Davis v. State, 5774

• Decision Date: 27 November 1972
• Docket Number: No. 5774,5774
• Citation: 486 S.W.2d 904,253 Ark. 484
• Parties: Herman Luther DAVIS, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 904

486 S.W.2d 904

253 Ark. 484

Herman Luther DAVIS, Appellant, v. STATE of Arkansas, Appellee.

No. 5774.

Supreme Court of Arkansas.

Nov. 27, 1972.

Jack L. Lessenberry, Little Rock, for appellant.

Ray Thornton, Atty. Gen., by John D. Bridgforth, Asst. Atty. Gen., Little Rock, for appellee.

JONES, Justice.

This is an appeal by Herman Luther Davis from an order of the Pulaski County Circuit Court denying his petition for post-conviction relief under our Criminal Procedure Rule No. 1.

Davis was originally charged on information filed by the prosecuting attorney in Pulaski County with the crime of rape. While that charge was still pending and Davis was free on bail, he became involved in incidents resulting in additional felony charges being filed against him for burglary and second degree murder. Davis was convicted at a jury trial on the rape charge and was sentenced to 40 years in prison.

Following his conviction on the rape charge, Davis took an overdose of several butisol tablets which had been prescribed for his nerves by a physician who regularly attended prisoners in the county jail. On return to the Pulaski County jail following hospitalization for the overdose of drugs, Davis had his girl friend arrange for his appearance before the trial court for disposition of the additional charges then pending against him. Attorney Louis Rosteck was appointed by the court to represent Davis and he appeared with Davis before the trial judge when Davis entered his pleas of guilty to the charges of murder and burglary. Davis was sentenced to the maximum penal servitude of 21 years on each charge with these sentences to run concurrently with each other and with the 40 year sentence on the rape conviction.

Some time after Davis was committed to prison to begin serving the concurrent sentences, he filed a Rule 1 petition. At the hearing on that petition, Davis contended that his constitutional rights had been violated in that certain records had not been made available to him and certain witnesses had not been called to testify at his trial. The trial court set the rape conviction aside and granted a new trial. When the rape case came on for a new trial, the prosecuting witness could not be found and the rape charge was dismissed by the trial court for the state's failure to prosecute. Davis then filed an additional Rule 1 petition attacking the validity of his sentences on his pleas of guilty to the murder and burglary charges.

This second petition, designated 'Motion to Vacate Sentence Under Criminal Procedure Rule 1,' was filed by Davis on August 3, 1971. In it he alleged that his conviction for rape was set aside in proceedings had on July 29, 1971, and he feels that the trial court was prejudiced against him because of his conviction for rape and for that reason sentenced him to the maximum imprisonment on both the charges of second degree murder and burglary when he entered his pleas of guilty to those charges. Davis alleged in his petition that the evidence available to the state would have been insufficient to support a conviction for murder in the second degree, in that the state could not have proven he actually intended to take the life of the deceased. He alleged, therefore, that he should have been charged with a lesser offense. He also alleged in his verified petition that he was not represented by counsel or informed as to any of his rights pertaining to representation by, or assignment of, counsel. He alleged that he was not aware of any of his constitutional rights and that he at no time waived any rights to assignment of counsel or to be represented by counsel. He alleged that he pled guilty to charges of second degree murder and burglary because he did not believe he could receive a fair trial after his conviction for the crime of rape.

On November 23, 1971, the trial court first appointed William C. McArthur as attorney to represent Davis, and on the following Tuesday, November 30 he relieved Mr. McArthur of the appointment and appointed Louis W. Rosteck to represent Davis on the Rule No. 1 petition. On December 27, 1971, Mr. Davis filed an instrument designated 'Motion for Leave to Amend Rule No. 1 Petition' in which he stated that he had previously filed a motion to vacate his sentence under Criminal Procedure Rule No. 1, and in this motion he then stated:

'At the time I submitted my Rule No. 1 Petition I did not contend that I was represented by inadequate counsel but after making a careful study of my allegations in the said Rule No. 1 Petition I do not feel that my court-appointed attorney acted in my best interest and did not have ample time to effectively prepare my defense because he was appointed just fifteen minutes prior to my plea of guilty.

