Cash v. Culver

• Decision Date: 08 July 1960
• Citation: 122 So.2d 179
• Parties: Ray CASH, Petitioner, v. R. O. CULVER, State Prison Custodian (R. B. Gramling, Acting Director of the Division or Corrections of the State of Florida, as Custodian of the Florida State Prison), Respondent.
• Court: Florida Supreme Court

Page 179

122 So.2d 179

Ray CASH, Petitioner, v. R. O. CULVER, State Prison Custodian (R. B. Gramling, Acting Director of the Division or Corrections of the State of Florida, as Custodian of the Florida State Prison), Respondent.

Supreme Court of Florida.

July 8, 1960.

Potter, Langbein & Burdick, West Palm Beach, for petitioner.

Richard W. Ervin, Atty. Gen., and Edward S. Jaffry, Asst. Atty. Gen., for respondent.

THORNAL, Justice.

We again consider this original application for a writ of habeas corpus, this time in the light of our Commissioner's recommendation that the petitioner Cash be remanded to custody.

Our conclusion must turn on a decision as to whether Cash was deprived of a reasonable opportunity to employ counsel of his own choice to represent him at his second trial for the crime of burglary.

In compliance with a mandate of the Supreme Court of the United States we issued a writ of habeas corpus and ordered an immediate return. Cash v. Culver, 358 U.S. 633, 79 S.Ct. 432, 3 L.Ed.2d 557. We subsequently considered the matter on the petition and the return, together with a transcript of the trial record which had resulted in a jury verdict of guilt and the fifteen (15) year sentence which Cash is now serving. In our last consideration of the problem we concluded that Cash had failed to support a claim of denial of due process grounded on an alleged refusal of the trial judge to appoint counsel to represent him at the second trial. Cash v. Culver, Fla., 120 So.2d 590. Upon a consideration of a totality of the facts we found from the record presented that there had been no encroachment upon the accused's right to a fair trial as a result of the failure of the trial judge to volunteer the appointment of a lawyer to represent him. Cash v. Culver, supra; Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595; Wade v. Mayo, 334 U.S. 672, 68 S.Ct. 1270, 92 L.Ed. 1647; Johnson v. Mayo, Fla., 40 So.2d 134. In our last opinion, 120 So.2d 590, we did express substantial doubts as to whether Cash had been accorded a reasonable opportunity to employ counsel of his own choice. We appointed Honorable William H. Maness, Circuit Judge of the Fourth Judicial Circuit to serve as a commissioner of this Court to hear evidence on the subject and report the same together with his findings. Judge Maness promptly and efficiently heard the evidence tendered by both parties. We now have the benefit of a transcript of the testimony supplemented by the findings of the Commissioner who has recommended that Cash be remanded to custody. The sole question remaining is whether the trial record, supplemented by the evidence offered at the Commissioner's hearing, sustains a conclusion that Cash was denied a reasonable opportunity to obtain a lawyer to defend him against the charge of burglary and, therefore, deprived of his constitutional right to be heard through counsel.

We interpolate the fact that Judge Maness also received and reported additional evidence which the petitioner desired to offer on the matter of the alleged failure of the trial judge to appoint a lawyer to represent the accused. While this was beyond the scope of our last judgment, it is understandable that the Commissioner was desirous of according to the petitioner every possible opportunity to support his claims. The additional testimony thus offered only serves to confirm the correctness of our original conclusion denying relief on this ground. The matter of the alleged deprivation of a reasonable opportunity to employ counsel present a different problem and requires a consideration of different factors. Cash v. Culver, supra.

The Fourteenth Amendment to the Constitution of the United States prohibits state action which would 'deprive any person of life, liberty, or property, without due process of law; * * *'

Section 12, Declaration of Rights, Florida Constitution F.S.A., imposes similar restraints on this State.

A more specific organic directive is reflected by Section 11, Declaration of Rights, Florida Constitution, wherein it is provided that in criminal prosecutions 'the accused * * * shall be heard by himself, or counsel, or both * * *'

We are not here confronted by the requirements of the Sixth Amendment to the Constitution of the United States, which has been construed to require appointment of counsel in Federal criminal cases unless the accused voluntarily waives the privilege. The Sixth Amendment applies only to the Federal Courts. It does not compel state action. Since Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, representation by counsel is essential to due process in state court capital cases, and in other state court cases falling within the rule of Betts v. Brady, supra, but in no other state situation unless required by state law.

