Washington v. State
| Decision Date | 04 November 1969 |
| Docket Number | 6 Div. 66 |
| Citation | 227 So.2d 805,45 Ala.App. 173 |
| Parties | Caliph WASHINGTON v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Orzell Billingsley, Jr., Birmingham, C. H. Erskine Smith, Birmingham, Charles Morgan, Jr., Reber F. Boult, Jr., Atlanta, Ga., and David Hood, Jr., Bessemer, and Robert L. Carter, New York City, of counsel, for petitioner.
MacDonald Gallion, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
The petitioner, Caliph Washington, was indicted in September, 1957. He was convicted of the crime of murder and was sentenced to death. The conviction was reversed February 12, 1959, in Washington v. State, 269 Ala. 146, 112 So.2d 179. He was retried, again convicted and sentenced to death on December 9, 1959. The conviction was affirmed in Washington v. State, 274 Ala. 386, 148 So.2d 206.
Petition for writ of habeas corpus was filed in the United States District Court and was granted. Washington v. Holman, D. C., 245 F.Supp. 116. The writ was granted for two reasons; that the doctrine in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, was to have retroactive application, and that the trial court erred in permitting the testimony of Furman Jones, a witness in the first trial, to be read into evidence in the second trial without the laying of a proper predicate. On appeal to the United States Circuit Court of Appeals for the Fifth Circuit, the ruling that the trial court erred in permitting the testimony of Furman Jones to be read into evidence was affirmed, but of course, Escobedo was not retroactive. Holman v. Washington, 5 Cir., 364 F.2d 618.
On October 8, 1968, a petition for writ of habeas corpus was filed in the Circuit Court of Jefferson County, Alabama, Bessemer Division, in which petitioner requested his discharge. This petition was heard on November 11, 1968, and denied.
At the habeas corpus hearing the Clerk of the Circuit Court, Jefferson County, Bessemer Division, testified the case was set for trial June 17, 1968; that he did not know whether or not petitioner had an attorney at that time; that no attorney came to see him between the time Caliph Washington was re-arrested upon his release by the Federal Court until present counsel filed petition for habeas corpus; that he has held his position as Circuit Clerk for sixteen years and that no request for a trial has been made by petitioner or by anyone on his behalf.
The witness answered on cross examination that to his knowledge the court had not appointed an attorney for petitioner from the time of the order of the United States Court of Appeals in 1966 until the habeas corpus hearing.
The judgment of the court, in pertinent part recites:
'It is therefore, the opinion of the Court that the petitioner has not been indigent since the original proceedings in the United States District Court for the Middle District of Alabama.
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