Lee v. State, 6 Div. 856

• Decision Date: 20 January 1976
• Docket Number: 6 Div. 856
• Citation: 328 So.2d 617,57 Ala.App. 366
• Parties: John Alvin LEE, alias John Ray Lee, alias John Lee v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 617

328 So.2d 617

57 Ala.App. 366

John Alvin LEE, alias John Ray Lee, alias John Lee v. STATE.

6 Div. 856.

Court of Criminal Appeals of Alabama.

Jan. 20, 1976.

Rehearing Denied Feb. 17, 1976.

Robert R. Bryan, Birmingham, for appellant.

William J. Baxley, Atty. Gen., Montgomery, and Quentin Q. Brown, Jr., Asst. Atty. Gen., Birmingham, for appellee.

LEIGH M. CLARK, Supernumerary Circuit Judge.

This appeal is from a judgment denying a petition for writ of error coram nobis. The case is a sequel to Lee v. State, 51 Ala.App. 332, 285 So.2d 495, cert. denied 291 Ala. 787, 285 So.2d 500, in which there was an affirmance of a conviction of murder in the second degree and a sentence of ten years imprisonment in the penitentiary in a case in which appellant was charged with murder in the first degree. A correct understanding of the summary of the evidence, the principles of law announced and the conclusions of the court is essential to a correct determination in this case, but so as not to unnecessarily lengthen this opinion, we adopt the opinion in the basic case by reference rather than by incorporation.

The coram nobis petition alleges that there was such a conflict between the interest of petitioner and the interest of another person who had been indicted for the same crime that petitioner's counsel, who also represented the other defendant, could not adequately represent petitioner on the trial for murder and that in such circumstance counsel's defense of defendant-petitioner on the trial deprived him of his right to counsel as guaranteed by the Sixth and Fourteenth Amendments to the Constitution of the United States. The pioneer case relative to the conflict of interest portion of the right to counsel field of constitutional law is Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed.2d 680 (1942), which we obligatorily and cheerfully follow.

In Glasser, Glasser had retained counsel prior to the commencement of the trial. A condefendant Kretske had retained another attorney, but the other attorney was not available at the commencement of the trial. The trial court appointed retained counsel for Glasser to represent the codefendant whose attorney was not available. Glasser made an objection, stating that he 'would like to have my own lawyer representing me in court.' The court then stated to the partner or associate of the retained counsel for Kretske that he would have to stay in the case until Kretske obtained a lawyer 'if he isn't satisfied with you,' and stated to Kretske that if he wasn't satisfied with the partner or associate of his retained counsel, 'you will have to hire another lawyer. We will proceed with the selection of the jury now.' Kretske and Glasser's lawyer then made it known to the court that Glasser's lawyer would represent Kretske also. During this time 'Glasser remained silent,' and Glasser's attorney represented him and Kretske throughout the trial. The Supreme Court concluded that the conduct of counsel retained by Glasser and imposed upon Kretske, in failing to undertake cross-examination of one of the witnesses for the prosecution and to object to certain testimony as being inadmissible was influenced by a desire to protect Kretske. The Court further held that 'Clearly the statements were damaging.' It was further stated:

'We hold that the court thereby denied Glasser his right to have the effective assistance of counsel, guaranteed by the Sixth Amendment. This error requires that the verdict be set aside and a new trial ordered as to Glasser.'

Glasser himself was an experienced lawyer. Even so, it was held that he had not waived his Sixth Amendment right to counsel.

Glasser v. United States and its satellites are sufficiently related in principle to this case for us to give painstaking consideration to the position taken by petitioner-appellant.

On the coram nobis hearing, according to testimony of petitioner, petitioner's former wife (Alice Faye Lee), who had also been indicted for the same murder, and their daughter, Katherine Marie (Kitty) Lee, they went to the decedent's apartment, seeking him by reason of his molestation of Kitty, then twelve years of age. Both Kitty and her mother testified that the man had run his hand up under the dress of the little girl and touched the private part of her body. This they reported to petitioner-appellant, the girl's father. Kitty, who testified on the basic case on the call of the State, had changed her testimony to some extent. She made it clear on the coram nobis hearing that she did not consider that she gave the jury the full truth, that she was deterred to some extent from doing so by reason of her fear of injuring her mother in her case, that, though she did not see the shooting, she was convinced that her father did not know that her mother had the pistol at the time she left the automobile and entered the apartment of the decedent. Mrs. Lee testified on the coram nobis hearing that she killed Mr. Walter, the alleged victim of the murder, that she shot him twice. She had given a detailed written statement to the law enforcement officers upon her arrest a few days after the homicide, in which she had to a great extent exonerated petitioner-appellant of complicity in the crime. Soon after the commission of the alleged offense, petitioner-appellant called Mr. Arthur Hanes, Sr., and employed him. He was also employed to represent Mrs. Lee. Mr. and Mrs. Lee testified in effect that both wished to take the stand and testify in Mr. Lee's behalf on the trial.

