Taylor v. State

287 So. 2d 889, 51 Ala. App. 573, 1973 Ala. Crim. App. LEXIS 1210

Opinions

HARRIS, Judge.

Appellant was convicted of murder in the first degree in the Circuit Court of Jefferson County and sentenced to life imprisonment. Prior to arraignment is was ascertained that appellant was indigent and counsel was appointed to represent him.

This is a bizarre case. There were four eye witnesses to the killing. Appellant knew the witnesses and they knew him yet he denied he was at the scene. A police officer saw him running from the scene and chased him about four blocks but another officer “headed him off”, and he was taken into custody. He first told his court appointed lawyer that he was in a cafe about two blocks away having an egg sandwich and a cup of coffee when the homicide occurred and when he left the cafe he saw an ambulance and a crowd of people gathered around. He got curious as to what was happening and decided to investigate. When he reached the scene he was placed under arrest and was not told why. His lawyer made a thorough investigation as to the facts in the case as well as appellant’s alibi. No one in the cafe saw him on the morning of the homicide. He stuck to this story until two minutes before the trial started at which time he turned to his lawyer and said, “Now I know where I was when the killing took place. I was in jail.” He produced a receipt from the warden at the county jail and claimed the date thereon was August 1, 1971, and the shooting occurred on August 6. This alibi was shot down when the jailer testified that what appeared to be August 1, was actually August 7, 1971. Appellant’s alibi “cracked up” and the jury “cracked down” on him. The verdict was rendered on February 2, 1972, and on February 7, 1972, the trial judge received a letter from appellant requesting that he be given a new trial because his lawyer failed to produce some very important evidence during the trial that was available and well known to the attorney. The letter ¹ was treated by the trial judge as a motion for a new trial. A day was set to hear the motion and another lawyer was appointed to represent appellant at the hearing and now represents him on this appeal.

At the hearing on the motion for a new trial, the following facts were developed:

The police officer who was in “hot pursuit” of appellant immediately after the killing stopped by the body of the deceased and picked up a pocket knife with the blade two-thirds open. He put the knife in his pocket to preserve evidence. This officer returned to the scene and found the deputy coroner of the county examining the body. He told the coroner about the knife. During a recess at the main trial the coroner told the judge about the knife. The trial judge called the prosecuting attorney and the defense attorney to his chambers for a discussion of this matter. Both knew about the open knife in or near the hand of the deceased at the place of the killing. The prosecution knew about the knife as this evidence was presented to the grand jury and the defense attorney was permitted to read the grand jury notes. In addition to this information the defense attorney in making his preparations for trial went to the coroner’s office and made inquiry as to whether a blood sample was taken from the body of the deceased to determine if he had been drinking. He learned that a blood sample had been taken and the State Toxicologist had made his report. This report is as follows:

“(ALABAMA GREAT SEAL)

“C. J. Rehling, Ph.D., Auburn State Toxicologist B. H. Orndorff, Auburn Toxicologist

Nelson E. Grubbs, Mobile Robert B. Johnson, Birmingham Vann V. Pruitt, Jr., Huntsville Toxicologists Carlos L. Rabren, Auburn James L. Small, Montgomery

“STATE OF ALABAMA DEPARTMENT OF TOXICOLOGY and CRIMINAL INVESTIGATION Auburn, Alabama BIRMINGHAM DIVISION 507 Public Health Building Birmingham, Alabama

August 16, 1971

“Coroner Harry Freeman Court House Birmingham, Alabama

RE: Case 115-82101 Jimmy Lee Mason, dec., victim Archie Taylor, Susp.

“Dear Sir:

“The specimen of blood received by this laboratory on August 9, 1971 has been subjected to microanalyses as requested.

“Microchemical analyses of this specimen have identified 0.23 per cent ethyl alcohol therein.

“A person with the above per cent of alcohol in his blood would be considered under the influence of intoxicating beverages and incapable of safely operating a motor vehicle or conducting other tasks requiring a similar degree of skill and coordination.

“This specimen will be retained in this laboratory for seven days and will be destroyed after that time unless further instructions are received from you.

“Yours very truly, C. J. Rehling, Ph.D. State Toxicologist

/s/ Robert B. Johnson By: Robert B. Johnson Toxicologist”

Armed with these two most valuable pieces of evidence, the defense attorney again consulted appellant and told him he (the attorney) could make a good case of self-defense. Appellant replied, “maybe we could, but I wasn’t there.” The defense attorney said, “Well, I cannot make out a case of self-defense if you weren’t there.” Appellant said “nonetheless, that is what I am going to say. I wasn’t there.”

All of the above and more was related to the trial judge during the recess. The defense attorney told the judge that he pleaded with appellant to let him put this evidence on and appellant steadfastly refused to do so and vehemently denied that he shot and killed the deceased.

