Hayes v. United States

Decision Date21 November 1961
Docket NumberNo. 16733.,16733.
Citation296 F.2d 657
CourtU.S. Court of Appeals — Eighth Circuit
PartiesHiller Arthur HAYES, Appellant, v. UNITED STATES of America, Appellee.

Stanely M. Rosenblum, St. Louis Mo., for appellant.

John A. Newton, Asst. U. S. Atty., St. Louis, Mo., for appellee, D. Jeff Lance, U. S. Atty., and John A. Newton, Asst. U. S. Atty., St. Louis, Mo., on the brief.

Before SANBORN, MATTHES and RIDGE, Circuit Judges.

SANBORN, Circuit Judge.

This is an appeal in forma pauperis from a judgment of conviction and a sentence of imprisonment for a period of 99 years, based upon the verdict of a jury finding Hiller Arthur Hayes guilty of three violations of the Federal Kidnaping Act, 18 U.S.C. § 1201,1 as charged in a three-count indictment in which Hayes and Vivian Darlene McCracken were defendants.

The indictment was returned on June 20, 1960. The first count read as follows:

"The Grand Jury charges:
"That on or about the 5th day of June, 1960, Hiller Arthur Hayes and Vivian Darlene McCracken, the defendants, did knowingly transport and willfully cause to be transported, by automobile, in interstate commerce a person who had been unlawfully seized, confined, inveigled, decoyed, kidnaped, abducted, carried away and by defendants held, to wit, one Harry Robert Wilde, Jr., who was by said defendants transported from St. Louis County, in the State of Missouri, within the Eastern Division of the Eastern District of Missouri, to Monroe County, in the State of Illinois.
"In violation of Section 1201, Title 18, United States Code."

The second and third counts were in identical language, except as to the names of the persons charged to have been kidnaped and unlawfully transported. Marie Schnelting was the victim named in the second count, and Robert Portell the victim designated in the third count.

The defendants first came before the District Court on June 27, 1960. The defendant McCracken was represented by counsel. The following colloquy took place between the court and Hayes:

"The Court: Have you any counsel?
"Defendant Hayes: I do not.
"The Court: Do you desire to be represented by a lawyer?
"Defendant Hayes: I would like to have the Court\'s permission to defend myself.
"The Court: Are you a lawyer?
"Defendant Hayes: No. sir. I would rather try it for myself. I realize I have to have presence of counsel.
"Mr. Robyn counsel for the Government: He said he realized he will have presence of a counsel.
"The Court: Well, you can defend yourself if you want to. I have seen a lot of people do it. They have appeared silly and foolish to do it.
"Defendant Hayes: Let\'s say I am silly.
"The Court: Do you want to represent yourself?
"Defendant Hayes: Yes sir, I do.
"The Court: You understand if you desire a lawyer, and have no money to employ one the Court will appoint one.
"Defendant Hayes: I understand that. I still prefer to defend myself.
"The Court: Very well. Are you ready to enter a plea this morning?
"Defendant Hayes: No, I am not.
* * * * * *
"The Court: Arraignment will be deferred to July 8th; arraignment will be passed to July 8th."

The defendants were arraigned on July 8, 1960. Counsel who had previously appeared for the defendant McCracken also then appeared for Hayes. A plea of not guilty was entered by each defendant as to each count of the indictment. In a discussion with respect to the amount of bail which had been set, counsel for the Government stated to the court, in the presence of the defendants, that the case was not a "death penalty case," since the victims had been released unharmed. The case was set by the court for trial on September 26, 1960.

On September 12, 1960, Mr. Robyn, counsel for the Government, Mr. Bornschein, one of the attorneys for McCracken, and Hayes in person appeared before the trial judge in his chambers. There the following proceedings took place:

