Williams v. State , 192 Ga. 247 ( 1941 )

The defendant was convicted of murder, and after affirmance of a judgment overruling an ordinary motion for new trial, and after still other proceedings, he filed an extraordinary motion for a new trial, presenting, among others, the contention that appointed counsel who represented him during the trial had so failed in their duty to him as attorneys that he had been deprived of the benefit of counsel and denied due process of law. The judge, after hearing evidence both for and against the motion, found the issues of fact against the movant, and denied the motion on all grounds. Held, that the evidence did not demand a finding that the accused had been denied the benefit of counsel or due process of law, as contended; nor does it otherwise appear that the judge abused his discretion in denying the motion.

No. 13572. MAY 19, 1941. The exception is to a judgment denying an extraordinary motion for a new trial. The following facts appeared:

At the September term, 1937, of the superior court of Elbert County, Norman Williams was indicted for the offense of murder in the alleged killing of Lon Fortson by shooting him with a pistol, the date of the alleged offense being July 19, 1937. On the morning of September 13, 1937, two attorneys of the Elberton bar were appointed to represent the accused, he being unable to employ counsel. His trial began on Thursday afternoon, September 16, and continued until Saturday afternoon following, when the case was finally submitted to the jury. The following Monday morning the jury returned a verdict finding the defendant guilty of murder as charged. The verdict contained no recommendation, and sentence of death was imposed. Appointed counsel filed a motion for new trial, but later withdrew from the case after another attorney was employed. The employed attorney prepared an amendment to the motion and prosecuted it to final determination; and a judgment overruling the motion was affirmed by this court.Williams v. State, 186 Ga. 251 (197 S.E. 838). After the defendant was resentenced, the same employed attorney filed a motion to set aside the new sentence, because of alleged disqualification of the then presiding judge, and for other reasons not relating to the verdict. This motion was overruled, and again the judgment was affirmed. Williams v. State,187 Ga. 415 (1 S.E.2d 27). Later, the present attorney was employed. He instituted in behalf of the defendant and against the sheriff of Fulton County, where the defendant was then incarcerated, a petition for the writ of habeas corpus, alleging that the conviction was void for the reason that the accused had been denied the benefit of counsel and due process. The trial judge overruled a demurrer, and the respondent sheriff excepted; and this judgment was reversed. Aldredge v. Williams,188 Ga. 607 (4 S.E.2d 469).

On March 11, 1940, during the March term of the superior court of Elbert County, Williams, through the same attorney who had represented him in the habeas-corpus case, presented to the judge an extraordinary motion for new trial, in which he gave a history of his case and referred to all the foregoing decisions. It appears that the first motion for new trial, as filed during the term of his conviction, was overruled on December 6, 1937. In the present extraordinary motion the movant presented, among others, the same contentions as were made in the habeas-corpus case, to wit: that by reason of certain alleged facts he had been denied (1) due process of law, as guaranteed by the fourteenth amendment of the Federal constitution (Code, § 1-815), and (2) the benefit of counsel, as provided in the constitution of the State (§ 2-105). After hearing evidence both from movant and respondent, the judge overruled the motion, and the movant excepted. In such extraordinary motion for a new trial, as amended, substantially the following allegations were made:

