Harris v. State

• Decision Date: 31 October 1978
• Docket Number: 6 Div. 819
• Parties: Johnny HARRIS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 524

367 So.2d 524

Johnny HARRIS v. STATE.

6 Div. 819.

Court of Criminal Appeals of Alabama.

Oct. 31, 1978.

Petition for Additional Facts Denied and Application for Rehearing Denied Nov.

21, 1978.

William H. Allison, Jr., and Eleanore M. Garber of Allison, Soreff & Garber, Louisville, Ky., W. Clinton Brown, Jr. of Crawford, Blacksher, Figures & Brown, H. Diana Hicks, Mobile, Anthony Amsterdam, Stanford, Cal., Jack Greenberg, James Nabrit, III, David Kendall, Peggy Davis, New York City, for appellant.

William J. Baxley, Atty. Gen., and J. Bernard Brannan, Jr., Mary Jane LeCroy, Larry R. Newman, Asst. Attys. Gen., for the State.

TYSON, Judge.

The appellant was indicted at the October, 1970, Term of the Jefferson County Grand Jury on four charges of robbery and one charge of rape. When the case was called for trial, on April 5, 1971, the appellant was present in court with his two court-appointed attorneys, the Honorable Milton Garrett and the Honorable Louis Scholl, who each announced, "Ready for Trial." Trial was set for the following day on the rape case, which had been assigned by the court to Attorney Louis Scholl. Immediately after the jury had been qualified for trial, the defense requested, and was granted, additional time to confer with the appellant. Subsequent to the conference with his attorneys, the appellant executed an Ireland form (Court's Exhibit A, R. pp. 726, 778, 869, 914), i. e., an explanation of appellant's constitutional rights, in each case. Thereafter, the appellant entered pleas of guilty in each case and was sentenced to five consecutive life sentences. No appeal was taken from these above convictions.

In May, 1973, the trial judge dismissed the appellant's Pro se petition for a writ of error coram nobis. While serving his sentences, the appellant, in 1975, was charged with, and convicted of, murder in the first degree under Title 14, Section 319, Code of Alabama 1940. Punishment was fixed by the jury at death by electrocution. This cause was affirmed by this court in Harris v. State, Ala.Cr.App., 352 So.2d 460 (1977), and affirmed by the Alabama Supreme Court at 352 So.2d 479, which set the execution date for March 10, 1978.

On February 17, 1978, the trial judge denied the appellant's motion for stay of execution, which was filed contemporaneously with a petition for writ of error coram nobis in each of the five cases wherein life sentences were given.

On March 7, 1978, in the United States District Court for the Southern District of Alabama, the appellant was granted a stay of execution for a period of sixty days. On March 21, 1978, the appellant, through his volunteer counsel, amended his petition for writ of error coram nobis. A hearing on the appellant's petition was set for March 31, 1978, and subsequently continued until April 6, 1978. On that date, the appellant was represented in court by his volunteer counsel whose zealous and competent representation in this cause has been exemplary. At the conclusion of the hearing on the petition, the trial judge took the matter under consideration until April 19, 1978, when he rendered a written decree denying the petition (R. pp. 764, 810, 855, 900, 945). From the denial of his petition for writ of error coram nobis, appellant prosecutes this appeal.

I

Appellant asserts that his right to effective assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution was denied him during the course of the handling of the cases which culminated in his receiving five consecutive life sentences on April 6, 1971. Appellant enumerates in brief specific instances of allegedly ineffective assistance of counsel. Discussion herein of the issues raised by the allegations shall be limited to the question of whether the testimony presented at the coram nobis hearing was sufficient, as a matter of law, to entitle the appellant to a new trial.

The bench notes (Exhibits 2-6) indicate that appellant's preliminary hearing was set for September 11, 1970, on four charges of robbery and one charge of rape (R. p. 65). Attorney John Prince was appointed to represent the appellant at this stage of the proceedings. Attorney Prince testified that he made an agreement with the District Attorney to the effect that the District Attorney would open his files to the defense if the defense agreed to waive the preliminary hearing (R. pp. 105, 106).

