Coles v. Peyton, No. 10817.

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: SOBELOFF, WINTER and CRAVEN, Circuit
• Citation: 389 F.2d 224
• Parties: Alfred COLES, Appellant, v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Appellee.
• Docket Number: No. 10817.
• Decision Date: 08 January 1968

389 F.2d 224 (1968)

Alfred COLES, Appellant,
v.
C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Appellee.

No. 10817.

United States Court of Appeals Fourth Circuit.

Argued June 19, 1967.

Decided January 8, 1968.

389 F.2d 225

S. Strother Smith, III, Charlottesville, Va. (Court-assigned counsel) for appellant.

Reno S. Harp, III, Asst. Atty. Gen., of Virginia, (Robert Y. Button, Atty. Gen., of Virginia, on brief) for appellee.

Before SOBELOFF, WINTER and CRAVEN, Circuit Judges.

WINTER, Circuit Judge:

Upon his claims that in his prosecution for forcible rape he was denied effective assistance of counsel at his trial, that the Commonwealth of Virginia unconstitutionally suppressed vital and relevant exculpatory evidence and that, under the circumstances of this case, the absence of counsel at his preliminary hearing constituted a denial of counsel, Alfred Coles ("petitioner") appeals from the district court's denial of his petition for a writ of habeas corpus. The writ was denied, without plenary hearing, on the basis of the transcript of a state habeas corpus hearing.¹ We agree with the district judge that another plenary hearing was unnecessary, but we conclude that the writ should issue, conditioned upon a reasonable opportunity for the Commonwealth to afford petitioner a new trial.

On May 25, 1963, petitioner was arrested for forcible rape. The testimony at the state habeas corpus proceeding showed that petitioner claimed that, in a public street, the prosecutrix, with a male companion, offered her "services" for two dollars. He and the prosecutrix adjourned to an alley where an argument ensued with regard to the time of payment to the prosecutrix. A neighbor called the police and petitioner was arrested. The prosecutrix, on the other hand, testified that petitioner had "grabbed her and dragged her down the alley" and raped her. Immediately after petitioner's arrest, the prosecutrix submitted to a medical examination, the report of which stated that slides and swabs for the presence of spermatozoa and seminal stains were both negative.

Shortly after his arrest, petitioner was granted a preliminary hearing. Va.Code Ann. § 19.1-163.1 (1960 Repl.Vol.). It is undisputed that petitioner was not represented by counsel at the hearing. Counsel was not appointed until August 20, 1963, almost three months after petitioner's arrest, when Raymond H. Dupuy, Esq. and Robert J. Smith, Esq., public defenders, were appointed to represent petitioner and fifty-seven other defendants in other felony cases scheduled to be tried in the then current term of court.

Petitioner was tried, non-jury, on September 17, 1963, and his conviction resulted in a sentence of twenty-five years. During the time between his appointment and the trial, Mr. Dupuy interviewed petitioner three times: once for as long as twenty minutes, again for a lesser period, and a third time briefly on the day of trial, just before the trial began. In the company of Mr. Dupuy, Mr. Smith was present during the first two interviews. He estimated the duration of the first interview to have been thirty minutes and the second something less. One of counsel for petitioner testified that petitioner admitted that he had had intercourse with the prosecutrix, and that an argument occurred between them whether he would pay in advance or upon

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completion of the act, and a woman who lived nearby had heard the commotion and called the police. Petitioner's other court-appointed lawyer testified that petitioner told his attorneys that he was trying to have intercourse with the prosecutrix, and that the events took place next to the house of Carrie Herbert, who heard the disturbance and called the police.²

Included among the things that counsel admitted they did not do are the following: Counsel made no investigation of the reputation of the prosecutrix for chastity. Counsel made no attempt to determine the identity of, or to interview, the prosecutrix's male companion. Counsel made no attempt to interview Carrie Herbert or to determine what her testimony would be. Counsel did not explain the elements of the crime of forcible rape to petitioner, including the necessity of proof of penetration, and question him in regard thereto. In short, counsel did no more than interview petitioner on the three occasions previously alluded to and to accept the statements he made to them during the interview. Counsel were unequivocal that they did not know that the prosecutrix had been examined medically and that they had no knowledge of the written, signed medical report.

To support our conclusion that petitioner is entitled to a writ of habeas corpus, we need look only to the principles to be distilled from Twiford v. Peyton, 372 F.2d 670 (4 Cir. 1967); Martin v. Commonwealth of Virginia, 365 F.2d 549 (4 Cir. 1966); Braxton v. Peyton, 365 F.2d 563 (4 Cir. 1966); and earlier authorities, and apply them to the facts of this case. The principles may be simply stated: Counsel for an indigent defendant should be appointed promptly. Counsel should be afforded a reasonable opportunity to prepare to defend an accused. Counsel must confer with his client without undue delay and as often as necessary, to advise him of his rights and to elicit matters of defense or to ascertain that potential defenses are unavailable. Counsel must conduct appropriate investigations, both factual and legal, to determine if matters of defense can be developed, and to allow himself enough time for reflection and preparation for trial.³ An omission or failure to abide by these requirements constitutes a denial of effective representation of counsel unless the state, on which is cast the burden of proof once a violation of these precepts is shown, can establish lack of prejudice thereby.

Although counsel for petitioner were appointed over three weeks prior to trial, the delay of almost three months in their appointment and the fact that they were appointed to represent such a great number of other defendants to be tried at a forthcoming term of court constitutes a colorable fact.⁴ Perhaps the burden of representing so many persons accused of felonies explains the woefully inadequate services rendered to petitioner. Whatever the reason, the services of counsel were ineffective in at least several regards.

The record is clear that counsel did not explain the elements of the crime of rape to petitioner, especially the

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element of penetration. If the recollection of one of petitioner's counsel was accurate that petitioner was "trying" to have intercourse with the prosecutrix, penetration may not have occurred, in which event, under Virginia law the substantive crime would not have been committed. McCall v. Commonwealth, 192 Va. 422, 65 S.E.2d 540 (1951). Effective representation of counsel would require exploration of this possibility under the facts of the case

Virginia law also interposes consent as an absolute bar to a prosecution for rape when the alleged victim is over the age of consent, and previous want of chastity is relevant and probative evidence of consent. Bailey v. Commonwealth, 82 Va. 107 (1886); Va.Code Ann. § 18.1-44 (1960 Repl.Vol.). Even if counsel were satisfied that lack of penetration was unavailable as a defense, effective representation would require some investigation of the reputation of the prosecutrix for chastity under the facts of this case, especially when petitioner's version of the incident, as understood by both of his counsel, was that he had an encounter with a common street walker. Effective representation would similarly require some investigation to determine the identity of, and some attempt to interview, the male companion of the prosecutrix and some attempt to interview Carrie Herbert to ascertain if evidence to support a defense of consent could be uncovered. Similarly, some inquiry should have been made to ascertain if the prosecutrix were medically examined, not only because the report which was in existence would be proof supporting a lack of penetration,⁵ but also because the report disclosed the identity of the medical examiners from whom inquiry could be made as to whether their examination disclosed the presence or absence of signs of physical violence on the person of the prosecutrix with its direct relevance to the question of consent.

These omissions and failures satisfy us, in the absence of affirmative proof of lack of prejudice, that petitioner was denied effective assistance of counsel and that he should be granted a writ of habeas corpus for his discharge unless the Commonwealth, within a reasonable period to be fixed by the district judge, affords him a new trial. In the light of this conclusion, we need...