Martin v. Com.

• Decision Date: 22 June 1962
• Citation: 361 S.W.2d 654
• Parties: Hassie Cane MARTIN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 654

361 S.W.2d 654

Hassie Cane MARTIN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

June 22, 1962.

As Modified on Denial of Rehearing Sept. 28, 1962.

Darrell B. Hancock, Fowler, Rouse, Measle & Bell, Lexington, for appellant.

John B. Breckinridge, Atty. Gen., Ray Corns, Asst. Atty. Gen., Frankfort, for appellee.

STEWART, Chief Justice.

Hassie Cane Martin, appellant herein, was jointly indicted with Willie Gaines Smith by the Fayette County grand jury for the wilful murder of Olin Alexander. They were tried separately. Both were convicted and received the death sentence. Reversal is urged on these grounds:

(1) Appellant, a negro, was denied equal protection of the laws because only three negroes were called as jurors at the term of court at which he was tried;

(2) The court erred in permitting C. Gibson Downing, an attorney of the Fayette bar, to assist the prosecution since he had previously represented the co-defendant Smith;

(3) The court erred in overruling his motion to exclude testimony relating to the theft of an automobile and the license plates from another car immediately prior to the commission of the offense of which he stands convicted;

(4) The court erred in overruling his motion for a directed verdict; and

(5) The court erred in overruling his objection to a question propounded by the Commonwealth's attorney.

The foregoing contentions will be considered in the order stated. Also, so as to avoid repetition in this opinion, the relevant portions of the evidence will be recited when it becomes necessary to furnish a factual background for the points discussed.

The record discloses three negroes were called as jurors for the term of court at which appellant was tried. Two of these actually performed jury duty though none served on the jury that convicted appellant. To sustain the position that he was discriminated against because more members of his race were not made available, appellant relies solely on the case of Gilchrist v. Commonwealth, 311 Ky. 230, 223 S.W.2d 880, wherein conviction of a negro woman for manslaughter was reversed for the reason that the proof (consisting only of affidavits) showed negroes were, at that term of court and had been for many years, systematically excluded from the jury lists in Union County. However, appellee calls to our notice that, on the second appeal to this Court of the Gilchrist case (see 246 S.W.2d 435), the conviction on a second trial was upheld because the evidence showed the trial court had made a 'good faith' effort to include negroes on the second jury panel.

Appellant has not disclosed the proportion of negroes to whites in Fayette County. Neither has he revealed the ratio of negro to white names on the last-returned tax commissioner's book or last-returned voter's registration book. See KRS 29.045(3). In Akins v. State of Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692, the Supreme Court of the United States held that the fact two negroes had served on the grand juries, in a county in which negroes constituted 15 per cent of the population, was sufficient to overcome the charge of planned rejection. At the second trial of the Gilchrist case one of the ninety-six persons whose name was drawn from the wheel filled by the jury commissioners was a negro, in a county where the ratio of whites to negroes was six to one, and it was held this was not such a disparity in regard to negroes as to show the jury commissioners were practicing evasion.

It is readily apparent the fact situation in the first Gilchrist case is completely different from that in the case at bar. Certainly the second Gilchrist case is not authority for appellant's contention. It is our view no case has been made out which in any wise supports appellant's assertion that negroes are prohibited from performing jury duty in Fayette County, or that any discrimination in this respect has been resorted to in the past.

The next ground urged for reversal presents a novel problem for consideration. It raises the question of whether when two or more defendants are jointly indicted for the same offense and severance is obtained, counsel who has previously defended one is precluded from assisting in the prosecution of the other.

C. Gibson Downing, a practicing attorney of Lexington, was appointed to and did represent co-defendant Willie Gaines Smith at his trial. Thereafter, but prior to appellant's trial, Downing became associated with the Commonwealth attorney's office as Commonwealth's detective and signified an intention to sit at the table of the prosecution during the trial. Appellant objected to Downing's participation in this case in this manner, but his objection was overruled after the trial court made a lengthy inquiry into the matter. This hearing reveals that Downing acquired no knowledge as a result of his participation in the trial of Smith that would disqualify him to represent the Commonwealth in the instant case. As a matter of fact the codefendants had made and turned over to the Commonwealth written confessions, but each stated therein that the other had fired the fatal shot.

Appellant bases his contention on general rules of law concerning attorney-client relationships. He cites as pertinent this language from 5 Am.Jur., Attorneys at Law, sec. 66, p. 298:

'A former attorney for a defendant in criminal proceedings cannot, after withdrawing from the case, be permitted to associate himself with the prosecuting attorney to assist in the prosecution, if, by reason of his professional relations with the accused, he has acquired a knowledge of facts upon which the prosecution is predicated or which are closely interwoven therewith.'

Our research has failed to bring to light any Kentucky case directly related to this issue. Nevertheless, decisions from other forums have been brought to our attention which are almost on all fours with the facts shown in the case at bar.

In Lewis v. State, 39 Okl.Cr. 119, 263 P. 473, 475, several defendants were jointly indicted for rape. Separate trials were given to each, and Lewis (the appellant in that case) was tried last. One R. D. Miller represented the other defendants at their trial. Prior to Lewis' trial, Miller was elected to and assumed the position of county attorney and, thereafer, assisted in the prosecution of Lewis, in spite of the latter's objection. In that case, as in the one before us, it was not claimed Miller ever conversed with, or obtained confidential information concerning, the defendant he assisted in prosecuting. Miller's conduct as a prosecutor was upheld, the court saying: 'We do not perceive why the mere fact of employment of an attorney by a defendant jointly charged operates as a disqualification against his appearing against a codefendant. * * *' This holding was later reaffirmed in Thoreson v. State, Okl.Cr.App., 100 P.2d 896.

It clearly appears Downing never at any time had an attorney-client relationship with appellant. This being true, it would not have made any difference even...