Todd v. State

DISSENTING OPINION. I dissent from the opinion in this case for the reason that I think the entire proceeding clearly demonstrates that the defendant has been denied his constitutional rights, and the judgment is therefore void. The record discloses the following proceedings: The intrinsic record of the trial court shows that the affidavit against appellant was filed in that court on September 22, 1947, at which time a warrant was issued for his arrest. On October 7, following, he was arraigned in open court, entered a plea of not guilty, his bond was fixed at $3000, and his trial date was fixed by the court for November 3, 1947. This was the first appearance of the appellant in the cause and this is all the record made in the cause on that date. No further record was made in the cause until November 3, 1947, when the following record was made, to-wit:

"The date of trial being at hand, — Comes also the state of Indiana by John M. Lewis, Prosecuting Attorney and announces ready for trial as to defendant, Ralph D. Todd, on first and second counts of affidavit; comes also the defendant, Ralph D. Todd, in person and shows to the court that he elects to represent himself in this cause, without the aid of counsel, and requests a trial by jury and announces ready for trial."

The record is silent as to whether defendant was free under a recognizance bond, or whether he had been in jail from the date of his arrest. However, if he had been under bond, the record would so show. Therefore, we may presume he was detained in jail awaiting trial. The record contains no copy of the showing,election and request which it says was made by defendant, and we are therefore compelled to indulge the presumption that something was said at that *Page 505 time on the subject of counsel for defendant and possibly about a continuance but it was wholly oral and no record was made thereof by the trial court.

On December 3, 1947, within the time provided by law, attorneys, O.B. Hanger and E.P. Elsner appeared for defendant, and filed a motion for new trial, which omitting caption and signature is as follows:

"The defendant, Ralph Todd, in the above entitled cause, shows to the Court that there are manifest irregularities and error in the proceedings, rulings of the Court, verdict of the jury and the judgment of the Court rendered thereon, in this cause, on November 3, 1947, on each of the following grounds:

"1. That the verdict of the jury is contrary to law.

"2. That the verdict of the jury is contrary to the evidence.

"3. That the verdict of the jury is not supported by sufficient evidence.

"4. The Court committed prejudicial error in failing to grant defendant's request for a continuance or postponement of the trial of his case, on the grounds that his attorney had withdrawn his appearance; and that he needed additional time to employ counsel to represent him.

"5. The Court committed prejudicial error in permitting defendant's case to be tried to the jury without appointing an attorney to represent and defend said defendant during the aforesaid trial.

"6. The Court erred in permitting the trial of said defendant to proceed without representation of legal counsel.

"7. The Court erred in submitting defendant's case to the jury without first appointing an attorney to represent and defend said defendant.

"8. That said defendant was denied his constitutional rights by the Court's rulings in the proceedings, hereinbefore stated, made during the course of the trial of said defendant. *Page 506

"WHEREFORE, defendant prays that a new trial of this cause be granted.

"MEMORANDUM:

"The law is well established in Indiana that anyone who is accused of a crime is entitled to have legal counsel to represent him in the trial of his case. Our Courts have held that when one is so accused and is without funds with which to employ counsel, it is the duty of the Court to appoint a competent and qualified attorney to represent such accused. The Courts have further held it is reversible error for a Court to fail or refuse to appoint an attorney for one accused of a crime and is without funds to employ counsel.

"Our Courts have further held that is reversible error for a Court to deny a motion for postponement or continuance of a trial, when an attorney of record withdraws his appearance, and another attorney is employed by the accused to represent him, but not in time for the second attorney to prepare proper defense for the accused.

"The facts in the instant case are undisputed that defendant's attorney withdrew his appearance, and said defendant so informed the Court on the day of the trial and requested the court to continue or postpone the trial of his case, until he could employ another attorney, or that the Court appoint an attorney to represent him. All of which the Court denied and forced the defendant to submit his case to the jury without any legal representation. This, in effect, denied said defendant of his constitutional rights (217 Ind. 493)."

The court then required appellant to file a brief in support of his motion for new trial on or before January 5, 1948. On January 5, 1948, an extensive brief with authorities was filed. At the same time and for the same reasons as given in the motion for new trial except causes 1, 2, and 3 thereof, a motion for a nunc pro tunc entry was filed and presented.

