Strickland v. United States

• Decision Date: 23 August 1971
• Docket Number: No. 71-1231 Summary Calendar.,71-1231 Summary Calendar.
• Citation: 447 F.2d 1341
• Parties: Clyde Madison STRICKLAND, Defendant-Appellant, v. UNITED STATES of America, Plaintiff-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

447 F.2d 1341 (1971)

Clyde Madison STRICKLAND, Defendant-Appellant, v. UNITED STATES of America, Plaintiff-Appellee.

No. 71-1231 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

August 23, 1971.

Clyde M. Strickland, pro se.

Fred K. Harvey, Augusta, Ga. (Court Appointed), for defendant-appellant.

R. Jackson B. Smith, Jr., U. S. Atty., William T. Morton, Edmund A. Booth, Jr., Asst. U. S. Attys., Augusta, Ga., for plaintiff-appellee.

Before THORNBERRY, MORGAN and CLARK, Circuit Judges.

PER CURIAM:

Clyde Madison Strickland appeals from his conviction and life sentence on an indictment charging him with murder on a government reservation in violation of Title 18, U.S.C., Section 1111. Defendant was tried to a jury on December 6, 1966 and was found guilty of "First Degree Murder Without Capital Punishment" and sentenced to life imprisonment on December 7, 1966. Upon determining that defendant may not have been advised at the time of his trial of his right to appeal, the district court granted defendant the right to file this appeal out of time.

Defendant contends that his conviction should be reversed and a new trial ordered because (1) he was denied counsel at his preliminary hearing, (2) he was denied counsel during custodial interrogation, and (3) the attorney provided for him and his co-defendant, Raymond DeJong, for a short time prior to the trial was ineffective due to a conflict of interests.

Assuming that the appointment of an attorney was required in this case under Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970)¹ defendant waived any objection to the court's failure to appoint counsel by his failure to object to such failure before or during his trial. United States v. Murphy, 6th Cir. 1969, 413 F.2d 1129; Stith v. United States, 1966, 124 U.S. App.D.C. 81, 361 F.2d 535; Robbins v. United States, 9th Cir. 1965, 345 F.2d 930; Blue v. United States, 1964, 119 U.S.App.D.C. 315, 342 F.2d 894.

Assuming that defendant was interrogated without a valid waiver of legal counsel, the record clearly indicates that no evidence acquired or admissions made by defendant during such interrogation was used by the government at the trial. The facts of the instant case, therefore, do not fall within the reasoning of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and defendant's contention must fail.

On March 21, 1966, William Calhoun was appointed to represent both defendant and his co-defendant at that time. Upon Calhoun's motion, he was removed as counsel for defendant on April 22, 1966 and Jay Sawilosky was appointed. Upon Sawilosky's motion, he was removed as counsel for defendant on May 9, 1966. On May 11, 1966, Roy V. Harris and Kenneth Chance were appointed to represent Strickland alone. These attorneys represented only the defendant Strickland from that time through his trial on December 6 and 7, 1966.

Defendant alleges that Calhoun's brief pretrial representation of both him and DeJong, who later testified against him at his trial and received a lighter sentence, was error. We can see no prejudice to defendant from these facts. The true source of prejudice to defendant was his partner's later decision to plead guilty and testify against him. No conflict between the interests of the two defendants appears at the time of the joint representation, and any conflict arising was cured by Calhoun's withdrawal from defendant's...