United States v. Smith
Decision Date | 03 June 1969 |
Docket Number | No. 18724.,18724. |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Clarence W. SMITH, Defendant-Appellant. |
Court | U.S. Court of Appeals — Sixth Circuit |
Frank J. Gavin, Jr., Cleveland, Ohio, for appellant.
Harry E. Pickering, Cleveland, Ohio, for appellee, Bernard J. Stuplinski, U. S. Atty., Robert J. Rotatori, Asst. U. S. Atty., Cleveland, Ohio, on the brief.
Before PHILLIPS, EDWARDS and COMBS, Circuit Judges.
This appeal presents an almost incredible story of robbery of the Cleveland Post Office. Appellant (Smith) was convicted under a twenty-one count indictment for multiple violations of embezzling United States mail, damaging and stealing post office property and falsifying and concealing information on his application for employment. Among the charges was the embezzlement of money from mail pouches while Smith was serving as a motor vehicle operator for the Post Office.
Smith entered a plea of not guilty. The jury found him guilty on all counts. The District Court sentenced him to a total of twelve years imprisonment. For the reasons expressed in this opinion we find it necessary to reverse and remand for a new trial.
The District Court appointed an attorney to represent Smith. After pleading not guilty at his arraignment, Smith was released on bond pending the trial. Throughout the trial and up to the point of the return of the jury verdict Smith was represented competently by his court-appointed attorney. At the conclusion of the presentation of the evidence and the closing arguments the District Judge delivered his charge and the jury retired to consider its verdict, all without incident. Two days later at the noon hour the jury informed the court that a verdict had been reached. At that point the following took place in the courtroom:
Thereupon the jury rendered its guilty verdict and the District Judge polled the jury. Without the assistance of counsel Smith requested that his bond be continued pending sentencing. The District Judge denied Smith's request and he was taken into custody. The court-appointed attorney was present at the time of sentencing on January 26, 1968.
Smith assigns several errors but we find it necessary to discuss only one issue: Is the involuntary absence of the defendant's attorney at the time when the jury verdict is returned a violation of the Sixth Amendment right to counsel? Under the circumstances of this case we answer this question in the affirmative.
Our research has failed to disclose any case from the Sixth Circuit involving a similar fact situation. There is a split of authority in some of the other Circuits as to the effect of the absence of defense counsel from the courtroom at the time the jury returns its verdict.
In Martin v. United States, 182 F.2d 225 (5th Cir. 1950), cert. denied, 340 U.S. 892, 71 S.Ct. 200, 95 L.Ed. 647, the Court was faced with a situation in which the defendant's attorney asked the trial court to excuse him from further attendance at the trial once the jury retired. The trial court granted this request and the defense attorney was not present when the jury returned with its verdict or when sentence was imposed upon the defendant. The Court of Appeals for the Fifth Circuit refused to reverse the judgment but vacated the sentence and remanded for new sentencing. The Court expressed the view that no prejudice resulted from the absence of defense counsel when the verdict was returned. The reception of the jury verdict was described as a "stage of the proceedings" which had "minor legal significance." The Court went on to say that the absence of counsel at the time of reception of the verdict was an "inconsequential impingement of the constitutional right." See Kent v. Sanford, 121 F.2d 216 (5th Cir. 1941), cert. denied, 315 U.S. 799, 62 S.Ct. 622, 86 L.Ed. 1200, for a similar fact situation and holding. We respectfully disagree with this line of reasoning.
The Sixth Amendment guarantees a defendant the right to effective assistance of counsel for his defense at all critical stages of the proceedings against him. The Court in United States v. Wade, 388 U.S. 218, 224-226, 87 S.Ct. 1926, 1930, 18 L.Ed.2d 1149 (1967) recently commented on this right:
In Wade the Court was concerned with the absence of counsel at a police line-up. We hold that the principles expressed in that opinion are equally applicable to involuntary absence of counsel at the time of the return of the verdict of the jury.
There can be no doubt that the return of the verdict by the jury is a "stage in the proceedings" against the accused. We deem it to be a critical stage. It is the pinnacle of the trial, the point when the jury pronounces the fate of the accused, guilty or not guilty. All the efforts of the prosecution and the defense in all prior stages of the proceedings are directed toward the goal of obtaining the desired result at this point in the trial. To consider this point of the proceedings as "non-critical" is to take an unrealistic view of a criminal prosecution. Little imagination is required to foresee situations in which the rights or the position of the accused could be prejudiced by failure to have the "guiding hand of counsel" at the moment when the jury returns its verdict. See Hamilton v. Alabama, 368 U.S. 52, 54, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961); Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 77 L.Ed. 158 (1932); and McGill v. United States, 121 U.S.App.D.C. 179, 348 F.2d 791, 793 (1965). We view the presentation of evidence, the charge to the jury, the return of the jury's verdict and the imposition of the sentence as one continuous proceeding. Each stage interlocks with and is dependent upon the other to make up the complete criminal prosecution. At no point during these proceedings must the accused be required to "stand alone against the State." United States v. Wade, supra, 388 U.S. 218, 226, 87 S.Ct. 1926.
In Thomas v. Hunter, 153 F.2d 834 (10th Cir. 1946), the defendant was denied the aid of counsel when the verdict of the jury was returned into Court and at the time of sentencing. In reversing the judgment, Judge Huxman said:
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