Swaim v. State, CR

• Decision Date: 28 October 1974
• Docket Number: No. CR,CR
• Citation: 514 S.W.2d 706,257 Ark. 166
• Parties: William Jefferson SWAIM, Appellant, v. STATE of Arkansas, Appellee. 74--77.
• Court: Arkansas Supreme Court

Page 706

514 S.W.2d 706

257 Ark. 166

William Jefferson SWAIM, Appellant, v.STATE of Arkansas, Appellee.

No. CR 74--77.

Supreme Court of Arkansas.

Oct. 28, 1974.

Larry R. Froelich, Fayetteville, for appellant.

Jim Guy Tucker, Atty. Gen. by O. H. Hargraves, Deputy Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

Appellant Swaim was found guilty of delivery of a controlled substance.He was arraigned August 23, 1973, on the charge, which was filed June 19, 1973.He entered a plea of not guilty.Thereafter he employed Larry R. Froelich, who had been admitted to the practice of law in Texas, but not in Arkansas, to represent him.Pretrial motions on behalf of appellant were filed by Froelich on September 7 and September 18.On Monday, October 1, 1973, the date set for trial of the case, the circuit judge forbade Froelich to participate in the proceedings, except by advising his co-counselWilliam H. Howell during recesses of the trial.

While the record is not as clear as it might be, it seems that the judge had originally approved the representation of Swaim by Froelich, so long as this attorney was associated with local counsel admitted to practice in Arkansas.Sometime during the week preceding the trial date, the judge advised Froelich that he was uninformed about Froelich's credentials.Later the judge called the Supreme Court clerk's office and learned that Froelich had not been admitted to practice in Arkansas.He also learned that Froelich had a Fayetteville telephone number listed in the name of 'Howell & Froelich'.When the case came on for trial, the judge advised Froelich, who seems to have been a resident of Arkansas, that he was engaging in the unauthorized practice of law in Arkansas and asked him not to participate in the trial in any way, except in the advisory capacity previously mentioned.When Froelich objected the judge said that he would have the sheriff keep Froelich out of the courtroom.Howell, who was present, protested that he could not go to trial.The trial judge and Froelich sharply disagreed about their prior understanding concerning Howell's participation.The judge understood that Froelich had said that Howell was associated in the case and would take over the trial.Froelich denied this and admonished Howell not to go to trial.The judge then stated: 'We are going to trial.You just make your record.'Howell then moved for a continuance, stating that he was an associate and partner of Froelich, that Froelich had made the investigation of the case and interviewed the witnesses, that Howell's only participation in the preparation for trial had commenced on the preceding Friday, when he began doing research and working with Froelich, and that he felt that he could not adequately represent Swaim as 'lead counsel' upon such short notice.After defendant's motion to quash the jury panel had been denied, the trial proceeded after a noon recess.The defense was entrapment.During the trial, the court noted that a secretary had been bringing messages to Howell into the courtroom during the morning when the motion to quash the jury panel was being heard.

After trial, appellant requested an evidentiary hearing on a motion for new trial, without success.¹

Appellant asserts that he was denied the effective assistance of counsel, and that the court abused its discretion in failing to grant a continuance and erred in failing to grant a hearing on his 'post-conviction' motions.We have concluded that Swaim was prejudiced by the denial of his motion for a continuance by reason of the fact that he was thereby denied effective assistance of counsel.

It is rather apparent that there was a misunderstanding between Froelich and the circuit judge of which both Howell and Swaim were unaware prior to the trial date.It seems clear that not even Froelich knew that he would be completely barred from the courtroom during the trial until the court's pronouncement at the very time the trial was scheduled to commence.We cannot agree that the opportunity for conferences during recesses of the trial afforded an adequate opportunity for Howell to avail himself of the knowledge and information acquired by Froelich in trial preparation.We cannot say that Howell or Swaim was guilty of any lack of diligence in the matter.We are not prepared to say that the record in the case dispels any thought that Howell was not adequately prepared.

Appellant attempted to attack the composition of the jury panel by a motion to quash, and sought to support his motion by the testimony of an expert mathematician.Howell's examination of this witness failed to elicit critical testimony which would have tended to show that the disparity between the makeup of the jury panel and a cross-section of the community, as reflected by the expert's sampling of the voter registration list, could only have resulted from systematic exclusion.After presenting the testimony of the mathematician and of the jury commissioners, Howell had requested that, because of the handicap under which he was operating, he be given a short recess.He stated, for the record, that since he had not talked with the mathematician about his testimony prior to the convening of the court, he was uncertain that he had brought out the essential factors.After the jury was empanelled and sworn, the court granted Howell a 15-minute recess.Thereafter, Howell asked that the motion to quash be 'reopened' and the mathematician be recalled for further testimony.When the prosecuting attorney objected, the court refused to grant this request, but permitted Howell to make a statement for the record.In that statement Howell said that the witness, if recalled, would testify that the chances that the particular disparity would occur without discrimination were 820,866,000 to 1.

The only other time, prior to the presentation of evidence, the court afforded Howell to enhance his information about the case and the theories of the defense, was a noon recess from 11:50 a.m. to 1:30 p.m.This recess followed a hearing on a motion in limine as well as the proceedings relative to the motion to quash the jury panel, but preceded the making of opening statements.The court also recessed the trial until 9:00 a.m., October 2, after the state, having presented the testimony of three witnesses, had rested sometime during the afternoon of October 1.

On several occasions, Howell attempted to elicit testimony pertaining to the entrapment defense through leading questions or offered testimony that was improper for the purposes he stated.Some of these will be later discussed in connection with other points for reversal.These errors could well be attributable to Howell's lack of preparation for trial.

Swaim was entitled to have a record made on his motion to quash the jury panel adequate for appellate review of the federal constitutional question he raised, and to be represented at trial by an attorney whose pre-trial preparation enabled him to develop a trial strategy and to plan the appropriate trial tactics for overcoming the effect of evidence he might anticipate would be presented on behalf of the state, and for carrying the burden of proving entrapment.It matters not that it may appear to us, on the record made, that the contentions of appellant on these issues are without merit.It does concern us that the attorney did not have adequate opportunity to acquaint himself with Swaim's version of the case, the state's evidence, the knowledge possessed by defense witnesses and the underlying theory of the defense.

In reviewing the denial of motions for...