Appellant testified on the motion for a new trial and on cross-examination the prosecution asked him if it was not true that during the course of the trial, in the courtroom in the presence of the defense attorney and the prosecutor, right before any testimony was taken, that the defense attorney told him that his best defense was self-defense, and appellant denied that this occurred, saying “He haven’t mentioned self-defense to me during the whole time he walked (sic) up to me.” Just after the jury was struck the defense attorney said to appellant, “This is the last chance we have to plead self-defense. Let’s go with self-defense.” Appellant again refused.

Faced with a recalcitrant and uncooperative defendant who was adamant in “quarterbacking” his own trial, the defense attorney negotiated with the prosecution and obtained an agreement with the State that it would accept a term of twenty (20) years in the penitentiary. This was submitted to appellant and it was rejected by him.

In chambers, after being made aware of the open knife and appellant’s staunch refusal to cooperate and allow his lawyer to conduct the defense in the way he thought proper, the trial judge told the defense attorney to “make voluminous notes, so that if he needed to remember almost immediately, or years later, that he would have enough notes to refresh his recollection about this, because, in my opinion, the petitioner (defendant), through interference in this case, or because the case was the case it was, or whatever it was, after a long period of time in the penitentiary, then he would come back and say that someone had improperly represented him.”

At the hearing on the motion for a new trial, the court said, “Now, the court wants to go ahead and take testimony on this matter for more reasons than one, one being that I see no reason of going up on appeal and having a silent record on this and then coming back on a coram nobis, which is the normal way a contention such as this is handled.”

Appellant did not wait on the efflux of time when memories tend to fade and recollections grow dim. He wrote the letter five (5) days after his conviction. At the conclusion of the hearing, the trial court overruled the motion for a new trial.

During the months intervening from indictment, arraignment and trial, the defense attorney conferred with appellant on numerous occasions as to witnesses who might be able to give favorable testimony in behalf of appellant, including character evidence. Appellant gave him the names of some white ladies in Mountain Brook and Vestavia for whom he did yard work. One woman contacted by the attorney said she only knew him as a yard man and did not know anything about his character and reputation. His attorney then checked appellant’s FBI report or “rap sheet” and found that appellant had been convicted and served time for many crimes of violence throughout the country. In the light of his past record, the attorney abandoned his search for character witnesses and rightly so.

The sole and only claim of error on this appeal is the action of the trial court in overruling and denying the motion for a new trial.

We believe that all legal minds, familiar with the facts as developed on the motion for a new trial can be of but one persuasion and that is that the evidence relating to the open knife and the intoxicated condition of the deceased should be submitted to a jury. It is most probable that a different verdict will be rendered.

A lawyer must never subordinate his professional knowledge, skills, trial strategy or tactics to the whims of a client whether he be of feeble intellect, completely illiterate, a member of the intelligentsia, of low birth or born in the upper strata of society. To hold otherwise will cause the adversary system to collapse and, in most cases, be an effective denial of the guarantee of the right to counsel contained in the Sixth Amendment and so eloquently expressed in Powell v. Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 64, 77 L.Ed. 158, wherein it is 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 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 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.”

Faced with the dilemma that confronted him, and knowing full well that the alibi evidence was like a sieve, and that appellant’s only possible defense was self-defense, he should have done one of two things. He should have gone to the trial court and made a full disclosure and asked to be relieved from the case, or he should have ignored the dictates of appellant and introduced the knife in evidence and the findings of the Toxicologist’s showing the advanced stage of intoxication of the deceased. It is trial counsel’s decision on the matters here involved that must control.

“Counsel is the manager of the lawsuit; this is of the essence of the adversary system of which we are so proud. In the nature of things he must be, because he knows how to do the job and the defendant does not. That is why counsel must be there.” Rhay v. Browder, 9th Cir., 342 F.2d 345.

The right of counsel to control litigation was recognized in this state over a century ago. Rosenbaum v. State, 33 Ala. 354. In this case, Mr. Justice Stone said, “To hold otherwise, would greatly embarrass judicial proceedings.”

Courts throughout the country, notably California and the Federal courts, have consistently recognized that the right and duty to control the trial is squarely placed upon the shoulders of counsel.