We now consider in isolation the remaining claim that Cash was denied his constitutionally guaranteed privilege of being heard by counsel. Section 11, Florida Declaration of Rights, supra. Coherence suggests that we focus our attention on the facts bearing directly on this aspect of petitioner's contentions.

On December 6, 1954, Ray Cash, approximately nineteen years of age, was tried for the crime of burglary. His co-defendant and alleged accomplice was a much older man named Lawrence Allen. Cash was represented effectively by an experienced Miami criminal defense lawyer, Honorable Henry Carr. Allen was represented by another capable lawyer. A mistrial was the result. From this point on a chronology of events is of significance.

On December 24, 1954, Mr. Carr was advised by the attorney for the accomplice Allen, that his client intended to change his plea from 'not guilty' to 'guilty.' In Carr's judgment this meant that Cash would be implicated by the accomplice who apparently planned to 'turn state's evidence' in exchange for limited freedom. Subsequent events proved the correctness of Carr's suspicions. Allen did testify at the second Cash trial and pointed the accusing finger at the petitioner. Immediately upon receipt of the information that Allen intended to change his plea, Mr. Carr, by letter dated December 24, 1954, notified Mrs. Robbin Cash, the mother of petitioner. Incidentally, the time of this mother appears to have been occupied almost entirely by an understandable maternal effort to save her son from a long prison sentence. The instant record reveals the tragic situation of her three sons in the State prison for long periods of time as a result of convictions for some of the most serious crimes on the books. Mrs. Cash never replied to Mr. Carr's letter of December 24, 1954.

On January 18, 1955, Carr, still admittedly serving as attorney for Ray Cash, agreed with the state attorney that the second trial would be held February 21, 1955. Again on January 28, Carr wrote Mrs. Cash regarding the 'dim outlook' and urged her to get in touch with him on receipt of his letter. Allen, the accomplice had pleaded guilty on January 26, 1955.

Sometime around February 3, 1955, Mr. Carr went to Raiford, the State Prison, and conferred with petitioner regarding Allen's plea of guilty and the potential effect on Cash's situation. He suggested the possibility that Cash plead guilty and authorize his lawyer to bargain for a lighter sentence. The lawyer left Raiford with no definite understanding, except that his client 'wanted to think it over.' At no time did the attorney advise the client that if he declined to plead guilty the lawyer had any intention of withdrawing from the defense. In fact, at no time did Mr. Carr himself advise Cash that he expected to withdraw from the case. On his February 3 visit to Raiford, he told Cash that his second trial had been set for February 21. After this prison conference Mr. Carr never saw Ray Cash again until the date of the Commissioner's hearing in this matter on February 11, 1960.

About February 8, 1955, Cash, still in Raiford State Prison, had a telephone call from someone in Carr's office who inquired as to what Cash intended to do about 'pleading guilty.' Cash advised him that he intended to plead 'not guilty.' In response the man apparently calling for Carr replied 'that's all I wanted to know.' There was no mention of any contemplated withdrawal from the case.

On February 15, 1955, one Mark O'Quinn, who was then Carr's partner, called the trial judge about Carr's withdrawal from the case. He advised the state attorney of the plan on the same day. Whether he did this at Carr's request or even with his consent is not clear from the record. The state attorney immediately served on Cash in the State Prison, a 'notice of trial.' It will be recalled that the trial was set for the morning of Monday, February 21, 1955. On February 15, the preceding Tuesday, the accused was given the first indication that his lawyer might withdraw from his defense and this came by indirection through the state attorney.

On February 16, the trial judge signed an order allowing Mr. Carr to withdraw from the Cash defense. During all of this time Cash remained confined in the State Prison. The withdrawal order was signed ex parte. Cash was given no opportunity whatever to object or to explain his predicament in order to forestall the withdrawal authorization. Canon 44, Rule B, Ethics Governing Attorneys, 31 F.S.A. On this same day Cash received through the mail at Raiford Prison, a copy of the motion and proposed withdrawal order, as well as a letter signed by Mr. O'Quinn, stating that Mr. Carr intended to get out of the case, allegedly because of a failure to follow his advice and a failure to pay his fees. This record fails to sustain any inference even that Mr. Carr at any time ever suggested to Cash that he would withdraw if Cash refused to follow his judgment that it would be better to plead guilty. Likewise, the record sustains no inference that Carr ever conditioned his continued representation of Cash on the payment of additional fees. In fact,...