State v. Johnson

• Citation: 445 P.2d 726,74 Wn.2d 567
• Decision Date: 03 October 1968
• Docket Number: No. 39786,39786
• Court: United States State Supreme Court of Washington
• Parties: The STATE of Washington, Respondent, v. Rollie E. JOHNSON, Appellant.

Page 567

74 Wn.2d 567

445 P.2d 726

The STATE of Washington, Respondent, v. Rollie E. JOHNSON, Appellant.

No. 39786.

Supreme Court of Washington, Department 2.

Oct. 3, 1968.

Graham & Cohen,

Norman W. Cohen, Seattle, for appellant.

Charles O. Carroll, Pros. Atty., Paul Acheson, Deputy Pros. Atty., Seattle, for respondent.

NEILL, Judge.

Defendant Rollie E. Johnson appeals from his conviction of taking and riding in a stolen automobile in violation of RCW 9.54.020. ¹ His assignments of error are that he was denied counsel and that the trial court commented on the evidence.

Defendant and one Ira Trimble are jointly charged but, for convenience, Mr. Johnson will be referred to as the defendant. Mr. Trimble pleaded guilty and sentence was deferred on condition he serve 4 months in the county jail. Subsequently, the prosecutor questioned Mr. Trimble as to defendant's participation in the events which culminated in the charge against both defendants. Mr. Trimble testified against defendant.

The facts leading to defendant's arrest need not be set forth as none of the issues on this appeal are related thereto. However, a brief chronology of the post-arrest proceedings will illuminate the issue of whether defendant was denied his constitutional right to effective counsel at a critical stage of the proceedings.

Defendant and Mr. Trimble were arrested on the night of February 17, 1966. At 4 a.m., February 18th, defendant telephoned his attorney. A complaint was filed February 21, 1967. Both defendants were taken before the Seattle District Justice Court on February 23d where they were fully and adequately advised of their constitutional rights including the right to appointed counsel. Mr. Trimble requested that counsel be appointed for him, but defendant told the court that he had an attorney. At a preliminary hearing on March 9th both defendants pleaded not guilty. Mr. Trimble was represented by counsel at this hearing but defendant was not. At this hearing, the court asked defendant where his attorney was. Defendant replied that he was still attempting to employ counsel, but was having trouble contacting him. In neither instance did defendant ask for appointed counsel nor suggest to the court that he did not have funds with which to employ counsel.

March 16th, defendants were bound over to superior court, again with only Mr. Trimble being represented by counsel. An information was filed March 17th. March 22d, an attorney (Mr. Christensen) was appointed to represent both defendants. Defendants were arraigned on March 27th, at which time both pleaded not guilty. April 5th, a motion for dismissal on the ground that defendant had been denied counsel at a critical stage of the proceedings was made on behalf of Mr. Johnson. The motion was stricken from the docket and no pretrial ruling was made thereon.

Sometime between March 27th and April 12th, Mr. Trimble entered a plea of guilty. April 14th, Mr. Trimble was given the deferred sentence. April 17th, the court approved the withdrawal of the attorney who had been representing both defendants and a second attorney was appointed to represent defendant. April 21st, the second attorney withdrew and the court appointed a third attorney to represent defendant. Trial was held on April 25th.

Defendant contends that he was denied counsel at critical stages of the proceedings prior to March 22d, and that appointment of one attorney for both defendants constituted denial of effective counsel. The record does not support this contention.

Defendant was interviewed in jail by five different attorneys on 13 separate occasions between February 29th and April 21st. He was in contact with an attorney of his own choice on the night of his arrest. He pleaded not guilty at the preliminary hearing; nothing that occurred at the preliminary hearing became in any way material in the superior court trial; no confessions, admissions or incriminating statements were elicited prior to appointment of counsel.

As it is clear that any absence of counsel prior to superior court arraignment was by the election and choice of defendant, there was no denial of counsel and we do not reach the question raised by him that he was prejudiced by lack of counsel at a critical stage of the proceedings. See State v. Louie, 68 Wash.2d 304, 413 P.2d 7 (1966), for discussion of similar factual arguments regarding witnesses as are raised here.

Defendant next contends that the court erred in appointing one attorney to represent both codefendants. He argues that such action deprived him of the effective assistance of counsel. Eleven days after Mr. Christensen was appointed to represent both defendants, Mr. Trimble pleaded guilty. Mr. Trimble's sentence was deferred, at which time Mr. Christensen was still representing both defendants. Thereafter, the prosecutor questioned Mr. Trimble in order to secure testimony to be used against defendant. Defendant argues that Mr. Christensen's appointment to represent both defendants, under the facts of the case, constituted a conflict between the interests of each defendant. To represent Mr. Trimble, the attorney would have to confirm his story and urge cooperation with the prosecutor; to represent defendant, the attorney would have to impeach Mr. Trimble's story.

We have consistently held that the test to be applied in determining whether a defendant has been denied the effective assistance of counsel is: 'After considering the Entire record, can it be said that the accused was afforded an Effective representation and a Fair and Impartial trial?' State v. Thomas, 71 Wash.Dec.2d 458, 459, 429 P.2d 231, 232 (1967). A review of the record here indicates that this question should be answered in the affirmative. Although Mr. Christensen was originally appointed to represent both defendants, he did not represent defendant Johnson during the trial. Three days after the sentencing of Mr. Trimble, Mr. Christensen withdrew from the case. Mr. Trimble was not questioned by the prosecutor with regard to his testifying at defendant's trial until after he (Trimble) had been sentenced. Defendant was represented at trial by a third appointed attorney who had no connection with codefendant. The initial appointment of Mr. Christensen to represent both defendants did not deny defendant Johnson the effective assistance of counsel.

The cases relied on by defendant to support his position, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), and United States ex rel. Platts v. Myers, 253 F.Supp. 23 (E.D.Pa.1966), may be distinguished from the case at bar. In Glasser, the attorney who had been retained by defendant Glasser was appointed by the court, over Glasser's objections, to represent a codefendant. This attorney did in fact represent both defendants during the trial. Here, only one of the codefendants went to trial and the attorney who conducted his defense was representing only the defendant. In Myers, the same attorney was appointed to represent three codefendants, two of whom pleaded guilty and one not guilty. The same attorney then represented the defendant who had pleaded not guilty during the trial of the case, which was held prior to the sentencing of the codefendants and during which both codefendants testified for the prosecution. In the case at bar, the attorney who was originally appointed to represent both defendants was not the attorney who represented defendant at trial and codefendant Trimble was not called to testify for the state until after judgment and sentence had been rendered as to him.

Defendant next contends that his constitutional right to the effective assistance of counsel was violated by the court's allowing his second appointed counsel to withdraw only 4 days before trial; appointing a new attorney only 4 days before trial; and refusing to continue the case. Defendant cites Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), for the proposition that the right to assistance of counsel guaranteed by our state and federal constitutions means the effective assistance of counsel. He also cites State v. Hartwig, 36 Wash.2d 598, 219 P.2d 564 (1950), for the...