Wolfs v. Britton

• Decision Date: 31 January 1975
• Docket Number: No. 74--1558,74--1558
• Citation: 509 F.2d 304
• Parties: Jay Randall WOLFS, Petitioner-Appellant, v. R. G. BRITTON, Superintendent, Tucker Unit, Arkansas Department of Correction, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 304

509 F.2d 304

Jay Randall WOLFS, Petitioner-Appellant, v. R. G. BRITTON, Superintendent, Tucker Unit, Arkansas

Department of Correction, Respondent-Appellee.

No. 74--1558.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 12, 1974.

Decided Jan. 31, 1975.

Robert A. Newcomb, Ark. Dept. of Correction, Pine Bluff, Ark., for petitioner-appellant.

Michael S. Gorman, Asst. Atty. Gen., Little Rock, Ark., for respondent-appellee.

Before LAY and BRIGHT, Circuit Judges, and TALBOT SMITH, ^* Senior District Judge.

TALBOT SMITH, Senior District Judge.

The petitioner before us, Jay Randall Wolfs, was convicted by a jury of assault with intent to kill and his punishment was assessed, by the same jury, at nineteen years in the penitentiary. He appealed his conviction to the Supreme Court of Arkansas. His conviction was there affirmed, with a reluctant concurrence by Justice Fogleman. ¹ Petitioner (hereafter defendant) subsequently brought a petition for writ of habeas corpus, ² denied by the District Court for the Eastern District of Arkansas, from which denial appeal is taken to this court.

The case was characterized in the district court as 'bizarre,' and by concurring Justice Fogleman, of the Supreme Court of Arkansas, as involving 'inexplicable conduct.' There is no question as to the accuracy of such characterizations. A brief resume of the testimony adduced at the trial will serve to place the constitutional issue before us in its proper perspective. On the night of October 8--9, 1972 the defendant and a companion having partaken of alcoholic beverages, and defendant (on the morning of the 8th) having smoked a marijuana cigarette, embarked on a 'shooting spree.' They cruised around the community, defendant shooting at signs, buildings, street lights, traffic lights, and, twice, at a truck driven by the complaining witness, Mr. Fitzgerald. These latter shots resulted in the charge made, assault with intent to kill.

Both the defendant and his driver, Mr. Samples, were so charged and both were initially represented by the Public Defender. Upon Samples' decision to turn State's evidence, a conflict of interest between Samples and defendant arose, resulting in the appointment of separate counsel for defendant at approximately 1:30 p.m. on Monday, October 30th. When the case was called for trial on Wednesday, November 1st, counsel for defendant orally moved for a continuance for the following reasons:

MR. TAYLOR: (Counsel for Defendant)

As I am sure the Court is aware, the defendant at this time, Randy Wolfs, hereby moves the Court for a continuance, for the following reasons: (1) Present counsel for the defendant was appointed at approximately one-thirty (1:30) on October the 30th, 1972, some one and one-half days ago, and although counsel has investigated his case as thoroughly as possible over that period of time, due to the number of witnesses that the State will call (approximately ten witnesses) and because of the necessity of talking with the defendant and talking with witnesses for the defendant, it has been impossible to talk to all witnesses before time of trial. Without such conversations and statements, it is practically impossible to defend this defendant properly. Secondly, it has come to the attention of counsel last night that this defendant has had psychiatric problems in the past, and that in order to develop a possible defense of mental deficiency in this defendant, it would be necessary to have a thorough psychiatric examination. This cannot be done or could not be done last night, and a continuance is therefore asked. Thirdly; relatives of the defendant have not been contacted and the first word of relatives of this defendant was last night at approximately ten o'clock when his father called the office of counsel for the defendant. His father is on his way to Fayetteville, Arkansas, and it is believed the father can give vital information in regard to the defendant's background and in regard to matters necessary to properly defend this person. For this reason also, we ask for a continuance. Also, witnesses--character witnesses that could testify for this defendant that live out of the state and could not be contacted between Monday afternoon and this morning, Wednesday morning, in order to be here and testify for this defendant. For all of the above reasons the defendant respectfully prays for a continuance.

