Whitley v. Cunningham
| Decision Date | 27 April 1964 |
| Docket Number | No. 5723,5723 |
| Parties | FRANK WHITLEY v. W. K. CUNNINGHAM, JR., SUPERINTENDENT, ETC. Record |
| Court | Virginia Supreme Court |
Richard D. Mattox (Lowell K. Clarke; Moody, Mattox, Atkinson & Young, on brief), for the plaintiff in error.
Reno S. Harp, III, Assistant Attorney General (Robert Y. Button, Attorney General, on brief), for the defendant in error.
Frank Whitley, a prisoner in the State penitentiary, filed in the court below on July 9, 1962, his petition for a writ of habeas corpus, alleging that he had been convicted and sentenced in violation of his constitutional rights. Thereupon, on July 13, 1962, the court entered a show cause order to the Superintendent and appointed Richard H. Mattox, a practicing attorney, to represent the petitioner. The Superintendent filed his answer and on October 26 and October 30, 1962, the court heard the evidence and thereafter entered its order denying and dismissing the petition, and petitioner appeals.
The trials at which the petitioner received the sentences complained of took place in the same court on September 27, 1961. The petitioner asserted in his petition that at those trials he was denied effective assistance of counsel, the right to witnesses in his behalf and the right to a jury trial, and that he was beaten by police officers who forced him to confess.
The petitioner testified that he did not know who prepared his petition, but that it was somebody in the penitentiary and it was 'passed on' to him. His testimony showed that he knew little about what it contained. It ranged far and wide and the evidence disclosed that most of its allegations were untrue and irresponsible. The evidence showed conclusively that he was not beaten by the officers at any time and that he was not denied the right to any witnesses that he asked for. Nor does the evidence show that he was improperly denied a jury trial. To some of the charges against him he pleaded guilty and to others he pleaded not guilty and waived trial by jury. In those circumstances it was the duty of the court to try the petitioner. Const. of Va., § 8.
It is clear from the evidence that the only allegation of any substance made by the petition is that at petitioner's trial on September 27, 1961, he did not have effective assistance of counsel.
] It is well settled that the right of an accused to have effective assistance of counsel is guaranteed by the due process clause of the Federal Constitution and the Virginia Bill of Rights.' Morris v. Smyth, 202 Va. 832, 833, 120 S.E.2d 465, 466, and cases there cited; also Gideon v. Wainwright, 372 U.S. 335, 339, 83 S.Ct. 792, 9 L.ed.2d 799, 93 A.L.R.2d 733.
The word 'effective' in this context has a restricted meaning. As pointed out in the well-reasoned opinion by Judge Prettyman, in Mitchell v. United States, 104 U.S.App.D.C. 57, 259 F.2d 787 (cert. den. 358 U.S. 850, 79 S.Ct. 81, 3 L.ed.2d 86), it came into the law in Powell v. Alabama, * 'and was used by the Supreme Court to describe a procedural requirement. * * *.' "Effective' assistance of counsel obviously means something other than successful assistance.' (259 F.2d at 789)
Whether the petitioner had assistance of counsel in the constitutional sense at his trials on September 27, 1961, is a question that must be answered in the light of the evidence at the hearings on the habeas corpus petition, which came primarily from petitioner's witnesses and included the officers who made the arrest and the attorney appointed to defend him. It was in substance as follows:
Petitioner, who will hereafter be referred to as defendant, was arrested in the City of Portsmouth about 11 a.m. on May 11, 1961, by three officers, members of the Detective Bureau of the Portsmouth Police Department, for breaking into and stealing articles from an automobile. He was then in possession of articles later identified by the owners as having been stolen. A search warrant was issued, defendant's home was searched and other articles thought to have been stolen were found. Five or six days were spent in finding the owners and getting the articles identified.
