Jones v. Mabry, J-76-C-87.

• Decision Date: 12 September 1979
• Docket Number: No. J-76-C-87.,J-76-C-87.
• Citation: 476 F. Supp. 311
• Parties: Hugh JONES, Petitioner, v. James MABRY, Commissioner, Arkansas Department of Correction, Respondent.
• Court: U.S. District Court — Eastern District of Arkansas

476 F. Supp. 311

Hugh JONES, Petitioner, v. James MABRY, Commissioner, Arkansas Department of Correction, Respondent.

No. J-76-C-87.

United States District Court, E. D. Arkansas, Jonesboro Division.

September 12, 1979.

Stephen Engstrom, Little Rock, Ark., for petitioner.

Steve Clark, Atty. Gen., State of Arkansas, Alice Ann Burns, Asst. Atty. Gen., Little Rock, Ark., for respondent.

MEMORANDUM AND ORDER

EISELE, Chief Judge.

On December 12, 1974, Hugh Jones was sentenced to ten years imprisonment after a jury trial in which he was found guilty of the delivery of six ounces of marijuana in violation of Ark.Stat.Ann. § 82-2617 (1960). The conviction was affirmed upon appeal to the Arkansas Supreme Court. Petitioner thus exhausted his state remedies. He is presently on parole-release. He filed this petition for writ of habeas corpus on June 7, 1976, raising three issues:

(1) He was denied effective assistance of counsel at his state criminal trial because the denial of his motion for continuance made it impossible for him to adequately prepare for trial;

(2) He was asked improper inflammatory questions on cross-examination which were so prejudicial as to amount to a denial of a fair trial and of due process; and

(3) The chain of custody of the marijuana introduced was improperly shown.

Counsel was appointed to represent petitioner on March 6, 1979, and an evidentiary hearing was held on July 3, 1979.

I

It is evident that on the third ground petitioner's claim is without merit. "Evidentiary issues do not support a petition under § 2254 unless the introduction of such evidence violated a specific federal constitutional provisions." Freeman v. Mabry, 570 F.2d 813, 814 n.2 (8th Cir. 1978). Examination of the record does not reveal a violation of any specific constitutional guarantee but rather involves state procedures relative to the showing of the chain of custody of evidence. Petitioner has adduced no fundamental unfairness in the procedures at his trial and thus may not rely on this allegation.

II

Examination of petitioner's first claim shows certain facts to be undisputed. Counsel was appointed on the afternoon of December 9 to represent petitioner at his trial scheduled for the morning of December 11 and actually held that afternoon. The defendant himself swore out and attempted to deliver subpoenas to the appropriate sheriffs' offices in several different counties, working until 11:00 p. m. and rising early the next day to see whether they had been served. Not all of the witnesses were found or served. The defendant's appointed attorney, Mr. Thiel, moved for a continuance on the day of the trial, stating that six witnesses had not been located and served by the sheriff.¹ The transcript indicates that the trial court denied the motion without stating its reasons. More particularly, it did not note the absence of affidavits. (TR 4). The trial went forward that day.

The State points out that Arkansas has the usual requirement of affidavits, which attest to diligence, identify the missing witnesses, and state their probable testimony, whenever a continuance is requested. These were not supplied to the trial court in this case. But that procedure presupposes that the original trial setting allowed adequate time to subpoena witnesses and to prepare for trial, a situation in which the rationale for requiring affidavits is both justifiable and understandable.² But in a case like this, it just as clearly does not apply. Many of the witnesses had worked with the petitioner at the time of the alleged crime, but had scattered. He had not seen them since. The defendant honestly stated in his motion that he did not know exactly what the missing witnesses would say; he and his attorney simply had no time to find them or to interview them before the trial.

A fundamental premise of an adequate defense is that counsel will have adequate preparation time. See Powell v. Alabama, 287 U.S. 45, 59, 53 S.Ct. 55, 77 L.Ed. 158 (1932). The facts here indicate that appointed counsel, Mr. Thiel, spent two hours on the eve of the trial with Jones, and that he had a coffee shop meeting the morning of the trial with some witnesses, who were not closely questioned by Thiel at that time. To say that there was clearly inadequate preparation under such circumstance is not, however, to fault the attorney. He simply had insufficient time to prepare an effective defense.

