Waggoner v. State ( 1974 )

RUSSELL, Judge

(separately concurring).

I do not think that it was necessary for the trial judge to hold, once he found that counsel’s representation was legally adequate, that no State action was involved; nor can I subscribe to that part of our opinion that seems to say that a counsel deprivation cannot ever occur where counsel is retained. See Skinner v. State, Tenn.Cr.App., 472 S.W.2d 903. The United States Supreme Court has addressed the question of a possible right-to-counsel deprivation by retained counsel without even discussing as a factor the matter of retention rather than representation by appointment. Dukes v. Warden, 406 U.S. 250, 92 S.Ct. 1551, 32 L.Ed.2d 45 (1972). The following statement appears in 74 A.L.R.2d at page 1397: “While there seemingly has been up to this time no direct pronouncement by the United States Supreme Court * * * the general rules * * * are, basically, that the incompetency (or one of its many synonyms) of private counsel * * * is neither a denial of due process * * * nor an infringement of the right to * * * counsel * * * unless the attorney’s representation is so lacking that the trial has become a farce and a mockery of justice, in which case the judgment * * * is void.”

This question has been dealt with by lower federal courts. In the case of Perry Lee Taylor v. Robert Moore, Warden, Civil Action No. 6517, filed December 12, 1972, in the United States District Court for the Eastern District of Tennessee, Southern Division, this language is found:

“Although the respondent, citing state authority, contends that since the petitioner’s legal counsel was privately retained there could be no denial of effective assistance of counsel as no state action is involved, it is clear that denial of effective assistance of counsel can exist even where legal counsel is retained. Woodall v. Neil, 444 F.2d 92 (C.A.6, 1971); Goodwin v. Cardwell, 432 F.2d 521 (C.A.6, 1970); United States ex rel. Smith v. McMann, 417 F.2d 648 (C.A.2, 1969), cert. den. 397 U.S. 925 [90 S.Ct. 929, 25 L.Ed.2d 105] (1970).

As far back as 1944 we find the U.S. Sixth Circuit Court of Appeals, in the case of Tompsett v. Ohio, 146 F.2d 95, saying:

“[3] The foregoing rule has no application where it is made to appear that the defendant is ignorant of his rights and unacquainted with the course of proceedings in criminal cases. In that event if the attorney selected by such a defendant is so incompetent or dishonest or so improperly conducts defendant’s case as to amount to practically no representation, the defendant is prejudiced and thereby deprived of a fair trial and a court should grant relief by use of the writ of habeas corpus. * * * ”

In Craig v. United Sates, 217 F.2d 355 (C.A.6, 1954) the court said:

“ * * * It is immaterial whether such counsel was appointed by the Court or selected by the accused, m the absence of facts constituting a waiver of the right. (Citing cases.) The prejudice to a defendant from the failure to have the effective assistance of counsel results whether counsel is court appointed or selected by the accused. * * * ”

I do not believe that it is wise for us to adhere to a State rule on a federal constitutional question that is so obviously at odds with the federal interpretation. While technically we may only be bound by what the U.S. Supreme Cqurt says, it is hardly reasonable to ignore the lower federal courts, who unquestionably have the power to grant relief from our contrary adjudications.

I otherwise concur.