Smith v. Lockhart

• Decision Date: 15 January 1991
• Docket Number: No. 89-2803,89-2803
• Parties: Michael Lee SMITH, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1314

923 F.2d 1314

Michael Lee SMITH, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Appellee.

No. 89-2803.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 11, 1990.

Decided Jan. 15, 1991.

J. Blake Hendrix, Little Rock, Ark., for appellant.

Clint Miller, Little Rock, Ark., for appellee.

Before LAY, Chief Judge, BRIGHT, Senior Circuit Judge, and VAN SICKLE, Senior District Judge.

LAY, Chief Judge.

Michael Lee Smith appeals the magistrate's denial of his petition for a writ of habeas corpus. Smith alleges: 1) his Sixth Amendment rights were violated when he was denied counsel at a critical stage of the criminal proceedings; 2) his due process rights were violated when he was denied counsel at a critical stage of the proceedings; and 3) his eighth amendment rights were violated by imposition of a cruel and unusual sentence of 242 years in jail. We hold that Smith was denied counsel at a critical stage, and accordingly vacate the decision of the magistrate denying the writ. ¹

BACKGROUND

Michael Lee Smith was a truck driver for Youngblood's Trucking Company located in Alma, Arkansas. On October 1, 1986, Smith discovered that several items had been stolen from his truck, which was parked at the Youngblood facility. Smith was upset and called the owner, Don Youngblood, to complain and to obtain his paycheck. Youngblood informed him that nothing could be done about the stolen items and that he would have to wait until the next day to receive his paycheck. After a contentious argument, Youngblood fired Smith.

Smith then went to the company office where a heated discussion ensued. Smith left the office and returned with a pistol in his waistband and demanded his paycheck. He told the seven people in the office that he would kill them if anyone pulled up in front of the building or the telephone lights lit up. Although Smith waved the gun in the air at some point, not everyone in the office saw the gun and there is a dispute whether Smith specifically pointed the gun at any one individual. (e.g., App. 171, 177, 180, 195). Smith was given his paycheck, he thanked everyone for their cooperation, and then left the premises. (App. 147). The incident lasted approximately thirty to forty-five minutes. (App. 130, 166, 168). Smith never physically touched any of the seven people, nor were any of them physically harmed.

The one-day jury trial resulted in guilty verdicts on seven counts of terroristic threats and seven counts of false imprisonment. Because Smith used a handgun, the jury was instructed it could enhance Smith's sentence by fifteen years for each count of both offenses. The jury fixed Smith's sentence at twenty-one years for each count of making terroristic threats and fifteen years for each count of false imprisonment. The state trial judge ordered all of the sentences to run consecutively, for a total of 242 years in prison. ²

The Arkansas Supreme Court affirmed Smith's conviction, with one justice dissenting. Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988). Smith's pro se petition for state post-conviction relief was denied in an unpublished decision. Smith v. State, CR 87-123, 1989 WL 50532 (Ark. May 8, 1989) (available on Westlaw: 1989 WL 50532). Smith then filed a petition for a writ of habeas corpus in federal court and proceeded pro se before the magistrate pursuant to 28 U.S.C. Sec. 636(c) (1989). Without holding an evidentiary hearing, the magistrate summarily dismissed Smith's application for a writ of habeas corpus.

DISCUSSION

I.

On October 6, 1986, Smith was arraigned before Judge Donald Langston in Crawford County Court on seven counts of terroristic threatening in the first degree and seven counts of false imprisonment in the first degree. Because Smith was unable to afford an attorney, the trial judge appointed Robert Marquette, the sole public defender in Crawford County, to defend Smith. Smith objected to having Marquette represent him, citing a conflict of interest. The judge told Smith he either could accept Marquette or could proceed pro se. Smith informed the judge that he wanted a lawyer, but that he would not accept Marquette. Smith objected to the poor representation Marquette had afforded other defendants, as well as the fact that Marquette served as a municipal judge in Crawford County. The judge apparently construed this as a waiver of the right to counsel and told Smith he would be proceeding pro se. (App. 70-73).

On November 10, 1986, Smith and five other named prisoners in the Crawford County jail filed a pro se class action lawsuit in federal court naming Judge Langston, the public defender Marquette, and others as defendants. The Sec. 1983 suit alleged a conspiracy of Crawford County officials to violate the rights of defendants, including the rights to a speedy trial and the effective assistance of counsel. ³ The suit asked the federal district court for injunctive relief. Smith also filed numerous pro se motions in his criminal case before Judge Langston. (App. 33-48, 60-62).

