Tyler v. State

• Decision Date: 29 May 1979
• Docket Number: No. CR79-30,CR79-30
• Citation: 581 S.W.2d 328,265 Ark. 822
• Parties: Billy Bert TYLER, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 328

581 S.W.2d 328

265 Ark. 822

Billy Bert TYLER, Appellant, v. STATE of Arkansas, Appellee.

No. CR79-30.

Supreme Court of Arkansas, In Banc.

May 29, 1979.

Ronald P. Kincade of Kincade & Cunningham, Mountain Home, Robert A. Newcomb, Little Rock, for appellant.

Steve Clark, Atty. Gen. by Ray E. Hartenstein, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

Appellant was found guilty of theft of an automobile and sentenced to three years in the Arkansas Department of Correction. He seeks reversal of his conviction on the grounds that he was denied his right to counsel guaranteed by the Sixth Amendment to the Constitution of the United States, that he was denied due process of law by the trial court's failure to instruct the jury on the requirement of corroboration of the testimony of an accomplice, and that the evidence was insufficient to support the jury's verdict. We find no reversible error and affirm.

Tyler was charged with theft by taking unauthorized control of a 1976 Chevrolet automobile belonging to Lefler Chevrolet Company. The information, filed May 11, 1978, charged that the offense occurred on January 27, 1977. The case was originally set for trial on October 11, 1978. Fred C. Kirkpatrick, the attorney employed by Tyler, had filed a motion for discovery, to which the state responded on October 12, 1978. The motion had been filed on June 28, 1978, so the state moved for a continuance in order to comply with the motion for discovery and to better prepare for trial. There was no objection on the part of appellant. The continuance was granted and the case set for trial on November 8, 1978. According to the prosecuting attorney, whose statement is not controverted, he was informed by Kirkpatrick, ten days before the trial date, and before the issuance of any subpoenas for the state's witnesses, that Kirkpatrick knew of no reason the subpoenas should not be issued. On Friday, however, before the case was to be tried on Wednesday, the prosecuting attorney was given some indication that appellant was not going to trial on the date set. Appellant filed no motion for continuance and no affidavit stating any ground for a continuance.

When this case was called for trial, Kirkpatrick announced that the defense was not ready and that Tyler had discharged him. He stated that, as an officer of the court, he felt obliged to state that the sole and only reason he was discharged was "because defendant wants a continuance." Kirkpatrick added that, as a result of his being discharged, he had not been able to get appellant's witnesses together and that he had not been paid anything to represent Tyler. There was no indication that this attorney was withdrawing from the case because he had not been paid. Tyler responded immediately, but did not deny Kirkpatrick's statement in any respect. He simply stated that he did not have another attorney and had not contacted one, that he had not gotten his witnesses together and that he could not get a lawyer until after the first of the year.

The trial judge then stated that he was not going to reset the case and remarked that, lately, it seemed a ploy by people in Searcy County to show up in court on the day of trial without a lawyer in order to get a continuance. The judge said that he would make a concession, by trying another case that had been set for trial on that date, so Tyler could get an attorney and his witnesses while that trial was in progress, but that Tyler's case would be tried as soon as that case was concluded. The trial judge also stated that Kirkpatrick would be required to remain in the courtroom throughout the trial to assist Tyler, if Tyler desired such assistance.

When the trial judge said that he would require Kirkpatrick to be present in the courtroom, Tyler said that he did not want Kirkpatrick for a lawyer, and that "(w)e might as well go ahead with this case first then. It don't matter to me." When the judge remarked that Tyler had no intention of calling his witnesses, even if given some time, Tyler replied that there was no way he could get them, that they were working, and that he could not find them on the job. When the judge responded that it might be the next day before Tyler's case was started, and asked if Tyler desired the additional time, Tyler answered that there was not enough time to prepare a lawyer. The trial then proceeded.

