Hannon v. State

• Decision Date: 12 September 1972
• Docket Number: 1 Div. 179
• Citation: 48 Ala.App. 613,266 So.2d 825
• Parties: Michael HANNON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 825

266 So.2d 825

48 Ala.App. 613

Michael HANNON v. STATE.

1 Div. 179.

Court of Criminal Appeals of Alabama.

Sept. 12, 1972.

John L. Lawler, Mobile, for appellant.

William J. Baxley, Atty. Gen., and Sarah V. Maddox, Asst. Atty. Gen., for the State.

HARRIS, Judge.

Appellant was convicted in the Circuit Court of Mobile County for robbery and the jury fixed his punishment at ten years in the penitentiary. Before arraignment, it was ascertained that the defendant was without means to employ counsel, and the court appointed C. Wayne Loudermilch, Robert M. Harper and Charles R. Butler, Jr., all licensed attorneys of Mobile and members of the Public Defender's Office, to represent and defend him. Mr. Harper alone defended Hannon on the first trial that resulted in a mistrial because the jury failed to reach a verdict. On the second trial, giving rise to this appeal, Hannon was represented by Mr. John L. Lawler, who is also a member of the Public Defender's staff.

At the call of this case, Mr. Lawler made an oral motion to dismiss the charges against Hannon for the reason that Honorable Charles R. (Randy) Butler, Jr., the present District Attorney for Mobile County, was, prior to his election to that office, associated with the Public Defender's Office and, as above noted, was originally assigned with two other public defenders to represent appellant. He contended that to allow the prosecution to continue would amount to a denial of a fair and impartial trial and would constitute a breach of the attorney-client relationship all to the irretrievable detriment of the defendant. An alternative motion was made seeking a change of venue on the ground that appellant could not get a fair trial in Mobile County because his former attorney was now cast in the role of prosecutor even though another member of the District Attorney's staff would actually conduct the prosecution.

A full blown hearing was had and testimony taken. It developed that Mr. Butler did interview Hannon in jail and subsequently filed a motion in his behalf to produce certain items in connection with the case. This was prior to the first trial and Mr. Butler had no further contact or communications with Hannon. Out of an abundance of precaution and to scrupulously protect the rights of appellant and to allay any implications of impropriety, the trial judge sent for Mr. Butler to come to his courtroom and give testimony as to his relations with the defendant. Mr. Butler testified that he had no independent recollection about the case, but stated that Hannon's face was familiar and he felt certain that he had interviewed him at one time and this probably took place in the county jail. He requested permission to look at the court file to refresh his recollection and there found a motion bearing his signature. He also recognized the name of the victim of the robbery--Pearlie Rone. Other than this, he could not recall anything else about the case. He forthrightly testified that he had not discussed this case with his assistant in charge of the prosecution and further that he had not mentioned this case or any other case to the personnel of his office that came to or passed through the Public Defender's Office during the nearly two years that he was connected with that office. The record reflects the following:

'THE COURT: Mr. Butler, have you used the record that you formerly had access to as the Public Defender in any way in prosecuting this case today that . . .

'A. No, sir, when I left the Defender Office, I did not bring any records of any files of that office, other than legal memorandum and so forth that I had prepared on research problems and so forth.

'THE COURT: Just legal matters, . . .

'A. Right.

'THE COURT: . . . nothing more?

'A. No factual matters at all.

'THE COURT: Have you turned over any information whatsoever to the prosecutor that's been assigned to this case, that you've ascertained when you were in the Public Defender's Office?

'A. No, sir.

'THE COURT: Have you given any oral advice or any oral consultation to the assistant district attorney that's appointed for this case, to prosecute this case from information you received as a Public Defender?

'A. No, sir, Judge.

'THE COURT: And you did not assist Mr. Harper in defending the case?

'A. Judge, that--if somebody could tell me that they saw me sitting there in the courtroom, I couldn't deny it because I don't remember. But my recollection was that Mr. Harper told myself and the Public Defender, Mr. Loudermilch that he was surprised that there was a hung jury and in a sense I can remember from the defense standpoint, we considered it a victory.

'THE COURT: And to your knowledge you've never turned over at any time any information you've ascertained from this Defendant when you were talking to him before and when you were employed by the Public Defender's Office?

'A. No, sir.'