On January 12, 1948, attorney, O.B. Hanger, filed his own affidavit in support of the motion for new *Page 507 trial, which omitting caption, signature and verification is as follows:

"O.B. Hanger, being first duly sworn upon his oath, says:

"That he is one of the attorneys of record for said defendant in the above entitled cause; that he personally filed said defendant's motion for a new trial in open court with the Judge of said Jackson Circuit Court; that at the time he filed the aforesaid motion for a new trial, he inquired of the Judge of the Court whether or not said defendant, Ralph Todd, had requested, on the day of his trial, the Court to continue or postpone his case on the grounds said defendant did not have counsel employed to represent him and the Judge of the Court answered in the affirmative; the Court further informed him that he had overruled or denied said defendant's request, as aforesaid, on the grounds that said defendant had had ample time to employ counsel; that he further inquired of the Court, if said defendant did not ask or request the Court to appoint counsel to represent him and the Court again answered in the affirmative, but overruled or denied the request on the grounds that the Court did not intend for the taxpayers of Jackson County to employ counsel to represent said defendant.

"The foregoing statement is made for the purpose of showing that the Judge of the Jackson Circuit Court at all times had personal knowledge of defendant's requests and rulings that were made thereon, although said Court's records failed to disclose that any such requests were made by said defendant in open Court, nor does its records show the Court's rulings that were made on said defendant's requests.

"Further affiant saith not."

On the same date the motion for nunc pro tunc entry and the motion for new trial were overruled.

The bill of exceptions shows that to prove the charge the prosecuting attorney produced eleven witnesses, whom he asked 307 questions. On cross-examination *Page 508 the defendant asked these witnesses 15 questions. The defendant made but one objection to a question during the trial, the reason given for the objection being meaningless, and the court overruled it. Had a proper reason been given the objection might have been sustained. At one time during the trial the prosecuting attorney (to his credit be it said) warned a witness against giving incompetent evidence against the defendant.

At the conclusion of the state's evidence the judge said: "Mr. Todd, do you have any witnesses, or do you want to testify?" Mr. Todd answered "No Sir". This statement, the 15 inane cross-examination questions, and a like inane objection constituted defendant's entire participation in his trial. So far as shown, defendant had no opportunity to examine the affidavit upon which he was being tried, and no opportunity to consult with or have witnesses subpoenaed in his defense. There is nothing indicating that appellant would have comprehended the meaning of the affidavit if he had seen it.

Confronted with this factual situation affirmatively shown by the record I am wholly unable to agree with statements in the opinion that "we must presume that the trial court did its duty" and that prior to the trial it explained "to the appellant that he was entitled to counsel throughout the proceedings . . . and if he was a pauper to offer, and if he so desired, to provide him with adequate counsel," in the absence of any showing whatever that any such explanation or offer was ever made. Where, as in this case, a simple and uneducated person is detained in jail without counsel either before or after plea or at his trial and is compelled to go to trial without any preparation whatever for his defense, he is thereby clearly denied *Page 509 his rights under both the state and federal constitutions. In such a situation the trial court is called upon sua sponte to see that the defendant has adequate and competent counsel, and that he and his counsel have ample time to prepare for the trial. On this proposition the record of the trial court is always open for inspection and consideration, and it may not be materially aided by presumptions contrary or in addition to record facts.Hendryx v. State (1891), 130 Ind. 265, 29 N.E. 1131. East v. State (1929), 89 Ind. App. 701, 704, 705, 168 N.E. 28.Cassidy v. State (1929), 201 Ind. 311, 319, 168 N.E. 18.Wilson v. State (1943), 222 Ind. 63, 51 N.E. 848. Powell v.Alabama, 287 U.S. 45, 77 L. Ed. 158, 84 A.L.R. 527, 540, 541. The constitutional requirements for due process of law, some of which are herein quoted, are binding, and self-executing upon all trial courts. If they are denied or ignored, the proceedings are clearly void.

The motion for new trial was filed in time and during the same term of court that the trial was had. It very clearly and repeatedly called the trial court's attention to his denial of appellant's constitutional rights. Later and before ruled upon it was supported by the affidavit of O.B. Hanger, a reputable attorney of the bar of this state, alleging in substance that the trial judge had told affiant, that on the day of the trial appellant asked for a continuance of the case until such time as he could secure an attorney and prepare for his defense, which request was denied on the ground that appellant had already had sufficient time to get an attorney. Appellant then asked the court to appoint an attorney for him. This request was denied "on the grounds that the court did not intend for the taxpayers of Jackson County to employ counsel *Page 510 to represent defendant." He further states in the affidavit that the "Judge . . . at all times had personal knowledge of defendant's requests and the rulings that were made thereon," although said court's records failed to disclose that any such requests were made by said defendant in open court, nor does its records show the court's rulings that were made on said defendant's requests.

