Taylor v. State, 47481

• Decision Date: 05 November 1973
• Docket Number: No. 47481,47481
• Parties: Tommy Lee TAYLOR v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 172

285 So.2d 172

Tommy Lee TAYLOR v. STATE of Mississippi.

No. 47481.

Supreme Court of Mississippi.

Nov. 5, 1973.

W. E. Bearden, Jr., Columbus, for appellant.

A. F. Summer, Atty. Gen., by Karen Gilfoy, Sp. Asst. Atty. Gen., Jackson, for appellee.

RODGERS, Presiding Justice.

Tommy Lee Taylor was indicted by the Grand Jury of Lowndes County, Mississippi in December, 1964, on one charge of rape and two charges of attempted rape. When it developed that he was an indigent, the trial judge immediately appointed an attorney to represent the defendant. The appointed attorney talked with the prisoner in the presence of the sheriff and the court reporter to ascertain how the prisoner intended to plead. The prisoner's statements were recorded by the court reporter. The prisoner was advised by the attorney as to his rights. The prisoner insisted that he was guilty and desired to plead guilty. The appellant was then arraigned and entered a plea of guilty to each charge. The trial court sentenced the defendant to two (2) consecutive life sentences and a consecutive ten-year sentence in the Mississippi State Penitentiary on the ninth day of December, 1964. The appellant was incarcerated in the penitentiary.

On September 6, 1972, Tommy Lee Taylor filed a petition for a writ of error coram nobis in the trial court in each case. The petitions were consolidated for trial. He alleged that he had been denied due process of law in that he was unlawfully arrested; that he was not advised of his constitutional rights, nor his right to have an attorney; that the attorney appointed for him was incompetent and had no interest in his case; that he was a layman and did not understand the nature of the charges against him; and that there was no damage to the person supposed to have been raped 'therefore there was no crime committed; that there must be definite evidence that a crime was committed and the evidence must identify the person who committed the crime.'

Upon the hearing on the post-conviction remedy applications, the testimony is more than ample to show that the confession of the appellant was freely and voluntarily given, after having been repeatedly advised by his attorney of his right to have an attorney and his right to remain silent.

The paramount issue here is whether or not the petitioner should be granted a new trial because he testified on the coram nobis hearing that he did not understand the consequence of his guilty plea, and that the trial judge did not inquire of him at the time he pled guilty as to whether or not he understood that he would be sentenced to the penitentiary if he pleaded guilty. Since the trial, the judge who sentenced the petitioner has died. This statement of the petitioner could not be refuted except by other testimony. The state attempted, therefore, to show that the petitioner did know his constitutional rights and did understand the consequence of his guilty plea before he was arraigned. The district attorney offered a statement that petitioner made to his attorney in the presence of the sheriff before he was arraigned. This statement shows that the petitioner knew the consequences of his act. He freely admitted his guilt and told his court-appointed lawyer that he wanted to plead guilty, realizing that he would likely be sentenced to the penitentiary for life. There can be little question that appellant knew the consequences of his plea of guilty as was shown by his statement to his attorney.

The appellant, however, contends that this statement to his attorney was not admissible in evidence, therefore, it is argued that his testimony on the coram nobis hearing must be accepted as true. Moreover it is said in any event that the judge did not warn him and explain the consequence of his guilty plea in open court.

The appellant cites Caves v. State, 244 Miss. 853, 147 So.2d 632 (1962) and Bullock v. Harpole, 233 Miss. 486, 102 So.2d 687 (1958) for the proposition that the burden is upon the state to show that the trial judge conducted an inquiry to determine whether or not the guilty plea was knowingly and voluntarily made.

In Caves the defendant made a motion at the same term of court where he had previously pleaded guilty, in which he asked the court to permit him to withdraw his guilty plea and to permit him to plead not guilty upon the ground that he did not understand the consequence of his plea. The testimony showed that the defendant was a borderline mental case. We held that the court should have permitted the defendant to enter a plea of not guilty. We said that it was the duty of the court to determine if the defendant desired an attorney and to advise him as to his right to have an attorney. We also said that when a guilty plea was tendered, the judge before accepting the plea, should have (1) determined that the accused was competent to understand the nature and consequence of his plea; (2) advised the accused of his basic rights; and (3) ascertained that the plea was voluntary. The Caves case was decided December 10, 1962. The circuit clerk testified that, in 1964, it was not customary to ask the accused any questions before a plea of guilty was accepted.

In 1969 this court had before it the case of Alexander v. State, 226 So.2d 905 (Miss.1969) in which two defendants were charged with grand larceny. Both defendants entered pleas of not guilty, but later, one entered a plea of guilty, through an attorney. The other defendant pleaded guilty himself. No record was made of the proceedings. The defendants moved the court to set aside the court's sentence. When the motion was overruled, they appealed to this court. We held: (1) One cannot plead guilty through an attorney for a felony charge; (2) There is an affirmative duty of the state to show that defendant had an intelligent and comprehensive understanding of the nature and consequence of the plea of guilty and that he voluntarily pleaded guilty. We said that it was the duty of the trial judge to address the accused personally so as to determine that the plea was voluntarily made. We also pointed out that:

'A transcript or record of that proceeding is essential. However, this does not preclude other types of clear and convincing evidence which shows that accused voluntarily and understandingly elected to plead guilty. Anything else is insufficient to establish waiver. In short, a record should be made of what transpires at the pleading stage, which is sufficient to support the acceptance by the trial court of the guilty plea and to reflect that it was made voluntarily and understandingly by the defendant.' 226 So.2d at 909.

We discussed in Alexander the holding of the United States Supreme Court in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). In Boykin a defendant pleading guilty to robbery was sentenced to death. The Alabama Supreme Court, by a majority vote, affirmed the judgment of the trial court. The United States Supreme Court said:

"It was error, plain on the face of the record, for the trial judge to accept petitioner's guilty plea without an affirmative showing that it was intelligent and voluntary. * * * The requirements that the prosecution spread on the record the prerequisites of a valid waiver is no constitutional innovation. In Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70, 77, we dealt with a problem of waiver of the right to counsel, a Sixth Amendment right. We held: "'Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver."'

We think that the same standard must be applied to determining whether a guilty plea is voluntarily made. For, as we have said, a plea of guilty is more than an admission of conduct; it is a conviction. Ignorance, incomprehension, coercion, terror, inducements, subtle or blatant threats might be a perfect cover-up of unconstitutionality. The question of an effective waiver of a federal constitutional right in a proceeding is of course governed by federal standards. * * *" 226 So.2d at 909.

In Alexander we held that since the state had 'made no affirmative showing, spread on the record, of the prerequisites of a valid waiver, namely, that appellant voluntarily, intelligently, and understandingly waived his constitutional rights and changed his plea of not guilty to guilty, we reverse the judgment of the circuit court overruling the motion to vacate Alexander's conviction, * * *.' 226 So.2d at 909-910.

Are these two cases, decided in 1969, retroactive so as to be decisive as a matter of law of a 1964 plea of guilty?

In the case of Bullock v. Harpole, 233 Miss. 486, 102 So.2d 687 (1958), the issue was raised that the judge did not advise the prisoner before he accepted the prisoner's plea of guilty as to his rights and did...