Movant was indicted for the killing of Lon Fortson. Movant being at that time about twenty-three years of age, and being unable to read or write or to employ counsel, and without friends or family who were able to secure counsel for him, the trial judge appointed two named attorneys to represent him on his trial. Said counsel made no preparation for the trial of his case, made no motion for a continuance in order to have time to prepare the case, and allowed movant to be placed on trial for his life after only one conference with him. Movant was not guilty of the offense charged against him, and had six or seven witnesses whose testimony, if believed by the jury, would have resulted in movant's acquittal. Said appointed counsel, although furnished with the names of said witnesses, called none of them to the witness stand and offered only the unsworn statement of movant in his defense. Had said witnesses been offered by said counsel, they would have given substantially the same testimony as embodied in their affidavits attached hereto, to wit, that said witnesses would have sworn before the trial court, in substance, that movant shot said Fortson in self-defense; that said Fortson and his son were both armed and advancing upon movant; that movant did his best to escape, but the deceased approached from one direction while the son of the deceased approached from the opposite direction, thus entrapping movant, who was endeavoring to escape by running back and forth through a small tenant-house. That the evidence of said witnesses would have been invaluable to his defense, in view of the fact that the State was contending that neither the deceased nor his son was armed, and offered evidence to this effect, when as a matter of fact both the deceased and his son were armed and advancing upon movant in a threatening and menacing manner. That during the trial two named witnesses for the State were allowed to make certain statements (quoted in the motion) of a highly inflammatory and prejudicial nature against movant, to which his counsel interposed no objection, though had such testimony been objected to the court would have excluded same, and had said counsel made a motion based on the illegal and prejudicial evidence the court would under the law have been compelled to declare a mistrial. Appointed counsel thus allowed movant's rights to be totally and completely ignored, and permitted the jury to become prejudiced and influenced against him because of such illegal testimony. Said appointed counsel made no effort whatever to obtain a new trial after movant's conviction, although they did file a skeleton motion for a new trial based only upon the general grounds; and said appointed counsel refused to amend the motion for new trial, and advised the trial judge that they would not argue the motion for a new trial or urge it upon the judge, and that in so far as they were concerned the court could dismiss the motion for a new trial. Said counsel also informed the court that if it did not dismiss the motion for a new trial, the court should strike the names of said counsel from the skeleton motion. That said appointed counsel, after abandoning the motion for new trial, and while other counsel were considering entering the case, directed a joint letter to such other counsel in an effort to discourage them from entering the case, and informed them that there was no merit in the motion for a new trial; that "We do not contemplate filing an amended motion, and we will be content to let the law take its course," and further, "We consider that we have done all that is required of us," and that "We will depend upon Williams to be in charge of his own case from now on so far as we are concerned."

Movant shows that when the jury in this case retired to consider their verdict, they were not properly sequestered, and were permitted to consider their verdict in a room in the court-house that was not private, for the reason that the door to said room was nearly one-half glass, and from the upper part of said door there was a large triangular hole in said glass, because of which the deliberations of the jury were not private, as by law required; and that said appointed attorneys, although fully informed as to said proper [improper] sequestration of the jury, failed and neglected to call the matter to the attention of the court, or to make any motion of any kind, and thus permitted the jury to continue their deliberations under said circumstances. Movant shows that immediately after the jury had retired to said jury room to begin their deliberations, a spontaneous burst of applause arose from the spectators in the court-room, and that the spectators, some fifty or more in number, began celebrating by hilarity, loud talking, and by generally milling and moving about the court-room, and movant shows that the noise and confusion resulting from said demonstration was very loud and profuse, so much so until said jury were disturbed in their deliberations, and that some member of said jury, whose name to movant is unknown, opened the door to said jury-room so that said jury could discover the purpose of said demonstration on the part of the spectators, and that said demonstration continued in the presence of said jury until and after the door of said jury room had again been closed. That the hostility and feeling against him was very pronounced, and was obviously and clearly a demonstration against movant, which was highly prejudicial and inflammatory, having occurred as alleged in the presence of said jury, which movant alleges was calculated to and did as a matter of fact cause bias and prejudice in the minds of the jury against movant. "Movant shows that although the foregoing circumstances occurred before and during the trial as above set out, he did not know and had no way of knowing, until after the time for perfecting his motion for a new trial had elapsed, of the full extent of the failure of appointed counsel to provide for him the aid and assistance of counsel to which he was entitled. Movant did not know that such counsel utterly lacked the energetic and effective devotion to his cause that they owed him until the subsequent acts and admissions of said counsel, hereafter recited, showed unmistakably the true nature and quality of the failure of said counsel was not due to neglect and error of judgment, but to an utterly abandoned attitude towards the duty which they owed movant, . . and to the court, to furnish him with effective and energetic aid in his defense. The subsequent acts and admissions of counsel which movant contends characterized their acts as furnishing only a pretense of a defense, rather than the assistance which movant was entitled to [are] as follows:"

When movant applied for a commutation of sentence by the Governor, one of said appointed counsel voluntarily appeared before the Governor and testified in opposition to clemency, and among other things swore before the Governor: "Had I been representing Williams and paid a fee, I would have prosecuted the motion" (for a new trial). One of said counsel testified before the Governor that there was evidence introduced in the trial to which he should have objected, and no objection was interposed. One of said counsel signed a formal petition opposing commutation of sentence of movant, and made the written statement: "I was appointed by the late Judge Moseley to represent this defendant. . . I feel that the man is guilty of murder, and I see no reason why his sentence which the courts have imposed should be interfered with by the Executive department." One of said counsel violated a privileged communication at the hearing before the Governor, by swearing: "Norman Williams told me he thought they were trying to arrest him, and he shot his way out."

