Petitioner and two others were tried before a jury in a North
Carolina state court on an indictment jointly charging them with
robbery. Petitioner, who was 18 years old, asked the judge to
appoint a lawyer to help him in his defense, stating that he was
without funds to employ counsel and was incapable of defending
himself; but this request was denied. Counsel for one of
petitioner's codefendants volunteered to help petitioner and the
third defendant, but, in the midst of the trial and in the presence
of the jury, his client pleaded guilty to petit larceny, that plea
was accepted, and the lawyer withdrew from the proceedings. No
steps were taken to protect petitioner from the potential prejudice
resulting from the guilty plea of his codefendant in the presence
of the jury, and petitioner and his other codefendant were
convicted of larceny from the person, a felony under North Carolina
law.
Held: the prejudicial position in which petitioner
found himself when his codefendant pleaded guilty before the jury
raised problems requiring professional knowledge and experience
beyond a layman's ken, and petitioner's conviction in these
circumstances without the benefit of counsel deprived him of the
due process of law guaranteed by the Fourteenth Amendment. Pp.
363 U. S.
697-704.
Reversed.
MR. JUSTICE STEWART delivered the opinion of the Court.
The petitioner and two others were brought to trial before a
jury in the Superior Court of Cumberland County, North Carolina,
upon an indictment jointly charging them with robbery. When their
case was called,
Page 363 U. S. 698
one of the defendants, David Cain, was represented by a lawyer
of his own selection. The petitioner and the other defendant did
not have counsel. Before pleading to the indictment, the
petitioner, who was eighteen years old, asked the presiding judge
to appoint a lawyer to help him with his defense, stating that he
was without funds to employ counsel and was incapable of defending
himself. [
Footnote 1] The
prosecutor conceded that the petitioner was unable to employ an
attorney. [
Footnote 2] The
trial judge denied the motion, telling the petitioner that "The
Court will try to see that your rights are protected throughout the
case."
All three of the defendants thereupon pleaded not guilty, and
the case proceeded immediately to trial. The first witness for the
State was the alleged victim of the robbery. Midway through this
witness' testimony, Cain's lawyer offered to represent all three
codefendants "as long as their interests don't conflict." At the
conclusion of the witness' direct testimony, the trial judge
advised the lawyer that he should cross-examine only on behalf of
Cain, because "I think you probably have a conflicting interest
there." Thereafter, the witness was cross-examined intensely by
Cain's lawyer, who brought out the witness' criminal record and
previous commitment to a state mental institution. The petitioner
and the other codefendant also briefly cross-examined the witness.
The only other witnesses for the prosecution were two deputy
sheriffs, who testified as to statements made to them by the
defendants. They were cross-examined by the lawyer, but not by the
two defendants without counsel.
At the conclusion of the State's evidence, Cain's lawyer moved
that the case be dismissed. When this motion was
Page 363 U. S. 699
denied, he stated that Cain had no evidence to offer. Thereupon,
in the presence of the jury, he tendered on behalf of Cain a plea
of guilty to petit larceny. This plea was agreed to by the
prosecutor and accepted by the court. The lawyer then withdrew from
the proceedings.
The trial proceeded. The petitioner and his remaining
codefendant each took the stand. Each made a statement denying the
robbery. The petitioner was cross-examined at some length, with
emphasis upon his previous criminal record. Neither the petitioner
nor his codefendant produced any other witnesses or offered any
further evidence. They were given an opportunity to argue their
case to the jury, but did not do so.
The jury found both defendants guilty of larceny from the
person, a felony under North Carolina law, and, the following day,
the trial judge pronounced sentence. The petitioner was committed
to the penitentiary for a term of three to five years. The
codefendant convicted with him was sentenced to a jail term of
eighteen months to two years. Cain was given a six months'
suspended sentence.
