State v. Hesse

719 P.2d 1209, 110 Idaho 949, 1986 Ida. LEXIS 467

• Court: Idaho Supreme Court
• Decided: May 23, 1986
• Docket: No. 15735
• Status: Published

Opinions

BISTLINE, Justice,

dissenting.

The majority misconstrues the issue of this case by stating: “Since Hesse was never entitled to appointed counsel in the first instance, the issue therefore becomes whether the trial court’s appointment followed by its sudden revocation of Hesse’s counsel prejudiced Hesse’s case.” Maj. op., p. 951, 719 P.2d p. 1211. That is not the issue before us. The issue presented is whether Hesse was denied due process of law when the district court deprived him of counsel without giving Hesse advance notice that it was considering such action, and without giving Hesse an opportunity to respond to the motion — a motion which the prosecutor impermissibly submitted to the court ex parte.

The facts of this case as set forth in the majority opinion are in need of substantial clarification. On May 23, 1984, the district court stated that this was a “proper case” for appointment of an attorney, and did so. The court also ordered that Hesse would reimburse the state at the rate of $25.00 per month to defray the costs of the appointed attorney.

Disenchanted by the court’s order to provide Hesse with an attorney, on May 25, 1980, the state moved the court to reconsider and quash the order. The motion was not noticed up for a hearing and was not served upon Hesse’s attorney or Hesse. Furthermore, no hearing was ever held.¹

On May 30, 1984, the court entered an order granting a motion by Hesse’s counsel to continue the trial. On the same day, the court, by telephone message, advised Hesse’s counsel that his appointment had been revoked. In turn, Hesse’s counsel notified Hesse by telephone that he no longer represented Hesse. No written order quashing the appointment of Hesse’s counsel was ever delivered to Hesse or Hesse’s attorney. Given the facts of this case, I would expect any legal mind to readily conclude that Hesse’s due process rights were violated by such bizarre proceedings.

Article 1, § 13 of the Idaho Constitution declares unequivocally that: “In all criminal prosecutions, the party accused shall have the right ... to appear and defend in person and with counsel.” In the landmark case of Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 796, 9 L.Ed.2d 799 (1963) the United States Supreme Court made it abundantly clear that the right to counsel is constitutionally protected by the federal constitution and all state constitutions:

The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law.

In Powell v. Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 63-64, 77 L.Ed. 158 (1932), Justice Sutherland stated:

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 may 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.

In Faretta v. California, 422 U.S. 806, 835-40, 95 S.Ct. 2525, 2541-44, 45 L.Ed.2d 562 (1975), Chief Justice Burger, in eloquently detailing the responsibility of a trial court to ensure that a defendant is adequately represented, placed strong significance on the roles of both the prosecutor and the trial judges:

Although we have adopted an adversary system of criminal justice, see Gideon v. Wainwright, supra, the prosecution is more than an ordinary litigant, and the trial judge is not simply an automaton who insures that technical rules are adhered to. Both are charged with the duty of insuring that justice, in the broadest sense of that term, is achieved in every criminal trial. See Brady v. Maryland, 373 U.S. 83, 87 and n. 2, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963); Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935). (Emphasis added.)

How can it be said that the district court insured that justice was achieved when Hesse was deprived of counsel without allowing either Hesse or his attorney to be heard on the state’s motion? What procedural and substantive safeguards were followed when the court and the state never even notified Hesse or his counsel of the state’s motion to quash the appointment? None.

As long ago as 1921, long before Powell, Gideon, and Faretta, this Court observed that: “Due process of law requires that one be heard before his rights are adjudged.” Mays v. District Court, 34 Idaho 200, 207, 20 P. 115 (1921). In Abrams v. Jones, 35 Idaho 532, 546, 207 P. 724 (1922), this Court added: “Due process of law is not necessarily satisfied by any process which the legislature may by law provide but by such process only as safeguards and protects the fundamental constitutional rights of the citizen.” See also Gilbert v. Elder, 65 Idaho 383, 388, 144 P.2d 194 (1943) (“[D]ue process of law has been variously held to mean a law which hears before it condemns_”). As recently as 1983, this Court responsibly declared that: “The right to procedural due process under both the Idaho and United States Constitutions requires that a person involved in the judicial process be given meaningful notice and a meaningful opportunity to be heard.” Rudd v. Rudd, 105 Idaho 112, 115, 666 P.2d 639, 642 (1983).

Can it be said that Hesse’s right of counsel was heard and determined against him only after being given meaningful notice and a meaningful opportunity to be heard? Of course, it cannot be said.

The decision of today’s majority perpetrates a gross violation of Hesse’s constitutional due process rights. When Hesse is dealt such an outrageous intrusion and deprivation of constitutional rights, it is not just Hesse who suffers, but Everyman. See Brinegar v. United States, 338 U.S. 160, 181, 69 S.Ct. 1302, 1313, 93 L.Ed. 1879 (1949) (Jackson, J., dissenting).

Notf the issue here is the contention that Hesse was not qualified for court-appointed counsel. The fact of the matter is that the district court acting under the mandate of two constitutions and Idaho statutory law created the relationship of attorney-client. That relationship once created — whether rightly or erroneously — cannot be unilaterally dissolved by the arbitrary action of a judge and prosecutor. This is not to say that it cannot be done at all, but is to say that the elements of caprice and arbitrariness in tearing that relationship asunder have trespassed upon constitutional requirements of due process. To my mind there is no conceivable difference between counsel having been privately retained or court-appointed. It is the existence of the relationship which matters.

What is at issue, and what the majority is unable to comprehend is that a district court should not be allowed to deprive a defendant of counsel without first having provided a hearing after giving adequate notice.

1 . In an affidavit, the public defender stated that he was only notified of the court’s decision on the motion after the district judge had already made up his mind.