"Movant shows that the utter failure of appointed counsel to prepare the defense, to move for continuance; to produce available witnesses on movant's behalf, to make even the most obvious objections to illegal, inflammatory, and prejudicial testimony offered by the State, to make a timely motion for a mistrial, to make an effective motion for a new trial, together with the consent of said counsel for the dismissal of the motion for new trial, under circumstances that show that such lack of defense was not due to inexperience or mistakes of judgment, but to a total failure to discharge their duty of providing energetic and effective representation, all point conclusively to the fact that movant's right were utterly and completely ignored, and thus no effective representation provided for him. Movant contends that his trial, conducted under the circumstances alleged, amounts to a denial of due process" under the fourteenth amendment of the constitution of the United States (Code, § 1-815); and that the facts and circumstances of his trial, as stated, show that movant has been denied the privilege and benefit of counsel guaranteed under the constitution of Georgia (Code, § 2-105).

The evidence for the movant included certain affidavits: one from movant himself, three from persons who deposed to circumstances tending to show self-defense, and one from the attorney who had been appointed as leading counsel; also letters, excerpts from testimony given by the appointed attorneys in a clemency hearing before the Governor, and other documents. The evidence for the respondent included affidavits from various officers, and jurors, other excerpts from evidence of the attorneys as delivered in said clemency hearing, and other documents. All of such evidence was admitted without objection. The order denying the motion expressly recited that the issues of fact were found against movant and in favor of respondent. The extraordinary motion for new trial was not dismissed or otherwise disposed of on inspection of its allegations. On the contrary, the trial judge entertained it for the purpose of investigating the facts, and then, after hearing evidence on both sides, passed an order finding the issues of fact in favor of the respondent, and denying the motion. Thus, even if the allegations themselves should be treated as stating absolute cause for a new trial for the reason that the movant was denied the benefit of counsel and due process, or for other reason, still the case does not come to us as one to be decided as a matter of law on the pleadings, but the substantial question is whether the judge was authorized to find as he did on the evidence. The judge accepted responsibility as a trior of the facts, and his findings thereon if supported by substantial evidence are conclusive. Loyd v. State, 151 Ga. 717 (108 S.E. 55). Putting aside for the moment the contention as to unfaithfulness and dereliction of duty on the part of the appointed attorneys, let us consider whether the evidence was such as to demand a new trial on extraordinary motion, in the interest of justice, but entirely apart from the constitutional right to the benefit of counsel. The happenings in the trial were of course known to the defendant, even what he alleged in regard to disorder in the court-room and disturbance of the jury. He shows this by the allegations in his motion. A motion for a new trial was filed by appointed counsel during the term at which the movant was convicted. Before the motion was heard, employed counsel presumably of movant's own choosing entered the case, filed an amendment complaining specially of various matters, and brought the case to the Supreme Court after such motion as amended was overruled by the trial judge. Moreover, the affidavit made by the movant in support of his present motion shows that all of the matters of which he now complains, so far as antecedent to the clemency hearing, were well known to him, or could have been discovered by him or his employed attorney, pending his original motion; or, to say the least, in so far as these matters were not embraced in the original motion, the judge hearing the instant motion was authorized to find that they could by proper diligence have been embodied therein. It does not appear that movant was unable for any reason to communicate freely with employed counsel, that he did not know the contents of his original motion, or that he was to any extent ignorant or under any misapprehension as to his rights. No attack whatever is made upon the skill, diligence or faithfulness of such employed attorney. In the circumstances, any matter which could have been complained of in the original motion for new trial would not constitute ground for an extraordinary motion. Frank v. State, 142 Ga. 741 (3, 4) (83 S.E. 645);King v. State, 174 Ga. 432 (2) (163 S.E. 168). It is not only the law of Georgia, but is a generally accepted principle, that extraordinary motions for new trial can not be based upon matters that were known to the movant in time to have had them stated in his original motion, or that could have been discovered in time by proper diligence. Malone v. Hopkins, 49 Ga. 221; Toledo Scale Co. v. Computing Scale Co., 267 U.S. 399 (43 Sup. Ct. 458, 67 L. ed. 719); 46 C. J. 243, § 216; 20 Rawle C. L. 289-291, § 72. Manifestly, the judge was authorized to find that the evidence on which the movant now relies was not newly discovered; and more than this, he could have found that none of it was true, in view of the evidence of appointed counsel as to statements made to them at the trial, when they were seeking evidence favorable to the accused.