The petitioner's subsequent appeal to the Supreme Court of North
Carolina was dismissed for want of prosecution. Thereafter, he
filed in the trial court a "petition for writ of certiorari" which
urged that the failure of the trial court to provide him with
counsel had deprived him of his constitutional rights. This
petition was treated as an application for relief under the North
Carolina Post-Conviction Hearing Act. [
Footnote 3] In the subsequent proceedings the court
appointed a lawyer to represent the petitioner, [
Footnote 4] and held a hearing at which the
petitioner
Page 363 U. S. 700
and his counsel were present. After considering the evidence
presented, including a transcript of the trial proceedings,
[
Footnote 5] the court
concluded that no special circumstances were shown which required
the appointment of trial counsel, that the petitioner had been
convicted only after a fair and impartial trial, and that there had
consequently been no denial of due process of law. The petition was
accordingly dismissed. [
Footnote
6] The Supreme Court of North Carolina declined to review the
order of dismissal. We granted certiorari to consider the
substantial constitutional claim asserted. 361 U.S. 812.
The judge who presided at the post-conviction proceedings made
detailed findings of fact. He found that the trial judge had
"advised the petitioner of his right to challenge when the jury
was selected and advised the petitioner of his right to
cross-examine witnesses and to
Page 363 U. S. 701
argue the case to the jury."
He also found that,
"during the trial, the Court properly excluded evidence which
was inadmissible, and the petitioner cross-examined the witnesses
against him and, at his request, testified in his own behalf."
In this Court, counsel for the petitioner does not take issue
with these findings. Counsel's primary emphasis, rather, is upon
the petitioner's comparative youth, relying upon
Wade v.
Mayo, 334 U. S. 672. In
that case, it was held that the denial of a lawyer's help had
resulted in the deprivation of due process where the Federal
District Court after a habeas corpus hearing had found that the
eighteen-year-old defendant was "an inexperienced youth unfamiliar
with Court procedure, and not capable of adequately representing
himself." 334 U.S. at
334 U. S. 683.
Here, by contrast, the post-conviction court found that,
"although the petitioner was only eighteen years of age and had
been only to the sixth grade in school at the time of his trial, he
is intelligent, well informed, and was familiar with and
experienced in Court procedure and criminal trials. . . ."
Evaluations of this nature are peculiarly within the province of
the trier of the facts based upon personal observation. As the
Court pointed out in
Wade v. Mayo,
"[t]here are some individuals who, by reason of age, ignorance
or mental capacity, are incapable of representing themselves
adequately in a prosecution of a relatively simple nature. This
incapacity is purely personal, and can be determined only by an
examination and observation of the individual."
334 U.S. at
334 U. S.
684.
In view of the findings of the post-conviction court, supported
by the record of the trial proceedings, this, in short, is not a
case where it can be said that the failure to appoint counsel for
the defendant resulted in a constitutionally unfair trial either
because of deliberate overreaching by court or prosecutor or simply
because of
Page 363 U. S. 702
the defendant's chronological age. Moreover, the record shows
that, up to the time that Cain's lawyer withdrew from the
proceedings, the petitioner was receiving the effective benefit of
the lawyer's activity, and, had the trial of all three defendants
proceeded to a jury verdict, it is possible that the lawyer could
have continued to represent the interests of the petitioner as well
as those of the client who had retained him.
But that did not happen. Instead, on the advice of his counsel,
Cain entered a plea of guilt in the presence of the jury midway
through the trial. The potential prejudice of such an occurrence is
obvious, and has long been recognized by the courts of North
Carolina.
State v. Hunter, 94 N.C. 829, 835;
State v.
Bryant, 236 N.C. 745, 747,
73 S.E.2d
791, 792;
State v. Kerley, 246 N.C. 157,
97 S.E.2d
876. Yet it was precisely at this moment of great potential
prejudice that the petitioner and his codefendant were left
entirely to their own devices, for it was then that Cain's lawyer
withdrew from the case. At that very point, the petitioner and his
codefendant were left to go it alone.
