United States v. Davis

• Decision Date: 25 January 1971
• Docket Number: No. 459-70,460-70.,459-70
• Citation: 436 F.2d 679
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Billy Edward DAVIS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Carl W. DENNIE, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

436 F.2d 679 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Billy Edward DAVIS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Carl W. DENNIE, Jr., Defendant-Appellant.

Nos. 459-70, 460-70.

United States Court of Appeals, Tenth Circuit.

January 25, 1971.

Jeff R. Laird, First Asst. U. S. Atty. (William R. Burkett, U. S. Atty., with him on the brief), for plaintiff-appellee.

Jerome H. Blumenthal, Oklahoma City, Okl. (Blumenthal & Gray, Oklahoma City, Okl., with him on the brief), for defendant-appellant Billy Edward Davis.

Arlen E. Fielden (Monty L. Bratcher, Oklahoma City, Okl., with him on the brief), for defendant-appellant Carl W. Dennie, Jr.

Before LEWIS, Chief Judge, McWILLIAMS, Circuit Judge, and BRATTON, District Judge.

McWILLIAMS, Circuit Judge.

Davis and Dennie were jointly indicted, tried and convicted by a jury of unlawfully causing to be transported in interstate commerce a forged and falsely made check, knowing the same to have been so forged and falsely made, in violation of 18 U.S.C. § 2314. Perhaps the most significant point to be considered concerns the denial by the trial court of Dennie's motion for a continuance. Hence a bit of chronology is in order.

The indictment was returned on May 7, 1970, and the two defendants accompanied by their court-appointed attorney entered pleas of not guilty on May 15, 1970. Thereafter counsel filed certain discovery motions which were rendered moot when the requested information was voluntarily furnished by the government. The indictment was originally in three counts, each count relating to a separate check allegedly forged and caused to be transported in interstate commerce by the defendants. On June 3, 1970 the government dismissed the second count as to both defendants. On June 5, 1970 the one defendant, Dennie, attempted to enter a plea of guilty, which was refused by the trial court when it became uncertain that Dennie understood the consequences thereof. In the meantime the case had apparently been set on the trial docket for that term of court. In any event, on June 8, 1970 appointed counsel informed the trial court that because of a conflict in interest between the two defendants, which alleged conflict was not explored in any depth, separate counsel should be appointed for Dennie. This was done on June 8, 1970, and counsel apparently learned of his appointment at once. And on June 9, 1970 a hearing was held on defendants' motion to suppress, at which time Dennie's newly appointed counsel appeared and participated. At the conclusion of this hearing counsel for Dennie requested a continuance, pointing out that he had only then been in the case for twenty-four hours. This motion was denied and trial was set for the following day at 1:30 P.M. The request for a delay of Dennie's trial was renewed, and denied, just before commencement of the trial at 1:30 P.M. on June 10, 1970.

The only matter urged here by the one defendant Dennie is that he was denied the effective assistance of counsel because counsel did not have adequate time to prepare for trial. In denying Dennie's motion for a continuance the trial court observed that counsel had first been appointed for Dennie on May 15, 1970, and that presumably newly appointed counsel had the benefit of that which co-counsel had done by way of discovery and preparation. In the court colloquy on this matter it was also brought out that newly appointed counsel for Dennie had already conferred with the prosecutor and had "reviewed the information the government has * * *." It was in this setting that the trial court determined to go to trial the following day at 1:30 P.M.

A motion for a continuance is a matter lying within the sound discretion of the trial court and its ruling therein will not be later disturbed unless there be an abuse of that discretion. Leino v. United States, 338 F.2d 154 (10th Cir.).

The Sixth Amendment guaranty that the accused in a criminal proceeding shall enjoy the right to have the assistance of counsel means effective assistance, as distinguished from bad faith, sham, mere pretense or want of opportunity for conference and preparation. Goforth v. United States, 314 F.2d 868 (10th Cir.). In Goforth it was held that under the circumstances of that case there was no abuse on the part of the trial court in proceeding to trial after having appointed counsel to represent Goforth only about fifteen minutes prior thereto. In the instant case there was approximately forty-eight hours between the appointment of new counsel to represent Dennie and the commencement of trial. Additionally, Dennie was represented by counsel for some twenty-three days prior to the appointment of new counsel and, as indicated, such counsel had effectively utilized discovery procedures which inured to the benefit of Dennie and his newly appointed counsel. Additionally, as was true in Goforth, from our examination of the proceedings in the instant case "we are unwilling to conclude that the services of * * * counsel were of a substandard level such as would make the trial become a mockery and farcical." The fact that Dennie was convicted on one count (the other was dismissed by the court after all the evidence was in) does not prove that he was denied the assistance of effective counsel. On the contrary, such conviction may well indicate, as it does here, the strength of the government's case wherein, among other things, Dennie was identified as having purchased from Montgomery Ward a television set on a lay-away plan and his palm print was identified as being on the forged check which was later given by Davis when he received the television set ordered by Dennie.

Counsel's reliance on Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377, is misplaced. There it was held that the denial by a state trial court of a motion for a continuance in a murder case did not, under the circumstances there disclosed, deprive the accused of his constitutional right to the assistance of counsel, even though the trial proper was commenced only three days after the appointment of counsel. The instant case actually fits well within the rationale of Avery.

For these reasons we conclude that the trial court did not abuse its discretion in denying Dennie's motion for a continuance.

Davis contends that his conviction...