State ex rel Black v. Tahash, 40679
| Decision Date | 19 April 1968 |
| Docket Number | No. 40679,40679 |
| Citation | 280 Minn. 155,158 N.W.2d 504 |
| Parties | STATE of Minnesota ex rel. Billy Joe BLACK, Appellant, v. Ralph H. TAHASH, Warden, Minnesota State Prison, Respondent. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
Where one of the officers who arrested relator testified for the state at the trial that while on their way in a squad car to the station, 'I asked (defendant) when was the last time he saw (his alleged accomplice), and he stated that he had only seen him once since leaving Stillwater (prison),' relator's right to a mistrial if requested is well settled. However, it does not necessarily follow that attorney retained by relator to represent him at trial deprived him of his right to adequate representation because of his failure to ask for a mistrial. Inadequacy of counsel must be particularly flagrant where, as here, defendant selected his own trial counsel. Held, under facts and circumstances here, the trial court properly dismissed the writ of habeas corpus.
C. Paul Jones, Public Defender, Murray L. Galinson, Robert E. Oliphant, Asst. Public Defenders, Minneapolis, for appellant.
Douglas M. Head, Atty. Gen., Gerard W. Snell, Acting Sol. Gen., David J. Byron, Sp. Asst. Atty. Gen., St. Paul, for respondent.
Heard before KNUTSON, C.J., and NELSON, OTIS, SHERAN, and FRANK T. GALLAGHER, JJ.
Appeal from an order of the district court dismissing a writ of habeas corpus.
Relator, Billy Joe Black, was charged by information with the crime of aggravated robbery. He retained counsel to defend him against this charge. After a jury trial, he was found guilty, convicted, and sentenced on February 24, 1964, to an indeterminate term of up to 20 years. An alleged accomplice, Julius Andrews, was acquitted in a separate trial. Relator did not prosecute a direct appeal.
On August 1, 1966, relator filed a petition for habeas corpus. The principal charges in the petition were that relator was denied counsel while under interrogation; that his privilege against self-incrimination was violated; that certain evidence used against him at trial was obtained as a result of illegal search and seizure; and that at trial a witness referred to relator's previous imprisonment, thus depriving him of a fair trial. A writ of habeas corpus was issued and a hearing was held in the Washington County District Court. Relator was represented by the public defender. At this hearing it was alleged, in addition to the charges made in the petition, that relator's trial counsel did not represent him competently. The writ was dismissed on the merits by an order dated December 17, 1966, and the sole issue raised on this appeal is whether relator's trial attorney competently represented him.
Milton Wellnitz, one of the officers who had arrested relator, testified for the state at trial. After eliciting the fact that Officer Wellnitz had accompanied relator to the police station, the prosecuting attorney asked him what relator had said while they were in the squad car on the way to the station. The officer replied:
'I asked Billy Joe when was the last time he saw Julius Andrews, and he stated that he had only seen him once since leaving Stillwater.'
Relator's attorney objected immediately. The judge sustained the objection, instructed the jury to disregard the answer, and cautioned the officer not to make such statements. Defense counsel then asked to approach the bench. After a discussion at the bench, the court announced a recess. During the recess, defense counsel conferred with relator. At the end of that conference, defense counsel announced that he had explained to relator the damage which may have been caused by the officer's remark and had informed him that the remark might well provide a basis for a mistrial. Relator then stated that, after weighing what counsel had told him, he had decided not to move for a mistrial. His charge of incompetence now is counsel's failure at this point to move for a mistrial.
There is no doubt that the officer's remark constituted...
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