The Court makes no suggestion as to Jones's guilt or innocence or even as to his blamelessness in seeking to arrange for legal representation. But those are secondary matters compared to the basic questions: did Jones have adequate time to prepare? Did the denial of enough time to prepare constitute a denial of a fair trial? If the answers are yes, then clearly there has been a deprivation of due process in violation of the Constitution.

When a petitioner claims deprivation of effective representation, the Court's decision must necessarily be on an ad hoc basis, weighing, among other factors, the time afforded counsel, the experience of counsel, the gravity of the charge, the complexity of possible defenses, and the accessibility of the witnesses to counsel. Wolfs v. Britton, 509 F.2d 304, 309 (8th Cir. 1975). Here there was an extremely short time afforded counsel, and the crime, which carried a possible maximum sentence of 10 years and fine of $15,000, or both, was certainly serious. Jones's defense, trying to show that the accuser was in reality the pusher, was not an easy one to handle. And the witnesses were inaccessible to him and his attorney. Given this combination of factors, it is clear that the denial of a continuance also insured a denial of effective assistance of counsel adequately prepared for trial.

There can be no doubt that painstaking preparation is at least as important as trial conduct and is just as much a component of adequate representation as is forensic skill. In McQueen v. Swenson, 498 F.2d 207 (8th Cir. 1974), the Court held that under the circumstances of that case, appointed counsel's lack of pretrial investigation amounted to ineffective assistance of counsel. That skillful trial tactics do not cure inadequate preparation was found in Moore v. United States, 432 F.2d 730 (3d Cir. 1970). The Court stated in Wolfs, supra at 309:

"We cannot minimize the fact that effective assistance refers not only to forensic skills but to painstaking investigation in preparation for trial."

The acceptable level of preparation is at least that which a reasonably competent attorney would perform. United States v. Easter, 539 F.2d 663 (8th Cir. 1976). A two hour meeting and a brief discussion in a coffee shop would not be considered reasonable diligence by any attorney who was faced with preparation of this case.

The Arkansas Supreme Court affirmed the trial court's denial of the motion for a continuance, pointing out that such a motion is ordinarily addressed to the sound discretion of the trial court, and stating that there was no abuse here because, ". . . there is no proof . . . of the testimony which would be adduced from the absent witness.³ However, under federal constitutional standards there may be circumstances under which even the requirement of such a showing would be improper. Here the case was set at approximately 4:00 p. m. on December 9, some 41½ hours before the trial was scheduled to begin. What if the Court had set it for 5:00 p. m. on the afternoon of December 9, providing counsel with one hour to subpoena and obtain witnesses and to prepare for trial? If then a motion for continuance were filed, would it be reasonable to require "proof . . . of the testimony which would be adduced from the absent" witnesses? Federal constitutional standards require that at some point a criminal case be so set for trial that the defendant and counsel will have a real, not theoretical, opportunity to interview witnesses, subpoena them, and to prepare for trial. As stated above, this basic right cannot be conditioned upon disclosure of the defendant's evidence. As is apparent in this case, the right to a reasonable and adequate time to prepare for trial is tied inextricably to the right to effective legal representation. The Court has already pointed out that the defendant did not have the effective assistance of prepared counsel at his trial.

The Arkansas Supreme Court also pointed out in affirming the trial court:

"Furthermore, the refusal to grant a continuance could have been a proper ground for a motion for a new trial which is permissible, though not required, for appellate review. Ark.Stat.Ann. § 43-2704 (Supl.1975). In such a motion the appellant would have had the opportunity to offer evidence as to how he was prejudiced during the trial due to the absent witnesses even if he could not have sufficiently done so when his motion for a continuance before trial was refused. In the case at bar it is asserted by the appellant that the absent witnesses' testimony `is relevant and vital to his defense.' However, in support of this allegation, appellant failed to file an affidavit or offer any proof indicating how the testimony of any of the absent witnesses would be vital and relevant to his defense. Neither did appellant indicate by a motion for a new trial that the absence of any of these witnesses was prejudicial to his defense. Appellant did not allege in his motion for a continuance that his appointed counsel did not have sufficient time for trial preparation except with respect to the absence of certain witnesses. We are of the view that appellant has failed to discharge the burden of demonstrating how he was prejudiced by the denial of his motion for a continuance which resulted in ineffective assistance of counsel. We certainly cannot say the trial court abused its discretion."

If under Arkansas procedure defense counsel should have filed a motion for a new trial, then his failure to do so would constitute another example of...