Scott v. State

• Decision Date: 14 June 1965
• Citation: 216 Tenn. 375,392 S.W.2d 681,20 McCanless 375
• Parties: , 216 Tenn. 375 Clifford SCOTT and Calvin Van Douglas, Plaintiffs in Error, v. STATE of Tennessee, Defendant in Error.
• Court: Tennessee Supreme Court

Page 681

392 S.W.2d 681

20 McCanless 375, 216 Tenn. 375

Clifford SCOTT and Calvin Van Douglas, Plaintiffs in Error, v. STATE of Tennessee, Defendant in Error.

Supreme Court of Tennessee.

June 14, 1965.

Rehearing Denied July 30, 1965.

Horace L. Smith, Jr., Chattanooga, for Clifford Scott.

H. H. Gearinger, Chattanooga, for Calvin Van Douglas.

George F. McCanless, Atty. Gen., Marne S. Matherne, Asst. Atty. Gen., Nashville, for defendant in error.

HOLMES, Justice.

The plaintiffs in error, hereinafter referred to as defendants, in docket Nos. 107219 and 107220 in the Criminal Court of Hamilton County, were convicted of robbery by use of a deadly weapon and sentenced to imprisonment in the State Penitentiary for a term of 50 years. They are represented by court-appointed counsel, who have duly perfected their appeal to this court and filed assignments of error.

The principal ground relied upon for a reversal of the convictions is stated in assignment of error number six, as follows:

'The Trial Court erred in denying the motions of the defendants for directed verdicts of acquittal based on motions timely made in which each defendant claimed denial of the right to access to counsel as evidenced by the interception of letters from appointed counsel to defendants and the deletion therefrom of the advice of said appointed counsel.'

The record shows that immediately after the defendants entered their pleas of not guilty to the indictment and the jury was sworn, the jury was excused from the courtroom and the motions referred to in this assignment were presented to the Court.

The record contains letters on the stationary of each court-appointed counsel addressed to his client at the Hamilton County Jail. The bottom part of each of these letters has been cut off. The letter from Mr. Gearinger to his client, Calvin Van Douglas, is dated July 31, 1964, and the letter from Mr. Smith to his client, Clifford Scott, is dated August 25, 1964.

The record also contains the affidavit of the defendant Douglas dated September 9, 1964, which states that when he received the letter from his court-appointed counsel it had seen opened and the bottom part cut off with a sharp instrument. There is also substantially the same affidavit by the defendant Scott with reference to his letter. The envelopes addressed to the defendants, in which it is stated the letters were mailed, have typed on the front of them, in addition to name and address of the addressee, the following: Confidential Attorney-Client Relationship. Further, the affidavit of the defendant Scott dated September 11, 1964, states that at about 3:30 P.M., on September 10, 1964, a member of the staff of the Hamilton County Attorney General's office came to the jail and threatened both defendants with being put to death on the charge pending against them unless they admitted the commission of the offense. There is also in the record the affidavit of the defendant Douglas that at the same time and place the same threat was made to him.

When the Court, at the outset of the trial, was advised of the charges made in the affidavits of the defendants, a hearing was held in the absence of the jury at which both defendants testified and both identified the same member of the Hamilton County Attorney General's office as being the person referred to in the affidavits. Bearing in mind that the first affidavit by the defendant Douglas relating to the censorship of his mail is dated September 9, 1964, and that the affidavits of the defendants relating to threats made against them by a member of the Attorney General's staff are dated September 11, 1961, there could not well be any mistake in the date of September 10, 1964, being the correct date that the defendants contend the threats were made.

The member of the Attorney General's staff identified by the defendants testified that at no time had he talked to either of these defendants in jail and that he had never talked to them anywhere. The any time he recalled seeing these two defendants before the morning of the trial was on arraignment when both were charged with another offense. The trial was held on October 1, 1964, and this witness testified he had been in the Hamilton County Jail for any reason for over a month. Later in this hearing the Trial Judge was asked to produce his trial notes in a certain case. When produced, the Trial Judge's notes showed that on September 10, 1964, the member of the Attorney General's staff identified by the defendants as the one who threatened them in the County Jail at 3:30 that afternoon was, in fact, actively engaged in court in the trial of a case which began the morning of September 10, 1964, and was not concluded until ten minutes after five that afternoon.

