McKeldin v. State
| Decision Date | 12 November 1974 |
| Citation | 516 S.W.2d 82 |
| Parties | Darryl Lamont McKELDIN, Petitioner, v. STATE of Tennessee, Respondent. |
| Court | Tennessee Supreme Court |
Jerry H. Summers, Chattanooga, for petitioner.
John B. Hagler, Jr., Asst. Atty. Gen., for respondent; R. A. Ashley, Jr., Atty. Gen., of counsel.
Petitioner was convicted in the Criminal Court of Hamilton County of armed robbery and sentenced to imprisonment in the state penitentiary for twenty (20) years. His conviction was affirmed by the Court of Criminal Appeals and the case is before us pursuant to grant of certiorari.
Essentially this case presents the single question of the right of an indigent defendant to the effective assistance of counsel at a preliminary hearing.
Petitioner was arrested on August 11, 1972, and a preliminary hearing was conducted on August 14, 1972 (prior to indictment), in the City Court at Chattanooga.
Pursuant to a declaration of indigency, the City Judge appointed one, Isiah Ewing, as counsel to represent petitioner.
It subsequently developed that Mr. Ewing was 'neither qualified by training nor licensed in the State of Tennessee to practice law'. On September 12, 1972, the Chancery Court of Chattanooga so held and 'perpetually and permanently' enjoined him from practicing in that court.
After petitioner's indictment, through his individually retained counsel, he moved the Criminal Court to dismiss the indictment. The basis of his motion was that a preliminary hearing is a critical stage of a criminal proceeding; and that he was denied his right, under the Sixth Amendment to the Constitution of the United States to 'effective representation of counsel,' in that Isiah Ewing was not duly qualified as an attorney. In the alternative he moved the court to remand to the City Court for a preliminary hearing.
This motion was overruled on November 27, 1972.
On January 26, 1973, petitioner filed a Motion to Quash the indictment predicated upon the same grounds as his former motion.
On February 2, 1973, this, and other non-related motions, were dismissed as 'not timely filed'.
Again on February 6, 1973, petitioner filed the same Motion to Quash. On February 12, 1973, this motion was overruled.
There is nothing in the record to indicate what transpired upon the hearing of any of these motions.
There was no transcript of the preliminary hearing and the record contains no narration of the testimony or proceedings.
Upon the trial, petitioner's counsel called up his motions and requested permission to put petitioner on the stand to show the fact of his indigency at the time of the preliminary hearing and his representation by Mr. Ewing.
The court declined to reconsider the motions on the basis of their former consideration and of a local rule of court.
Petitioner has assigned seven (7) errors in this court. From our examination of the record we are of the opinion that the Court of Appeals correctly disposed of the last five (5) assignments and they will not be further noted in this opinion.
The first two assignments complain of the action of the trial court in the following particulars:
a. In overruling the Motion to Quash
b. In overruling the Motion to Dismiss
c. In failing to remand to City Court
d. In refusing petitioner's tender of proof
Under Tennessee criminal procedure an indictment may be attacked by Motion to Quash only where the defect appears upon the face of the indictment. Where it is invalid for any other reason, the extraneous matter must be presented by Plea in Abatement. Caruthers' History of a Lawsuit, (8th ed.), Sec. 732; Walker v. State, 197 Tenn. 452, 273 S.W.2d 707 (1954); State v. Davis, 204 Tenn. 553, 322 S.W.2d 232 (1959).
Neither motion meets the strict requirements of a Plea in Abatement and, therefore, may not be treated as such.
The remainder of these two assignments, (items c & d above), when aided by the brief, fairly raise the two questions upon which this controversy must be decided, viz:
1. Is a preliminary hearing a critical stage in a criminal proceeding?
2. Does the defendant have a constitutional right to be represented by counsel at such a hearing?
We answer each question in the affirmative.
In an unbroken line of Tennessee cases--decided before and after Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970) (see discussion Infra), it has been held that a preliminary hearing is not constitutionally required in a criminal prosecution in Tennessee. State ex rel. Carroll v. Henderson, 1 Tenn.Crim.App. 427, 443 S.W.2d 689 (1969); Hunter v. State, 222 Tenn. 672, 440 S.W.2d 1 (1969); Harris v. Neil, 437 F.2d 63 (6 Cir. 1971).