Considerable colloquy between the court and counsel followed with respect to the witness situation, and to a narrative report (furnished to defendant) of the Public Defender's interviews with three of the state's nine witnesses. The court noted the availability of the complaining witness, who was in the courtroom, for questioning. The court stated, as well, that 'I am going to give you an opportunity for Dr. Finch (a local psychiatrist) to examine this man between now and one-thirty.' The court stated, as well, that he had 'a very tight trial schedule' and, at a later point, that 'I want to try the case. I have to do it within sixty days. The docket is full, it is full until February, and I just don't feel--. Now, if Dr. Finch says the man is psychotic, well then, I'll send him to the state hospital now and that ends it, but if he says he isn't, I don't know of any reason we can't go to trial. We will start this afternoon, late and finish tomorrow.'

Counsel's exception to the denial of continuance was noted on the record, as well as his objection to the 'impaneling of any jury at this time.' The jury was then selected and sworn and the trial resumed the next day, without further requests for continuance.

The state called the complaining witness and Samples, who gave their versions of the shooting, and several officers, who testified as to the arrest and to a correlation between the shotgun and shells found in the car driven by Samples and the physical damage to the truck. The truck driver was not injured.

The defense submitted to the jury an issue of credibility, defendant denying that he had fired on the truck. In addition challenge was sought to be made of the specific intent to kill the truck driver required by the charge made. The theory of counsel was that defendant was incapable of forming the intent to kill. As counsel stated, '(H)e wouldn't even kill a rabbit. He is a vegetarian.' Defendant testified that he was 'not a person who could willfully do harm to any person or any other animal,' that he had been employed as a driver for a poultry processing firm but 'couldn't have stood' to work inside where '(t)hey were killing chickens and cutting them up,' and that as a result of his belief that 'man was (not) put on this earth to be a carnivore' he had been a vegetarian 'for about the last five years.' It was further sought to be shown, through his grandfather, that in childhood the defendant had no interest in 'guns or toys of this nature,' that he had an aversion to eating meat, and that he had expressed an aversion to violence. Objections to the questions to the grandfather, although answered before the objections were interposed, were sustained, the court ruling in the presence of the jury that such matters were immaterial, irrelevant, self-serving, or too remote for consideration. Counsel finally desisted from such line of questioning in view of the rulings made. Dr. Finch testified, supporting in general the theory of the defendant concerning his claims of aversion to violence and killing. The doctor also testified that, in his opinion, 'if he did, as alleged, hit the truck, it was probably an accident.' The prosecutor's theory as to specific intent was that 'Intent to kill is proved by facts and circumstances surrounding the event.' In addition, the testimony of the complaining witness was that 'someone--I don't know who said it, but it was a loud voice that said, 'Kill the son of a bitch! I'll kill the bastard." Inexplicably, neither the defendant nor his driver, Samples, was questioned on this alleged statement evincing a specific intent.

The jury, as of course it was free to do, rejected the only testimony substantially helpful to the defendant, found him guilty, and sentenced him to nineteen years.

Direct appeal was taken to the Supreme Court of Arkansas, which held that the trial court's denial of defendant's motion for continuance was not an abuse of discretion, and had not prejudiced him. The conviction and judgment were affirmed. The concurrence of Justice Fogleman therein, as we have noted, was reluctant. ³ Some four months later defendant brought his petition for writ of habeas corpus. He asserts that he 'was denied his Sixth Amendment Right to effective assistance of counsel due to the belated appointment of trial counsel which precluded them from developing an effective defense for him.' The District Court held that he was not denied effective assistance of counsel and was not deprived of his liberty without due process of law.

It is clear upon the record that the Supreme Court of Arkansas, in ruling upon whether 'the denial of (defendant's) motion for continuance' resulted in 'ineffective representation,' ⁴ applied both state standards and what it conceived to be federal standards, quoting, in part, from Chambers v. Maroney, 399 U.S. 42, 54, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). ⁵ In fact, no claim otherwise is made in the briefs before us, the State conceding below that defendant's state remedies had been exhausted. We are satisfied that the 'substance' of defendant's claims before us were 'fairly presented' to the Supreme Court of Arkansas. Picard v. Connor, 404 U.S. 270, 275, 278, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); 28 U.S.C. § 2254(b); see Brown v. Allen, 344 U.S. 443, 447--452, 73 S.Ct. 397, 97 L.Ed. 469 (1953); Davis v. Sigler, 415 F.2d 1159, 1161 (8th Cir. 1969).

The issue thus presented goes beyond mere denial of continuance, vel non. The issue urged is that, under the peculiar and unique circumstances of this case, the...