Larson v. Bennett

160 N.W.2d 303, 1968 Iowa Sup. LEXIS 899

• Court: Supreme Court of Iowa
• Decided: July 18, 1968
• Docket: 52832
• Status: Published

Opinions

MOORE, Justice.

Petitioner, Charles D. Larson, was convicted of murder in the second degree and sentenced December 30, 1946 to be confined in the Iowa State Penitentiary at Fort Madison for a term of 99 years. No appeal was taken. An accomplice, Louis B. Hofer, was earlier tried, convicted and sentenced to be hanged for murder in the first degree. The judgment against Hofer was affirmed by this court. State v. Hofer, 238 Iowa 820, 28 N.W.2d 475, sets out the facts in detail on which each was convicted. Stated briefly Larson and Hofer were convicted for killing a reformatory guard by striking him on the head with a hammer while perpetrating an escape. Hofer’s sentence was later commuted to life and recently to a term of 90 years.

Petitioner, while serving his sentence in the state penitentiary, on May 1, 1967 filed his petition for a writ of habeas corpus in the Lee County District Court. He alleged his restraint was illegal and unconstitutional as he had been denied due process in his murder case conviction. We discuss his several contentions infra. Following an evidentiary hearing the trial court denied the relief sought and petitioner has appealed.

I. He first asserts the trial court erred in denying his request for appointment of counsel to assist him in the trial and also the appeal of this habeas corpus proceeding.

Long before the opinions in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733; Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and subsequent Federal cases, including Miranda, our statutes provided for appointment of defense attorneys prior to trial and on appeal of felony cases. Code sections 775.4 and 777.12. Our only post conviction remedy is that provided by habeas corpus under Code chapter 663. It contains no provision for appointment of .counsel for indigents.

The 61st General Assembly in 1965 enacted the public defender law, now chapter 336A, Code, 1966. Section 336A.7 authorizes appointment of other defense counsel both for trial and on appeal but makes no such provision in habeas corpus cases. This legislation was passed subsequent to our holding in Waldon v. District Court, 256 Iowa 1311, 130 N.W.2d 728, in which we recognize habeas corpus is a civil action and there is no provision in our law for appointment of counsel in a civil action. After reviewing both state and federal constitutional rights of the petitioner, we held in Waldon the State is not constitutionally bound to furnish counsel in a habeas corpus case. Waldon, together with cases from several other jurisdictions, is cited with approval in Henderson v. State, 11 Ohio App.2d 1, 227 N.E.2d 814, 816.

It is well settled there is no constitutional right to representation by counsel in habeas corpus proceedings in the federal courts. Anderson v. Heinze, 9 Cir., 258 F.2d 479; United States ex rel. Wissenfeld v. Wilkins, 2 Cir., 281 F.2d 707; Douglas v. Maxwell, 6 Cir., 357 F.2d 320; Hampton v. State of Oklahoma, 10 Cir., 368 F.2d 9; LeClair v. United States, 7 Cir., 374 F.2d 486; Roach v. Bennett, 8 Cir., 392 F.2d 743, filed April 15, 1968. Most of these cases and also Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148, recognize the trial court has discretion to ascertain whether the claim is substantial before granting a full evidentiary hearing and the court may find it useful to appoint counsel to represent the petitioner.

United States ex rel. Manning v. Brierley, 3 Cir., 392 F.2d 197, 198, (1968) says: “Appellant contends that the district court committed error in refusing to appoint counsel for him. As the law now stands the appellant had no absolute right to the appointment of counsel in this habeas corpus proceeding. It is still treated as a civil matter. The district court, 285 F.Supp. 78, of course, has a discretionary right to make an appointment of counsel in this case. See 28 U.S.C.A., § 1915(d). From our review of the record we are unable to find that the refusal of the district court to appoint an attorney in this case constituted an abuse of discretion.”

In the case at bar the trial court granted a full evidentiary hearing attacking petitioner’s 1946 conviction for murder. The record shows the trial court was careful and patient in answering all questions of procedure propounded by petitioner. The court gave him full and complete range in offering his evidence and cross-examining respondent’s witnesses. Under the facts here we find no abuse of discretion by the trial court on the question of appointment of counsel.

Waldon v. District Court, supra, is modified only to the extent of vesting in the trial court the discretion of appointing counsel when the facts in a particular case make such appointment desirable.

We find no reversible error in the trial court’s refusal to appoint counsel as requested by petitioner-appellant.

II. Appellant’s next assignment of error states: “The Habeas Court erred in failing to hold a review of the complete records of the criminal trial court.” Of course habeas corpus does not supplant an appeal nor provide for the determination of one’s guilt or innocence. The only germane issues involve jurisdiction, due process, and the included question of the existence of the crime charged. Scalf v. Bennett, 260 Iowa 393, 147 N.W.2d 860, 863, 864; Buteaux v. Bennett, 256 Iowa 1068, 1071, 129 N.W.2d 651, 653; Nelson v. Bennett, 255 Iowa 773, 776, 123 N.W.2d 864, 865, 866; Mann v. Lainson, 250 Iowa 529, 530, 94 N.W.2d 759, 760.

