Stokes v. Peyton, 13233.

• Decision Date: 04 June 1970
• Docket Number: No. 13233.,13233.
• Parties: Rufus STOKES, Appellant, v. Courtland C. PEYTON, Superintendent of the Virginia State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

437 F.2d 131 (1970)

Rufus STOKES, Appellant, v. Courtland C. PEYTON, Superintendent of the Virginia State Penitentiary, Appellee.

No. 13233.

United States Court of Appeals, Fourth Circuit.

Argued March 6, 1970.

Decided June 4, 1970.

Beverley L. Crump, Richmond, Va. (Court-assigned) Christian, Barton, Parker, Epps & Brent, Richmond, Va., on brief, for appellant.

Reno S. Harp, III, Asst. Atty. Gen. of Va. (Andrew P. Miller, Atty. Gen., on brief), for appellee.

Before SOBELOFF, BOREMAN and BUTZNER, Circuit Judges.

SOBELOFF, Circuit Judge:

Rufus Stokes appeals from the denial of his petition for a writ of habeas corpus. For reasons to be developed, we agree with petitioner that he is entitled to relief and we reverse.

Earl Prince and Rufus Stokes were enemies of long standing. Rosetta Monroe was Prince's paramour and the mother of his 14-year-old daughter, Cecelia Prince, but apparently she had also, at one time, carried on a relationship with Stokes. This was the source of friction between the two men. Stokes had been attacked twice by Prince — on one occasion he was cut in the leg; on the other he was hit in the head with a brick. Finally, on June 28, 1963, an altercation at the home of Rosetta Monroe resulted in Prince's death. Stokes' story — then and now — is that he killed Prince in self-defense and only after extreme provocation. He says that Prince, who was staying with Rosetta Monroe at the time, called out to him as he passed the house and insisted that Stokes come in. According to Stokes, he entered, reluctantly, and as soon as he did Prince began to curse and taunt him. Prince then assaulted Stokes with a knife and in the ensuing fight Prince was fatally stabbed. Cecelia Prince, the sole eyewitness to the entire incident, claimed that the killing was deliberate.¹ Her version was accepted and he was arrested and indicted for first degree murder.

The defendant, then 48 years old, had only a fourth grade education and was barely literate. As an employee of the Richmond sanitation department for 13½ years, his savings amounted to $382 in an employee credit union. Thus it was not surprising that on the eve of his trial, he was still unrepresented. Finally, on September 19, 1963, the morning before the trial, Stokes retained attorney Thomas Crouch.²

That day Crouch talked with Stokes at the jail for thirty minutes to an hour. A major theme of the conversation was settling on a fee ($300) and executing an assignment of the credit union funds. Crouch heard Stokes' account and received the names of the three people who were at the Monroe house on the day of the killing: Rosetta Monroe, Cecelia Prince, and Irene Bostick.

After the interview with his client, the attorney made his investigation. He could not locate Bostick but this, he later testified, did not trouble him since, although Bostick was present when Stokes arrived, she had left before the fight. Crouch was under the impression that her testimony would only have corroborated the fact that Stokes was invited in. Thus he reasoned that her testimony would not be helpful and would tend to negate the existence of hostility between the men. Crouch did talk to Monroe and Prince, whose testimony promised to be severely damaging.

The next morning, the day of the trial, Crouch saw Stokes for ten minutes. He reported to Stokes the unhappy results of his investigation and advised petitioner that his only hope lay in his own testimony.

The case was called and Crouch did not ask for a continuance. As he saw it, "having no other witnesses available I could see where it would serve no purpose whatsoever." This explanation contrasts with the recollection of Monroe that Crouch told her that he could do little in aid of Stokes since "Stokes didn't give him much notice." No court reporter was provided. Stokes' counsel made no move to obtain one, either at public expense or with the remainder of Stokes' savings.

The result was that on that very day, September 20, Stokes went on trial for his life under highly adverse conditions. Arrayed against him was the testimony of the victim's girl friend and daughter; on his side there was only his word. He had no witnesses to corroborate his account of the prior violent episodes between him and the victim, or the circumstances of the killing itself. He was furnished no means of accurately recording what happened in the courtroom.