The two were separately indicted. After Mr. Lee's conviction and seemingly at about the time his conviction was finally affirmed, Mrs. Lee pleaded guilty to murder in the second degree and was sentenced to five years imprisonment in the penitentiary, and she was placed on probation.

From the time, or about the time, of the conviction of petitioner-appellant, Mr. Hanes' services as attorney for each of them were discontinued. Representing petitioner-appellant on his appeal in the basic case was another attorney. Representing Mrs. Lee on her arraignment, her plea of guilty and her application for probation was the same attorney, not Mr. Hanes.

Petitioner-appellant was convicted on September 25, 1972. The conviction was affirmed on appeal on August 14, 1973, rehearing was denied on September 25, 1973, and petition for certiorari was denied November 15, 1973. The petition for writ of error coram nobis was filed February 18, 1974. The petition was overruled on September 13, 1974.

There was no contention on the hearing that Mr. Hanes was not acting in good faith in representing both Mr. and Mrs. Lee. As stated by counsel for petitioner-appellant, in a question addressed to Mr. Hanes:

'. . . I'm not contending you were not well prepared or you did not act in good faith.'

No question is presented as to the outstanding ability and extraordinary experience of Mr. Hanes. The contention is solely a legal one, that is, that the representation of Mrs. Lee prevented Mr. Hanes from fully protecting the rights of Mr. Lee.

Both Mr. and Mrs. Lee indicated by their testimony that they had made it clear to Mr. Hanes that they both wanted to testify on the trial. They indicated that Mr. Hanes had indicated to them that such testimony would not be for the best interest of Mr. Lee and would be harmful to Mrs. Lee in her case. Though the contention of each is clear, the testimony of neither is definite enough to make it clear and convincing that any issue was ever made between either of them and Mr. Hanes, that either of them ever positively requested or demanded that he or she be allowed to testify.

Mr. Hanes testified in effect that his representation of Mrs. Lee never at any time caused him to do or say anything that he would not have done or said or caused him to omit to do or say anything that he would not have omitted if he had not been representing Mrs. Lee. He said that at times the question was asked by one or both of them as to whether he or she would testify, but it was never in the form of a request or a demand, but more as a matter of inquiry. With particular reference to whether they expressed a desire to testify, he said:

'No, sir. It was more of a question should I? Do you think I ought to do it? I said, John, let's wait. Let's go on-- --let's see what else they put on. There was no argument, no demanding, no me saying you've got to keep your mouth shut, you've got to acquiesce in it, you've got to consent to it. He left that to me, after all, people would be foolish to go hire a lawyer and not listen to them.'

As stated above, Kitty Lee changed her testimony on the coram nobis proceeding from what it had been on the trial of the case and to some extent from a previous affidavit that she had made to law enforcement officers soon after the homicide, at which interview Mr. Hanes as counsel for Mr. and Mrs. Lee was present. It should be noted also that the testimony of Mrs. Lee on the hearing of the coram nobis petition is considerably different from the statement she made to the police officers after her arrest. In her statement to the police officers, she said that when they confronted Mr. Walter at his apartment:

'. . . (H)e grabbed me. When he grabbed me, I got the gun out of my purse. Johnny hollered at the man and said take your hands off her. Johnny was trying to pull me back away from the man. I don't know if the man saw the gun, I doubt if Johnny even saw the gun or the man. The guy kept wrestling with me, I don't know if he saw the gun and was trying to get it or was trying to pull me away from Johnny. The gun went off and I was trying to back away, the man still had my arm with his other hand, he clutched at his stomach. I didn't see any blood, So I really didn't know if the shot had hit him or not. The man made a new attempt to pull me back again at the same time Johnny was trying to pull me backwards. The gun went off again. As the man was pulling...