Cottrell v. Commonwealth

• Decision Date: 01 March 1948
• Citation: 187 Va. 351,46 S.E.2d 413
• Court: Virginia Supreme Court
• Parties: COTTRELL . v. COMMONWEALTH.

46 S.E.2d 413

187 Va. 351

COTTRELL .

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

March 1, 1948.

Error to Circuit Court, Warwick County; Frank Armistead, Judge.

Melvin Cottrell was convicted of rape, and he brings error.

Judgment affirmed.

Before HUDGINS, C. J., and GREGORY, EGGLESTON, SPRATLEY, BUCHANAN, STAPLES and MILLER, JJ.

W. A. Hall, Jr., of Richmond, for plaintiff in error.

Harvey B. Apperson, Atty. Gen., and Ballard Baker, of Richmond, for Commonwealth.

BUCHANAN, Justice.

The plaintiff in error, defendant below, complains of the judgment of the trial court sentencing him to confinement in the penitentiary for life for the crime of rape. In his statement of the material proceedings in the lower court, required by our Rule 14, he says: "An indictment was returned by the Grand Jury into the Circuit Court of Warwick County, Virginia, January 20, 1947, charging plaintiff in error, a colored man, of a good reputation, with the rape of a little colored girl by the name of Nadine McCoy, on the 16th of January, 1947;" that the trial took place on January 31, 1947, resulting in the sentence stated, and "a transcript of the record is herewith filed and made a part hereof."

The record filed and presented to us contains only the order showing the finding of the indictment, the indictment, a minute or memorandum thereon signed by the trial judge, and the order of conviction and sentence. None of the evidence is preserved, and none of the proceedings of the trial is shown except what appears in the order and memorandum.

The indictment, which was returned on January 20, 1947, charged that the defendant, on January 16, 1947, "with force and arms, in and upon one Nadine McCoy, a female child under the age of sixteen years, to-wit, the age of six years feloniously did make an assault, and her the said Nadine McCoy, then and there, to-wit, on the day and year aforesaid, unlawfully and feloniously did carnally know and abuse, * * *."

On January 31, 1947, this order was entered:

"This day came the attorney for the Commonwealth and the accused was led to the bar in the custody of the Sheriff of this county (and as such jailor), and it appearing to the court that the accused is not represented by counsel the court thereupon appointed Frank H. Pitchford to defend him, and being arraigned, plead not guilty to the indictment, and thereupon came a jury, viz.: " (naming them), "who were sworn the truth of and upon the premises to speak, and after hearing partially the evidence, the accused moved the court to allow him to withdraw his plea of not guilty and enter a plea of guilty, which motion the court granted, and the jury was discharged from further consideration of this case, and the court after hearing fully the evidence, doth find the said Melvin Cottrell, guilty of rape, and doth fix and ascertain his punishment to be imprisonment in the State Penitentiary for life.

"Thereupon, it being asked of the said Melvin Cottrell, if anything for himself he had, or knew to say, why this court should not now proceed to pronounce judgment against him according to law, and nothing being offered or alleged in delay of judgment, it is considered by the court that the said Melvin Cottrell be imprisoned in the Penitentiary House of this Commonwealth for life, the period by the court in its verdict ascertained, therein to be kept imprisoned and treated in the manner directed by law, for the term aforesaid, and the Commonwealth recover its costs about this prosecution expended. And the said Melvin Cottrell is remanded to jail."

Upon this record the defendant contends, first, that there was not a proper assignment of counsel to meet the due process of law requirement of the Fourteenth Amendment to the Federal Constitution, and relies on Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 57, 77 L.Ed. 158, 84 A.L.R. 527.

