Lewis v. Henderson

• Decision Date: 19 July 1967
• Docket Number: No. 16985.,16985.
• Citation: 381 F.2d 523
• Parties: Cornelius LEWIS, Petitioner-Appellee, v. C. Murray HENDERSON, Warden, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

381 F.2d 523 (1967)

Cornelius LEWIS, Petitioner-Appellee, v. C. Murray HENDERSON, Warden, Respondent-Appellant.

No. 16985.

United States Court of Appeals Sixth Circuit.

July 19, 1967.

Ed R. Davies, Special Counsel, Nashville, Tenn., for appellant, Henry C. Foutch, Asst. Atty. Gen., State of Tennessee, Nashville, Tenn., on brief, George F. McCanless, Atty. Gen., Nashville, Tenn., of counsel.

James H. Bateman, Nashville, Tenn., for appellee, Fritz Bateman, Nashville, Tenn., on brief.

Before EDWARDS and McCREE, Circuit Judges, and McALLISTER, Senior Circuit Judge.

McALLISTER, Senior Circuit Judge.

This is a sad case, arising out of two trials, during which mistrials were declared. Thereafter, appellee was convicted on a charge of guilty of assault with intent to commit murder in the first degree, and his punishment was fixed at confinement in the State Penitentiary for a period of not more than twenty-one years. It all started when appellee was arrested for attempted murder of two members of the Nashville, Tennessee, Police Department. He was thereafter indicted in the Criminal Court of Davidson County, Tennessee, on two charges of assault with intent to commit murder. Appellee pleaded not guilty to each indictment, and the public defender was appointed to represent him. Both cases were thereafter called for trial, and, upon arraignment, appellee entered a plea of guilty. A jury was impaneled, and evidence was presented by the prosecution. However, appellee, when questioned by the trial judge, responded that he did not understand the charge, and changed his plea from guilty to not guilty. A mistrial was entered in both cases.

Later, the second of the two cases was again called for trial, and appellee pleaded not guilty. The case was tried, and the jury, after hearing the evidence, found appellee guilty as charged, and fixed his punishment at confinement in the State Penitentiary for not more than twenty-one years. On the same date the first case was continued. Thereafter, the public defender filed a motion for a new trial in the second case, which was overruled. The trial court then passed judgment on appellee.

On November 12, 1963, the first case was again called for trial, and appellee pleaded guilty. Evidence was introduced by the prosecution, but when the court further questioned appellee, he again responded that he did not understand the case, and changed his plea to not guilty. A mistrial was entered for the second time. On February 10, 1964, the first case was "retired" upon motion of the district attorney.

On August 3, 1965, appellee filed his petition for a writ of habeas corpus in the United States District Court, containing a number of allegations of denial of his rights: "(1) compulsory process for the obtaining of witnesses; (2) assistance of counsel; (3) cruel and unusual punishment in that he was shot by the arresting officers; (4) right to counsel at his preliminary hearing; (5) effective assistance of counsel; (6) a copy of the indictment; (7) right to testify in his own behalf; (8) unauthorized entry of a plea of guilty to attempt to commit first degree murder; (9) right to appeal; and (10) being called a `black boy' by his own counsel in the presence of the jury."

Respondent admitted that appellee had exhausted his state remedies, but denied that the judgment was void or that appellee was unlawfully or unconstitutionally confined. Appellee testified that on the hearing of the petition for a writ of habeas corpus that he pleaded not guilty on the day of his trial, and that he wanted to testify, but did not do so. He could not recall whether he had talked to the public defender about wanting to testify. He stated that he did not tell the public defender that he wanted to plead guilty to a lesser offense, and did not know whether such counsel entered that plea for him. He stated that he was present in court when his motion for a new trial was denied but did not talk to the public defender about appealing the case, and that the latter had not said anything to him about an appeal and did not advise him that he had a right to appeal.