The precise course to be followed by a North Carolina trial
court in order to cure the prejudice that may result from a
codefendant's guilty plea does not appear to have been made
entirely clear by the North Carolina decisions. In the
Hunter case, the Supreme Court of North Carolina pointed
out that, while not infrequently a defendant on trial with another
is allowed to enter a plea of guilt during the course of the trial,
the court should exercise care "to see that such should exercise
care to see that such practice works no undue prejudice to another
party on trial." 94 N.C. at 835. Later cases have been somewhat
more explicit. In the
Bryant case, curative instructions
to the jury given immediately after a codefendant's guilty plea
were held sufficient to avoid error prejudicial to the remaining
defendant.
Page 363 U. S. 703
236 N.C. at 747-748, 73 S.E.2d at 792. More recently, in the
Kerley case, the court said that,
"[w]hen request therefor is made, it is the duty of the trial
judge to instruct the jury that a codefendant's plea of guilty is
not to be considered as evidence bearing upon the guilt of the
defendant then on trial, and that the latter's guilt must be
determined solely on the basis of the evidence against him, and
without reference to the codefendant's plea."
246 N.C. at 161, 97 S.E.2d at 879. Indeed, the court expressed
the view that even
"a positive instruction probably would not have removed entirely
the subtle prejudice that unavoidably resulted from [a
codefendant's] plea. . . ."
246 N.C. at 162, 97 S.E.2d at 880.
In the present case, the petitioner did not make any request
that the jury be instructed to disregard Cain's guilty plea, and
the court gave none, either at the time the plea was entered or in
finally instructing the jury. A layman would hardly be aware of the
fact that he was entitled to any protection from the prejudicial
effect of a codefendant's plea of guilt. Even less could he be
expected to know the proper course to follow in order to invoke
such protection. The very uncertainty of the North Carolina law in
this respect serves to underline the petitioner's need for counsel
to advise him.
The post-conviction court made no finding specifically
evaluating the prejudicial effect of Cain's plea of guilt and the
trial judge's subsequent failure to give cautionary instructions to
the jury. In any event, we cannot escape the responsibility of
making our own examination of the record.
Spano v. New
York, 360 U. S. 315,
360 U. S. 316.
We hold that the circumstances which thus arose during the course
of the petitioner's trial made this a case where the denial of
counsel's assistance operated to deprive the defendant of the due
process of law guaranteed by the Fourteenth Amendment. The
prejudicial position in which the petitioner
Page 363 U. S. 704
found himself when his codefendant pleaded guilty before the
jury raised problems requiring professional knowledge and
experience beyond a layman's ken.
Gibbs v. Burke,
337 U. S. 773;
Cash v. Culver, 358 U. S. 633.
Reversed.
[
Footnote 1]
"I don't have funds to employ an attorney and am not capable of
defending myself. If the Court please, I would like to ask the
Court to employ me an attorney."
[
Footnote 2]
"I will say that he is not able to employ an attorney, but as to
whether he is able to represent himself I cannot say."
[
Footnote 3]
N.C.Gen.Stat. § 15-217
et seq.
[
Footnote 4]
The North Carolina Post-Conviction Hearing Act provides:
"If the petition alleges that the petitioner is without funds to
pay the costs of the proceeding, and is unable to give a costs bond
with sureties for the payment of the costs for the proceeding and
is unable to furnish security for costs by means of a mortgage or
lien upon property to secure the costs, the court may order that
the petitioner be permitted to proceed to prosecute such proceeding
without providing for the payment of costs. If the petitioner is
without counsel and alleges in the petition that he is without
means of any nature sufficient to procure counsel, he shall state
whether or not he wishes counsel to be appointed to represent him.
If appointment of counsel is so requested, the court shall appoint
counsel if satisfied that the petitioner has no means sufficient to
procure counsel. The court shall fix the compensation to be paid
such counsel which, when so determined, shall be paid by the county
in which the conviction occurred."