In People v. Ferry, 237 Cal.App.2d 880, 47 Cal.Rptr. 324, the District Court of Appeals, Third District, said:

“It is worthy of note that this was not defendant’s first ‘brush’ with the law. He had suffered four prior convictions, was on parole, and it is to be supposed that he had some knowledge of court proceedings in criminal matters. About six months had elapsed, during which time he discussed his case with various attorneys, including the public defender, and these discussions must surely have involved some talk as to conduct of the defense and as to witnesses who might be summoned in his defense. His claim that he and his counsel were not in full accord as to the conduct of the case is not unusual. It happens frequently. But responsibility for deciding how a case shall be conducted is placed squarely upon the shoulders of counsel and properly so. It is his right and duty to control the trial. (People v. Mattson, 51 Cal.2d 777, 788, 336 P.2d 937.) * * * ”

See Wilson v. Gray, 345 F.2d 282; Poole v. Fitzharris, 396 F.2d 544; People v. Robles, 2 Cal.3d 205, 466 P.2d 710, 85 Cal.Rptr. 166.

We do not want to be understood as holding that had defense counsel introduced the knife in evidence and the alcoholic content in the body of the deceased, all over the objections and protests of appellant, that appellant would have been robbed of his right to take the witness stand and testify as to his alleged alibi. This was and is his constitutional right. Appellant’s FBI record would have been a "red flag” to any defense attorney but an accused can never be denied his constitutional right to give evidence in his behalf. Henry v. Mississippi, 379 U.S. 443, 85 S. Ct. 564, 13 L.Ed.2d 408; Whitus v. Balkcom, 333 F.2d 496; People v. Robles, supra.

On the record before us we are not confronted with the many, many grounds and reasons for granting or denying new trials in criminal prosecutions. This is not a case of newly discovered evidence, for as we have pointed out, the question of the knife and the alcohol content in the body of the deceased was .known to the trial judge, the prosecutor and defense attorney before the trial in chief was concluded. We hold that these two items of evidence are potent, material, competent, relevant, and could well have been of incalculable benefit to appellant and it is highly probable that upon another trial a different result could well be obtained. Defense counsel, though conscientious and resourceful to the nth degree, allowed appellant to pursue a course that was inimical to his welfare, to his life, and to his liberty. Elementary principles of due process and fair play calls for a new trial.

The dissenting opinion proves the accuracy of our holding. He says that trial counsel was faced with two choices, his defense of self-defense, and appellant’s — the alibi — and that obviously defense counsel “chose to go with alibi”. The facts are the counsel did not choose to go with alibi. He was told by appellant what defense he must put up and when he went with alibi, he ipso facto surrendered to appellant’s control of the law suit. Every official and participant in this courtroom drama, except the twelve most important, i. e. the jury, knew about the open knife in the hand of the deceased and that his cadaver was loaded with whiskey before the trial in chief was yet concluded. Everyone but the jury knew, too, that every breath uttered by appellant on the witness stand as to an alibi reeked with one falsehood after another.

The dissenting opinion says, “If indeed this appellant swore falsely, he must now bear the consequences.” And what consequences? Life imprisonment grounded upon the rankest kind of plain stupidity dictated by an ignorant, disadvantaged black man received and acted upon by a lawyer familiar with the ways of a courtroom battle. If the dissenting opinion becomes the law of this case, then we are unwilling witnesses to trial advocacy impaled on a gibbett that strikes at the heart of fundamental fairness, witnesses to the demise of constitutional due process, and our adversary system being consigned to limbo.

The dissent further says that had the motion for a new trial been granted, another attorney would have had to be appointed and in all probability would have faced the same dilemma. This is a debatable question and is too speculative for further comment.

As always the dissenter speaks to the future, and when he is right, his voice is pitched to a key that will carry through the ages, but when he is wrong the printer’s ink spirals to inflationary heights, and that is the only profit that emerges from this tangled maze of complexities.

Reversed and remanded for a new trial in conformity with this opinion. Appellant will remain in custody until discharged by law.

Reversed and remanded.

TYSON and DeCARLO, JJ., concur. CATES, P. J., specially concurs. ALMON, J., dissents.

1 .

”708 21st No Bham Ala

“Hon. Judge Gibson “Dear Sir,

“I, Archie Taylor was convicted of 1° degree muder (sic) on the second of Feb. I am writing to ask you to reconsider my case for and (sic) appeal on the grounds of misrepresentation by my lawyer.

“He fail to product (sic) evidence in my faver (sic).

“It was stated by a wittness (sic) that the said James Mason had a knife open at the seen (sic) of the crime. It was found open by a detective. Also the coroner reports stated that James Mason was drunk at the time. • My lawyer fail to say anything about it at the trial. The knife and the detective was not producted (sic) at the trial.

“Your Hon.

“My knowledge of law is very little, so I am asking you to please appointed (sic) me someone to help me in this matter because I thank (sic) that the court should know all about the case.

“I am 58 years of age and I don’t have any money and know (sic) one here to call upon for help.

“Closing with all respect to you: “Sincerly (sic) Yours “Archie Taylor

“Filed in open Court this the 7th day of February, 1972, and passed to March 24, 1972 at 1:30 P.M.

“Wallace Gibson, Judge”