During an in camera hearing on another matter, the judge admonished Tyler that he could not be required to testify but that if he wanted to, he would be given an opportunity to do so. The judge also reminded Tyler that Kirkpatrick was present and was sitting beside him in the courtroom ready to assist him in any way Tyler wanted. Tyler responded, "Me and him come to a disagreement on some other matters." Tyler continued saying, "This is a legitimate thing, really, because I didn't get my witnesses together. I had full intentions of waiting until after the first of the year to try my case on account of the election and everything. I felt if I waited until after the first of the year, things would be better organized and I would all around get a better trial and everything." At the conclusion of the in camera session, Tyler stated, "I would say that finances and everything to do with lawyers would be a reasonable cause for postponement."

Appellant concedes that the matter of a continuance is within the discretion of the trial court and that not every denial of a request for a continuance violates due process, even if the party is compelled to defend without counsel. See Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964). Appellant, however, relies upon language in the Ungar opinion in arguing that "myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality." In our view, the trial judge's insistence upon expeditiousness was far from myopic and the request for delay was farther from being justifiable. As pointed out in Ungar, the answer must be found in the circumstances of the case and particularly in the reasons presented to the trial judge at the time. The fact that the motion for continuance was not made until the day set for trial was there recognized as one important circumstance.

Appellant also relies upon the holding in Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4 (1954), that, unless a defendant is given an opportunity to employ and consult with counsel, the right to be heard by counsel would be of little worth. We subscribe to that statement, but, in this case, Tyler had ample opportunity to employ, and did employ, counsel, but discharged him on the eve of trial. An important element in Tollett v. U. S., 444 F.2d 622 (8 Cir., 1971), also relied upon by appellant, was the fact that the trial court did not inquire of defendant as to the circumstances of the termination of his attorney's employment, and did not know whether the attorney had resigned or been discharged. That element makes Tollett distinguishable, because in this case, the judge was adequately informed as to the cause of termination and there was a rational basis for finding that the discharge of Tyler's attorney, on the eve of trial, was because that attorney recognized that Tyler had no grounds for a continuance and that, by one means or another, appellant was endeavoring to postpone his trial until after the first of the year and that the discharge of the attorney was a part of that effort. The fact that Tyler did not show that he had made any effort to employ another attorney was an important circumstance, since it was reasonable to infer that the discharge of Kirkpatrick had taken place five days before the trial was to commence. The court that decided Tollett pointed out that questions such as this must necessarily be decided on an ad hoc basis, having pointed out that the United States Supreme Court had consistently maintained its "case by case" approach and that the Eighth Circuit had followed that rule. Wolfs v. Britton, 509 F.2d 304 (8 Cir., 1975), also relied upon by appellant. The defendant in Wolfs was blameless in finding himself without counsel on the eve of trial. He was deprived of counsel when a conflict of interest arose between him and a codefendant, who decided to turn state's evidence.

The same court has held, in U. S. v. White, 529 F.2d 1390 (8 Cir., 1976), that the right to counsel is a shield, not a sword, and that a defendant has no right to manipulate his right for the purpose of delaying the trial. See also, Relerford v. U. S., 309 F.2d 706 (9 Cir., 1962). It is significant here that, as in White, where the court said the evidence was insufficient to show intentional manipulation, the appellant made no showing that he was unable to obtain counsel, did not request the appointment of counsel, and declined the opportunity afforded to obtain other counsel. But unlike this case, the reason for the discharge of previously retained counsel in White was never disclosed or investigated. And in Patton v. State of North Carolina, 315 F.2d 643 (4 Cir., 1963), also relied upon by appellant, there was evidence indicating that the defendant had just cause for discharging his employed counsel on the eve of trial and had made some effort to obtain substitute counsel.

It is widely recognized that the right to choose counsel may not be manipulated or subverted to obstruct the orderly procedures of the court or to interfere with the fair, efficient and effective administration of justice, particularly when a change of choice is made on the eve of trial, primarily for the purpose of delay, and without making any effort to obtain substitute counsel. U. S. v. Bentvena, 319 F.2d 916 (2 Cir., 1963), cert. den. 375 U.S. 940, 84 S.Ct. 345, 11 L.Ed.2d 271 (1963); U. S. v. Merriweather, 376 F.Supp. 944 (E.D.Pa., 1974); U. S. v. Morrissey, 461 F.2d 666 (2 Cir., 1972); Gandy v. State of...