Coming now to the question whether the conduct of the trial by appointed counsel was such that the defendant really did not have the benefit of counsel and was thus deprived of a fundamental right in violation of the fourteenth amendment of the Federal constitution (Code, § 1-815), and the guaranty of the constitution of Georgia (§ 2-105), we will say first that apparently most of the matters of fact alleged in the extraordinary motion were set forth therein, more for the purpose of showing that the movant was actually deprived of the benefit of counsel, then with the intention of relying upon them as constituting within themselves sufficient basis for the motion. To relieve possible misapprehension, however, we have considered them from both viewpoints. In so far as the allegations or the evidence in reference to these matters may have tended to show that movant was deprived of the aid of counsel and thereby denied due process of law, or may have been made or offered for that purpose, we do not deem it necessary to consider whether diligence or lack of diligence on his part should have any bearing whatever on the present inquiry; for, with respect to such constitutional questions, we shall assume that they were presented in a proper manner and within sufficient time, regardless of the antecedent proceedings, or delay from whatever cause. Cf. Lowry v. Herndon, 182 Ga. 582 (186 S.E. 429); Herndon v. Lowry, 301 U.S. 242 (57 Sup. Ct. 732,81 L. ed. 1066); Brown v. Mississippi, 297 U.S. 278, 312 (56 Sup. Ct. 461, 71 L. ed. 270). The trial judge apparently acted upon this assumption, and found on the evidence that the movant did have the benefit of counsel and was afforded due process within the meaning of the State and Federal constitutions.

As to the complaints against the manner in which the trial was conducted, the judge trying the present motion was, under the evidence, authorized to find as follows: (1) That notwithstanding the gravity of the alleged offense, no intricate questions of law or of fact were involved; that all witnesses were present or easily accessible; and that a motion for continuance, if made, would have been without merit. Code, § 27-2002; Kelloy v.State, 151 Ga. 551 (107 S.E. 488); Harris v. State,152 Ga. 193 (108 S.E. 777); Ivey v. State, 154 Ga. 63 (113 S.E. 175); Cannady v. State, 190 Ga. 227 (2) (9 S.E.2d 241). (2) That the failure of counsel to introduce the witnesses who it is now claimed would have testified to facts or circumstances indicating self-defense was due to the fact that on inquiry by counsel at the trial these same witnesses were reluctant and virtually disclaimed knowledge of any such facts or circumstances, and that in the situation presented counsel deemed it wise to rely on the defendant's statement and thus secure the concluding argument (Aldredge v. Williams, 188 Ga. 607,609, 4 S.E.2d 469). (3) That, instead of conferring with the accused, only once and briefly, counsel conferred with him several times, and more or less thoroughly. (4) That the failure to object to the alleged illegal and prejudicial testimony was due either to a belief, whether mistaken or not, that objection would merely emphasize a prejudicial fact which the jury probably knew about already, or that failure to object was a mere oversight, not of such gravity as to leave the accused without representation. (5) That the failure to prosecute the first motion for new trial vigorously, or the inclination not to prosecute it at all, resulted from conscientious belief that no sufficient ground for a new trial existed (see Fambles v. State, 97 Ga. 625,25 S.E. 625). (6) That appointed counsel, instead of attempting to discourage other counsel from prosecuting the motion, merely undertook to explain why they were withdrawing from the case. The evidence may have shown errors in judgment on the part of counsel, but did not demand the inference that they were unfaithful, or applied so little skill or diligence that the movant was actually deprived of a constitutional right. InAldredge v. Williams, supra, it was said that "The attack upon one of the original appointees of the court because of his alleged conduct before the Governor in opposing clemency is irrelevant, since this relates to matters subsequent to and wholly disconnected with the trial, or the motion for new trial, or the former writ of error." Assuming now, however, that such conduct of the attorney as shown in the instant proceedings was relevant and material as tending to support the basic contention that the movant was in fact denied the benefit of counsel, yet under the evidence as a whole the trial judge was not bound to find that the attorney was guilty of infidelity at the time of the trial, or that he did not give substantial aid in the movant's defense. Several witnesses testified that both of appointed counsel were men of good professional and moral character, and that both were well skilled in their profession, one having been a member of the bar for about eight years, and the other for about two years, at the time of the trial.

