Jacques v. State

• Decision Date: 05 May 1981
• Docket Number: 4 Div. 837
• Citation: 409 So.2d 876
• Parties: Henry T. JACQUES v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 876

409 So.2d 876

Henry T. JACQUES v. STATE.

4 Div. 837.

Court of Criminal Appeals of Alabama.

May 5, 1981.

Rehearing Denied June 23, 1981.

Jerry E. Stokes, Andalusia, for appellant .

Charles A. Graddick, Atty. Gen. and J. Michael Horsley, Asst. Atty. Gen., for appellee.

LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from the denial of appellant's petition for a writ of error coram nobis.

The target of the petition is the judgment of conviction and sentence that was affirmed in Jacques v. State, Ala.Cr.App., 376 So.2d 821 (1979), wherein defendant was convicted of a crime of escape defined and proscribed by Code 1975, § 13-5-65, and sentenced to imprisonment for thirty years.

The petition was a pro se petition in excellent handwriting, purportedly that of the petitioner, in which the petitioner made an "Affidavit of Poverty," in which he stated that he was "unable to ... employ an attorney." The attorney who represented him on the trial of the case and on appeal filed a motion to withdraw as attorney, which motion was granted, and a new experienced attorney was appointed to represent him, which he did on the hearing of the petition and has continued to do so on appeal. ¹

The first issue raised by appellant's attorney is as to a matter set forth in the petition, in somewhat of a discursive manner, to the effect that he was convicted of a felony and sentenced accordingly, but that the indictment charged a misdemeanor. His attorney captions the proposition:

"Whether the judgment and sentence imposed upon the appellant was responsive to the offense charged."

The question has been a troublesome one for many years, as is evidenced by cases cited by petitioner in his petition, and it is argued by petitioner's attorney as well as it can be argued on behalf of petitioner. We agree with the following statement of appellant's counsel:

"Alabama has (it had at the time of the alleged offense) three escape statutes material to this inquiry. Sec. 13-5-63 of the Alabama Code provides punishment for escape by a convict sentenced to imprisonment in the county jail or to hard labor for the county who escapes from such confinement before the expiration of his sentence. Sec. 13-5-65 provides punishment for any convict who escapes or attempts to escape from the penitentiary, or from any person or guard having him in charge under authority of law, either within or outside the walls of the penitentiary, before the expiration of the term for which the convict has been sentenced. Sec. 13-5-68 provides punishment of not more than six months imprisonment for any prisoner who escapes from the lawful custody of any law officer."

The issue now presented is related to, but not exactly the same as, the issue as to a material variance between the indictment and the proof that was raised and decided adversely to appellant in Jacques v. State, supra. Now it appears that appellant takes the position that the indictment does not charge a violation of § 13-5-65 but at the most charges a violation of § 13-5-68. He is mistaken, for the reason the indictment expressly charges that defendant was "a convict" and that he did wilfully and unlawfully escape from a place where a person "had him in charge under authority of law, before the expiration of the term for which he was sentenced." This language is equivalent to an alternative phrase of § 13-5-65, which provides:

"Any convict who escapes or attempts to escape from the penitentiary or from any person or guard having him in charge under authority of law, either within or outside the walls of the penitentiary, before the expiration of the term for which he was sentenced, shall, on conviction, be imprisoned for an additional term of not less than one year." (Emphasis supplied).

Some confusion could conceivably result from the failure of an indictment to set forth in the most unambiguous language possible an offense chargeable under one of the three sections as distinguished from an offense chargeable under either of the other two, but we think that it cannot be reasonably held that defendant was not sufficiently apprised of the charge against him to enable him to determine that it was based on § 13-5-65 and not under either of the other two sections. This is especially true in light of the fact that, according to the undisputed evidence, and necessarily to the knowledge of defendant, he had been convicted theretofore and sentenced to the penitentiary for burglary and grand larceny, each a felony, which could not have been embraced as a basis for an indictment pursuant to § 13-5-63. Clearly also it is not embraced as a basis for an indictment under § 13-5-68, which proscribes, according to its caption, "Escapes not otherwise provided for," which is corroborated by the text of § 13-5-68.