On the hearing of the habeas corpus petition, the controlling evidence is to be found in the candid, explicit, and credible testimony of the obviously just and humane public defender, who testified as follows:

"I interviewed the defendant in jail as soon as my office received the assignment and investigation revealed that he was accused of attempting to murder two policemen who had stopped him about one-thirty in the morning on a side street leading off of Jefferson Street out by Brother Pigg\'s Meat Market. My investigation revealed — I got details from the defendant that he was out walking and had a pistol with him for no unlawful purpose. He never did explain why he had it too carefully and that he didn\'t realize that a man who accosted him and asked him what he was doing there was a police officer.

"But he thought he was someone trying to do him some harm. So, in an effort to defend himself, he turned around and started shooting and then the person that he shot and his companion, one or both of them, shot him a number of times, and he was taken to the hospital and later put in jail.

"He wasn\'t too communicative and after a great deal of negotiations with him it was decided that he would enter a plea of guilty and after recitation of the facts by the state\'s attorney, the judge asked him if he understood and agreed with the facts and he, at that time, indicated he did not.

"So the judge said, of course, a mistrial would be granted.

"He came on for trial again and the officers involved testified substantially to the facts that I have outlined and we did not have a court reporter and I must confess to not being exact on my details, but as I recall, it, Mr. Lewis did take the stand he testified that he was under fear, that he thought that he was being accosted by someone who would do him harm and that under those circumstances he was trying to defend himself and shot the officer.

"It was my theory of the case that Mr. Lewis under the facts that he set out, was probably guilty of an attempt to commit manslaughter but not murder because there was, in my opinion, and the record I believe would bear me out if there was a record, so there is not a record, that there was no proof of any premeditation which, of course, is a necessary ingredient for the State offense of first degree murder.

"There was no proof of premeditation. There was no proof that Lewis was committing or attempting to commit a felony that would supply the absence of premeditation.

"So, I advised — in my argument to the jury I in fact admitted that I thought they would be justified in finding him guilty of an attempt to commit voluntary manslaughter, which would\'ve been, in all probability a workhouse sentence.

"He had had a number of months in hospital under confinement and in jail, and if he had received a workhouse sentence in effect, he would\'ve been free because he had already built his sentence.

"The jury did not buy my theory and they convicted him of first degree murder.

"I think the Court interpreted my statements to the jury as a plea of guilty to the attempt to commit the crime of involuntary manslaughter and it was placed in the record that the plea was made through his attorney.

"I do not recall this man personally ever pleading guilty to anything.

"I advised Mr. Lewis that, in my opinion, he had a good chance to have his conviction overturned on appeal. And I filed a motion for a new trial.

"Bear in mind I was very handicapped. I had one assistant in the office and he was assigned to another court. So, in effect, I had no help in the Criminal Court that I was responsible for.

"And I must plead guilty to certain degrees of inadequacy in my representation of all the clients at that time because I frankly did not have the help and the time to do as good a job as I would liked to have done.

"In any event, I discussed this with the Attorney General, I think it was Mr. Hollins, and even the Judge.

"And there was an arrangement, an agreement that if he were — if the State would withdraw the second charge of assault with intent to commit first degree murder that there would be no appeal made.

"I entered into this agreement reluctantly but I realized the overwhelming odds against me overturning a jury verdict approved by the Trial Court even though I personally was convinced that there was no premeditation proved enough to sustain a conviction.

"On the other hand, I was faced with this dilemma, if they put him to trial on the second indictment the facts were exactly the same and there was a very good chance he would be convicted again and given another three to twenty-one year sentence which would\'ve made it almost an impossibility for him to have been released in any period other than many, many years.

"So, I discussed this with Mr. Lewis. I told him in effect that under three to ten year sentence that he had that he would technically be eligible for release in some twenty-seven months less the credit he had already built up and finally he agreed to — at least I got the impression he agreed, although, frankly, he never did get through too well, but I got across to him that the other case would be dropped. If he would forego his constitutional right to appeal and that was the reason my office did not appeal the case.

"I would have appealed the case if it hadn\'t been for the agreement that the other charge would be dropped.

"And I reiterate at this time, I do not think that the State proved premeditation that would have constituted this but I had no record. At that time, we had no public reporter law in Tennessee. We have now, thank goodness. And it was a burdensome task to get up narrative bills of exceptions.

"I was having on every instance that I attempted to get narrative bill of exceptions, I was having a great deal of trouble getting the State\'s Attorney to agree to the

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