Donnell v. Swenson

• Decision Date: 15 August 1969
• Docket Number: No. 997.,997.
• Parties: William B. DONNELL v. Harold R. SWENSON, Warden.
• Court: U.S. District Court — Western District of Missouri

302 F. Supp. 1024

William B. DONNELL v. Harold R. SWENSON, Warden.

No. 997.

United States District Court W. D. Missouri, C. D.

August 15, 1969.

P. Pierre Dominique, Jefferson City, Mo., for plaintiff.

Norman C. Anderson, Atty. Gen., State of Missouri, Howard L. McFadden, Asst. Atty. Gen., State of Mo., Jefferson City, Mo., for defendant.

JOHN W. OLIVER, District Judge.

MEMORANDUM AND ORDER

I

This habeas corpus case is before this Court for a second time. In Donnell v. Swenson (W.D.Mo.1966), 258 F.Supp. 317, affirmed 382 F.2d 248 (1967), we granted habeas corpus relief but conditioned the execution of the writ upon the granting by the Supreme Court of Missouri of a new direct appeal. A new direct appeal was granted, appellate counsel appointed, and the petitioner's conviction was again affirmed in State v. Donnell (Mo.Sup.Ct.Div. 3, 1968), 430 S.W.2d 297.

On October 14, 1968, after receipt of a pro se pleading from petitioner, we reopened this case, conducted a pretrial conference, and directed further appropriate proceedings which included the execution of a stipulation. Due to unfortunate and regrettable circumstances, the filing of the stipulation and counsel's advice that the federal question presented and decided on the merits by the Supreme Court of Missouri could appropriately be considered on the briefs filed in that court on petitioner's second direct appeal were not communicated to this Court; hence the delay in disposition of this case.

II

The files and records in this case show that the Honorable Floyd R. Gibson, while serving as District Judge, entered an order on August 30, 1965 directing that an evidentiary hearing be held in this case. After Judge Gibson's appointment to the Court of Appeals and our assignment to the Central Division, we appointed P. Pierre Dominique, Esquire, of Jefferson City, Missouri, a member of the Bar of this Court, to represent petititioner. An evidentiary hearing was conducted as directed by Judge Gibson's order.

It became apparent during that hearing that it was necessary for us only to reach the single federal question of whether petitioner had been denied his federally protected constitutional right to counsel on direct appeal, as those principles were enunciated in Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963).

Decision of that question required that we decide the question left open by the Court of Appeals in Bosler v. Swenson (8th Cir. 1966), 363 F.2d 154, affirmed in 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33 (1967), subsequent to our first opinion in this case, namely, whether Douglas, decided in 1963, was to be applied retrospectively to petitioner's 1960 conviction. We held that Douglas must be so applied and conditioned habeas corpus relief on the granting of a second direct appeal in the Supreme Court of Missouri.

During the course of our first opinion, however, we noted that "because the Supreme Court of Missouri may again hear petitioner's original appeal on the merits, we are required to make findings of fact in addition to those made in connection with the Douglas v. People of State of California point." On the basis of the evidence adduced in this Court we found that "petitioner was not represented by counsel at the time of his arraignment and plea of not guilty." We then stated that:

The significance of that factual finding can be understood only in the light of the questions that petitioner attempted to present to the Supreme Court of Missouri. Among other questions, petitioner presented to that court the federal constitutional question of whether a proper application of the principles of Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114; White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 * * *, had been abridged by reason of the fact that he had been arraigned without counsel. 258 F.Supp. at 333.

We noted that the Supreme Court of Missouri had refused to reach that question in either of its two earlier appellate considerations of petitioner's case because it had proceeded on what we found to be an "erroneous factual assumption that petitioner had been represented by counsel at his arraignment." We then stated that:

It is obvious that we believe the questions concerning the applicability of Hamilton v. State of Alabama and White v. State of Maryland are open for determination. Professor Hunvald's discussion of those cases and the Missouri cases in his article "The Right to Counsel at the Preliminary Hearing," 31 Mo.L.Rev. 109 (Winter, 1966), demonstrates that question is not a frivolous one.