N.C.Gen.Stat., § 15-219.
[
Footnote 5]
The judge who conducted the post-conviction proceedings was not
the judge who had presided at the trial.
[
Footnote 6]
The dismissal was clearly based upon the court's view of the
merits of the petitioner's constitutional claim. The court nowhere
suggested that the petitioner had chosen an inappropriate remedy
under the State law. Indeed, the Supreme Court of North Carolina
has made clear that claims of unconstitutional denial of the right
to counsel are to be considered on their merits in Post-Conviction
Hearing Act proceedings.
State v. Hackney, 240 N.C. 230,
81 S.E.2d
778;
State v. Cruse, 238 N.C. 53,
76 S.E.2d
320.
MR. JUSTICE CLARK, whom MR. JUSTICE WHITTAKER joins,
dissenting.
The opinion of the Court bids fair to "furnish opportunities
hitherto uncontemplated for opening wide the prison doors of the
land."
Foster v. Illinois, 332 U.
S. 134,
332 U. S. 139
(1947). Without so much as mentioning
Betts v. Brady,
316 U. S. 455
(1942), it cuts serious inroads into that holding, and releases
petitioner, now a fourth offender though only 18 years old, from
his 3-to-5-year sentence for larceny from the person. The Court
does so on the ground of a single circumstance occurring at the
trial,
i.e., the fact that a codefendant, David Cain, was
permitted at the close of the State's case to plead guilty to
"larceny, in such amount that it is a misdemeanor." The Court says
that this circumstance
"made this a case where the denial of counsel's assistance
operated to deprive the defendant of the due process of law
guaranteed by the Fourteenth Amendment."
Strangely enough, the Court digs up this ground
sua
sponte, for neither the petitioner, the State, nor any court
of North Carolina thought such circumstance produced sufficient
"unfairness" in the trial even to discuss it, though its existence
was mentioned in the recital of facts in petitioner's brief. The
truth is that the courts of North Carolina have held affirmatively
that petitioner received a fair trial, and that no special
circumstances were shown to indicate that lack of counsel resulted
in prejudice to petitioner.
The Court, however, speculates that Cain's change in plea
"raised problems requiring professional knowledge
Page 363 U. S. 705
and experience beyond a layman's ken." The Court says that
"[t]he prejudicial position in which the petitioner found himself"
resulted. But this is purely speculative, and, I submit, does not
at all follow. In fact, the jury -- despite language in the court's
charge which indicated the presence of "violence, intimidation and
putting [the victim] in fear" -- refused to find petitioner guilty
of the common law offense of robbery, but only found him guilty of
the lesser offense, larceny from the person. The record here would
clearly support a verdict of guilty on the robbery charge. As I
appraise the jury's verdict, it would be much more realistic to say
that David Cain's plea of guilty influenced the jury not to find
petitioner guilty of the greater offense. After all, Cain was only
the driver of the car, and participated no further in the criminal
enterprise. In fact, the victim could not even identify him at the
trial. Cain, unlike petitioner, had "wholeheartedly admitted" his
guilt to the officers. This apparently brought on his plea.
Petitioner, on the other hand, was the chief actor in the criminal
enterprise. In addition, he had a criminal record, had served a
term in prison, was twice an escapee therefrom, and, from the
record here, gives every appearance of being a hardened criminal.
Still the jury found him guilty only of the lesser offense, larceny
from the person. It is reasonable to assume that it did this
because Cain was permitted to plead to the lesser offense of
larceny.
The Court cites three North Carolina cases
* in support of
the "potential prejudice" which it finds petitioner may have
suffered from Cain's change of plea. None of these cases were cited
by the parties. As I have said, the point was not raised in the
briefs. But even the North Carolina
Page 363 U. S. 706
cases cited by the Court do not support its new theory for
reversal. All they indicate, as the Court frankly points out, is
that care must be exercised to avoid "undue prejudice." In this
regard, the trial court fully protected petitioner all during the
presentation of the case, and gave a full, fair, and intelligent
charge to which do objection is even now being made by petitioner.
