State ex rel. Lawrence v. Henderson

• Decision Date: 18 June 1968
• Citation: 433 S.W.2d 96,1 Tenn.Crim.App. 199
• Parties: STATE of Tennessee ex rel. Dickie Lee LAWRENCE, Plaintiff in Error, v. C. Murray HENDERSON, Warden, Defendant in Error.
• Court: Tennessee Court of Criminal Appeals

Page 96

433 S.W.2d 96

1 Tenn.Crim.App. 199

STATE of Tennessee ex rel. Dickie Lee LAWRENCE, Plaintiff in Error, v. C. Murray HENDERSON, Warden, Defendant in Error.

Court of Criminal Appeals of Tennessee.

June 18, 1968.

Certiorari Denied by Supreme Court Nov. 4, 1968.

Freeman C. Marr, Robert E. Rose, Memphis, for plaintiff in error.

George F. McCanless, Atty. Gen. of Tenn., Nashville, Thomas E. Fox, Deputy Atty. Gen., Nashville, for defendant in error.

OPINION

OLIVER, Judge.

Plaintiff in error, the petitioner below, has appealed to this Court from two judgments of the Criminal Court of Shelby County dismissing his two separate petitions for the writ of habeas corpus, after evidentiary hearings.

One petition was filed February 16, 1967 and was dismissed by order entered on October 6, 1967. The second petition was filed on October 9, 1967 and judgment dismissing this case was entered on November 16, 1967.

Upon a plea of guilty, the petitioner was convicted in the Criminal Court of Shelby County on April 4, 1960 of an assault and battery upon a female child under the age of twelve years with the intent to have unlawful carnal knowledge of her. He was represented by the Shelby County Public Defender, and was sentenced to imprisonment in the penitentiary for life. This indictment obviously was predicated upon T.C.A. § 39--606 which proscribes such conduct and makes it punishable as in the case of rape, that is, by death by electrocution, or, in the discretion of the jury, by imprisonment in the penitentiary for life or for not less than ten years. It appears in this record that the child in question was between ten and eleven years old and was the sister of the defendant's wife, and that the defendant actually raped this child and seriously injured her in so doing. When asked by his own court-appointed counsel during the habeas corpus hearing on October 6, 1967 whether he had anything to do with a sexual assault on this little girl, the petitioner replied, 'That has nothing to do with the habeas corpus proceedings.'

In disposing of the second petition, the court directed that any appeal from the judgments dismissing these two petitions should be combined. This has been done. The Assignments of Error encompass the alleged errors of the trial court in dismissing both petitions. They are that it was error to dismiss these petitions because:

1. Defendant was denied the right of counsel for an unreasonable length of time.

2. Defendant was denied zealous, efficient and effective support of his defense after counsel was appointed.

3. Defendant's guilty plea was not free and voluntary.

4. Defendant was not given a copy of the indictment nor panel of Grand Jurors.

5. Defendant alleges that the Trial Judge did not charge the jury.

6. Defendant was not permitted to subpoena witnesses at hearing of Petition for Writ of Habeas Corpus at the State's expense.

7. That the denial of Petition for Writs of Habeas Corpus were based not only upon facts presented at the hearings for Writs of Habeas Corpus, but on personal opinion of the Trial Judge.

8. The defendant's two Petitions for Writ of Habeas Corpus were illegally consolidated.

9. That the above enumerated assignments of error constitute violation of defendant's constitutional right to due process of law.

10. That no evidence was presented to the jury at the time defendant's guilty plea was entered.

In considering these Assignments of Error, we must adhere to the settled rule that the findings of the trial court, upon questions of fact, are conclusive unless this Court finds that the evidence preponderates against the lower court's judgment. State ex rel. Hall v. Meadows, 215 Tenn. 668, 389 S.W.2d 256; State ex rel. Johnson v. Mainard, 188 Tenn. 501, 221 S.W.2d 531; Gray v. Johnson, (6th Cir., 1965) 354 F.2d 986; Bates v. Meadows, (6th Cir., 1966) 358 F.2d 674.

