Franklin v. State

• Decision Date: 25 October 1971
• Docket Number: No. 5625,5625
• Citation: Franklin v. State, 471 S.W.2d 760, 251 Ark. 223 (Ark. 1971)
• Parties: Elmer Eugene FRANKLIN and Loyd Allen Reid, Appellants, v. STATE of Arkansas, Appellee. *
• Court: Arkansas Supreme Court

Page 760

471 S.W.2d 760

251 Ark. 223

Elmer Eugene FRANKLIN and Loyd Allen Reid, Appellants, v. STATE of Arkansas, Appellee. ^*

No. 5625.

Supreme Court of Arkansas.

Oct. 25, 1971.

Leonard C. Smead and Julian D. Streett, Camden, for appellants.

Ray Thornton, Atty. Gen., Gene O'Daniel, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

Appellants filed their petition for postconviction relief from the maximum sentence for burglary of the Bank of Chidester imposed by a jury on September 11, 1969. The only ground that merits any real consideration is their contention that they were deprived of the effective assistance of counsel in violation of their constitutional rights under the Sixth and Fourteenth Amendments to the United States Constitution. They alleged that during the trial William I. Purifoy, their employed counsel, was intoxicated, that he had a wine bottle in his back pocket in full view in the courtroom, and that he left the courtroom three times during the course of the trial.

The record discloses that direct evidence against appellants on the charge was overwhelming. It also discloses that the prosecuting attorney would not agree to imposition of any sentence less than the maximum. It appears obvious to us that the real purpose of the trial was to determine the punishment to be imposed and that appellants hoped to escape the maximum punishment.

There was testimony by jurors at the hearing on appellants' petition that clearly indicated that appellants' attorney was intoxicated and had a bottle in his pocket. Several of them observed his condition and stated that the lawyer was somewhat incoherent, and his hair and clothing disheveled, was unexplainedly absent from the courtroom on several occasions while the trial was in progress, and that he often could not be either heard or understood when he talked. The jury foreman described his conduct as highly irregular for a courtroom. Another juror said that he actually considered getting up and leaving the courtroom, because he did not feel that a jury should be required to sit on a case where the defendants' attorney appeared, because of intoxication, to be in no state of mind to be handling a case in court. The jurors differed as to the effect on them of this attorney's conduct, but at least some of them indicated that their verdict, either as to guilt or sentence, or both, was influenced by it.

A trooper of the Arkansas State Police to whom the attorney offered a drink from a bottle of wine during a recess before taking one himself observed the attorney during the trial. His conduct in the courtroom led the officer to the opinion that this lawyer was under the influence of intoxicants to a certain degree, but not as drunk as the officer had seen him on the streets on other occasions. The prosecuting attorney also testified that he thought that the jury might have been persuaded to give a little less sentence by a 'good lawyer,' adding that he had seen this attorney perform as a much better criminal lawyer than he was at this trial.

During a recess in the trial, one Bill Horton, a relative of one of the appellants, approached the circuit judge questioning whether appellants were getting a fair trial and calling the judge's attention to the fact that their lawyer was drinking and had a one-half pint bottle of wine in his pocket. The prosecuting attorney, either at this recess or another, reported to the judge that appellants' attorney had a bottle in his hip pocket. This official testified that the attorney was under the influence of alcohol, that he left the courtroom on a few occasions, and that Horton's conference with the judge was arranged by this witness after Horton had interceded with him in an effort to have a mistrial declared.

According to the judge, he then observed appellants' attorney and his demeanor more closely during the remainder of the trial. At the conclusion of the state's evidence, appellants' attorney announced that they also rested. The circuit judge then held a hearing in the absence of the jury, and, apparently, without the presence of appellants' attorney. After advising appellants that the fairness of their trial had been questioned on the basis of their attorney's condition, he reminded them that, when arraigned some months earlier, they were informed of their right to jury trial, to remain silent and to be represented by counsel, who would be appointed by the court, if they were indigent. He also called to their attention that the court had appointed one of the attorneys by whom they are presently represented, but that they had declined his services and employed the attorney who appeared at the trial. The judge then interrogated each of appellants as to whether he felt that he was properly and adequately represented in court on that day. When each replied in the affirmative, the judge remarked that there was nothing that he could do, that the matter was brought to their attention in accordance with the dictates of good justice to both them and the state, but if they were satisfied with their attorney's services, he had nothing more to say. The prosecuting attorney testified that he had advised the judge that the state would not object to either the declaration of a mistrial or proceeding with the trial. He also said that he thought the court had no choice in the matter if the appellants elected to proceed with their attorney.