If the facts set forth in the attorney's affidavit are not true, the trial judge had full knowledge of their falsity, and it was his right and duty to take immediate action not only to clarify the record in this case, but to punish and discipline the offending affiant. As an officer of the court the prosecuting attorney had a right and duty to file counter affidavits and produce other evidence in opposition to affiant's charges. He did not do so. Both he and the trial judge have remained silent and inactive with respect to this serious accusation made against them. The affidavit of attorney Hanger remains undisputed in the record and is thereby conceded to be true by both the trial court and the prosecuting attorney. See East v. State, supra. Kuhn v. State (1943), 222 Ind. 179, 187, 198 et seq.,52 N.E.2d 491.

By the motion for new trial the appellant charges that he has been denied certain constitutional rights. "It is the duty of the trial court and of this court to see to it that those constitutional rights are not improperly denied." Kuhn v.State (1943), 222 Ind. 179, Dissent of Judge Swaim, 193,52 N.E.2d 491.

This is the record in the case as presented to us, in this appeal and upon which we must either affirm or reverse the judgment.

Art. 1, Sec. 13 of the Constitution of Indiana provides: *Page 511

"In all criminal prosecutions, the accused shall have the right . . .; to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; . . . and to have compulsory process for obtaining witnesses in his favor." (My italics.)

The 6th Amendment of the Constitution of the United States provides:

"In all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation; . . . to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense." (My italics.)

Section 1, Amendment 14 of the Constitution of the United States provides:

". . .; nor shall any state deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Long ago in discussing the right of a poor person charged with crime to be represented by counsel this court said:

"It is not to be thought of, in a civilized community, for a moment, that any citizen put in jeopardy of life or liberty, should be debarred of counsel because he was too poor to employ such aid. No court could be respected, or respect itself, to sit and hear such a trial. The defense of the poor, in such cases, is a duty resting somewhere, which will be at once conceded as essential to the accused, to the court and to the public."

Webb v. Baird (1854), 6 Ind. 13, 18.

Later in discussing an appeal by a poor defendant who was tried for murder and found guilty without counsel assigned him by the court, after discussing *Page 512 many Indiana cases on the subject that had been decided theretofore this court said:

"It seems from these, and other authorities, that in this State the law regards the appointment of counsel to defend persons charged with grave crimes, who are too poor to employ counsel on their own behalf, as indispensably necessary to the orderly administration of justice and a fair trial.

"Where a prisoner, without legal knowledge, is confined in jail, absent from his friends, without the aid of legal advice or the means of investigating the charge against him, it is impossible to conceive of a fair trial where he is compelled to conduct his cause in court, without the aid of counsel. His defense may be ever so complete, if properly presented, and yet, if he escapes conviction under the circumstances above given, it must be for want of evidence on the part of the State. Such a trial is not far removed from an ex parte proceeding."

Hendryx v. The State, supra, on page 269.

And later in Wilson v. State, supra, presenting a very similar situation where a defendant was found guilty of receiving stolen goods and was represented in the trial by counsel who seemed to be of mediocre ability. The case was appealed by the county "public defender" who frankly admitted that the errors he was presenting were not contained in the motion for new trial. However, this court examined the whole record with care and on page 78 then said:

"With such a record before us, what is our duty? The easy course would have been to examine the motion for new trial and, having found that the errors relied upon are not mentioned therein, to have affirmed the judgment. For such a decision there are many precedents. But in a case involving an appellant's life or liberty we may not ignore prejudicial errors affecting his constitutional rights when, as here, they are clearly *Page 513 and adequately presented in appellant's brief with supporting bill of exceptions. The procedural rules that would prevent their consideration must give way to the fundamental principles of due process. For this course also there are precedents." (My italics.)

Then quoting from Johnson v. Zerbst, Warden (1937),304 U.S. 458, 82 L. Ed. 1461, 58 Sup. Ct. 1019, as follows:

"If the accused, however, is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty."

And then quoting from Knox County Council v. State ex rel.McCormick (1940), 217 Ind. 493, 29 N.E. 405, 130 A.L.R. 1427 as follows:

"As pointed out in the beginning, the United States Supreme Court has held that, under the Federal Constitution, there can be no valid trial of a criminal case unless the defendant is adequately defended by counsel, and that a judgment rendered under such circumstances is void. This court has consistently held that, under the Constitution of Indiana, there can be no valid judgment against a defendant in a criminal case unless he has been offered, and if so desired, provided with, adequate counsel."

