State v. Myers, 48957

• Citation: 79 N.W.2d 382,248 Iowa 44
• Decision Date: 13 November 1956
• Docket Number: No. 48957,48957
• Parties: STATE of Iowa, Appellee, v. Louis A. MYERS, Appellant.
• Court: United States State Supreme Court of Iowa

Page 382

79 N.W.2d 382

248 Iowa 44

STATE of Iowa, Appellee, v. Louis A. MYERS, Appellant.

No. 48957.

Supreme Court of Iowa.

Nov. 13, 1956.

Stewart R. Winstein, Rock Island, Ill., and Seymore M. Raben, Davenport, for appellant.

Dayton Countryman, Atty. Gen., Raphael R. R. Dvorak, Asst. Atty. Gen., Dudley C. Lowry, Martin Lier, County Atty., and Wayne C. Andresen and Edward N. Wehr, Asst. County Attys., Davenport, for appellee.

LARSON, Justice.

Defendant Louis A. Myers was arrested in his apartment at the Scott Hotel in Bettendorf, Iowa, between 9:30 and 10 A.M. March 1, 1955, and on March 15 was indicted by the Grand Jury and charged with the crime of murder in the first degree. On March 26, upon defendant's request, the court appointed H. Moss Meersman of the Moline, Illinois, bar as his counsel, reserving the right to appoint additional counsel later. On April 2 defendant entered his formal plea of not guilty. Thereafter followed several motions on his behalf including a motion for change of venue which was argued April 29, 1955. At that hearing defendant was asked if he desired additional counsel, but he deferred answer until May 2. At that time he asked the appointment of Carl Lambach of the Scott County, Iowa, bar, but as Lambach was otherwise engaged the court appointed Seymore M. Raben of said bar as the additional counsel for defendant.

On June 6 Attorney Meersman alone filed a 'Demand for Trial by Jury' and also a motion to remove all court-appointed counsel and requesting that his appearance be entered as defendant's personal and formally-retained counsel. At the hearing, Meersman being absent, Myers denied knowledge of the maneuver and the court continued the matter for consultation between counsel and defendant. However, on June 27 the motion was granted and Meersman became his sole attorney of record.

In view of these developments and the approaching trial, the county attorney moved for a continuance until the September 1955 term, which was granted. Thereafter, by agreement of counsel in August, the case was assigned for trial in September. On September 28, 1955, with defendant's consent in writing, Meersman withdrew his appearance and defendant then entered the appearance of Stewart Winstein, another Illinois attorney. The court then continued the case until October 17, 1955. On October 11 Winstein appeared and refused to represent defendant unless he be granted further time to prepare for trial. The trial court rejected this request, and on October 11 appointed Bertram Metcalf of the Scott County bar as defendant's counsel. Clay LeGrand, president of the Scott County, Iowa, bar, was appointed October 13 to assist in the defense. On October 14, 1955, they filed a motion for continuance with their attached affidavits setting forth the contention that they had inadequate time in which to prepare a defense for the defendant and were unfamiliar with the facts or evidence pertaining thereto, and that unless a continuance was granted, defendant would be denied due process of law and could not obtain a fair trial. As intimated before-hand by the court, this continuance was denied October 17, 1955, and the trial commenced October 19, 1955. Defendant was convicted of second degree murder and was sentenced to a term of thirty-eight years in the state penitentiary.

In his appeal defendant assigns seven specifications of error which we will condense for discussion. His first contention relates to his right to effective and proper representation of counsel. We have already set out the facts pertaining to defendant's claim of inadequate representation. Other facts will appear in the opinion.

I. It is true one of our most prized and cherished rights under the Federal and State constitutions is the right to a fair trial. In order to give substance to this announced right we provide that one accused of a crime shall have benefit of counsel, and in most jurisdictions the court has said this means 'effective counsel.' See Annotation, 148 A.L.R. 183. While that term has not received a specific definition, a careful study of its application leads to the conclusion that it means honest, learned and able legal counsel given a reasonable opportunity to perform the task assigned to him by the court. Therefore, the circumstances govern to a large degree the reasonableness of the opportunity and considerable discretion must be lodged in the trial court who is in a position to observe the adequacy and diligence of counsel in presenting the defendant's case. Only when it clearly appears in the record that this discretion has been abused should we interfere. It is indeed a heavy burden that must be carried by a defendant who claims his counsel was ineffective and did not properly represent him before the court State v. Benson, Iowa, 72 N.W.2d 438.