Upon his arrest the defendant was taken to the police station and there questioned by the officers at intervals on May 11, 12, 14 and 19. He was questioned not more than an hour or two at a time and when not being questioned he was kept in jail. As a result of the questioning the defendant signed three confessions on May 11, one at 9 p.m., one at 9:30 p.m. and one at 10 p.m. He signed other confessions on May 14 and May 19, after the officers were able to get identification of recovered articles. Warrants were issued as charges were admitted by the defendant. The officers testified that all the confessions were made by the defendant without any force or threats. One of the officers testified that defendant was 'told of his rights,' including the right to have a lawyer.
The warrants issued were docketed for preliminary hearings in the Portsmouth Municipal Court as follows:
On May 12, four charges: one of robbery by force, two of grand larceny and one of carrying a concealed weapon. These were continued to May 19. On May 13, five charges were docketed, three being for robbery by force and two for grand larceny; and on May 20, ten charges: six of grand larceny and four of petit larceny. All of these nineteen charges were then continued to May 26.
At the hearings on May 26 the defendant was found guilty of four petit larceny charges and one charge of carrying a concealed weapon and sentenced to a total of thirty-nine months in jail and $350 fines. The deputy clerk of the Municipal Court testified that at the same time eight warrants charging the defendant with grand larceny and four warrants charging him with robbery by force were sent to the Court of Hustings grand jury, but that one of the grand larceny charges was a duplicate charge. She further testified, however, that thirteen counts (warrants) against the defendant were sent to the grand jury. It appears in the record that two of the indictments afterwards returned by the grand jury were dismissed on nolle prosequi by the Commonwealth, one being for robbery and the other for grand larceny.
The certified prison record of the defendant shows that on the defendant's trials on September 27, 1961, he was sentenced to four years each on seven indictments for grand larceny and fifteen years each on three indictments for robbery, a total term of seventy-three years.
On September 27, 1961, when the cases against the defendant were called, the court entered an order stating that the defendant was indicted for eight charges of grand larceny and four charges of robbery, was unable to obtain counsel for his defense, and 'the Court doth appoint Norman Olitsky, an able and competent attorney, to represent him.' The defendant testified that he had not been told that he was to be tried on that date.
Mr. Olitsky testified that his appointment was his first contact or acquaintance with the defendant and with the cases against him; that he took the defendant into a conference room and asked him about witnesses but defendant did not name any; that then the defendant said he had made confessions, and 'I believe I advised him * * * because of the enormity of the crimes I would suggest, even though he had admitted committing them, to plead not guilty, in other words, to really put the burden on the Commonwealth of proving that he had commited the robbery or robberies, whatever they were -- there were several charges.'
He was asked whether he read the confessions before the trial started and he replied that he would say he did read them before they were introduced, but that he did not bother as to their dates. He felt almost certain that he read the confessions to the defendant, but did not remember. He recalled that there were some pleas of guilty and some pleas of not guilty and stated that if the defendant pleaded not guilty to any of the charges, it was because 'he told me he wasn't guilty of it.' He asked the defendant, he said, about the statements and he, the defendant, said he had admitted to it and then he, Mr. Olitsky, suggested: 'Well, then if you have admitted to the crime, then it would be a good idea to go ahead and plead guilty and ask the court to give you its mercy.'
He stated that if the defendant had given him the name of some witnesses that he could have used, he would have asked for a continuance, because the judge had asked him if he needed a continuance and he informed the court that he did not He testified that if some of the pleas were guilty to robberies, 'I definitely advised him to plead not guilty even though he had admitted he was guilty.' He said that the defendant never told him that he was not guilty of any of these charges. He was asked whether there were any charges which the defendant said he did not commit, and he replied, 'Probably to the ones that he pleaded not guilty to.' He said the defendant never told him that the confessions that he wrote were lies or incorrect. Asked about his preparation for the cases, he replied, 'I went over each and every charge with the man and went over everything that he had written down and discussed it with him and discussed each and every charge and advised him what I wanted to do * * *.'
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