* * * * * *

Our ruling in regard to Douglas and its retrospective applicability to this case, and our order affords the Supreme Court of Missouri, if requested by the Attorney General of Missouri, the opportunity of deciding the Hamilton v. State of Alabama and White v. State of Maryland questions under the facts as we have found them. The federal question of whether those cases or either of them should be applied retrospectively is also open for decision.

Neither our citation of Professor Hunvald's article, which raises some substantial questions in regard to several recent decisions of the Supreme Court of Missouri, nor anything else we have said in this section of our opinion is intended to indicate our view in regard to the questions here discussed that will be before the Supreme Court of Missouri.¹ 258 F. Supp. at 335.

Counsel appointed to represent petitioner in the Supreme Court of Missouri on his second direct appeal appropriately presented and argued the point that "the trial court plainly erred in proceeding with appellant's trial as appellant was not represented by counsel at his arraignment in violation of his right to the assistance of counsel as required by the Sixth Amendment to the Constitution of the United States and Article I, Section 18(a) of the Missouri Constitution V.A.M.S.."

The opening paragraph of his argument in the Supreme Court of Missouri stated:

Since the Supreme Court recognized that the Sixth Amendment guarantee of "Assistance of Counsel" in criminal prosecutions is applicable to the several states by virtue of the Fourteenth Amendment, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792 9 L.Ed. 2d 799 (1963), the required scope of counsels' functioning has dramatically expanded. The attendance of counsel is now required at every critical stage in the judicial process from custodial interrogation of a suspect, Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602 16 L.Ed.2d 694 (1966), through representation of a convicted defendant on appeal, Douglas v. State of California, 372 U.S. 353, 83 S.Ct. 814 9 L.Ed.2d 811 (1963).

Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050 (1963), and Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157 (1961), were relied upon, together with many Missouri cases including the recent Missouri case of State v. Scott (Mo.Sup.Ct. Div. 2, 1966), 404 S.W.2d 699, 702, which stated that "By both rule and statute Missouri has always recognized that arraignment is indeed `a critical stage' in a criminal proceeding requiring the appointment of counsel not only in homicide cases but upon arraignment for any `felony.' R.S.Mo. 1959, § 545.820, V.A.M.S.; Criminal Rule 29.01." Emphasis counsel's.

Petitioner's appointed counsel directed the Supreme Court of Missouri's attention to Section 545.820, V.A.M.S., and to Missouri Criminal Rule 29.01, V.A. M.R., both of which require the appointment of counsel, on request, for any person about to be arraigned who is unable to employ counsel. He argued that a defendant who pleads without counsel necessarily suffers disadvantages as compared to a defendant who pleads with counsel, directing attention to other sections of the Missouri statutes and to other earlier Missouri cases. The concluding paragraph of his argument to the Supreme Court of Missouri on the point argued:

The defendant's arraignment without counsel violated statutory requirements, Supreme Court rules, decisions of this Court, the mandate of the Sixth Amendment, and the provisions of Article I, section 18(a) of the Missouri Constitution. Justice Douglas wrote, "When one pleads to a capital charge without benefit of counsel, we do not stop to determine whether prejudice results." Williams v. Kaiser, 323 U.S. 471, 475-76, 65 S.Ct. 363, 366 89 L.Ed. 398 (1945) — an uncounseled plea followed by days without an attorney, culminating in a ninety-nine year sentence cannot be accorded lesser consideration.

The Supreme Court of Missouri concluded that petitioner's argument was not tenable.

III

The Supreme Court of Missouri, on its second direct appeal, stated that:

In Donnell v. Swenson, supra, the district judge stated (258 F.Supp. l. c. 333) that in the appeal on the motion to vacate Appellant had presented to this court the federal constitutional question of "whether a proper application of the principles of Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114; White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193, and Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, had been abridged by reason of the fact that he had been arraigned without counsel." The district judge found on the basis of evidence adduced that Appellant was not represented by counsel at the time of his arraignment and plea of not guilty, * * *. 430 S.W.2d at 299.

The Supreme Court of Missouri accepted "the admission by the State that Appellant did not have counsel at arraignment" and proceeded to decide the federal constitutional point on the merits. In so doing, it held that the Missouri statutes and its own rules of court should be read and applied as follows:

We have held that the absence of counsel during arraignment is not, per se, a violation of the Sixth Amendment. See State v. Benison, Mo., 415 S.W.2d 773, 775, where we stated:

At

...