Pendergraft v. State, s. 44106

• Decision Date: 07 November 1966
• Docket Number: 44170,Nos. 44106,s. 44106
• Citation: 191 So.2d 830
• Parties: Catherine T. PENDERGRAFT v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 830

191 So.2d 830

Catherine T. PENDERGRAFT v. STATE of Mississippi.

Nos. 44106, 44170.

Supreme Court of Mississippi Nov. 7, 1966.

No. 44106: E. Hugh Cunningham, Jr., Barnett, Montgomery, McClintock & Cunningham, Jackson, for appellant.

No. 44170: James B. Tucker, W. D. Kendall, John R. Poole, Jackson, for appellant.

Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.

PATTERSON, Justice:

This is an appeal from a judgment of the Circuit Court of the First Judicial District of Hinds County wherein the appellant, Catherine T. Pendergraft, was convicted of the murder of Ralph N. Pendergraft, her husband, and sentenced to life imprisonment in the state penitentiary. From this conviction and judgment she appeals.

There are eleven assignments of error enumerated by the appellant and urged for reversal of the cause. Since we reverse and remand the case for a new trial, we designate only those assignments of error which depict errors on the record so prejudicial to the defendant's right to a fair trial as to warrant reversal of the cause or which, albeit advisory, are likely to recur on retrial. We refrain from any comment upon the evidence, as there must be a new trial, other than that which is essential to this decision.

The assignments of error in the order argued are:

1. The trial court committed reversible error in instructing the appellant not to discuss her case with her attorney during a two-hour interval between trial sessions.

2. The trial court erred in granting Instruction No. 5 for the State.

3. The trial court erred in granting Instruction No. 4 for the State.

4. The trial court erred in admitting in evidence the two wills of deceased over objection of the appellant.

5. The trial court committed reversible error in overruling objections of the defendant and in admitting in evidence the exhibits confiscated by officers from a search of appellant's home.

We are of the opinion that the first assignment of error which is directed to the action of the trial judge in instructing the defendant not to discuss the case with her attorney and advising the attorney of such instruction so that it became applicable to him, is an invasion of a constitutional right of the defendant so basic and fundamental that prejudicial error will be presumed therefrom, and because thereof the defendant was deprived of a fair trial in contemplation of law which necessitates a reversal and new trial of the cause.

The posture of the case at the time of the court's admonishment, hereinafter set out, was that the trial had been in progress for four days, including night sessions, when it became necessary for the court to recess at which time the court instructed the defendant and her attorney as follows:

'BY THE COURT:

'Let the record show that the Court declared a recess at 5:30, P.M., at the conclusion of the defendant's direct examination, the recess to terminate at 7:30, P.M. That the Court instructed the witness (defendant) not to discuss the case with her attorney or anyone else during said recess period, and also advised the attorney of the Court's instruction.

'BY MR. CUNNINGHAM:

'Now comes the defendant and objects to the action of the trial court in instructing defendant not to discuss this case with her attorneys during the two-hour recess, as it is denying to her her constitutional rights to confer with her attorneys concerning her case for which she is now on trial.

'BY THE COURT:

'The Court overrules the objection.'

The Sixth Amendment to the United States Constitution provides in part as follows:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, * * * and to have the Assistance of Counsel for his defence.

Mississippi Constitution, article 3, section 26 (1890) is to the same effect.

This brings us to the critical question raised by this assignment of error. Did the trial court's instruction to the defendant and to her attorney not to converse during a two-hour recess of the court, immediately following the defendant's direct testimony in her own behalf, violate the defendant's constitutional right to the assistance of counsel as provided by the above-quoted Sixth Amendment to the United States Constitution? 21 Am.Jur.2d Criminal Law section 313 (1965) states the general rule to be:

In construing constitutional provisions relating to the right of an accused person to counsel, most courts have expressed the view that the right extends to every stage of the prosecution. And it is said that the right to assistance in preparing for trial is equal to the right to assistance during the trial itself. Accordingly, in addition to the right to representation during the course of his trial, an accused is generally entitled to be assisted by counsel * * * 21 Am.Jur.2d at 339-340.

It may be safely said that at this time in our jurisprudence there is no question of constitutional law more firmly established than the oft-enunciated principle that in the trial of criminal cases in the federal, as well as the state courts, the defendant is entitled to have the guilding hand of counsel at every stage of the proceeding. The trial is, of course, a stage of the proceeding of vital importance to the accused. The right to an attorney extends throughout the trial and to every stage of the proceeding. ¹ We need not look to the specific prejudice that resulted to the defendant as the result of the two-hour court-imposed restriction of consultation between the accused and her attorney. This particular phase of the trial is so critical that we do not attempt to envision a particular prejudice such as an overlooked fact, further discussions of strategy, or whether it be merely reassurance to the defendant. We deem it reversible error that the right of consultation granted by the Constitution was denied. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), and the more recent decisions of the United States Supreme Court, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) announce the legal rationale that an accused is denied due process under the Fourteenth Amendment to the United States Constitution unless the provisions of the Sixth Amendment are adhered to. Cf. Miranda v State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

In United States v. Venuto, 182 F.2d 519, 522 (3d Cir. 1950), in considering an eighteen-hour court recess in which the defendant and his attorney were not allowed to consult with each other, the court held:

To deprive an accused defendant and his counsel of the right to consult with each other during an eighteen-hour court recess was most certainly deprivation of the defendant's constitutional right to consult counsel at all stages of the proceeding. We can find no justification for imposing a restriction of silence between accused and counsel during a trial recess. We reject the Government contention that defendant and his counsel must prove affirmatively the exact prejudice produced by this injunction in a federal prosecution. Not only would this require them to disclose what would have been privileged communication between attorney and client, but, as stated in Glasser v. United States, supra, 315 U.S. at page 76, 62 S.Ct. at page 467; 'The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.' By restricting the right of consultation between this defendant and his counsel during court recesses, defendant was denied the right to have the assistance of counsel for his defense, as guaranteed by the Sixth Amendment to the Constitution. His objection on this ground and his motion for mistrial directed to the trial court were well founded. Accordingly, the conviction must be reversed and a new trial granted.

The case of Commonwealth v. Werner, 206 Pa.Super. 498, 214 A.2d 276 (1965), which follows Venuto, reiterates the right of a defendant to counsel under the Sixth Amendment, and quotes the language of Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942), which we repeat:

'The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.' 214 A.2d at 277-278.

Commonwealth further states in its own opinion the following:

Nor will this court engage in nice calculations as to precisely what the trial judge meant to do or did not mean to do by his statement. An admonition 'I don't want him to discuss this testimony with you', given by a judge to an officer of the court, is not cured by the statement, 'But you may ask him about witnesses * * * I did not mean to cut off communication between you.' It is not the function of the trial judge to decide what a defendant's defense should be, nor when or how that defense should be planned, nor how much consultation between a defendant and his retained counsel is necessary to adequately cope with changing trial situations. That is the function of counsel. The right to the assistance of that counsel is not a right which exists only from 9 a.m. to 4 p.m. and only in the court room and only concerning certain aspects of the case. The defendant had the right to discuss the entire case, including his own testimony, with his attorney, even after 4 p.m. Discussion of this testimony might have been very important in determining the future course of his defense. An admonition limiting this right is reversible error. 214 A.2d at 278.

As heretofore stated, we are of the opinion the deprivation of the defendant's constitutional right under the Sixth Amendment to consult with her attorney during this two-hour...