That case, on its facts, bears little relation to this. There the trial took place "in an atmosphere of tense, hostile, and excited public sentiment;" the defendants were young, ignorant and illiterate resi dents of another State; immediately upon the return of the indictment they were arraigned and pleaded not guilty; they were not asked whether they had, or were able to employ, counsel, or wanted to have counsel appointed, or whether they had friends or relatives who might assist them, and "such designation of counsel as was attempted was either so indefinite or so close upon the trial as to amount to a denial of effective and substantial aid in that regard, * * *" and "was little more than an expansive gesture, imposing no substantial or definite obligation upon any one * * *. No attempt was made to investigate. No opportunity to do so was given. Defendants were immediately hurried to trial." There, as was stated, the appearance of counsel "was rather pro forma than zealous and active." Under those circumstances it was held that the defendants were not accorded the right of counsel in any substantial sense, and that the failure of the trial court to give them reasonable time and opportunity to secure counsel, or to make an effective appointment of counsel, was a denial of due process. The court added: "* * * Whether this would be so in other criminal prosecutions, or under other circumstances, we need not determine. All that it is necessary now to decide, as we do decide, is that in a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble-mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law; and that duty is not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case." 53 S.Ct. 65.

None of the elements which led the court to its conclusion in the Powell case is present in this case. Here there is nothing to indicate that the defendant was young, ignorant or illiterate; or that he was away from his family or friends; or that they could not have helped him if there was any help for him. Certainly, so far as suggested by the record, therewas no atmosphere of public hostility or surveillance by military force, as in the Powell case. The record here does not show that the defendant did not have time and opportunity to secure counsel if he had so desired, or that the assignment of counsel for him was under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case.

There is no suggestion in the record that counsel assigned was lacking in skill, ability or diligence. It is to be presumed that he was competent. Maye v. Pescor, 8 Cir., 162 F.2d 641, 643. It is also to be presumed that if anything was to be gained by a postponement or a continuance, or if any evidence was available that was not at hand, counsel would have made an appropriate motion, and there is nothing to indicate that it would not have been granted if any reasonable basis for it had been shown. There is nothing to suggest that there was any hurry about the trial.

So far from its appearing that there was any element of unfairness in the trial, or anything done to the prejudice of the defendant's rights, the contrary is a fair inference from the record. When the defendant was brought to the bar and the court ascertained that he was not represented by counsel, the court appointed counsel for him. The defendant was then arraigned and pleaded not guilty and proceeded to trial before a jury. There is nothing to suggest that he was not then as ready for trial as he would have been days or weeks later. After the jury had heard part of the evidence, and the defendant and his counsel had heard it, too, the defendant asked the court to allow him to withdraw his plea of not guilty and to enter a plea of guilty. The court granted that motion, discharged the jury, heard fully the evidence, and found the defendant guilty.

That was no uncommon occurrence in criminal trials. It has frequently happened when evidence produced has established guilt so clearly that it would be hopeless to try to combat it. What the nature of that evidence was in this case we are not told, because the defendant has not seen fit to bring it here. Evidently it was adequate to establish guilt and to persuade the defendant and his attorney that the wiser course was to admit his guilt and hope for a lighter punishment from the court than from the jury. His punishment could have been death. Code 1942, Michie, § 4414.

Since the Powell case the question of due process in criminal cases has come before the Supreme Court many times. In Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, it was said that its application was less a matter of rule than was the case with other specific and particular provisions of the Bill of Rights, and that "asserted denial is to be tested by an appraisal of the totality of facts in a given case." 62 S.Ct. 1256. In that case the defendant was charged with robbery, was unable to employ counsel and requested the trial court to appoint counsel for him. The trial court refused and the defendant pleaded not guilty, waived a jury and conducted his own defense before the judge, who imposed a sentence of eight years. Under the facts of that case the court held there had been no denial of due process, and stated that "we cannot say that the amendment embodies an inexorable command that no trial for any offense, or in any court, can be fairly conducted and justice accorded a defendant who is not represented by counsel." 62 S.Ct. 1262.

In Avery v. State of Alabama, 308 U. S. 444, 60 S.Ct. 321, 84...