Carnley v. Cochran, 158

• Decision Date: 30 April 1962
• Docket Number: No. 158,158
• Citation: 82 S.Ct. 884,8 L.Ed.2d 70,369 U.S. 506
• Parties: Willard CARNLEY, Petitioner, v. H. G. COCHRAN, Jr., Director of the Division of Corrections, State of Florida
• Court: U.S. Supreme Court

369 U.S. 506

82 S.Ct. 884

8 L.Ed.2d 70

Willard CARNLEY, Petitioner,

v H. G. COCHRAN, Jr., Director of the Division of Corrections, State of Florida.

No. 158.

Argued Feb. 20 and 21, 1962.

Decided April 30, 1962.

Harold A. Ward, III, Winter Park, Fla., for petitioner.

James G. Mahorner, Asst. Atty. Gen., Tallahassee, Fla., for respondent, pro hac vice.

Mr. Justice BRENNAN delivered the opinion of the Court.

The petitioner, who was not afforded the assistance of counsel for his defense at his trial, claims that, for this reason, his conviction by a jury in the Court of Record for Escambia County, Florida, deprived him of rights guaranteed by the Fourteenth Amendment. He obtained a provisional writ of habeas corpus from the Florida Supreme Court on his petition asserting that claim. However, that court, on the petition, the respondent's return and the petitioner's reply—but without any hearing—discharged the writ. 123 So.2d 249. Since an important constitutional right is involved, we granted certiorari and appointed counsel to represent the petitioner in this Court. 366 U.S. 958, 81 S.Ct. 1927, 6 L.Ed.2d 1253, 368 U.S. 806, 82 S.Ct. 43.

The assistance of counsel might well have materially aided the petitioner in coping with several aspects of the case. He was charged with the non-capital offenses of incestuous sexual intercourse with his 13-year-old daughter and, in a separate count relating to the same acts, fondling a minor child, that is, assault in a lewd, lascivious and indecent manner, upon a female child under the age of 14. At the time of trial two sets of Florida criminal statutes contained language reaching such behavior. Sections 741.22 and 800.04, Florida Statutes, 1959, F.S.A., were generally criminal provisions separately defining the two offenses of incest and assault in a lewd, lascivious, and indecent manner. In addition, both offenses were included within the later enacted Chapter 801 of the Florida Statutes—Florida's so-called Child Molester Act—if the victim was 14 years of age or younger.¹ The Florida Supreme Court plainly conceived the petitioner's prosecution for both offenses as having been under the Child Molester Act. 123 So.2d at 250. While that is an obviously plausible view, a lawyer, but not a layman, might have perceived that because the Child Molester Act was invoked against the petitioner in respect of conduct elsewhere specifically defined as criminal, the 1954 decision of the Florida Supreme Court in Copeland v. State, 76 So.2d 137, raised doubts, under the Florida Constitution, of the validity of a prosecution based on the Act.² The picture is further complicated by the fact that the Child Molester Act had included no reference to incest prior to an amendment made subsequent to the petitioner's alleged offense.³

Establishing the basis of the petitioner's prosecution was vitally important for the protection of his rights. If the Child Molester Act was validly applied against the petitioner, counsel could have materially assisted him by invoking on his behalf the special provisions of that law governing the disposition of defendants charged under it. Sections 741.22 and 800.04 authorize only jail sentences. In contrast, the Child Molester Act empowers the sentencing judge in a proper case to commit the convicted defendant to a Florida state hospital for treatment and rehabilitation.⁴ That law also permits the accused to petition for a psychiatric or psychological examination for the purpose of assisting the court in the trial of the case.⁵

There are thus present considerations of a sort often deemed sufficient to require the conclusion that a trial for crime without defense counsel did not measure up to the requirements of the Fourteenth Amendment. See, e.g., Chewning v. Cunningham, 368 U.S. 443, 446—447, 82 S.Ct. 498, 7 L.Ed.2d 442; Reynolds v. Cochran, 365 U.S. 525, 531—532, 81 S.Ct. 723, 5 L.Ed.2d 754; McNeal v. Culver, 365 U.S. 109, 114—116, 81 S.Ct. 413, 5 L.Ed.2d 445; Rice v. Olson, 324 U.S. 786, 789—791, 65 S.Ct. 989, 89 L.Ed. 1367.

