and he did not request a continuance to further investigate the case because he was given an opportunity before the trial began to talk with each of the State's witnesses and was also afforded an opportunity to confer with appellant's witnesses. The trial lasted two days, and Jackson made investigations during recesses and at night concerning the case and additional witnesses for appellant. Jackson stated that although he would have liked to have more time to prepare the case, he felt he was amply prepared to defend the case. He further stated he presented all of the evidence in behalf of appellant at the trial which was made known to him and which was beneficial to appellant, that he talked to all of appellant's witnesses before they took the stand and knew what the substance of their testimony would be, that he vigorously cross-examined witnesses for the State, that he made an opening statement and closing argument, and that he presented all defense witnesses.

Appellant did not testify in his own behalf at the hearing on the petition.

Generally, where, as here, the record affirmatively reflects that counsel was an attorney with many years experience, that he cross-examined all witnesses for the State, objected to the introduction of immaterial evidence, struck the jury with care, presented all defense witnesses, made opening and closing arguments, then inadequacy of counsel has not been established. Mitchell v. United States, 104 U.S.App.D.C. 57, 259 F.2d 787, cert. den. 358 U.S. 850, 79 S.Ct. 81, 3 L.Ed. 86. Whether time allowed counsel for a defendant for preparation for trial is sufficient depends upon the nature of the charge, the issues presented, counsel's familiarity with the applicable law and pertinent facts, and the availability of material witnesses. Ray v. United States, 8 Cir., 197 F.2d 268; United States v. Vasilick, D.C., 206 F.Supp. 195. Under the evidence presented in the record before us, we conclude counsel had sufficient time to prepare a defense, and since appellant has failed to show how he was prejudiced by counsel's having to prepare the case on short notice, we cannot say appellant's constitutional rights were violated.

No evidence was presented to sustain appellant's allegation that the prosecutting officers knowingly used false testimony, and hence the allegation falls for a total lack of proof. Horsley v. State, 42 Ala.App. 567, 172 So.2d 56.

The claim that the district attorney coerced witnesses into giving false testimony against appellant was refuted by the former district attorney, James E. Wilson, who testified that there had been no threats, coercion, or intimidation of witnesses in order to obtain their testimony.

The appellant's wife, Virginia Burton, testified that she was not prevented from testifying, that the case was continued for one day in order to allow her to be present and testify in behalf of appellant, and that she did testify as a witness for appellant.

This cause is due to be and the same is hereby

Affirmed.

CATES, Judge (concurring specially).

The instant coram nobis petition was filed in the Walker Circuit Court August 22, 1962. The State filed an opposing motion. Then, on January 11, 1963, Hon. Roy Mayhall set the matter for hearing February 18, 1963.

On page 97 of the record we find:

'In regard to requested witness Ralph Keene, the petitioner reported to the Court that Keene had told him some one else had told him (Keene) certain information about the case indicating the Martins put the blame on Burton in return for the promise from someone--unknown to the petitioner, promising them probation. Attorneys for the respondent contended that Keene's testimony would be hearsay. The Court denied the request of petitioner to have Keene returned to testify in his behalf of the grounds that even if Keene was present in Court, his testimony would not be admissible in as much as it was hearsay.'

This matter I consider to be merely the judge's opinion, since it carried with it no words of adjudication as to any request for process to obtain the presence of Keene at the coram nobis...