In the present motion for new trial it was alleged that one of the attorneys testified before the Governor that he would have prosecuted the motion for new trial if he had been paid a fee. On looking to the evidence we find that the statement of the attorney was "Had I been representing Williams and paid a fee for the purpose of gaining time, I would have prosecuted the motion." There is a material difference between the statements. Movant also complained that one of the attorneys actually signed a statement opposing clemency, and in his testimony before the Governor violated the confidence of his former client by quoting a statement by the latter tending to show guilt. If such or similar statements or matters could be taken as impeaching a verdict conclusively and as a matter of law, then it would be an easy matter for an attorney, after his client has been convicted, to talk away the verdict, if only some other attorney will file a motion for new trial and make proper complaint. We do not mean to intimate, however, that anything of this nature was attempted in the present case. As to personal appearance before the Governor, the evidence authorized the inference that the attorneys did not come voluntarily, but were invited to do so by the Governor because of contentions made in the application for clemency, regarding the manner in which they had conducted the trial. The hearing before the Governor apparently developed a little heat; and with respect to statements then made, the judge could have inferred that the attorneys were goaded to some extent by the charges against them. Even a husband and wife may fall out after living together a long time in harmony; and so with other relations, such as partners, friends, brothers. So, in view of all the evidence heard and weighed by the trial judge, it can not be held by this court that statements made by the attorneys or either of them at the hearing before the Governor, including the alleged violation of confidence and plus even the previous recommendation of one of them in reference to clemency, established conclusively and as matter of law the contention of movant as to both or either of such attorneys that they were unfaithful to him during the trial, or that their services did not amount to aid or benefit of counsel, in a constitutional sense; but under the evidence as a whole the judge was authorized to find against such contention. And this is true in reference to such finding on the principal issue, regardless of whether the circumstances of the clemency hearing may have justified one of the attorneys in divulging to the Governor the former statement of the accused, and however improper the recommendation against clemency to his former client may have been. At most, these circumstances were merely evidential on the issue as to former conduct and attitude, and did not under all the evidence require a finding in movant's favor on that issue.

We have carefully examined the authorities cited by counsel for movant, and do not take issue with the general proposition that if appointed attorneys are so ignorant, negligent, or unfaithful that the accused was virtually unrepresented, or did not in any real or substantial sense have the aid of counsel, he would be deprived of a fundamental constitutional right, and if convicted might successfully complain that he had been denied due process of law; but the evidence here did not demand a finding that such a state of facts existed with reference to movant; and the judge did not otherwise abuse his discretion in overruling the motion for new trial. This being true, the case does not come within the rulings in the cases cited by counsel for the plaintiff in error, some of them being: Downer v. Dunaway, 53 F.2d 586; Missouri v. Jones, 12 Mo. App. 93; People v. Schulman, 299 Ill. 125 (132 N.E. 530, 24 A.L.R. 1022, 1025, note); Sanchezv. State, 199 Ind. 235 (157 N.E. 1); Brown v. Mississippi, supra; Powell v. Alabama, 287 U.S. 45 (53 Sup. Ct. 55,77 L.ed. 158, 84 A.L.R. 527); Johnson v. Zerbst, 304 U.S. 458 (58 Sup. Ct. 1019, 82 L. ed. 1461). See also Fambles v. State,97 Ga. 625 (supra); Aycock v. State, 188 Ga. 550 (10), 567 (4 S.E.2d 221); North Dakota v. Keller, 57 N.D. 645 (223 N.W. 698, 64 A.L.R. 434, 436, note).

Judgment affirmed. All the Justices concur.