Stokes was convicted and sentenced to life in prison. He desired to appeal and relayed the message to Crouch. The attorney responded that Stokes had no grounds upon which to base an appeal and that, at any rate, "the cost of appeal to the Supreme Court would be many times more than you have paid for the defense in the Hustings Court." Persevering, Stokes tried to perfect an appeal on his own. Unfortunately, however, his papers did not comply with formal requirements. Consequently, before the error could be rectified time ran out and the appeal was not allowed.

Petitioner initiated post-conviction litigation that same year. In 1966 the Supreme Court of Appeals of Virginia agreed that Stokes had been denied his right of appeal, although it found the assistance of counsel not inadequate. Stokes v. Peyton, 207 Va. 1, 147 S.E.2d 773 (1966). A belated appeal was granted and the case remanded to the trial court to appoint counsel and to "furnish him with a free transcript or narrative of the evidence and other necessary papers for an appeal * * *." The court specified that "if these procedures cannot be complied with, then the defendant, Stokes, shall be granted a new trial, or be released from further custody." 147 S.E.2d at 777.

Of course a transcript was unavailable since there were no notes to be transcribed. Instead, a three-page narrative statement of the trial was supplied, consisting of cursory distillations of witnesses' testimony. This was prepared by the prosecutor two years and nine months after the trial from his own recollections, from conversations with Mr. Crouch, and from pre-trial records in the prosecutor's file, including reports given to the police. It contains no complete, accurate record of objections and motions.³ The trial judge had no notes, and, without holding a hearing as requested, simply adopted the tendered statement notwithstanding the objection of petitioner's newly-appointed counsel that it was a woefully inadequate basis for appeal. Petitioner pressed his objection in the Virginia high court, but that tribunal affirmed the conviction without opinion.

Stokes has now turned to the federal courts for relief. He repeats the contention he made before the state courts, that the three-page narrative made his belatedly granted right of appeal illusory, and that it failed to fulfill constitutional standards for the provision to indigent appellants of a "record of sufficient completeness." He also argues that the performance of his trial counsel was constitutionally inadequate. We agree with both of his contentions.

I The Narrative Statement

In Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), it was established that the appellate review granted an indigent must equal that afforded a solvent defendant. This means, as in Griffin, that a poor man must have as complete and useful a record of the evidence as the man who can purchase a transcript. Eskridge v. Washington State Board, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958). It has also come to mean that a defendant cannot be denied an appeal solely because he lacks the funds to retain an attorney to prepare one. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L. Ed.2d 811 (1963).

The Supreme Court of Appeals of Virginia, in accordance with these principles, has recognized that Stokes was wrongfully denied his appeal since he was without assistance of appellate counsel. Petitioner argues that having been denied initially any review, because of the absence of counsel, he was ultimately denied effective review on his belated appeal since it was impossible at that late date to provide a sufficient record.

Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963), furnishes us the proper guide. In that case the Supreme Court measured the adequacy of the record supplied to defendants against the standards announced in Griffin and Eskridge. Defendants had moved for a free transcript. The state opposed the motion and offered an affidavit embodying the prosecutor's narrative version of the evidence. A hearing was held at which the defendants and their former counsel were afforded an opportunity to develop objections. Afterwards, the judge denied the motion, setting forth the facts he found had been proven at trial. All of the materials — the affidavit, the transcript of the hearing, and the judge's findings — were before the state appellate court on review of the convictions.

In the Supreme Court all agreed that a verbatim transcript was not a necessity in every case.

"In considering whether petitioners have received an adequate appellate review, we reaffirm the principle, declared by the Court in Griffin, that a State need not purchase a stenographer\'s transcript in every case where a defendant cannot buy it. 351 U.S., at 20, 76 S.Ct., at 591. Alternative methods of reporting trial proceedings are permissible if they place before the appellate court an equivalent report of the events at trial from which the appellant\'s contentions arise. A statement of facts agreed to by both sides, a full narrative statement based perhaps on the trial judges minutes taken during trial or on the court reporter\'s untranscribed notes, or a by-stander\'s bill of exceptions might all be adequate substitutes, equally as good as a transcript." 372 U.S. at 495, 83 S.Ct. at 779, 9 L.Ed.2d 899.

The dissent argued that, taken altogether, the materials before the state court sufficed. The majority, however, declared that

the materials before the State Supreme Court in this case did not constitute

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