Moorefield v. Garrison
| Decision Date | 12 February 1979 |
| Docket Number | No. A-C-77-73.,A-C-77-73. |
| Citation | 464 F. Supp. 892 |
| Court | U.S. District Court — Western District of North Carolina |
| Parties | George H. MOOREFIELD, Petitioner, v. Samuel P. GARRISON, Warden, and the State of North Carolina, Respondents. |
McLean, Leake, Talman & Stevenson, Asheville, N. C., for petitioner.
Richard N. League, Asst. Atty. Gen., Dept. of Justice, Raleigh, N. C., for respondents.
George Henry Moorefield, the petitioner, operated a store in Maggie Valley, North Carolina, at which he peddled books and other materials commonly termed "pornographic." He operated out of premises leased from another. On August 1, 1975, some time around 8:45 or 9:00 P.M., the building was observed burning. Moorefield had been in the building a short time (about dinner time or "about 5:00" or "a few minutes") before the fire. He was prosecuted for unlawful burning of the building in violation of Chapter 14, § 62 of the General Statutes of North Carolina. He was tried January 27-30, 1976, in the Superior Court of Haywood County, North Carolina, and was convicted by the jury. On January 30, 1976, he was sentenced to a term of twenty to twenty-five years in prison.
The conviction and sentence were affirmed by the North Carolina Court of Appeals, 33 N.C.App. 37, 234 S.E.2d 25 (1977), and on June 2, 1977, the Supreme Court of North Carolina denied certiorari. 292 N.C. 733, 236 S.E.2d 702. By those appeals, Moorefield has exhausted state remedies.
On July 5, 1977, counsel for petitioner filed this petition for writ of habeas corpus in the Asheville Division of this court. The case was assigned to the late Judge Wilson Warlick, who died in 1978 before issuing a ruling. It was thereafter assigned to me. After a review of the two cubic feet or so of paper in the file an order was entered on August 14, 1978, dealing with numerous issues. A hearing was felt necessary by court and counsel on the remaining issues (see letter of September 7, 1978, from counsel for petitioner).
The hearing was conducted on October 16, 1978, and testimony was taken from the petitioner and from Mr. John Jay, the attorney who was appointed to assist him at his criminal trial.
Although the trial under the circumstances as summarized below was an unorthodox event, it looked at first as though no relief was possible under existing decisions and dicta; the petitioner had insisted on handling his own case; the trial judge had simply followed apparently controlling statements by numerous courts that a defendant may represent himself or be represented by an attorney, but may not be represented simultaneously by both; and petitioner had badly bollixed up his own defense.
Closer study indicates that this case on its facts is one of first impression, not controlled by prior decision or dictum, and that petitioner is entitled to a new trial because he was denied his Sixth Amendment right to the "effective assistance of counsel."
Three claims remained undecided after this court's order of August 14, 1978. The first claim (that Moorefield was denied due process because the bill of particulars alleged that the crime was committed at an hour somewhat different than the hour shown in the evidence) is without substance and is hereby denied without further discussion. The second claim, that the trial judge denied petitioner a fair trial by making sarcastic and demeaning remarks to or about him in the presence of the jury, lacks sufficient support in the record to constitute an independent basis for relief. One of the perils to a litigant representing himself is that he will at times incur censure or reprimand or prompting in his role as a lawyer which may unavoidably enure to his detriment in his role as a defendant. However, the very fact that such judge-to-counsel talk was frequently needed—and administered —is a part of the totality of circumstances leading to the conclusion that petitioner did not have the effective assistance of counsel. That claim will be merged into the third claim for purpose of decision.
The third claim is that petitioner was denied his Sixth Amendment right to the effective assistance of counsel. Petitioner says that although he insisted upon, and got, the right to control his own defense, he was prejudiced by the requirement that his lawyer remain completely silent during the trial. He says that he was entitled to have the lawyer address the court at least on purely legal matters, and that in any event the jury should have been instructed in some meaningful way about the court's restrictions on the courtroom behavior of appointed counsel. He says that the jury should have been told that the lawyer was being silent because the judge had ordered it, and that the lawyer's silence was not an indication of lack of confidence in petitioner's case nor of unwillingness of the lawyer to present a vigorous defense.
Some attention to what was said in and with regard to the appointment of counsel is necessary.
Moorefield was unable to retain a lawyer. At a hearing on November 11, 1975, Superior Court Judge Lacy H. Thornburg told Moorefield, "If you don't have a lawyer by Thursday morning, come back and tell me that you want a lawyer, and I will appoint one." Transcript of hearing, p. 8.
Moorefield returned to court on Thursday, November 13, 1975. The following appears in the record of that hearing:
Transcript of hearing, pages 1 through 6. Emphasis supplied.
Four days later, on November 17, 1975, Moorefield and his lawyer, Mr. Jay, appeared to present several motions to the same judge who appointed counsel. The following appears in the record of that hearing:
Transcript of hearing, pp. 4-5.
In the course of ruling on these motions at the end of the hearing, Judge Thornburg stated:
". . . that on November 13th, the defendant...
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State v. Parton, 81
...also U. S. v. Lang, 527 F.2d 1264 (4th Cir. 1975), cert. denied, 424 U.S. 920, 96 S.Ct. 1127, 47 L.Ed.2d 328 (1976); Moorefield v. Garrison, 464 F.Supp. 892 (W.D.N.C.1979). The vast majority of jurisdictions which have interpreted the Faretta decision have also refused to extend the holding......
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State v. Hughes
...representation is not an empty formality. Every criminal defendant has the right to effective assistance of counsel. Moorefield v. Garrison, 464 F.Supp. 892 (W.D.N.C.1979). The general rule is that there is no constitutional violation "unless an attorney's representation is so lacking that ......