Wedding v. Com.

• Decision Date: 29 January 1965
• Parties: Nimrod WEDDING, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 105

394 S.W.2d 105

Nimrod WEDDING, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Jan. 29, 1965.

Rehearing Denied Oct. 22, 1965.

John Y. Brown, Lexington, for appellant.

Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., G. Larry Tucker, Commonwealth Atty., Cynthiana, for appellee.

WILLIAMS, Judge.

This is an appeal from a judgment of the Harrison Circuit Court overruling appellant Nimrod Wedding, Jr.'s motion for relief under RCr 11.42.

Wedding was tried for murder in March 1961. The jury could not reach a verdict. A second trial in November 1961 resulted in conviction and the death sentence. On appeal to this Court an opinion was delivered affirming the judgment, whereupon the appellant petitioned for a rehearing.

Prior to submission on the petition for rehearing, this Court entered an order granting appellant permission to file a motion to vacate under RCr 11.42. The sole issue was whether Wedding had effective representation by counsel at his trial. Following a hearing on the question a special judge of the Harrison Circuit Court found that he did. We do not agree.

In Rice v. Davis, Ky., 366 S.W.2d 153 (1963), we noted that the right to assistance of counsel guaranteed by the 6th Amendment to the Constitution of the United States, as well as by Section 11 of the Constitution of Kentucky, means 'effective assistance.' We look then to the facts brought out at the hearing.

When the case was first set for trial Wedding did not have counsel and did not have sufficient means to employ counsel. The circuit judge thereupon appointed every lawyer of the Harrison County Bar, except one elderly gentleman and the public prosecutors. The 'dean' of the appointed group acted as leader and conducted the trial. He stated that the circuit judge assured him that no Harrison County jury would give more than a life sentence, and he knew that such had been the habit in the past; consequently 'we were lulled into the feeling that our duties were perfunctory and that as a result thereof none of the defense attorneys ever interrogated any of the prospective Commonwealth witnesses and each proceeded on the ancient adage that 'everybody's business is nobody's business,' and that as a further result, no single or united effort was made to prepare the defendant's defense; * * *' '* * * we proceeded in the second trial the same as we had in the first and interrogated no prospective witnesses, either for the defense or the Commonwealth, and that no single or united effort was made to prepare the defendant's defense on the second trial.'

In Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527 (1932), the leading decision on the subject, the trial court appointed 'all the members of the bar' to represent certain indigent defendants who were charged with rape. The Supreme Court commented as follows:

'* * * How many lawyers were members of the bar does not appear; but, in the very nature of things, whether many or few, they would not, thus collectively named, have been given that clear appreciation of responsibility or impressed with that individual sense of duty which should and naturally would accompany the appointment of a selected member of the bar, specifically named and assigned.

'* * * during perhaps the most critical period of the proceedings against these defendants, that is to say, from the time of their arraignment until the beginning of their trial, when consultation, thorough-going investigation and preparation were vitally important, the defendants did not have the aid of counsel in any real sense, although they were as much entitled to such aid during that period as at the trial itself.'

We do not speculate on what the outcome might have been under different circumstances. In view of the fact that all of the available lawyers at the Bar were appointed and, by their own admission, none of them, made any reasonable preparation for trial, we conclude that Wedding was denied effective assistance of counsel.

The judgment is reversed, with directions that the judgment rendered on the verdict of the jury made November 10, 1961, be vacated.

MONTGOMERY, PALMORE and STEWART, JJ., dissenting.

STEWART, Judge (dissenting)

I dissent from the opinion which holds appellant was not adequately represented at his trial in the case at bar.

Chief counsel for appellant at both trials was Mr. J. Thaxter Sims. Three other attorneys were appointed to represent appellant, namely, Messrs. Royce C. Pulliam, John Swinford, and Wayne Fitzgerald, all of Cynthiana. Mr. Sims has been a practicing lawyer since June, 1927, and has been in active practice in Cynthiana since 1933. Through the years he has tried criminal cases by appointment. He represented at least one defendant charged with murder in the 1950's (his co-counsel in that case being Mr. Wayne Fitzgerald, one of the associate counsel in this case). Mr. Sims was county attorney for Robertson County for three years from 1930 to 1933. He once ran for Commonwealth's Attorney in the district where this case was tried but was defeated. Unquestionably he considered himself competent for that position.

Mr. John M. Keith, who had been county attorney for Harrison County for twenty-two years at the time of the hearing on the motion, and a practicing lawyer in Cynthiana since 1936, testified concerning the professional ability of Mr. Sims. He has observed Mr. Sims a number of times and the following statements are cited from his testimony:

'Q. 10 Have you formed an opinion as to his competency as a result of your observation of him?

'A. Definitely.

'Q. 11 What is your opinion, sir?

'A. Well, if you let me narrate a little bit, I had an argument the other day on who is the best criminal lawyer in Kentucky and the fellow I was arguing with said John Y. Brown and I said I'd just as soon have Thaxter Sims as my lawyer in a criminal case.'

As to the final argument made by Mr. Sims in this case, Mr. Keith had this to say:

'Q. 15 Were you present during the summation he made in this case at the second trial?

'A. Yes, sir.

'Q. 16 As a lawyer would you give an opinion as to how the summation sounded to you?

'A. I have heard all kinds and I can't say I ever heard a better one, for what he had to go on.'

In the light of the foregoing testimony, can it be said Mr. Sims was not adequately qualified to handle defendant's case? I believe his qualifications were fully established. However, the opinion's holding seems to be based upon the assumption that Mr. Sims was derelict in his duty in respect to the manner in which he conducted the defense. This view seems to be based upon the belief that he did not put forth his best efforts at the two trials, and, furthermore, that he did not undertake to prepare any defense.

Mr. Sims, testifying concerning his actions in this case, gave this reason for his decision not to cross-examine the Commonwealth's witnesses: 'I just figured if I cross examined them it would maybe make their answers stronger and that's the pattern we followed.' As to his professional attitude toward the case, he stated that he was not living in any fear of any consequences or of any criticism, but was only living in fear of what would happen to appellant. On this latter point he stated he was so concerned about the case that he had sleepless nights about the verdict.

Mr. Wayne Fitzgerald, another of the counsel appointed for appellant, has been a practicing lawyer in Cynthiana since 1950. He has participated by appointment in a great number of criminal cases prior to the trial of appellant. In respect to the preparation of the case, Mr. Fitzgerald's testimony was that he had knowledge of what all the witnesses would and did say. The...