Wedding v. Commonwealth

394 S.W.2d 105, 1965 Ky. LEXIS 171

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: January 29, 1965
• Status: Published

Opinions

WILLIAMS, Judge.

This is an appeal from a judgment of the Harrison Circuit Court overruling appellant Nimrod Wedding, Jr.’s motion for relief under RCr 11.42.

Wedding was tried for murder in March 1961. The jury could not reach a verdict. A second trial in November 1961 resulted in conviction and the death sentence. On appeal to this Court an opinion was delivered affirming the judgment, whereupon the appellant petitioned for a rehearing.

Prior to submission on the petition for rehearing, this Court entered an order granting appellant permission to file a motion to vacate under RCr 11.42. The sole issue was whether Wedding had effective representation by counsel at his trial. Following a hearing on the question a special judge of the Harrison Circuit Court found that he did. We do not agree.

In Rice v. Davis, Ky., 366 S.W.2d 153 (1963), we noted that the right to assistance of counsel guaranteed by the 6th Amendment to the Constitution of the United States, as well as by Section 11 of the Constitution of Kentucky, means “effective assistance.” We look then to the facts brought out at the hearing.

When the case was first set for trial Wedding did not have counsel and did not have sufficient means to employ counsel. The circuit judge thereupon appointed every lawyer of the Harrison County Bar, except one elderly gentleman and the public prosecutors. The “dean” of the appointed group acted as leader and conducted the trial. He stated that the circuit judge assured him that no Harrison County jury would give more than a life sentence, and he knew that such had been the habit in the past; consequently “we were lulled into the feeling that our duties were .perfunctory and that as a result thereof none of the defense attorneys ever interrogated any of the prospective Commonwealth witnesses and each proceeded on the ancient adage that ‘everybody’s business is nobody’s business,’ and that as a further result, no single or united effort was made to prepare the defendant’s defense ; * * * ” “ * * * we proceeded in the second trial the same as we had in the first and interrogated no prospective witnesses, either for the defense or the Commonwealth, and that no single or united effort was made to prepare the defendant’s defense on the second trial.”

In Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527 (1932), the leading decision on the subject, the trial court appointed “all the members of the bar” to represent certain indigent defendants who were charged with rape. The Supreme Court commented as follows;

“ * * * How many lawyers were members of the bar does not appear; but, in the very nature of things, whether many or few, they would not, thus collectively named, have been given that clear appreciation of responsibility or impressed with that individual sense of duty which should and naturally would accompany the appointment of a selected member of the bar, specifically named and assigned.

“ * * * during perhaps the most critical period of the proceedings against these defendants, that is to say, from the time of their arraignment until the beginning of their trial, when consultation, thorough-going investigation and preparation were vitally important, the defendants did not have the aid of counsel in any real sense, although they were as much entitled to such aid during that period as at the trial itself.”

We do not speculate on what the outcome might have been under different circumstances. In view of the fact that all of the available lawyers at the Bar were appointed and, by their own admission, none of them made any reasonable preparation for trial, we conclude that Wedding was denied effective assistance of counsel.

The judgment is reversed, with directions that the judgment rendered on the verdict of the jury made November 10, 1961, be vacated.

MONTGOMERY, PALMORE and STEWART, JJ., dissenting.