The Court's ruling on that part of the defendants' motions relating to the alleged threats by a member of the Attorney General's office is not assigned as error in this Court. The assignment relates only to the alleged denial of access to counsel by censoring and cutting off a part of the letters.

In the briefs and in the oral argument, it is contended that under the holding of the United States Supreme Court in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, the Trial Judge committed error in not directing verdicts of acquittal because defendants had been denied their constitutional right to access to counsel. In overruling the defendants' motions, the Trial Judge stated, in part, the following:

'Well, gentlemen, let these motions be filed, and the Court will deny the request for, I believe, a directed verdict of acquittal therein, and it is my observation, of course, that it does not appear, whatever happened, whoever talked to these defendants, that any statement was made by the defendants against their interests, and, of course, if they were that could be excluded from the presentation of any trial where these defendants might be on trial. Now these allegations about mistreatment of the defendants because of mail being opened, I think that comes under the management of the prison or jail, and supervision of any activities of any inmates are certainly in the discretion of the Sheriff, and it doesn't appear to this Court that any abuse has been the cause of any rights of these defendants as to handling mail, even though it may have been marked private and confidential by the attorneys writing, and the Court certainly will be alert to see that during the progress of this or any other trial that if anything else has occurred that might adversely affect the constitutional rights of these defendants that they will be protected at every point.'

At no time while confined in jail did either of the defendants make any confession or self-incriminating statement. Upon the trial of the case the State did not attempt to introduce any statement made at any time by either defendant. There is nothing in the record that in any way suggests what person might have deleted parts of the letters from the attorneys to their clients. In view of the fact that the defendants were so obviously incorrect in their testimony relating to the alleged threats by the Assistant District Attorney General, it could be that the defendants themselves cut the bottom from the letters sent them by their lawyers. This though, we are not called upon to decide. Court-appointed counsel state that at no time when they appeared at the Hamilton County Jail to confer with their clients were they denied access to their clients or treated in any way other than with complete courtesy.

If some employee or official at the Hamilton County Jail took it upon himself to delete advice from an attorney to his client from a letter sent to the client in jail by the attorney, the courts of that county will see that such practice is not engaged in.

We find the following statement in Green v. State of Maine, 113 F.Supp. 253, 256, appropriate in the present situation:

'Furthermore, Green says that while he was being held in jail awaiting indictment (he did not post bail), mail to and from his attorney was opened without his authority, and when he complained he 'was locked-up and held incommunicado, in violation of his rights to counsel and due process of law.' The opening and inspection of mail passing back and forth between prisoners and those at liberty is an ordinary, usual and obviously essential incident to the safe custody of prisoners. The practice violates no constitutional right of which I am aware. The rest of the allegation, concerning holding Green 'incommunicado,' hints at a more serious matter in that it suggests that Green was denied access to his counsel. This, however, clearly was not so, for it appears that Green was represented at his trial by experienced counsel of his own choice, and it is nowhere suggested in the application for the writ that Green's counsel did not have full opportunity to prepare his defense.'

In Ortega v. Ragen, 7 Cir., 216 F.2d 561, cert. den. 349 U.S. 940, 75 S.Ct. 786, 99 L.Ed. 1268, it was claimed that the warden's refusal to deliver a registered letter to a prisoner kept the prisoner from preparing his 'defense in the Supreme Court of Illinois to seek relief from unlawful imprisonment.' In discussing this contention, the Court stated:

'Certainly the control of mail going to and from inmates is an important part of administration and maintenance of discipline in a large prison. The mere withholding of a letter from a prisoner is not, of itself, violative of plaintiff's federal rights.' 261 F.2d at 562.

In the recent case of United States ex rel. Boone v. Fay, D.C., 231 F.Supp. 387, which was decided after Escobedo v. State of Illinois, supra, the petitioner contended his conviction was invalid because the committing magistrate had not advised him of his right to aid of counsel. In holding that the conviction was not invalid, the Court stated:

'* * * Whether or not such a failure violates an accused's...