Root v. Cunningham

Citation344 F.2d 1
Decision Date26 March 1965
Docket NumberNo. 9606.,9606.
PartiesJesse ROOT, Appellant, v. W. K. CUNNINGHAM, Jr., Superintendent of the Virginia State Penitentiary, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

John O. Peters, Richmond, Va. (Court-assigned counsel), (Williams, Mullen & Christian, Richmond, Va., on brief), for appellant.

Reno S. Harp, III, Asst. Atty. Gen. of Virginia (Robert Y. Button, Atty. Gen. of Virginia, on brief), for appellee.

Before HAYNSWORTH, Chief Judge, J. SPENCER BELL, Circuit Judge, and CHRISTIE, District Judge.

CHRISTIE, District Judge.

This is an appeal under 28 U.S.C. § 2253 by Jesse Root from a judgment of the United States District Court for the Eastern District of Virginia, entered on July 6, 1964, denying his petition for a writ of habeas corpus. In his petition before the district court he claimed that the judgment entered by the Circuit Court of Accomack County, Virginia, on October 12, 1954, committing him to eighteen years imprisonment for statutory burglary, was unlawful and void. We find the appeal to be without merit.

Appellant's principal contentions on this appeal are:

(1) Whether the district court was in error in finding as a matter of fact that he was represented by counsel at his arraignment;

(2) Whether the district court was in error in finding as a matter of fact that he was not denied effective assistance of counsel in the state trial; and

(3) Whether the district court was in error in finding as a matter of law that his absence during the consideration of instructions by the trial judge and counsel did not constitute a violation of his constitutional rights.

In considering appellant's attack on the district court's findings of fact, this Court is bound by those findings unless they are shown to be clearly erroneous. Federal Rules of Civil Procedure, Rule 52, 28 U.S.C.A. Cf. Crabtree v. Boles, 339 F.2d 22 (4th Cir. 1964); James v. Boles, 339 F.2d 431 (4th Cir. 1964).


While appellant contends that he was not represented by counsel at his arraignment, the Common Law Order Book of the Circuit Court of Accomack County, Virginia, revealed on October 5, 1954, the following:

"This day came the attorney for the Commonwealth; and thereupon said defendant was brought into Court and set to the Bar by the Jailor of this Court, and after being advised by counsel, pleaded not guilty thereto. * * *"

It was noted on the criminal docket that appellant was represented at this proceeding by Frances F. Ames, self-employed attorney. Furthermore, at the hearing before the district court, Frances Ames testified that she was present when appellant entered his plea of not guilty. Thus, in light of this testimony by Mrs. Ames and the documentary records of the circuit court, it is apparent that the finding of the district judge that counsel was present at the arraignment was clearly warranted.


In regard to appellant's second contention, i. e., that he was not effectively represented by counsel at trial, it is to be noted that his counsel in this proceeding takes the position in his brief, and correctly so, that this question is one of fact. The district court made the following findings of fact thereon:

"The evidence shows and the Court finds that Mrs. Ames interviewed the defendant several times in jail, that she traveled throughout the county interviewing every witness that he had told her about; that she examined the file in the Clerk\'s office concerning the case; and that she prepared her defense of the case on behalf of the petitioner in line with the defense which he urged upon her."

The district judge further found that appellant knew the charges against him, understood them, and actively directed and assisted his counsel in formulating defense strategy. From the foregoing findings of fact, the district judge concluded that appellant was effectively represented by counsel. A careful review of the record, the affidavit and deposition of Mrs. Ames and the correspondence she addressed to appellant shortly after the trial relative to his charge of misconduct by certain jurors, demonstrates that the findings and conclusions of the district judge have ample factual and legal support and this court is bound by them. Moreover, it may be said that, while a defendant is undeniably entitled to a fair trial according to the law of the land, yet he is not guaranteed a perfect one, and where an attorney gives his client his complete loyalty and serves his cause in good faith and to the best of his ability, the due process requirement for effective assistance of counsel is generally met. Johns v. Smyth, 176 F.Supp. 949 (E.D.Va.1959); Morton v. Welch, 162 F.2d 840 (4th Cir. 1947). Ordinarily, one is deprived of effective assistance of counsel only in those extreme instances where the representation is so transparently inadequate as to make a farce of the trial. Snead v. Smyth, 273 F.2d 838 (4th Cir. 1959). This is especially true where, as here, the defendant chose and employed his own counsel.


It is conceded that appellant did not accompany the judge, the commonwealth attorney and his counsel to the court's chambers to consider and settle the instructions at the close of the evidence. It is also clear that he neither expressed a desire to attend the conference nor objected to it at the time. He has failed to point to anything that was said or done in the conference that tended to his prejudice or to anything that he could have contributed to it had he been there. It is also undenied that, following the conference, he was present in the courtroom when the Court instructed the jury. He bases his claim of denial of due process in this regard solely upon the fact of his absence from the conference. The district court found as a matter of law that this procedure was authorized by Virginia law and that it is not such a departure from the fundamental concept of a fair and impartial trial as to offend the due process clause of the Fourteenth Amendment to the Federal Constitution. We must agree.

In Virginia, the common law doctrine relating to the right of a person indicted for a felony to be present during his trial has been enacted into statute. Code of Virginia 1950, Sec. 19.1-240. The question has often come before the highest court of that state where it has been consistently held that the accused has an inalienable right to be present throughout his trial, and that this right is to be carefully guarded. However, the same court has also pointed out that in the protection and enforcement of the right, it must not be so enlarged as to exceed its true scope and purpose. Palmer v. Commonwealth, 143 Va. 592, 130 S.E. 398; Hagood v. Commonwealth, 157 Va. 918, 162 S.E. 10, 601; Williams v. Commonwealth, 188 Va. 583, 50 S.E.2d 407; and Carpenter v. Commonwealth, 193 Va. 851, 71 S.E.2d 377. In all these cases, the court, while fully recognizing the right of the defendants to be present at all stages of their trials, found nothing wrong with the universal practice of judges and counsel discussing in conference proposed instructions out of the presence of the defendants. The court found that such activity was only subsidiary to the trial itself and not properly a part of it. This was a reasonable and rational approach to the problem. It is quite understandable to those familiar with trial procedure. The judge, being responsible for the orderly conduct of the trial, and being charged...

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