Although phrased rather inarticulately we interpret appellant’s second assigned error as an assertion he was deprived of due process because of the denial of his request that he be furnished a court reporter’s transcript of the trial of the murder case. He made a written request for such a transcript to the Jones County District Court where he was tried in 1946 which was denied. The record is devoid of a specific basis for such denial. There was no proof such a transcript had ever been prepared or that it was obtainable in 1967.

Appellant made a like request to the trial court at his habeas corpus hearing on June 5, 1967. The court denied his request on the grounds neither the United States Constitution nor the laws of Iowa require furnishing such a transcript at state or county expense for use in a habeas corpus proceeding. We agree.

Code section 793.2 provides an appeal in a criminal case can only be taken from the final judgment and within sixty days thereafter. Section 793.8 provides an indigent defendant who has perfected an appeal pursuant to section 793.2 may be furnished a transcript of the evidence adduced in the trial court for use on appeal. This procedure is now constitutionally compelled under Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, 55 A.L.R.2d 1055. Accordingly an indigent is now entitled on direct appeal from his conviction to a transcript sufficient to insure an adequate appellate review.

Appellant, however, has at no time sought redress of his grievances through a direct appeal from his conviction. Hence, we necessarily conclude this is without the scope of coverage afforded by Griffin v. People of State of Illinois or section 793.8. The time allotted by statute for perfecting an appeal has long since passed and consequently we are without jurisdiction to entertain such an appeal or to order a transcript furnished to petitioner. State v. Birchall, 260 Iowa 756, 150 N.W.2d 715, 716, and citations.

Appellant cites Long v. District Court of Iowa, 385 U.S. 192, 87 S.Ct. 362, 17 L.Ed.2d 290, as authority for holding he is entitled to a free transcript of the murder trial for use in his habeas corpus action. Long holds a state must furnish a free transcript of a habeas corpus proceeding to an indigent state prisoner for use on appeal from an adverse decision therein where a transcript can be reasonably made available and no adequate alternatives are made available by the state. Appellant herein has been furnished a transcript of his habeas corpus hearing and it has been used on this appeal. We do not read Long as constitutionally requiring petitioner be furnished a free transcript of his murder case trial for use in his habeas corpus proceeding.

Under the facts here we find appellant was not materially prejudiced by his inability to obtain a complete transcript of his murder trial. He was furnished a Jones County District Court clerk’s transcript which was introduced on trial as exhibit 4 by respondent. This certified exhibit consists of copies of the county attorney’s information upon which petitioner was charged, minutes of the testimony of various witnesses, notice of additional witnesses who were to be called, the judgment and sentence, affidavit of defense attorney filed for allowance of fees, subpoenas and return of service, and detailed court minutes relating the progress and events of the murder trial.

III. Appellant next argues the trial court erred in finding two written statements signed by and used against him at the murder trial were voluntary. The question of their voluntariness was one of the issues determined in that trial. Such issue could have been further tested on direct appeal from his conviction but this was not done. Appellant’s contention really amounts to an attempt in habeas corpus to perfect an appeal on this issue. As we have already pointed out habeas corpus may not be used to perform the function of an appeal. Much of the record, however, relates to evidence offered by both parties on the question of voluntariness of the two written statements admittedly signed by appellant about two days after the assault upon the reformatory guard and therefore we will consider petitioner’s third assigned error.

The escape from the reformatory by appellant and Hofer was accomplished as planned by an assault on the guard, from which he later died, and taking his automobile on June 12, 1946. Appellant was apprehended late afternoon of June 14 approximately fifty miles from the reformatory to which he was promptly returned. Appellant’s version is that upon his return to the institution, where he was serving a five year sentence for larceny, he was immediately stripped of all his clothing and beaten into a state of unconsciousness by reformatory guards. About an hour later he was taken to an interrogation room where after being questioned by state agents he signed the first of the incriminating statements. On June 17 he signed a second statement containing similar information, but containing additional details. He maintains both statements were signed only because he was fearful of physical and psychological intimidation.

Respondent-appellee’s evidence is all to the contrary. G. M. Strand, a former employee of the Iowa Bureau of Investigation, testified at the habeas corpus hearing appellant was given a shower, shave and clean clothing upon his return and an hour later was brought to an interrogation room where he, another agent and the warden were present. Strand testified no threats or promises were made, no marks of physical abuse were observable on petitioner and he signed the statement voluntarily.

Each of the two typewritten statements contain phrases they were given freely and voluntarily in the absence of threats or promises with knowledge they may be used in court as evidence. Appellant’s signature to each was witnessed by the two state agents and the warden. Strand testified petitioner read both statements to insure against inaccuracies and oversight and he advised appellant he was under no obligation to sign.

