Russell v. Peyton

• Decision Date: 10 October 1966
• Citation: 150 S.E.2d 530,207 Va. 469
• Court: Virginia Supreme Court
• Parties: Billy Junious RUSSELL v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary.

Page 530

150 S.E.2d 530

207 Va. 469

Billy Junious RUSSELL v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary.

Supreme Court of Appeals of Virginia.

Oct. 10, 1966.

David S. Antrobius, Richmond, for plaintiff in error.

Reno S. Harp, III, Asst. Atty. Gen. (Robert Y. Button, Atty. Gen., on brief) for defendant in error.

Before EGGLESTON, C.J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON, CARRICO and GORDON, JJ.

I'ANSON, Justice.

This is an appeal by Billy Junious Russell from a judgment of the Circuit Court of Nelson County, Virginia, entered on March 23, 1964, denying and dismissing his petition for a writ of habeas corpus Ad subjiciendum, whereby he sought release from the sentence of life imprisonment imposed upon him by the same court on March 1, 1961, for murder.

Petitioner contends (1) that he did not have effective assistance of counsel when he was tried and convicted of murder, and (2) that he was thereafter denied his right to appeal.

The evidence, court records and exhibits show the following: Russell was indicted by a grand jury in the Circuit Court of Nelson County on January 23, 1961, for the murder of Alfonzo William Patterson, and, he being without funds to employ an attorney of his own choosing, the trial court on the day the indictment was returned appointed Robert L. Marshall, a member of the bar for more than thirty years, to represent him. When the case came on for trial, on March 1, 1961, Russell entered a plea of not guilty to the charge, was found guilty by a jury of murder in the first degree, and was sentenced in accordance with the jury's verdict to serve a term of life imprisonment in the State penitentiary.

Russell testified in his habeas corpus proceeding that immediately after he was sentenced he asked his court-appointed attorney about taking an appeal and was told that he could not appeal because he did not have the money to make up the record. He was not advised that he could appeal In forma pauperis, and he did not learn of this right until some months later.

Mr. Marshall testified that immediately after his appointment he fully advised Russell as to the charge and informed him of his rights; that he interviewed his client on several occasions before trial; that he obtained from Russell the names of witnesses; and that after securing from the Commonwealth's attorney a copy of Russell's confession, he went over it with his client.

Mr. Marshall said, with reference to Russell's testimony concerning an appeal, 'It's very possible that I did say something to him (Russell) about not having money to prepare the record. I say it's possible, because he seemed stunned when I told him that there was nothing else that could be done. He seemed just like the world had fallen on him, shocked, and went right back to that appeal.' Mr. Marshall did not take any action toward applying for an appeal, nor did he advise the court that Russell wanted to appeal.

Russell first contends that he was not provided with effective representation at his trial for murder in that his counsel was aware that he (Russell) had consumed a large amount of alcohol on the day the homicide occurred but failed to request the court to instruct the jury that drunkenness could reduce the degree of the crime charged.

It must be remembered that effective counsel is not synonymous with successful counsel, and effective representation need not necessarily result in an acquittal. Peyton v. Fields, 207 Va. 40, 44, 147 S.E.2d 762, 765--766; Mitchell v. United States, 104 U.S.App.D.C. 57, 259 F.2d 787, 789 (D.C.Cir.), cert. denied 358 U.S. 850, 79 S.Ct. 81, 3 L.Ed.2d 86 (1958). It is uniformly held that ordinarily mistakes of judgment or trial tactics by defense counsel do not deprive the defendant of constitutional rights and are not reviewable in a habeas corpus proceeding. Hoffler v. Peyton, 207 Va. 302, 149 S.E.2d 893 (Sept. 9, 1966); Tompa v. Commonwealth of Virginia, 331 F.2d 552, 554 (4th Cir. 1964); Rivera v. United States, 318 F.2d 606, 608 (9th Cir. 1963); 21 Am.Jur.2d, Criminal Law, § 319, p. 348; Note, 'Effective Assistance of Counsel,' 49 Va.L.Rev. 1531, 1536, 1537 (1963). For assistance of counsel to be constitutionally ineffective, it must be shown that the representation is so lacking in diligence and competence that he accused is without representation and the trial is reduced to a sham. Peyton v. Fields, supra, 207 Va. at p. 45, 147 S.E.2d at p. 766; Yates v. Peyton, 207 Va. 91, 98, 147 S.E.2d 767, 772 (1966). Compare Webb v. Peyton, 345 F.2d 521 (4th Cir. 1965); Snider v. Smyth, 263 F.2d 372 (4th Cir. 1959), where the issues not raised at trial were deemed so crucial to the defense as to amount to a denial of a fair trial.

Russell does not question the qualifications of his court-appointed counsel, nor does he question the adequacy of counsel's preparation for trial. He says that the failure to offer an instruction on intoxication amounted to ineffective representation by counsel. Even if we assume that such an instruction should have been requested, when we consider the apparent thoroughness with which counsel conducted the preparation and presentation of the defense, we conclude that the failure to offer an instruction on intoxication was a matter of judgment or trial tactics which did not deprive Russell of his constitutional rights to effective representation by counsel and a fair trial on the merits of the case. Compare Lunce v. Overlade, 244 F.2d 108, 74 A.L.R.2d 1384 (7th Cir. 1957), where failure of counsel to offer an instruction on intoxication was but one of the circumstances on which the court concluded that petitioner had not been provided effective assistance at trial.

We agree, however, with Russell's contention that he was denied the right to appeal. Our holdings in Cabaniss v. Cunningham, 206 Va. 330, 143 S.E.2d 911 (1965); Thacker v. Peyton, 206 Va. 771, 146 S.E.2d 176 (1966); and Stokes v. Peyton, 207 Va. 1, 147 S.E.2d 773 (1966), control this question....