He further stated that he does not assign the cases to his assistants for trial as he had turned over to his chief assistant the administrative duty of assigning cases for prosecution. He did not know that Hannon's case was on trial until he came into the courtroom. He did recall discussing the mistrial with Mr. Harper, who was trying to figure why the jury could not reach a verdict. During cross-examination, Mr. Butler was asked if he recalled that the complaining witness called Captain Riddle two days after making an identification in a lineup and asked him did she get the right person. Mr. Butler's answer was:

'A. Right, I remember that specifically. I didn't know it was this case but that's what we're talking about on the mistrial. On cross-examination she testified, now I remember, that she had called Captain Riddle or someone two days later and said 'did I pick out the right person?' And it went to the jury and Mr. Harper told me that he felt that's the reason the jury didn't convict. Now I remember I did not try that case.'

In further support of his motion, appellant contended that to permit this prosecution to continue would have a baneful influence on the witnesses against him. It would make it easy for them to testify as to the identity of Hannon--if they had the slightest doubt as to his identity, then that doubt has been completely dispelled by the fact that his former attorney is now in charge of the prosecution so there can be no question that the right man is on trial, for otherwise the charges would be dismissed.

In an attempt to buttress his motion, appellant called the alleged victim of this robbery, who was in the courtroom during the testimony of Mr. Butler, and asked her questions about a lineup.

'Q. And after that occurred, (robbery) you came down to the Police Station, didn't you, at the request of some officer?

'A. Yes, sir.

'Q. All right, and when you got down there you viewed some men in a lineup?

'A. The third time I came I did.

'Q. All right, well at that time did you pick out someone as someone who had robbed you?

'A. Yes, the boy right there (indicating the Defendant).

'Q. And did you tell them at that time that that was the boy?

'A. I did.

'Q. And then did you two days later call Captain Riddle and ask him had you gotten the right person?

'A. I don't remember anything about that.

'Q. You don't remember doing that?

'A. I sure don't.

'Q. You don't recall testifying to that in the previous trial?

'A. I remember somebody saying something about it, but I told them that I didn't remember saying that.

'Q. All right, well you recall Captain Riddle testifying that perhaps you said that, is that right?

'A. I don't remember telling him either.

'Q. Let me ask you this Mrs. Rone and I want you to think about it very carefully after I ask you, I'm not trying to trick you, I'm just trying to do my job, but having listened to this proceeding this morning and knowing that Mr. Butler is District Attorney in this county now and that he at one time was this man's lawyer and knowing that his office plans to prosecute this man and has no independent desire to dismiss the charges, with that information in mind, knowing that that's his position and he at one time was this man's lawyer, does it make it a little bit easier for you to say who it was?

'A. Well I know it is because I looked at him.

'Q. I didn't ask you that though. Could you answer my question?

'A. Would that make it any easier, but its been easy all the time because I knew.

'Q. That didn't help you in any way?

'A. It didn't help me a bit.

Appellant also called Captain Donald Riddle, the detective who Mrs. Rone is alleged to have called two days after she viewed the third lineup, and he testified that she did call and ask if she had picked out the right man.

On cross-examination of Captain Riddle, the following occurred:

'Q. . . . when she called you do you have any independent recollection what she said to you?

'A. Well she asked me if she had identified the right man.

'Q. And what did you say Captain Riddle?

'A. And I said 'well just a minute now, whom did you identify, are you certain you know who you identified?' She said 'Oh, yes'. She said 'I remember clearly, I identified the No. 3 man'.

'Q. Number 3 man?

'A. Number 3 man. I said 'you're certain of this' and she said 'Yes. I'm certain of it, I'm positive of it'.

'MR. GRADDICK: All right, but she did state during the lineup, I think you just testified to, that that was the man who robbed her, Number 3.

'A. Yes, sir.

'Q. And she just happened to call back two days later and ask if that was the right man?

'A. Yes, sir.

'Q. And you asked her at that time did she know who she identified, 'Yes, No. 3', is that correct?

'A. I asked her if she was absolutely certain and made her recall of course by number and she come back yes, sir, she was positive it was the No. 3 man.'

In denying the motion, the Court said:

'All right, the Court concludes that the Defendant's rights have not been violated by the fact that Mr. Randy Butler was formerly with the Public Defender's staff and...