We have uniformly held the trial court’s findings in a habeas corpus action not involving custody of a child are binding upon us if supported by substantial evidence. Parrott v. Haugh, Iowa, 158 N.W.2d 766, 771; Hansen v. Haugh, 260 Iowa 236, 149 N.W.2d 169, 171, 172; Scalf v. Bennett, 260 Iowa 393, 147 N.W.2d ; Hoskins v. Bennett, 256 Iowa 1370, 1377, 131 N.W.2d 510, 515. The support is ample here. We find no merit in the third assignment of error.

IV. Appellant next urges his court appointed attorney was ineffective. We recognize lack of effective counsel may constitute a jurisdictional defect reviewable by habeas corpus. Parrott v. Haugh, Iowa, 158 N.W.2d 766, 769; Scalf v. Bennett, 260 Iowa 393, 147 N.W.2d 860, 863; Birk v. Bennett, 258 Iowa 1016, 1019, 141 N.W.2d 576, 578; Buteaux v. Bennett, 256 Iowa 1068, 1071, 129 N.W.2d 651, 653. We are also cognizant of the frequency with which charges of incompetency are directed to conscientious, dutiful and able defense counsel by disappointed defendants. Hoskins v. Bennett, 256 Iowa 1370, 1375, 131 N.W.2d 510, 513. After careful reading of the record including the transcript, exhibit 4, we find it amply supports a finding appellant was represented by effective competent counsel.

It is presumed a court appointed counsel for an indigent defendant acts properly. Ashby v. Haugh, Iowa, 152 N.W.2d 228, 233, and citations. Cert. den. January 15, 1968, 389 U.S. 1056, 88 S.Ct. 809, 19 L.Ed.2d 855.

The burden of proof was on petitioner to establish his counsel was ineffective and he did not have a fair trial. Parrott v. Haugh, Iowa, 158 N.W.2d 766, 771; Ashby v. Haugh, supra; State v. Wesson, 260 Iowa 331, 149 N.W.2d 190, 195; Scalf v. Bennett, supra.

“Effective” does not mean successful. It means conscientious, meaningful representation wherein the accused is advised of his rights and learned and able counsel is given a reasonable opportunity to perform the task assigned to him. Scalf v. Bennett, supra, 260 Iowa 393, 147 N.W.2d 860, 864, and citations. Compared with the result in the Hofer case it may be strongly argued appellant’s defense was successful. That may have been one of the reasons defense counsel advised against appealing the murder case conviction. The sentence made a later grant of a parole possible. We have been advised such a parole was granted a few months ago.

Mr. Warren Rees, now chief judge of the 8th judicial district, was appointed defense counsel on June 17, 1946 and on June 17 a plea of not guilty was entered. The record reveals Mr. Rees appeared in court on seven separate occasions in addition to actual trial time. He cho^e not to call any character witnesses presumably in an attempt to keep appellant’s somewhat tarnished character from being put in issue. He put appellant on the witness stand. Mr. Rees and his partner, Mr. Howard Remley, now a past president of the Iowa State Bar Association, divided between them the closing argument to the jury. Appellant testified he was satisfied with the argument.

Appellant’s claim, made more than twenty years after the trial, that his counsel should have asked for a change of venue and should not have advised against taking an appeal, falls far short of meeting the proof required to establish his claim that his counsel was ineffective.

V. Appellant’s final two assignments can be considered together. He asserts he was deprived of due process of law in that the court did not have proper in per-sonam jurisdiction and he was denied a preliminary hearing. Both allegations are without merit.

His argument of lack of personal jurisdiction is based upon the fact a county attorney’s information was filed and he was arraigned thereon when no order for a bench warrant was made and no warrant issued. No such warrant was necessary. An identical argument was urged to no avail by appellant’s accomplice, Hofer, on his appeal to this court. The reasoning and principles of law therein stated are applicable here but need not be repeated. In State v. Hofer, 238 Iowa 820, 842, 28 N.W.2d 475, 477, 478, we say: “Defendant contends the trial court was without jurisdiction because no order for a bench warrant was made and no warrant issued. We hold the contention without merit.”

Regarding appellant’s final assignment he was denied due process because he was deprived of a preliminary hearing we need only refer to State v. Clark, 258 Iowa 254, 257, 138 N.W.2d 120, 122, where wfe say: “As to the complaint that no preliminary hearing was provided, none was necessary. A county attorney’s information had been filed. Chapter 769, Code, 1962, provides for proceedings under county attorney’s information which are in lieu of preliminary hearing and subsequent action by the grand jury. The procedure does not contemplate a preliminary hearing.” For a later like holding see State v. Collins, Iowa, 152 N.W.2d 612, 614, 615, and citations.

Having carefully considered appellant’s contentions we are convinced the trial court did not err in dismissing his petition for a writ of habeas corpus.

Affirmed.

GARFIELD, C. J., and LARSON, SNELL and STUART, JJ., concur. BECKER, MASON, RAWLINGS and LeGRAND, JJ., dissent.