Martin v. United States, 12777.
| Decision Date | 23 June 1950 |
| Docket Number | No. 12777.,12777. |
| Citation | 182 F.2d 225 |
| Parties | MARTIN v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fifth Circuit |
No appearance entered on behalf of appellant.
Cavitt S. Binion, Asst. U. S. Atty., Fort Worth, Tex., Frank B. Potter, U. S. Atty., for appellee.
Before HOLMES, McCORD, and RUSSELL, Circuit Judges.
Charged by an indictment with the offense of robbery of an insured bank, in the commission of which the life of a named official was put in jeopardy by the use of a pistol, William Larry Martin, appellant here, requested and secured the appointment of counsel and entered a plea of insanity and of not guilty. Upon the trial the jury returned a verdict finding the defendant sane, and guilty. The Court sentenced him to the custody of the Attorney General for a period of fifteen years. Thereafter, while confined in the penitentiary, Martin filed with the sentencing Court a motion to vacate and set aside the judgment of conviction and sentence upon the ground that he had been deprived of the benefit of counsel in that by some arrangement between counsel and the United States Attorney, his appointed counsel had been excused by the Court when the jury retired to consider its verdict and consequently was not present at the time of the reception of the verdict, or when sentence was imposed upon him immediately thereafter. This motion was denied. An appeal from the denial was presented to this Court. The sentence appeared as a part of the record. It recited that the defendant had been present in person and by counsel at the time of sentence. This Court permitted Martin to amend his motion in the trial Court to seek additionally a correction of the record, and directed that a hearing be there had to determine whether in fact his counsel was present at the time of the reception of the verdict and the imposition of sentence.
At the subsequent hearing in the trial Court counsel was appointed for the defendant. The facts with reference to the extent of participation of the defendant's counsel in the trial and at the time of sentence were fully heard. The Court denied the motion to vacate the judgment and to grant a new trial by an order which substantially sets forth the material facts and the legal conclusions of the trial Court.1 Appellant now renews his appeal and urges error in the Court's order, predicated upon the established facts that his counsel was not present at the time of the reception of the verdict or when sentence was imposed, and, further, that though without counsel, the Court did not notify him of his right to appeal from the judgment of conviction. He contends also that the finding by the Court, that he waived the right to counsel by silence, is in law unsupportable.
It may be safely said that at this time there is no question of constitutional law any more firmly established than the oft enunciated and applied principle that, in the trial of criminal cases in the federal courts, the defendant is entitled to have the guiding hand of counsel at every stage of the proceeding. Thus, in the absence of an intelligent waiver of the right to counsel, it is the duty of the Court to appoint competent counsel for the defendant, failing which, the Court loses jurisdiction to proceed. However, recognition and application of this principle to its fullest extent does not require a Court to upset a conviction merely upon proof that at some particular stage of the proceeding counsel may not have been present. A great deal depends upon the nature of the "stage of the proceeding" from which the counsel is absent. If it be of such minor legal significance as to refute even a possibility of injury, such inconsequential impingement of the constitutional right is merely error without injury. We think this true in this case as concerns the absence of counsel at the time of the reception of the verdict. The right of a defendant to poll the jury is of course recognized and long established, but from a practical standpoint, experience of the years has shown that its benefit to a defendant in effecting a change or modification of the jury's verdict is substantially nonexistent. Furthermore, in this case the Court by his inquiry afforded any juror an opportunity to express his dissent. The record is devoid of even an intimation that either by questions from the jury or statements by the Court or prosecuting officers or others, anything occurred at the time of the reception of the verdict which in anywise could have affected the rights of the defendant, or required the presence of his counsel to assert, correct, or preserve for review, any prejudicial act. If there was any reasonable doubt of prejudice the defendant should have the benefit of it, but in the circumstances here, full recognition of the defendant's right to counsel at the time does not authorize an upsetting of the verdict of the jury.
The very nature of the proceeding at the time of imposition of sentence makes the presence of defendant's counsel at that time necessary if the constitutional requirement is to be met. There is then a real need for counsel. The advisability of an appeal must then, or shortly, be determined. Then is the opportunity afforded for presentation...
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