"Mr. Robyn: Your Honor, defendant Hiller Hayes, who is present here, originally in this Court when he was first brought in indicated he wished to represent himself. There is another defendant McCracken, who at that time indicated she was represented by the firm of Shaw, Hanks and Bornschein. Mr. Hanks was here at that time and entered his appearance as attorney for Mrs. McCracken.
"Your Honor, at a subsequent hearing I thought the firm of Charles M. Shaw indicated they represented Hiller Hayes.
"The Court: I believe I heard that.
"Mr. Robyn: Now, it is my understanding that Mr. Shaw\'s firm does not represent Hayes, and I thought since this trial is set for two weeks from today we had better get the record clear as to just who is, if anyone, does represent Hiller Hayes.
"The Court: Have you got a lawyer?
"Defendant Hayes: No, I don\'t.
"The Court: Have you employed one at any time in connection with this case?
"Defendant Hayes: No.
"The Court: You have not?
"Defendant Hayes: No.
"The Court: Has the Court at any time appointed a lawyer for you?
"Defendant Hayes: No, I asked your permission to defend myself.
"The Court: What comment did I make on that?
"Defendant Hayes: Pardon?
"The Court: What comment did I make?
"Defendant Hayes: You said you thought I was foolish, which you are not alone, so I still wish to defend myself. This Mr. Shaw is not going to defend me.
"The Court: What is your position in this? Do you want a lawyer?
"Defendant Hayes: No, I don\'t wish to have a lawyer. I would rather defend myself.
"The Court: You would?
"Defendant Hayes: Yes, sir.
"The Court: I think you have a right to do that if you want to. I wouldn\'t care to appoint a lawyer for you if you don\'t want one, but I will appoint one and you can confer with him on how to handle it. Have you had any experience? Have you ever tried a case in your life?
"Defendant Hayes: Pardon?
"The Court: Have you ever tried a case in court?
"Defendant Hayes: No, but due to the fact I am standing trial for my life, I believe, as I get it, I have a right to take it for myself.
"The Court: There is some merit in that suggestion. Have you ever been a defendant in any criminal trial? Or been tried?
"Defendant Hayes: Several times, yes.
"The Court: Have you ever been convicted?
"Defendant Hayes: Yes.
"The Court: Did you defend yourself on those occasions?
"Defendant Hayes: No, I didn\'t.
"The Court: Did you have a lawyer to defend you?
"Defendant Hayes: Yes.
"The Court: You would now like to see how you would handle it yourself?
"Defendant Hayes: Yes.
"The Court: I am pretty much inclined to go along with you.
"Defendant Hayes: I can\'t do no worse than they did.
"The Court: From what I have seen around here one time and another maybe you\'re right. How many convictions have you had?
"Defendant Hayes: Four.
"The Court: I will appoint Mr. William G. Pettus as amicus curiae to represent the Court and sit in at all hearings on this matter.
"(Thereupon Judge Moore made a telephone call and talked with someone at the other end of the telephone.)
"The Court: This is a very able man I have just appointed. He is my representative, the friend of the Court. If you want to ask him anything, he will be very glad to advise you. He is not in active practice in the last few months, he is withdrawing from practice. He is available and has nothing to interfere. He is practically retired. If you want to know anything, I am sure he will be glad to give you any advice in the matter.
"Is there anything else at this time?
"Mr. Robyn: I think not."

Charles M. Shaw, Claude Hanks and L. L. Bornschein, who had previously entered their appearance as counsel for Vivian McCracken, and had appeared for both defendants upon their arraignment, were, by leave of court, permitted to withdraw as counsel for Hayes.

The trial court on September 21, 1960, ordered the Clerk to furnish Hayes, Vivian McCracken, her counsel and Mr. Pettus a list of the entire panel of veniremen and their respective places of abode; this in conformity with 18 U.S.C. § 3432, and, no doubt, in deference to the ruling of the Supreme Court in Smith v. United States, 360 U.S. 1, 8, 79 S.Ct. 991, 996, 3 L.Ed.2d 1041, holding that a violation of the Federal Kidnaping Act "may be punished by death."

The trial of the case commenced on September 26, 1960. Before the selection of a jury, the following proceedings took place in open court, out of the hearing of the jury panel:

"The Court: I want the record to show that the defendant, Hiller Hayes, stated that he did not have and did not desire counsel. The Court carefully explained to him on his arraignment the other day, the Court carefully explained to him that he had the right to have the advice of counsel and Hayes stated that he did not desire counsel, desired to represent himself. The Court told him if he desired counsel and had no money to pay him, the Court would appoint counsel for him. He waived the advice of counsel. The Court then told him he would not try to force counsel upon him, but that he would appoint an amicus curiae, and that if Hayes at any time during the trial desired to consult the amicus curiae in regard to any legal question that might arise, the said amicus curiae would advise him to the best of his ability, and the Court thereupon appointed Mr. William G. Pettus, an experienced and able counsel, who has been a member of the bar of this court for about twenty years, as amicus curiae.
"Mr. Pettus: If Your Honor please, could the reporter read that so that Mr. Hayes will hear it.
"The Court: (Addressing defendant Hayes) I have just made a statement. You were out of the hearing, and I want the Reporter to read to you the statement that I have just made that is going into the record. So if you have any objection to it, now is the time to advise the Court.
"(Statement by the Court, referred to, read by the Reporter.)
"The Court: You understand that?
"Defendant Hayes: Yes.
"Mr. Pettus: I would like the record to be clear, I will speak only when spoken to. It is up to you to call on me.
"The Court: (Addressing defendant Hayes) If you desire his

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