Daniel v. State

• Decision Date: 10 January 1984
• Docket Number: 4 Div. 987
• Parties: George DANIEL v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

Page 944

459 So.2d 944

George DANIEL v. STATE of Alabama.

4 Div. 987.

Court of Criminal Appeals of Alabama.

Jan. 10, 1984.

Rehearing Denied March 20, 1984.

TYSON, Judge.

This cause was remanded to the Circuit Court of Russell County, Alabama, pursuant to the opinion of the Supreme Court of Alabama in Daniel v. State, 459 So.2d 942 directing that a hearing be held in the Circuit Court on the ground of incompetency of trial counsel or in the alternative, that an evidentiary hearing be held, with findings of fact to be made as to the competency vel non of counsel.

The Circuit Court of Russell County has filed a return in this court after a full hearing on the merits of the appellant's contentions.

At the hearing, competent counsel was appointed to represent the appellant and testimony taken from both of the attorneys who had been at first retained, and then subsequently appointed by the Circuit Court to represent the appellant at his trial, the Honorable Ruben King and the Honorable James Curtis Bernard, as well as the mother and sister of the appellant. The trial court then entered its order making specific findings of fact and conclusions of law as directed by the orders of the Alabama Appellate Courts as aforesaid.

I

The order and judgment of the Circuit Court is found in the remand and sets forth the following findings: (R. 83-86).

"The defendant was originally represented by Hon. Marcel E. Carroll, Attorney at Law, Montgomery, Alabama, and a preliminary hearing scheduled in the District Court of Russell County, Alabama on February 12, 1981. Since an indictment had been returned against the defendant prior to that date, the defendant was arraigned in the Circuit Court of Russell County, Alabama on the same date, February 12, 1981. Since Mr. Carroll was not present either in the District Court or Circuit Court, the Hon. J. Curtis Bernard was appointed by the Court at that time to assist hired counsel, Marcel E. Carroll.

"On February 12, 1981 Hon. Marcel E. Carroll mailed to this Court a notice of representation which limited his representation of the defendant after the arraignment phase of the case. This notice was received by the Court February 13, 1981 at 11:19 A.M.

"Subsequently the Hon. Ruben E. King, Attorney at Law, Montgomery, Alabama gave formal notice to the Court that he was retained as counsel and became attorney of record for the defendant.

"Subsequently, with the consent of retained counsel, Ruben E. King, Mr. Bernard remained as appointed counsel to assist in preparing the case for trial on a local level.

"On or about October 19, 1981, after the defendant had been examined locally by Dr. Robert A. Rose, Licensed Psychologist, and by Bryce Hospital, and returned, the Court was advised that Mr. King would be withdrawing from the case and that the family of defendant had contacted another attorney in Montgomery, Alabama. At that time, Mr. King was also appointed to represent defendant in addition to J. Curtis Bernard. Subsequently, Hon. Ruben King advised the Court that his services were terminated by the defendant's mother, Lillie Daniel, and that Hon. Charles Price, Montgomery, Alabama had been retained. Mr. Price was never in contact with the Court, nor retained to the knowledge of this Court.

"Trial was held subsequently and upon a review of the original record and the subsequent hearing on the competency of counsel, the Court finds as follows:

"1. That both attorneys had the opportunity and availed themselves of this, to review the entire file of the District Attorney of Russell County regarding the evidence available to the State whether culpatory or exculpatory.

"2. That the attorneys visited the scene of the crime making inquiries and interviews seeking other possible witnesses who might be of assistance to them. Mr. Bernard made several trips to Hurtsboro and the vicinity of the crime scene to determine whether any evidence was available in the defense of this cause.

"3. That counsel for the defendant, in preparation for the possible defense of insanity, petitioned the Court for examinations of the defendant by both the East Alabama Mental Health Clinic and Bryce Hospital. The findings of both facilities were reviewed by counsel, and after such review, determined that they could not prevail with such defense. Further, the Court finds that defense counsel contacted members of the defendant's family regarding their appearance for trial to give testimony as to the mental condition of the defendant but that the family members did not respond.

"4. That both counsel, at one time or another, during the pendency of this case were employed by the defendant or his family, and were also appointed at some juncture of the trial in order that this case could proceed in an orderly process, the appointment of Mr. King occurring only when it was brought to the attention of the Court that the family of the defendant was attempting to employ a third and different Montgomery attorney who would seek still another continuance.

"5. That during the course of the original trial, which was presided over by the undersigned Judge, only one overt event occurred that indicated any dissension between counsel as to the course of the trial. This occurred in the testimony of the witness, Ed Segar, P.H.D. (P 374 transcript) when Mr. Bernard wished to stipulate to the qualifications of the witness and Mr. King did not wish to do so. The Court was of the opinion then, and so finds now, that this occurred simply because it had not been discussed by counsel earlier, and the stipulation, whether made or not, was not material and had no bearing on the outcome of the case.

"During the sentence phase of the trial Mr. Bernard stated (R-426) that there was a conflict in the desired methods to be used in the defense of the accused and he felt this worked to the defendant's detriment. The Court knew then and so finds now that Mr. King was the lead counsel in this case and that there was no apparent conflict reflected to the Court in any of its proceedings hereunder which affected the outcome of this trial.

"After the trial of this cause, a claim for attorneys fee to be paid by the State was made by Mr. Bernard and approved by the Court. Upon determining, after the trial, that there was some question of a fee possibly coming to Mr. Bernard through Mr. King, the parties were advised that the State would be subrogated as to the rights of this fee up to the amount paid by the State. There was no award of attorneys fees to Mr. King by the Court or State.

"The Court finds that there was never any indication in the conduct of the attorneys which reflected dissension in counsel and their actions in court were in...