Johnson v. United States, 7631.

• Decision Date: 24 June 1964
• Docket Number: No. 7631.,7631.
• Parties: David Lord JOHNSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

333 F.2d 371 (1964)

David Lord JOHNSON, Appellant, v. UNITED STATES of America, Appellee.

No. 7631.

United States Court of Appeals Tenth Circuit.

June 24, 1964.

Michael B. Marion, Denver, Colo., for appellant.

John W. Raley, Jr., Asst. U. S. Atty. (B. Andrew Potter, U. S. Atty., on brief), for appellee.

Before MURRAH, Chief Judge, and PICKETT and LEWIS, Circuit Judges.

MURRAH, Chief Judge.

This is an appeal from an order denying appellant's motion, under 28 U.S.C. § 2255, to vacate and set aside the sentence imposed after conviction by jury verdict upon a two-count indictment charging the appellant with forcible entry of a building belonging to the United States, in violation of 18 U.S.C. § 2115, and stealing therefrom, in violation of 18 U.S.C. § 641. Appellant's primary contentions are to the effect that he was not afforded effective assistance of counsel at every step of the criminal proceedings, and was denied compulsory process and a speedy trial, guaranteed to him by the Sixth Amendment.

It is specifically asserted that appellant was denied effective assistance of counsel in that (1) his plea of not guilty to the indictment was entered at the direction of the Court, without first correctly advising him of the charges contained therein and in the absence of counsel for his defense; and (2) his unlawfully obtained confession was admitted into evidence without objection by his counsel, and made the basis of a hypothetical question propounded by the Government.

The pertinent and undisputed facts are as follows: When appellant was brought before the Court for arraignment, Government's counsel advised the Court that his attorney was not present. The Court informed appellant that he had been charged "with forgery, the entry of a post office and stealing therefrom," and then passed the arraignment proceedings until later the same day, apparently to insure the presence of defense counsel. When appellant again appeared without his attorney, the Court disposed of the arraignment proceedings by entering a plea of not guilty to each of the two counts of the indictment for appellant. The indictment was not read in open court, nor the charge restated. The Court made no further inquiry regarding appellant's representation, nor was he asked whether he wished to have counsel appointed to represent him.

To be sure, arraignment proceedings in federal court may be a critical stage of the criminal proceedings, and an accused is entitled to the guiding hand of counsel at this stage. See: Hamilton v. Alabama, 368 U.S. 52, 54 (Footnote 4), 82 S.Ct. 157, 7 L.Ed.2d 114. And, "it is the solemn duty of a federal judge before whom a defendant appears without counsel to make a thorough inquiry and to take all steps necessary to insure the fullest protection of this constitutional right at every stage of the proceedings." Von Moltke v. Gillies, 332 U.S. 708, 722, 68 S.Ct. 316, 322, 92 L.Ed. 309. See: Snell v. United States (10 CA), 174 F.2d 580; Cherrie v. United States (10 CA), 179 F.2d 94; and Cherrie v. United States (10 CA), 184 F.2d 384. The Court proceeds without defense counsel at the peril of being deprived of jurisdiction to try the accused and impose sentence. Failure to exercise extreme care to protect the rights of the accused at every step of the proceedings before and during trial may, and often does result in a costly and time-consuming post-conviction collateral attack. We ought to be as sure as we can that nothing is done or left undone to give rise to post-conviction complaints, based on the denial of constitutional safeguards to a fair and impartial trial.

We think, however, the trial Court adequately protected the right of appellant to the assistance of counsel when it directed the entry of a plea of not guilty. No statement was made against the accused. He made no incriminating statement whatsoever, and was not called upon to waive assistance of counsel or any other constitutional right. He cannot, therefore, complain of the deprivation of any constitutional right at this stage of the proceedings. Cf. Latham v. Crouse (10 CA), 320 F.2d 120, cert. den. 375 U.S. 959, 84 S.Ct. 449, 11 L.Ed.2d 317; and Marshall v. United States (10 CA), 321 F.2d 897.

The appellant was represented by retained counsel at a sanity hearing, pursuant to which he was adjudged competent to stand trial and assist in his defense. He was represented by the same counsel on trial of the case. The failure of counsel to object to the admission of appellant's confession is certainly no evidence of counsel's incompetency or ineffectiveness. The postal inspector who obtained the statement was closely cross-examined concerning the circumstances under which the statement was taken, and there is nothing to indicate...