Section 775.4, Code of Iowa 1954, I.C.A., provides:

'If the defendant appears for arraignment without counsel, he must, before proceeding therewith, be informed by the court of his right thereto, and be asked if he desires counsel; and if he does, and is unable to employ any, the court must allow him to select or assign him counsel, not exceeding two, who shall have free access to him at all reasonable hours.'

The defendant may select available counsel or may refuse counsel as he then desires. State v. Meeks, 245 Iowa 1231, 1240, 65 N.W.2d 76, and cases cited therein. Here we find Myers selecting an Illinois attorney who represented him throughout the preliminaries without complaint by him to the court. Now he contends Meersman was not qualified nor competent to represent him and that the court should not have appointed him as defendant's counsel. It is true he was not admitted to practice law in the State of Iowa, but we fail to find any provision of the law which requires appointment of an Iowa lawyer as counsel for one charged with a crime. There can be no such arbitrary rule. We cannot say all qualified practitioners of other states are per se unqualified counsel in Iowa any more than we can say all Iowa lawyers are qualified to effectively conduct the defense of one charged with a capital offense. It is rather a matter of proof which falls upon one contending that his counsel, appointed or retained, was actually unable, unskilled, or ineffective as his defense counsel. It may be conceded that the court must exercise a little more care in assigning counsel to see that he is qualified to effectively defend the one charged with a crime, but the defendant himself is not without obligation in selecting and retaining counsel of his choosing. Neither can he concur in and encourage a lack of care and diligence in the hope of later complaining as to his counsel's shortcomings. In any event it must be defendant's burden to show his counsel's inability to act and that such ineffectiveness did prevent him from receiving fair trial. Such contentions have been heretofore considered by us and rejected. State v. Benson, supra; State v. Smith, 199 Iowa 568, 202 N.W. 112; State v. Dangelo, 182 Iowa 1253, 166 N.W. 587.

We conclude defendant Myers has failed here to show he was free from responsibility for any fault in the selection of counsel or that due to any incompetency, unpreparedness or decision of his counsel, he did not receive a fair trial. On the other hand, from the record we find the trial court exercised care to protect the defendant's interest at all times, even to the point of questioning him as to his concurrence with the procedure taken by his Illinois attorney on motions before the court. This and other action clearly discloses the trial court's concern for the defendant's rights and a desire to see that he was effectively represented at all times. Myers knew as early as September 11, 1955, that Meersman would not try his case and, although he Meersman's suspected inability to do so, did not discharge him or advise the court of this knowledge until there was a serious question as to whether it was too late to obtain other counsel to represent him effectively at the assigned trial. This action to force a continuance by changing counsel is evident and it becomes now his grounds of complaint because his new counsel were not given adequate time to prepare. It is true counsel who tried the case were faced with a hard task, but it appears they were able to apply themselves without interruption for the 7 1/2 and 5 1/2 days respectively toward the preparation for trial. We observe in that respect that the defense was ably, vigorously and conscientiously conducted. Few others could have done better with any period of preparation. Consequently we agree with the trial court and find no merit in this assignment.

II. As to the specification of error due to the denial of a continuance, the rule is well settled. The granting or refusal of a motion for a continuance rests largely in the sound discretion of the trial court. State v. Meeks, supra; State v. Mauch, 236 Iowa 217, 224, 17 N.W.2d 536; State v. Sterman, 199 Iowa 569, 572, 202 N.W. 222; State v. Pell, 140 Iowa 655, 663, 119 N.W. 154, 157. The rule laid down in the Pell case is not disputed. There we said:

'The whole matter of granting a continuance rests largely in the discretion of the trial court, and it should only be granted for a cause which satisfies the court that substantial justice will be more nearly obtained. * * * This court will not interfere with the action of the trial court in this respect, unless it clearly appears that such discretion has been abused and an injustice has been done. (Citing cases.)'

Seldom have we seen more care exercised by a trial court in an effort to see substantial justice obtained. While the time to prepare given defense attorneys Metcalf and LeGrand was short, the court provided that all exhibits, files and records of the county attorney's office be made available to these counsel, and this was done. In addition, when deciding that the trial should proceed, the court a...