With respect to the first Assignment, it is sufficient to say that this record shows that the petitioner did not make any confession or give any other extra-judicial statement during the period complained about, between his arrest on Sunday morning and his preliminary hearing on Tuesday, nor at any other time; he never made any statement whatsoever, either exculpatory or inculpatory, which was ever used against him at the preliminary hearing or at his trial; he entered a plea of not guilty at his preliminary hearing. Clearly, the petitioner was in no way prejudiced and no constitutional right of his was infringed by the fact that he was not represented by counsel prior to and during his preliminary hearing. There is no constitutional mandate requiring a preliminary hearing in this State. State ex rel. Carlson v. State, 219 Tenn. 80, 407 S.W.2d 165. Nor does an accused have a constitutional right to a preliminary hearing. State ex rel. Reed v. Heer, 218 Tenn. 338, 403 S.W.2d 310; Dillard v. Bomar (6th Cir.) 342 F.2d 789. Since a preliminary hearing is not a critical stage of a criminal prosecution in this State, and is not constitutionally required, an accused has no constitutional right to be represented by counsel at a preliminary hearing. State ex rel. Reed v. Heer, supra.

The second Assignment, in which the petitioner complains about his representation by appointed counsel, is completely refuted by this record. The Public Defender of Shelby County was appointed to represent him. Prior to trial, a Mr. Cleaves of the Public Defender's office, interviewed the petitioner at least one time. Mr. Hugh Stanton, Sr., the Public Defender in Shelby County for twenty-two years, a lawyer of extensive experience and great ability and unquestioned integrity and fidelity to the cause of his clients, conferred with the petitioner two or three times and represented him in the trial. It is common knowledge in the legal profession, attested by the experience of every trial lawyer, that the time necessary and sufficient for pre-trial preparation essential to effective representation of an accused is determined by the varying circumstances of each case. Some cases require less pre-trial investigation and preparation than others. For these reasons it is impossible to establish or fix a definite period of time that an attorney representing an accused person should devote to pre-trial preparation of the case. There is nothing in this record to give any support to the charges implicit in the second Assignment of Error.

The petitioner's third Assignment of Error, that his plea of guilty was not free and voluntary, is likewise untenable. A guilty plea induced by promises or threats or other coercion is not voluntary and is a nullity, and a conviction based on such an involuntary plea of guilty is void. Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473; Olive v. United States, (6th Cir.), 327 F.2d 646, cert. denied 377 U.S. 971, 84 S.Ct. 1653, 12 L.Ed.2d 740; Scott v. United States, (6th Cir.), 349 F.2d 641. In State ex rel. Barnes v. Henderson, 220 Tenn. 719, 423 S.W.2d 497, our Supreme Court recognized this universal rule: 'It is recognized in this State, as in all jurisdictions, that a plea of guilty must be made voluntarily and with full understanding of its consequences.' And in Brooks v. State, 187 Tenn. 67, 213 S.W.2d 7, the Court said: 'Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice with full understanding of the consequences.'

This record does not sustain the petitioner's insistence that he was coerced to plead guilty by the threats of the prosecuting attorney and the Public Defender that he would get the death penalty if he went to trial, and by the importunities of his wife and mother. He was charged with a capital offense, a heinous and horrendous crime, repulsive and despicable and indefensible upon any conceivable ground. When Mr. Stanton advised him of the seriousness of the charge and that he could possibly receive the death penalty and that he was apprehensive that he would be sentenced to electrocution if he went to trial, as indeed he well might have been, and that the State had agreed to a sentence of life imprisonment upon a plea of guilty, the petitioner freely and voluntarily and understandingly agreed to enter a plea of guilty and was satisfied with the result.

Mr. Stanton testified that after conferring with the Attorney General and getting an offer he explained the whole matter to the petitioner and that he said that he wanted to enter a plea of guilty, and that he was willing to do so; 'Well, he at the time, we entered this plea, he was really happy we had done it. That's just all there is to it. That's one thing I have never done is to enter a plea of guilty over a man's protests, in other words, that's one of our base rules. We tell these fellows, that if these people want to go to trial, irrespective to what your judgment is, let them go to trial and insist on it.' The fact that petitioner was represented by able counsel at the time his guilty pleas were entered is a factor which strongly militates against his insistence that his pleas were involuntary. Reed v. Henderson, (6th Cir., 1967) 385 F.2d 995.

In his fourth Assignment of Error, he complains that he did not receive a copy of the indictment nor a list of the panel of Grand Jurors; in the fifth Assignment, the complaint is that the trial judge did not charge the jury; and in his tenth Assignment, his grievance is that no evidence was presented to the jury at the trial when he entered a plea of guilty. After the plea of guilty was entered, the record shows that the Attorney General stated the case to the jury, and the sentence agreed upon and recommended, and that the jury sentenced the petitioner accordingly.

In State ex rel. Edmondson v. Henderson, 220 Tenn. 605, 421 S.W.2d 635, the Court said:

'Although T.C.A. § 40--2310 provides that upon a plea of guilty, when the punishment is confinement in...