It is not for us to attempt to explain or justify the great difference between maximum punishment prescribed for a violation of § 13-5-65 and the maximum prescribed by § 13-5-63 and § 13-5-68. The maximum, though not expressly stated in § 13-5-65 is a "term up to and including life." Weaver v. State, 44 Ala.App. 268, 207 So.2d 134 (1968); Kelly v. State, 44 Ala.App. 307, 208 So.2d 217 (1968). It is to be noted that the new criminal code, Code of Alabama 1975, Title 13A, effective as to crimes committed after January 1, 1980, has made considerable change in the punishment prescribed for the various kinds of escapes, and perhaps commendable intelligence as to changes made by the new criminal code has encouraged defendant in his apparent belief that the judgment of conviction and sentence was not in conformity with the indictment and with the law applicable to the case against him.

One ground of the petition for writ of error coram nobis alleged that "during the whole trial, petitioner was compelled to wear prison clothing before a jury." Substantially the same ground is asserted as a basis for a reversal of the court's order denying the petition. During the hearing on the petition, and after there was evidence to the effect that defendant was wearing prison clothing, "blue denim clothing like a blue denim shirt with dark denim pants," the court stated:

"Mr. Stokes, I can tell you this of my own personal knowledge about the prison clothes. Mr. Bill Law, the probation officer, told me that the Baptist Church had clothing that could be made available to Defendants in these cases. And I don't know what officer it was, but I told him to find out if Mr. Jacques wanted some clothes from down there and he said, no, he wanted to be tried in his prison clothes, is the word that came back to me about it. I made an effort to see that he got clothing other than the prison clothing."

The petitioner testified that he did not recall having any discussion with the court or his attorney with reference to his clothing and that he was not advised that he did not have to proceed to trial in the clothing that he had on. He said:

"Q. Your testimony under oath is, that nobody ever told you that you had access to any other clothes?

"A. Yes, sir.

"Q. And you sat through your trial in the clothes that you had issued to you in Kilby prison, is that right.

"A. Yes, sir."

In Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), reh. den. 426 U.S. 954, 96 S.Ct. 3182, 49 L.Ed.2d 1194 (1976), it was held that a state cannot, consistent with the Fourteenth Amendment due process or equal protection requirements, compel an accused to stand trial before a jury while clothed in identifiable prison clothing, but that the failure to make an objection to the court as to being tried in such clothing, for whatever reason, was sufficient to negate the presence of compulsion necessary to establish a constitutional violation. The instant case presents an even more favorable situation for the application of that which was held in Estelle v. Williams, for the reason that all of the jurors knew from the evidence presented to them that defendant was at the time of his trial a convict, serving time at the time of the trial for a previous felony. His prison attire revealed nothing to the jury as to which the jury was not fully informed by the evidence. The defendant was not prejudiced by any failure on the part of the State to provide him with other clothes. In saying this, we do not recommend that even in such a case a convict should not be dressed with appropriate clothes throughout his trial, clothing distinctly different from his prison clothes. He should be if such is his desire, as apparently he would have been, except for some apparent or possible misunderstanding.

One of the grounds of the pro se petition for writ of error coram nobis states:

"Petitioner was entitled to a court appointed attorney who would aid him and not the state, and an attorney who had a interest and not a conflict of interest. Three other codefendants only got 90 days for alleged escape, yet court appointed attorney wanted petitioner to plea bargain for thirty years. Court appointed attorney's wife, a lawyer also on the same case, had another codefendant testify against petitioner to get 90 days in jail."

On the hearing of the petition, the attorney appointed to represent defendant on the trial and who continued to represent him on appeal, as shown by Jacques v. State, supra, testified on call of the petitioner. Said attorney's wife, also an attorney, testified also on call of the petitioner. Their testimony is clear, and its credibility is not questioned. They are and were partners in the practice of the law. Each was appointed by the court as an attorney for an indigent defendant who was confined to the Covington County Jail on the night of November 1-2, 1978, when there was a "jailbreak" in which seven or more prisoners escaped. The husband was appointed to represent Mr. Jacques, and the wife was appointed to represent Mr. Bart T. Rossi. However, she was not appointed to represent Mr. Rossi on the charge of an escape. It appears that...