Fryar v. United States
| Decision Date | 26 December 1968 |
| Docket Number | 10122.,No. 10120,10120 |
| Citation | 404 F.2d 1071 |
| Parties | Gary Wendell FRYAR, Appellant, v. UNITED STATES of America, Appellee. Kerma Sue Walters FRYAR, Appellant, v. UNITED STATES of America, Appellee. William Paul FORD, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Donald K. Bain, Denver, Colo., for appellant, Gary Wendell Fryar.
Michael V. Makaroff, Denver, Colo., for appellant, Kerma Sue Walters Fryar.
Andrew Wilcoxen, of Wilcoxen, Gephart, Lunn & Mayes, Muskogee, Okl., for appellant, William Paul Ford.
William J. Settle, Asst. U. S. Atty. (Bruce Green, U. S. Atty., was on the brief), for appellee.
Before PICKETT, LEWIS and HICKEY, Circuit Judges.
Appellants were jointly tried and severally found guilty upon each count of a two-count indictment charging a conspiracy to rob and the substantive offense of robbing a federally insured bank at Vian, Oklahoma. 18 U.S.C. § 371; 18 U.S.C. § 2113(d). Each has taken a separate appeal, appellants Ford and Kerma Fryar individually contending the evidence to be insufficient to support conviction and the appellants Kerma Fryar and Gary Fryar contending that they were denied the effective assistance of counsel in violation of 18 U.S.C. § 3006A (b)1 and the sixth amendment. The latter contention is premised on the fact that a single attorney was appointed to jointly represent the Fryars who are husband and wife. Appellant Ford was represented by separate counsel.
The evidence is clearly sufficient to support conviction. Eyewitnesses identified Ford, along with Mr. Fryar, as a participant in the actual armed robbery of the bank and other witnesses identified Mrs. Fryar as the driver of a switch getaway car. And a literal mass of other direct and circumstantial evidence points convincingly to the judgment of guilt and guilty association. Appellants' contentions in this aspect of the case are completely without merit.
The claim that the appellants Fryar were denied the effective assistance of counsel because they were jointly represented is made for the first time in this court. The record does not contain a report of proceedings at which counsel was appointed and we can premise our consideration only on the trial record and the bare fact that these appellants did not have separate counsel.
It has been clear since Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680, that the sixth amendment is not violated by joint representation of codefendants unless a conflict of interest or prejudice results from such procedure. 18 U.S.C. § 3006A(b) codifies the duty of the trial court to appoint separate counsel when a conflict or other good cause appears but provides no guidelines for such a pre-trial determination. Other circuits in considering appropriate pre-trial procedures have reached varying conclusions. The Second Circuit in United States v. Paz-Sierra, 367 F.2d 930, cert. denied, 386 U.S. 935, 87 S.Ct. 962, 17 L.Ed.2d 807, noting the practical difficulty for a trial judge to determine the existence of a conflict of interest between codefendants without encroaching upon the fifth amendment, would place a heavy burden upon members of the Bar to decline representation upon their self-determination of potential conflict. The District of Columbia Circuit indicates that the trial judge should make an affirmative determination that the codefendants have intelligently and knowingly made a decision to be represented by a single attorney. Campbell v. United States, 122 U.S.App. D.C. 143, 352 F.2d 359. We suggest that in indigent cases cautious practice would frequently indicate the appointment of separate counsel and certainly in conspiracy cases where the very nature of the charge suggests the desirability of disassociation. The ability to predict a lack of conflict or prejudice from joint representation, as 18 U.S.C. § 3006A(b) presupposes to exist with commissioner and court, seems to us to be a rather shaky premise when constitutional rights may be involved. Nor can able counsel anticipate with complete accuracy the course that a criminal trial may take.
Although we have indicated the desirability of appointing separate counsel for indigent codefendants, failure so to do is not inherent error. Joint...
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