Stevenson v. State

• Decision Date: 24 June 1985
• Docket Number: No. F-84-233,F-84-233
• Citation: 702 P.2d 371
• Parties: Jackie Lynn STEVENSON, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 371

702 P.2d 371

Jackie Lynn STEVENSON, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-84-233.

Court of Criminal Appeals of Oklahoma.

June 24, 1985.

Michael D. DeBerry, DeBerry & Cauthron, Idabel, for appellant.

Michael C. Turpen, Atty. Gen., Tomilou Gentry Liddell, Asst. Atty. Gen., Deputy Chief, Crim. Div., Oklahoma City, for appellee.

OPINION

BRETT, Judge:

Appellant Jackie Lynn Stevenson, Lonnie Leon Young, and Larry Eddie Young were conjointly charged on September 2, 1981, in the District Court of McCurtain County, Case No. CRF-81-166, with First Degree Murder (21 O.S.1981, § 701.7) and Armed Robbery (21 O.S.1981, § 801). On April 12, 1982, the appellant was granted a change of venue to Pushmataha County. Jury trial began there on May 17, 1982. The jury returned a verdict of guilty and sentenced the appellant to ninety-nine years' imprisonment for Armed Robbery and to death for First Degree Murder. The trial court entered Judgment and Sentence in accordance with the jury's verdict, and the appellant lodged an appeal to this Court.

A recitation of facts regarding the murder and robbery is unnecessary because we must reverse and remand this case for a new trial. The appellant herein was forced to proceed to trial without an attorney. The procedural facts follow.

After announcing ready for trial, the appellant's court-appointed attorney Jim McClendon informed the trial judge, the Honorable G. Gail Craytor, that the appellant was not satisfied with his performance and did not want McClendon to represent him. Without inquiring into the reasons for dissatisfaction, ¹ Judge Craytor granted a one-week continuance to enable the appellant, who was confined in jail, to retain counsel but warned that even if the appellant did not have an attorney, trial would begin the following Monday. Judge Craytor made good his word, and trial commenced the following Monday although the appellant had no attorney. ²

Almost throughout voir dire, the appellant stood mute, occasionally interjecting that he needed and wanted an attorney. McClendon did not question any of the prospective jurors. When the court called for argument on a motion to suppress, the appellant again stood mute and McClendon asked the court for clarification of his role as follows:

BY MR. McCLENDON: Your Honor, I don't know if my status is clear in the record. Last Monday I asked permission of the Court to withdraw. I think the Court at that time took my motion and request under advisement and ordered me to return on the 24th, only for the purpose of answering questions and advising the defendant on legal matters. On the 17th he requested that I not represent him and asked the Court for permission for time to employ another attorney. Apparently, he has been unable to as he has advised the Court yesterday. He still advised the Court yesterday that he did not want me to represent him and that is still the position that he takes. I would again ask the Court permission to withdraw as his attorney and will tell the Court that I will make myself available to him if he has any questions, but what is coming up now is a mixed question of fact and law and I think I could advise him, but I don't want to get into a position of making argument to the Court about whether or not the search, if there was one, or seizure, which there was, was legal. When we filed the motion, we didn't think the seizure was legal. I don't think there was a search, but there was a seizure. I think for the purpose of the record, I need to make it clear what my position is. I am not representing Mr. Stevenson, so I can't make any announcement or any argument that would bind him. If the Court would allow me permission to withdraw as his attorney, but order me to be available here for him, if he has any questions he wants to ask me, and that would define for the record what my position is, and it would get me out of a bind and get him out of a bind.

BY THE COURT: Do you have any comment on that, Mr. Stevenson? Do you want Mr. McClendon to represent you in any manner whatsoever?

BY MR. STEVENSON: No.

BY THE COURT: Do you want him to question witnesses either on a motion or in the course of the trial?

BY MR. STEVENSON: No.

BY THE COURT: Very well. At this time let the record reflect that Mr. McClendon will be allowed to withdraw as counsel for the defendant and it will be the order of the Court that Mr. McClendon be available in the courtroom for any legal questions by the defendant, but he is not required to function in any manner as an attorney or assume any liability or responsibility for the defense of this defendant based on the defendant's request that he not represent him in this matter....

Tr. 238-39.

After twelve jurors and two alternates had been "passed for cause", McClendon approached the bench and told the judge that the appellant asked him whether he could or wanted to represent him. McClendon stated that he did not see how he could since one of the most important parts of trial--selecting a jury--was over. The court gave McClendon and the appellant twelve minutes to discuss the situation. When court reconvened, the judge stated that McClendon was not of counsel but was present to answer any legal questions the appellant might have.

Shortly thereafter, Vester Songer, an attorney from Hugo, Oklahoma, made an appearance and informed the court he would represent the appellant on three conditions: that the appellant wanted him to represent him; that his fee was paid into his trust account; and that a continuance of at least sixty days be granted. Judge Craytor refused to grant a continuance or empanel another jury. Before leaving, Songer made the following record:

BY MR. SONGER: Your Honor, may I make inquiry on one or two points in order to diligently discuss this matter with the family of Mr. Stevenson?

BY THE COURT: Yes, sir, you may.

BY MR. SONGER: The inquiry is whether the defendant or his then counsel at any time up until it was originally set for trial here have ever asked for or been granted a continuance in the case, except the week's continuance that the Court gave after the trial started?

BY THE COURT: He had that continuance and originally the matter was set on the Idabel jury term and a change of venue was granted prior to that term.

BY MR. SONGER: But there wasn't an official or actual request for continuance, only a change of venue; is that right?

BY THE COURT: Yes, sir.

BY MR. SONGER: Another inquiry. When Mr. Stevenson stated to the Court that he did not wish Mr. McClendon to continue as counsel, did Mr. McClendon request withdrawal as counsel?

BY THE COURT: Yes, he did.

BY MR. SONGER: And was he granted withdrawal by this Court?

BY THE COURT: Not at that time. It was taken under advisement and it was granted yesterday, May the 24th.

BY MR. SONGER: Was that prior to the commencement of any jury selection or of the present jury that is now sworn? Was it prior to the commencement of the selection of the jury that is now sworn to try the cause?

BY THE COURT: I don't believe it was, but Mr. McClendon was given the opportunity by the Court that he did not have to involve himself in the jury selection and for the record, Mr. Songer, he did not involve himself in the jury selection of this jury.

BY MR. SONGER: Was Mr. McClendon counsel of record during the empaneling of this jury or had...