The conclusion is expressed on page 83 thus:

"But when it is made to appear by a record before us that a so-called trial did not meet the requirements of due process of law, it is within the power of this court to take cognizance of the errors that resulted in depriving the appellant of his constitutional rights. When, as here, there has been such a lack of representation as to be equivalent to or worse than no representation whatsoever and as a result thereof the judge misused the opportunity *Page 514 thus given to impress upon the jury his view that the defendant was guilty and ought to be convicted, we are left with no alternative but to exercise the power that is in this court to remand the cause for such a trial as will not deny but will afford to the accused the protection guaranteed by our Bill of Rights and the Constitution of the United States." (My italics.)

See also, Batchelor v. State (1920), 189 Ind. 69, 125 N.E. 773. Hoy v. State (1947), 225 Ind. 428, 75 N.E.2d 915.

The three Indiana cases from which we have quoted above and the many cases they cite indicate what the law on due process has been in Indiana from the time it became a state to the present time, and what it must continue to be if our form of government remains republican.

In the appeal, Powell v. State (1932), 224 Ala. 540,141 So. 201, the appellant with others was indicted and tried by jury for the crime of rape, found guilty and sentenced to death. A motion for new trial among other things raised three propositions that are presented in the case before us: (1) That the defendants were not given sufficient time to prepare their case for trial. The Supreme Court of Alabama, ruled against this contention because no motion for continuance was filed before the trial. The court said:

"This contention cannot avail the defendants, made for the first time after verdict."

(2) That the representation of the defendants by counsel was merely pro forma. The Supreme Court of Alabama dismissed this contention, saying:

"The defendants were represented as shown by the record and pursuant to appointment by the court by Hon. Milo Moody, an able member of *Page 515 the local bar of long and successful experience in the trial of criminal as well as civil cases.

"We do not regard the representation of the accused by counsel as pro forma."

(3) The intrinsic record of the trial court affirmatively showed that the defendants on March 31, 1931 "attended by their counsel came personally into open court, and were duly and legally arraigned and pleaded `not guilty,' . . . and thereupon in open court, in the presence of the defendants, and their attorneys, the court set the trial of the cause for Monday, the 6th day of April, 1931."

Affidavits supporting the motion for new trial were filed, setting forth prejudicial matters occurring at the trial. The Supreme Court of Alabama held, as the opinion in this case substantially holds,

"The bill of exceptions prepared by experienced counsel now appearing is entirely silent as to what did occur. The bill of exceptions made up under the safeguards of law is the method of presenting such matters.

"The trial judge was under duty to consider affidavits, if at all, in the light of his own knowledge of such incidents. If these affidavits did not accord with his own knowledge, it was his duty to disregard them.

"Under all the rules sustaining the trial judge unless error affirmatively appear, his ruling on this question is not presented for review."

On appeal to the Supreme Court of the United States Powell v.Alabama, supra, reversing the Alabama Supreme Court, Mr. Justice Sutherland, speaking for the court, recognizing that the intrinsic record of the trial court showed that the defendants were represented by counsel and that the Supreme Court of the United States could determine only whether *Page 516 the denial of the right to counsel contravened the due process of the Fourteenth Amendment to the Federal Constitution went thoroughly into the nature of such representation notwithstanding the intrinsic record of the court to the contrary, and the fact that the affidavits were filed only in aid of the motion for new trial and in an exhaustive opinion among other pertinent things said:

"The prompt disposition of the criminal cases is to be commended and encouraged. But in reaching that result a defendant, charged with a serious crime, must not be stripped of his right to have sufficient time to advise with counsel and prepare his defense. To do that is not to proceed promptly in the calm spirit of regulated justice but to go forward with the haste of the mob."

The court further said:

"What, then, does a hearing include? Historically and in practice, in our own country at least, it has always included the right to the aid of counsel when desired and provided by the party asserting the right. The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it *Page 517 of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense.

". . . All that it is necessary now to decide, as we do decide, is that in a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble-mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law; and that duty is not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case. To hold otherwise would be to ignore the fundamental postulate, already adverted to, `that there are certain immutable principles of justice which inhere in the very idea of free government which no member of the Union may disregard.' Holden v. Hardy, 169 U.S. 366, 42 L.ed. 780, 18 S. Ct. 383, supra. In a case such as this, whatever may be the rule in other cases, the right to have counsel appointed, when necessary, is a logical corollary from the constitutional right to be heard by counsel. Compare Carpenter v. Dane County, 9 Wis. 274; Dane County v. Smith, 13 Wis. 585, 586, 80 Am. Dec. 754; Hendryx v. State, 130 Ind. 265, 268, 269, 29 N.E. 1131; Cutts v. State, 54 Fla. 21, 23, 45 So. 491; People v. Goldenson, 76 Cal. 328, 344, 19 P. 161; Delk v. State, 99 Ga. 667, 669, 670, 26 S.E. 752."

Related Cases