It is intimated by the Court that North Carolina law required a
charge that Cain's plea not be considered as any evidence bearing
on petitioner's guilt. But the short answer is that three North
Carolina courts have considered this case, and not one has even
mentioned the point. The Court says this underlines the
petitioner's need for counsel. I submit that he has had counsel
since his Post Conviction Hearing Act case was filed some two years
ago, and not once has the handling of the Cain plea been urged as
error necessitating reversal.
While I do not wish to labor the issue, I must say that careful
study of the case convinces me that it was a simple one, and the
trial was without complexity or technicality. The petitioner and
three others induced their victim, an elderly man, to enter their
car on the ruse that they would take him home for a dollar. It was
in the nighttime, and, on the way to his home, they drove into some
woods. Petitioner ordered the victim out of the car, directed him
to hold up his hands, and then went through his pockets, taking his
billfold, containing some $24. The sole question for the jury was
one of fact, namely, did petitioner take the old man's money? The
State offered three witnesses in support of its position. The
petitioner and his codefendant took the stand and gave their
version of the affair, each admitting his presence on the scene but
denying any robbery. There is not and never has been any claim that
the State withheld any evidence or used perjured testimony, or that
incompetent evidence was admitted against the petitioner; or that
he was denied
Page 363 U. S. 707
compulsory process for witnesses; or that he was ignorant or
feeble-minded; or that the instructions of the court were not full
and sufficient. As the Court itself finds, this "is not a case"
where the age of the defendant or the deliberate "overreaching by
court or prosecutor" resulted in an "unfair trial." Moreover, the
Court finds that the case upon which the petitioner primarily
depends,
Wade v. Mayo, 334 U. S. 672
(1948), is in nowise controlling. It therefore follows that the
lone special circumstances upon which petitioner depends, namely,
his
"youthfulness . . . his lack of formal education, his timely
request for the appointment of counsel, his inability to hire a
lawyer, and his own fumbling defense,"
do not show a lack of due process based on the trial judge's
refusal to appoint counsel for him.
The record clearly shows, as the trial court found, that the
petitioner
"is intelligent, well informed, and was familiar with and
experienced in Court procedure and criminal trials, having been
previously tried on different occasions for careless and reckless
driving, for breaking and entering, for driving while under the
influence of intoxicating liquor, and for assault and robbery."
Only at the previous term of the same court, petitioner had
defended himself on the assault and robbery charge and was found
not guilty by the jury. But what more could emphasize the
petitioner's ingenuity in defending himself than his defense here?
It was simple and direct. Both he and his codefendant had this
story: the victim, before entering the car, had been drinking beer,
and, on the way home, gave petitioner the money to buy a pint of
vodka. After they all partook of the vodka, the victim became ill
and nauseated while sitting in the back of the car. The petitioner
then got in the back seat, and when the car was stopped, he helped
the victim out and the latter fell down on the ground. Petitioner
then got back in the car and his group drove away. After leaving
the victim,
Page 363 U. S. 708
petitioner's codefendant found the billfold in the car. It
"almost went behind the [back] seat." It had no money in it, but
petitioner proposed that they take it back to the victim. They then
returned to where the victim got out of the car, but he was gone,
and although they "got out and hollered for him," he could not be
found. After the defendants left the scene, the billfold was thrown
from the car by petitioner's codefendant, and was not produced at
the trial. This was indeed a shrewd defense. The only trouble was
that the jury did not believe it.
On the facts of this record, I can see no basis for saying that
petitioner was denied due process,
Betts v. Brady, supra,
and accordingly would affirm the judgment.
*
State v. Hunter, 94 N.C. 829, 835;
State v.
Bryant, 236 N.C. 745, 747,
73 S.E.2d
791, 792;
State v. Kerley, 246 N.C. 157,
97 S.E.2d
876.