Twiford v. Peyton

• Decision Date: 06 February 1967
• Docket Number: No. 10741.,10741.
• Citation: 372 F.2d 670
• Parties: Norman F. TWIFORD, Appellant, v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

372 F.2d 670 (1967)

Norman F. TWIFORD, Appellant, v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Appellee.

No. 10741.

United States Court of Appeals Fourth Circuit.

Argued December 8, 1966.

Decided February 6, 1967.

John J. Kirby, Jr., (Court-assigned counsel), Charlottesville, Va., for appellant.

Reno S. Harp, III, Asst. Atty. Gen. of Virginia (Robert Y. Button, Atty. Gen. of Virginia, on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and WINTER and CRAVEN, Circuit Judges.

WINTER, Circuit Judge:

Whether effective assistance of counsel was denied appellant, not from any lack of competency on the part of his court-appointed attorney, but from the combination of his late appointment and the denial of a continuance to allow a proper investigation of the defense, is the question to be decided. The district court thought not and denied habeas corpus. We think otherwise and reverse.

Appellant is confined in the service of two consecutive sentences of ten years imposed April 30, 1954 in the Circuit Court of Princess Anne County, Virginia, upon his being found guilty by a jury of two charges of storebreaking. In 1964, he unsuccessfully sought a writ of habeas corpus from the Circuit Court of the City of Richmond, where he obtained a plenary hearing; when the Supreme Court of Appeals of Virginia refused review, he petitioned the court below. After obtaining the state court transcript of the habeas corpus hearing, the district court denied the writ. Numerous grounds for relief were alleged but those of substance all related to differing aspects of the right to effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments to the Federal Constitution.

The facts, as reflected in the state court transcript and as found by the district judge from it, are not in dispute. Appellant was arrested February 12, 1954 and tried April 30, 1954. Not until April 29, 1954, the day before the trial and seventy-six days after initial incarceration, was counsel appointed to represent him. His attorney, a respected member of the bar and now a judge of a court of record of the State of Virginia, the Honorable Linwood Tabb, interviewed his client promptly. The interview began between 2:00 and 3:00 P.M. April 29. The district court's summary of the evidence adduced at the state habeas corpus hearing succinctly summarizes what occurred after Judge Tabb was appointed:

"* * * Tabb reviewed the two indictments; he then conferred with petitioner at some length and ascertained that there were no witnesses to be called by the accused; he interviewed the police witnesses and obtained their version of what occurred; he talked with the jailer and recalled that there was some evidence concerning the taking of fingerprints; he returned to the jail and again talked to the accused. Petitioner told Tabb that he was ready for trial and, against the advice of Tabb, petitioner insisted that he be tried on the two indictments at the same time before a jury. Tabb also urged petitioner that Tabb be permitted to `negotiate\' with the Commonwealth\'s Attorney on a plea of guilty but, of course, this was impossible because of petitioner\'s insistence on a not guilty plea."

Appellant and his counsel were aware that a certain Lloyd C. Padgett was involved in some degree in the two offenses charged against appellant and intended to testify as a witness for the prosecution. The district court's findings as to the sequence of events continue:

"As the case was called on the morning of trial, Tabb was about to stand and announce that the defendant was `ready\' when petitioner touched his arm and asked Tabb to request a continuance. In conference, petitioner then told Tabb the name of a woman he wanted to testify.<sup>1</sup> Tabb\'s notes reflect the name of `Frances Randolph\' but apparently the correct name was `Frances Randall.\' This was a woman with whom Twiford had been living and who at one time had been keeping company with Padgett. Tabb concedes that petitioner then told him something about `jealousy,\' obviously for the purpose of showing that Padgett had a motive for testifying against petitioner. Tabb knew that he could not successfully urge a continuance at such a late date, nor could he assure the court that the witness was material or would be available at another date. Nevertheless, Tabb moved for a continuance which was denied.² Petitioner now contends that the Randall woman would have testified that petitioner was with her on the night that one of the crimes was committed and that he was not even in Princess Anne County." (footnotes added)

At appellant's state post-conviction hearing, appellant's testimony that Frances Randall, if called as a witness, could supply evidence that, as to at least one charge he was not in the county when one of the offenses was committed, and that there was bias on the part of one of the prosecution's key witnesses toward appellant was not controverted. Indeed, it was corroborated in part by the testimony of Judge Tabb, as the district judge found. Neither appellant nor the Commonwealth produced, or made any effort to produce, Frances Randall to determine what her testimony would have been had she been summoned as a witness for appellant at his trial.

In two recent decisions, Martin v. Commonwealth of Virginia, 365 F.2d 549 (4 Cir. 1966), and Braxton v. Peyton, 365 F.2d 563 (4 Cir. 1966), we have had occasion to restate what does and what does not constitute a denial of effective assistance of counsel. We there reviewed and cited our principal prior decisions on the subject. Extensive restatement of legal principles is thus unnecessary for a decision in this case. It suffices to say that an unnecessary and an unexplained delay between incarceration and the appointment of counsel gives rise to a substantial possibility of prejudice to an accused because defense...