Other aspects of this record also support petitioner's claim of the unfairness of trying him without affording him the help of a lawyer. As must generally be the case, the trial judge could not effectively discharge the roles of both judge and defense counsel. Here the record shows that the trial judge made efforts to assist the petitioner, but there were important omissions in the guidance he gave. He did not fully apprise the petitioner of vital procedural rights of which laymen could not be expected to know but to which defense counsel doubtless would have called attention. The omissions are significant. See, e.g., Cash v. Culver, 358 U.S. 633, 637—638, 79 S.Ct. 432, 3 L.Ed.2d 557; Gibbs v. Burke, 337 U.S. 773, 776—778, 69 S.Ct. 1247, 93 L.Ed. 1686; Hudson v. North Carolina, 363 U.S. 697, 702—703, 80 S.Ct. 1314, 4 L.Ed.2d 1500. Despite the allegation in respondent's return that 'the petitioners were carefully instructed by the trial court with regard to the rights guaranteed by both the Constitution of Florida and the Constitution of the United States⁶ and with regard to the procedures to be followed during the course of the trial,' it appears that, while petitioner was advised that he need not testify, he was not told what consequences might follow if he did testify. He chose to testify and his criminal record was brought out on his cross-examination. For defense lawyers, it is commonplace to weigh the risk to the accused of the revelation on cross-examination of a prior criminal record, when advising an accused whether to take the stand in his own behalf; for petitioner, the question had to be decided in ignorance of this important consideration. Nor does it appear that the trial judge advised the petitioner of his right to examine prospective jurors on voir dire, or of his right to submit proposed instructions to the jury, or of his right to object to the instructions that were given.

Other circumstances attending this case only serve to accentuate the unfairness of trial without counsel. Petitioner is illiterate. He did not interpose a single objection during the trial. The only two witnesses against him were his daughter and a 15-year-old son. Although both petitioner and his wife testified that they had experienced disciplinary problems with the children, and thus clearly revealed a possibly significant avenue for impeachment of the children's testimony, there was no cross-examination worthy of the name.⁷

We hold that petitioner's case was one in which the assistance of counsel, unless intelligently and understand- ingly waived by him, was a right guaranteed him by the Fourteenth Amendment.

We must therefore consider whether the petitioner did intelligently and understandingly waive the assistance of counsel. The record does not show that the trial judge offered and the petitioner declined counsel. Cf. Moore v. Michigan, 355 U.S. 155, 160—161, 78 S.Ct. 191, 2 L.Ed.2d 167. Nevertheless, the State Supreme Court imputed to petitioner the waiver of the benefit of counsel on a ground stated in the court's opinion as follows: 'If the record shows that defendant did not have counsel * * *, it will be presumed that defendant waived the benefit of counsel * * *.' 123 So.2d at 251. This might mean that the petitioner could have suffered no constitutional deprivation if he had not formally requested counsel, and that failure to make such a request is to be presumed unless the record shows the contrary. But it is settled that where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request.⁸ In McNeal v. Culver, supra, the petitioner's allegation that he had requested counsel was countered by a denial in the return that 'petitioner's constitutional rights were violated by the court's alleged refusal to appoint counsel in his behalf,' and the State Supreme Court noted that the record was silent as to any request. We held that when the Constitution grants protection against criminal proceedings without the assistance of counsel, counsel must be furnished 'whether or not the accused requested the appointment of counsel. Uveges v. Commonwealth of Pennsylvania, 335 U.S. 437, 441, 69 S.Ct. 184, 185, 93 L.Ed. 127.' 365 U.S. at 111, note 1, 81 S.Ct. at 415. See Rice v. Olson, supra, 324 U.S. at 788, 65 S.Ct. at 990; Gibbs v. Burke, supra, 337 U.S. at 780, 69 S.Ct. at 1250.

However, the Florida Supreme Court may not have meant that the constitutional right to counsel depends upon a formal request. The court may have meant that from the very fact that no counsel was present, it would be assumed that the trial judge made an offer of counsel which the petitioner declined.⁹ Or, it may have meant that it would assume simply that petitioner knew of his right to counsel and was willing to forego it. Of course, the validity of such presumptions is immediately called in question because the accused has no way of protecting against them during his trial except by requesting counsel—a formality upon which we have just said his right may not be made to depend. Nor is it an answer to say that he may counter such presumptions on collateral attack by showing—if he can—that he had not in fact agreed, or been willing, to be tried without counsel. To cast such a burden on the accused is wholly at war with the standard of proof of waiver of the right to counsel which we laid down in Johnson v. Zerbst, 304 U.S. 458, 464—465, 58 S.Ct. 1019, 82 L.Ed. 1461:

'It has been pointed out that 'courts indulge every reasonable presumption against waiver' of fundamental constitutional rights and that we 'do not presume acquiescene in the loss of fundamental rights.'

'The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused—whose life or liberty is at stake—is without counsel. This protecting duty imposes the serious and...