Such a hearing is now required by statute in Tennessee. Chapter 245 of the Public Acts of 1971, carried forward into the Code as Sec. 40--1131, T.C.A., reads as follows:
In all criminal cases, prior to presentment and indictment, whether the charge be a misdemeanor or a felony, the accused shall be entitled to a preliminary hearing upon his request therefore (sic), whether the grand jury of the county be in session or not.
This enactment became effective May 17, 1971, which was prior to the date of the preliminary hearing in this case.
We agree with the Court of Criminal Appeals in its observation in Shadden v. State, 488 S.W.2d 54 (Tenn.Crim.App.1972), cert. den., 411 U.S. 909, 93 S.Ct. 1538, 36 L.Ed.2d 199 (1972), that this statute 'added no constitutional dimension to our preliminary hearing statutes.'
However, such a hearing being mandated under Tennessee statutory law, the defendant's right thereto must be respected.
In 1970, the Supreme Court decided the case of Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), holding that the preliminary hearing is a critical stage of the prosecution so as to constitutionally require the furnishing of counsel to protect the rights of the defendant.
The thrust of the Court's opinion will be found in the following language:
The determination whether the hearing is a 'critical stage' requiring the provision of counsel depends, as noted, upon an analysis 'whether potential substantial prejudice to defendant's rights inheres in the . . . confrontation and the ability of counsel to help avoid that prejudice.' United States v. Wade, Supra, (388 U.S. 218) at 227, (87 S.Ct. 1926, at 1932) (18 L.Ed.2d (1149) at 1157). Plainly the guiding hand of counsel at the preliminary hearing is essential to protect the indigent accused against an erroneous or improper prosecution. First, the lawyer's skilled examination and cross-examination of witnesses may expose fatal weaknesses in the State's case that may lead the magistrate to refuse to bind the accused over. Second, in any event, the skilled interrogation of witnesses by an experienced lawyer can fashion a vital impeachment tool for use in cross-examination of the State's witnesses at the trial, or preserve testimony favorable to the accused of a witness who does not appear at the trial. Third, trained counsel can more effectively discover the case the State has against his client and make possible the preparation of a proper defense to meet that case at the trial. Fourth, counsel can also be influential at the preliminary hearing in making effective arguments for the accused on such matters as the necessity for an early psychiatric examination or bail.
In Harris v. Neil, 437 F.2d 63 (6th Cir. 1971), the indigent petitioner, after having been convicted in the Criminal Court of Hamilton County and after having exhausted all available state remedies, filed his petition for the writ of habeas corpus in the United States District Court. Upon denial he appealed to the United States Court of Appeals for the Sixth Circuit asserting that the failure to appoint counsel at the preliminary hearing in the City Court at Chattanooga was a violation of his Sixth Amendment rights. He contended that the preliminary hearing was a critical stage and relied upon Coleman.
In this case which arose before the 1971 statute (40--1131 T.C.A.), the Sixth Circuit held (1) there is no constitutional right to a preliminary hearing 'of the character conducted in Tennessee', (2) that a preliminary hearing in Tennessee is not a critical stage of the prosecution, and (3) that 'Coleman does not make the Sixth Amendment right to counsel apply to a preliminary hearing of the type conducted in Tennessee.'
The Court reasons that, 'In contrast with Alabama procedure, the Tennessee preliminary hearing is not 'the pretrial type of arraignment where certain rights may be sacrificed or lost."
The cases cited in support of the proposition that there is no constitutional right to a preliminary hearing, were all decided prior to Coleman.
The Court's holding that a preliminary hearing is not a critical stage is based on a case decided two years before Coleman. 1
We have read and studied Art. 3, Tit. 15, of the Code of Alabama, and have searched in vain for any pertinent difference between the Code of Alabama and the statutes of Tennessee, in this particular.
In each state a preliminary hearing is simply a forum for determining (1) whether an offense has been committed, (2) whether there is reasonable ground to believe that the defendant is guilty of its commission and (3) whether and how much bail should be set. 2
It is significant to note that under the first section (40--1101) of Chapter 11, T.C.A., entitled Preliminary Examination, and under 'Comparative Legislation', will be found the following: 'Ala.Code 1940, Tit. 15, §§ 128--151.'
We see no essential difference between the two statutory schemes and, therefore, and with utmost deference, we reject both the reasoning and results of Harris.
We hold that the Tennessee preliminary hearing is a 'pretrial type of arraignment where certain rights may be sacrificed or lost.'
We now come to the issue of the right to counsel at a preliminary hearing.
Coleman details the vital necessity for 'the guiding hand of counsel.'
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