After the extensive hearing on the post-conviction motion, the circuit judge found that the evidence was clear that appellants' employed counsel appeared at the trial in a shabby condition and under the influence of intoxicants to some degree, to the disgrace of his profession and bar and to the degradation of our system of justice. The judge again concluded that, in view of the expressions of satisfaction by appellants there was nothing more that he could have done.

There can no longer be any doubt that Amendment 6 to the United States Constitution requires that a defendant in a state trial have the effective assistance of counsel. See Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733 (1963); Mitchell v. Stephens, 353 F.2d 129 (8th Cir. 1965), cert. denied, 384 U.S. 1019, 86 S.Ct. 1966, 16 L.Ed.2d 1042 (1966). See also, Reece v. State, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77 (1955). Effectiveness of counsel is not to be measured by the success reflected in the results of the trial. Mitchell v. Stephens, supra; Peyton v. Ellyson, 207 Va. 423, 150 S.E.2d 104 (1966). As pointed out in Mitchell, retrospective evaluation of effectiveness of counsel is usually difficult for an appellate court, because so much depends upon judgment and the factors which influence judgment at the moment.

Normally, the state is absolved of any responsibility to see that a defendant's counsel is competent and effective after appearance of privately retained non-appointed counsel. United States v. Maroney, 423 F.2d 865 (3rd Cir. 1970); Lunce v. Overlade, 244 F.2d 108, 74 A.L.R.2d 1384 (7th Cir. 1957); United States ex rel. Darcy v. Handy, 203 F.2d 407 (3rd Cir. 1953), cert. denied, 338 U.S. 862, 70 S.Ct. 96, 94 L.Ed. 528 (1949), 342 U.S. 837, 72 S.Ct. 61, 96 L.Ed. 632 (1951), 346 U.S. 865, 74 S.Ct. 103, 98 L.Ed. 375 (1953), aff'd, 351 U.S. 454, 76 S.Ct. 965, 100 L.Ed. 1331 (1956); United States v. Ragen, 166 F.2d 976 (7th Cir. 1948). Yet, when the professional conduct of non-appointed counsel is so lacking in competence or good faith that it shocks the conscience of the court or prosecutors, and the trial is reduced to a sham, farce or mockery of justice, permitting the proceedings to continue will constitute a denial of due process. United States v. Maroney, supra; Wilson v. Phend, 417 F.2d 1197 (7th Cir. 1969); United States v. Ragan, supra. See also, Cardarella v. United States, 375 F.2d 222 (8th Cir. 1967); Cross v. United States, 392 F.2d 360 (8th Cir. 1968); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967); Peyton v. Ellyson, supra. ¹ It then becomes the duty of the state to intervene to see that the essential rights of the accused are preserved. Lunce v. Overlade, supra; State v. Keller, 57 N.D. 645, 223 N.W. 698, 64 A.L.R. 434 (1929); United States v. Handy, supra. It has been said that the constitutional right to counsel invokes the protection of the trial court. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

In this case, evaluation of the effectiveness of appellants' trial counsel presents no difficulty. The record is clear that both the judge and the prosecutor were shocked by this attorney's condition. The postconviction finding by the circuit judge, who was also the trial judge, that this attorney was in such condition that he was a disgrace to the legal profession and degrading to our system of justice is tantamount to a finding that he was so incompetent, on that occasion, that the trial was reduced to a mockery of justice. The judge, after strict surveillance of the lawyer's demeanor, felt compelled to take some action, before submitting the case to the jury. Appellants are clearly entitled to relief if their acquiescence in continuing the trial did not constitute a waiver of their right to effective assistance of their counsel.

It is to be remembered that at this point the instructions to be given the jury had not been settled, and arguments of counsel would soon being. Obviously, there was a serious question in the minds of both the prosecuting attorney and the judge as to the fairness of the trial up to this point. After the showing made on behalf of appellants in the present proceeding, the burden rested upon the state to show that there was a knowing, intelligent waiver by appellants, based upon adequate warning as to their rights. Jackson v. State, 249 Ark. ---, 460 S.W.2d 319 (December 14, 1970). The determination whether...