On November 6, 1986, Judge Langston conducted a pre-trial omnibus hearing in Smith's criminal case. Smith appeared pro se, but Marquette was present. At the beginning of the hearing, Smith again told the judge that he wanted a lawyer, but had irreconcilable conflicts with Marquette. In addition to the fact that Marquette was a part time municipal judge, Smith cited the class action suit that was to be filed against Marquette as well as the fact that Marquette was representing both Smith and his co-defendant on another charge pending before the court. ⁴ Although Smith attempted to argue the merits of his stated conflict of interest, Judge Langston refused to inquire further. ⁵ The judge refused During this same hearing, Smith also moved for Judge Langston to disqualify himself because the judge was biased against him. (App. 76-77). Smith believed that Judge Langston could not give him a fair trial as the judge was personally prejudiced against him because of Smith's class action suit against the judge and remarks Smith had made to the media impugning the judge. Judge Langston summarily denied the motion. (App. 77).

                to appoint a different attorney, and again told Smith he had to accept Marquette or proceed pro se.  (App. 73-74).  At one point, Judge Langston told Smith he did not "have any authority to appoint anybody else."    (App. 83).  The judge then offered to appoint a legal advisor to assist Smith with his pro se defense, which Smith accepted.  Despite Smith's stated objections to Marquette, Judge Langston appointed Marquette as Smith's legal advisor.  (App. 76, 87).  Because of the possible conflict of interest stemming from the federal lawsuit, Marquette told Judge Langston that he had misgivings about even being appointed Smith's legal advisor.  Judge Langston refused to consider these objections. 6
                

Smith also presented numerous pro se motions, including a motion to dismiss the charges based on denial of his right to a speedy trial and a motion to reduce bail. Most of Smith's other motions concerned access to law books and other materials Smith believed necessary to conduct his pro se defense. All of these motions were denied. (App. 77-86). The day after the omnibus hearing, twelve days before trial, Judge Langston appointed a member of the private bar to represent Smith. At trial, Smith functioned as co-counsel with his newly appointed attorney.

II.

Smith argues he was denied his Sixth Amendment right to counsel at a critical stage of the proceedings against him--the omnibus hearing held November 6, 1986. He argues he had a right to conflict-free counsel, and that the court should have conducted an inquiry once it was alerted to the conflict between Marquette and Smith. Because the judge refused to appoint conflict-free counsel, Smith argues he was forced to proceed without representation at the omnibus hearing in violation of the sixth amendment.

It is undisputed that Smith appeared at the omnibus pre-trial hearing without representation. At arraignment, he had refused to accept the public defender because he believed there was a conflict. At the beginning of the omnibus hearing, he again refused the public defender for the same reason, and the hearing then continued with Smith proceeding pro se. We first consider whether the omnibus hearing, on these facts, constituted a critical stage in the criminal proceedings against Smith.

A.

Under the Sixth Amendment, ⁷ defendants in criminal proceedings are entitled to the assistance of counsel at all critical stages of the proceeding against them. United States v. Wade, 388 U.S. 218, 226, 87 S.Ct. 1926, 1931, 18 L.Ed.2d 1149 (1967). Critical stages can include those conducted "at or after the initiation of adversary criminal proceedings--whether by way of formal charge, preliminary hearing, indictment [I]n addition to counsel's presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate from the accused's right to a fair trial.... [W]e scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant's basic right to a fair trial....

                information or arraignment."    Gilmore v. Armontrout, 861 F.2d 1061, 1070 (8th Cir.1988) (quoting Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972)), cert. denied 490 U.S. 1114, 109 S.Ct. 3176, 104 L.Ed.2d 1037 (1989).  Critical stages also can include steps in the proceedings in which the accused is confronted by the procedural system or the prosecutor or both, United States v. Gouveia, 467 U.S. 180, 189, 104 S.Ct. 2292, 2298, 81 L.Ed.2d 146 (1984), and where available defenses may be irretrievably lost.  Hamilton v. Alabama, 368 U.S. 52, 54, 82 S.Ct. 157, 158, 7 L.Ed.2d 114 (1961).  The Supreme Court has

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