Attorney Prince testified that appellant agreed to waive the preliminary hearing (R. p. 106). Appellant testified that he did not agree to waive the preliminary hearing (R. p. 653). Appellant argues that waiver of the preliminary hearing illustrates the ineffectiveness of appellant's counsel. Clearly, the conflict in the testimony presented a question of fact. It is not within the province of this Court to pass judgment on the truthfulness or falsity of conflicting evidence. May v. State, Ala.Cr.App., 335 So.2d 242 (1976); Snipes v. State, 50 Ala.App. 139, 277 So.2d 413 (1973).

Appellant asserts that his attorneys' failure to conduct adequate pretrial investigation is another instance illustrating his denial of the right to effective assistance of counsel. It appears from examination of Attorney Garrett's file that the bulk of his investigative effort related to the rape charge. The fact that the rape charge was to be tried first probably explains the emphasis that Attorney Garrett placed on that case. The record reveals that Attorney Garrett was appointed to defend the appellant on two robbery charges. The victim of one of the alleged robberies was also the victim in the rape case that Attorney Scholl was appointed to defend. For this reason, it is difficult to separate Attorney Garrett's investigative work on the robbery charge from his work on the rape charge. The testimony of both Attorney Garrett and Attorney Scholl indicates that they came to an understanding concerning their work on the appellant's cases (R. pp. 505, 220). Accordingly, Attorney Garrett was to handle the investigative work and Attorney Scholl was to conduct research into matters dealing with the trial itself.

Appellant makes much of the assertion that the attorneys' division of labor on the five cases was unauthorized in light of their specific appointment by the judge to individual cases. Implicit in the argument is the assumption that authorization was required for such an arrangement between the attorneys. The fallacy of the appellant's argument is that, if it was the appellant's attorneys' best judgment that a more effective and adequate defense could be given the appellant by avoiding inefficient, uncoordinated investigation and research, then to require court authorization for such an arrangement would remove a vital part of the flexibility requisite to effective, adequate representation of a defendant at trial, and to an attorney's preparation for trial. Such authorization, if required by court decree, would necessarily entail the inefficient management of an attorney's time, contrary to the client's best interest.

Appellant asserts that another element of his attorneys' ineffective representation of him was their failure to make any pretrial motions or to enter any special pleas. Appellant presented expert testimony to the effect that, under certain circumstances, pretrial motions could be crucial to the outcome of a criminal case, especially one involving arrest, search and seizure, and preindictment lineups. But none of appellant's experts could be unequivocal when asked whether it was outside the range of competence demanded of attorneys in criminal cases not to file pretrial motions. Furthermore, the testimony of Judge Gibson (R. p. 701) indicates that the practice in the Circuit Court of the Tenth Judicial Circuit at the time of appellant's trial was to deal with pretrial motions at the trial on voir dire with the jury excused from the courtroom. The failure to file pretrial motions would seem, therefore, to be in conformance with the general practice locally rather than in violation of the attorneys' constitutional duties.

Appellant asserts that the failure of his appointed counsel to subpoena the medical report on the rape victim is further support for his contention that he was denied the right to effective assistance of counsel. The testimony of the appellant and both attorneys indicates that the defense to be used against the rape charge was alibi. It is a fundamental proposition that the defense of alibi does not involve a denial that the offense in question occurred. Rather, the defense asserts that the defendant was not involved with the occurrence of the offense because of his alibi which he seeks to establish through his own and others' testimony. It would seem, therefore, not unreasonable to conclude from the testimony presented that it was the appellant's attorneys' best judgment that the medical report on the rape victim was not probative of the appellant's innocence since the defense agreed to was alibi, and the medical report did not tend to establish an alibi or lend support thereto. Appellant replies that the medical report might have made the defense of consent a viable option. However, since the appellant himself asserted to his attorneys that he did not commit the offense, there would seem to be a fundamental inconsistency in the pursuit of consent as a defense under these circumstances.

Appellant asserts that failure to subpoena witnesses to appear to testify at appellant's trial is another instance which illustrates that he was denied the right to effective assistance of counsel. This conclusion is not warranted from the testimony presented in that it was the appellant's two attorneys' best judgment that the appellant's alibi witnesses were certain to be in court on the day of trial, thus rendering a subpoena unnecessary to assure their presence. Also, such subpoenas would necessarily reveal the witnesses' identity to the State. Furthermore, the testimony is in conflict...