I believe that my court-appointed attorney's advice to plead guilty without any preliminary investigations to my defense was so inadequate as to be tantamount to an effective deprivation of my right to counsel under the Sixth Amendment and the Due Process of Law under the Fourteenth Amendment to the United States Constitution.

Therefore, I respectfully request that Mr. Louis W. Rosteck my court-appointed attorney for the Rule No. 1 hearing be replaced by an attorney that is not related to my case in its original proceedings, and for such other and further relief from time to time as this Honorable Court may deem just and proper.'

On January 5, 1972, the trial court relieved Mr. Rosteck as attorney for the petitioner and attorney Jack L. Lessenberry was appointed in his stead. Following a hearing on the Rule No. 1 petition, relief was denied by judgment of the court dated March 24, 1972. The grounds alleged for change of counsel as above set out in the 'Motion for Leave to Amend,' are as near as Davis comes to alleging ineffective assistance of counsel but, nevertheless, on his appeal to this court Davis has designated the points on which he relies for reversal as follows:

'Appellant was deprived of effective assistance of counsel.

Appellant improvidently entered pleas of guilty.'

The gist of Mr. Davis' argument now seems to be that when he entered his pleas of guilty to murder and burglary, he was still under the influence of an overdose of drugs and was easily influenced by the bad advice of his attorney who seemed to feel that it made little difference whether he was guilty of second degree murder and burglary if he could serve the 21 year sentences, on pleas of guilty to those charges, concurrently with the 40 years he would be serving anyway on his rape conviction.

Mr. Davis appeared at the Rule No. 1 hearing and testified in support of his petition. His testimony was directed primarily to the stupefying effect of his overdose of drugs while he was in jail following his conviction on the rape charge. It was stipulated that an attending physician prescribed one-half grain butisol tablets for Davis while he was in jail, and there is no question that Davis was sent from jail to the hospital because of an overdose of the butisol tablets.

Dr. Gilbert Evans testified that butisol is a barbiturate used as a sedative, tranquilizer and also a hypnotic. He said that if a person should take 78 one-half grain butisol tablets at one time, the immediate effect would be loss of consciousness followed by death. He said, however, if a person should survive such massive dose, it is very probable he would have brain damage as a result of oxygen deficiency in the blood supply to the brain cells. Davis insisted that he did take 78 or 79 of the tablets at one time but there was no evidence, except Davis' own testimony, that his mental processes were affected by the drug, and even Davis was not sure about that.

Davis testified that when he was returned to the jail from the hospital following his overdose of drugs, his girl friend visited him in jail and he told her he would like to get something done about the additional charges pending against him. He said that he could not recall his exact instructions to his girl friend.

'She said she would go and see what she could get done or find out, or something, and the next thing I know I was brought up here.'

Davis said that prior to being brought to the Pulaski County Court House on that occasion he had seen Mr. Rosteck but had never talked to him. As to the appointment of Mr. Rosteck, Davis testified as follows:

'A. Judge Kirby appointed him whenever I walked in and, since Mr. Camp wasn't here that day, that Mr. Rosteck would do it.

Q. Again, I want you to speak up a little bit louder. Did you confer with Mr. Rosteck about the two remaining offenses with which you had been charged; that is, second degree murder and burglary?

A. We went out in the hall and talked. It wasn't over four or five minutes seemed to me like.

Q. Did Mr. Rosteck leave you and come into Judge Kirby's office and then come back out?

A. I don't remember him leaving.

Q. Well, I want you to tell the Court, to the best of your ability, how much time Mr. Rosteck actually spent with you, conferring with you?

A. To my knowledge, I don't think it was over five minutes out there in the hall. I know it was a very short time.'

Mr. Davis testified that he did attempt to tell Mr. Rosteck something about how the homicide had occurred but that he does not remember what he tried to tell Mr. Rosteck about it. Mr. Davis was then asked if there was anything else he desired to say in support of his petition and he answered as follows: 'Just that I am not guilty of it.' Under questioning by the court the petitioner then testified as follows:

'Didn't you call me and indicate that you wanted to come up here and enter a plea of guilty?

PETITIONER DAVIS: I told Margaret I wanted to get something done.

THE COURT: That's what you meant, wasn't it?

PETITIONER DAVIS: I guess it was, Your Honor.'

Mr. Louis Rosteck was called as a witness in support of the petition. He testified that he could not remember the exact conversation he had with Mr....