Todd v. State , 226 Ind. 496 ( 1948 )

DISSENTING OPINION. The affirmance of this judgment on technical grounds after the defendant had been arbitrarily denied the right to counsel in violation of the Indiana Bill of Rights, is in striking contrast to the long judicial history of this state in which this court by its decisions has stood pre-eminent among the courts of last resort in saving for the accused, whether guilty or innocent, his right to a fair and impartial trial according to American concepts of justice. It is not necessary to restate the unusual facts in this case which have been well presented in the learned opinion of my brother Gilkison.

We are not considering here a contradicted and impeached affidavit of some prisoner who would seek to escape the ennui of prison existence for a short time by forcing the state to have another hearing on some phase of his incarceration, and who was willing to commit perjury to state a cause for relief, since prosecution for this is practically unknown and his term already extends beyond the penalty for perjury.¹ Nor is it some bizarre story of some convicted felon who has deluded himself by his own repeated lies as to how he was denied due process of law. But we do have presented here responsible representation by two reputable attorneys of this state, one of whom made and filed an affidavit as to what the trial judge said he, sitting as the court, did in arbitrarily denying the defendant's request for counsel, and in forcing the defendant to trial with such expedition that representation by counsel would have been inadequate even if afforded. See Rice v. State (1942), 220 Ind. 523, 44 N.E.2d 829; Hoy v. State (1947),225 Ind. 428, 75 N.E.2d 915; Powell v. Alabama (1932),287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158. If appellant's counsel misrepresented the facts in his affidavit, he was guilty of perjury, he was guilty of contempt of court, and he should be disbarred. No reputable lawyer would misrepresent such matters to a court or violate his duty as an officer of the court to "maintain the respect due to courts of justice and judicial officers."² In the absence of any denial on the part of the State it must be assumed that counsel correctly presented the facts on denial of the right to counsel. Counsel in this case also had a duty to their client to see that his constitutional rights were protected, and be it said to their commendation they fearlessly did so in this cause.

The refusal to appoint counsel on the grounds "that the Court did not intend for the tax payers of Jackson County to employ counsel to represent said defendant" is worse than no reason for such a ruling. If the saving of public funds be the only consideration involved, why have any trial at all? Neither the Indiana Bill of Rights nor the Bill of Rights of the Federal Constitution proceed upon the totalitarian philosophy that the end justifies the means. The trial courts of this state are under an imperative duty to provide a pauper defendant when charged with a crime with adequate legal counsel who shall be reasonably compensated from public funds, and the legislature has no right to curtail this right. Knox CountyCouncil v. State ex rel. McCormick (1940), 217 Ind. 493,29 N.E.2d 405, 130 A.L.R. 1427; State ex rel. White v.Hilgemann, Judge (1941), 218 Ind. 572, 34 N.E.2d 129. In fact, the error of the trial court in this case will place additional burdens upon the tax payers of Jackson County. The fact that the defendant may have been guilty of some crime does not justify denying him a fair trial. The accused is always presumed to be innocent of the crime charged until he has been convicted upon a fair trial, and the unsurpassed language of Judge Lairy inBatchelor v. State (1920), 189 Ind. 69, 125 N.E. 773, declared principles for free government from which this court should never deviate:

". . . Our law is no respecter of persons. The rights of just and upright citizens are not more sacred in the eyes of the law than the rights of the poorest and meanest citizens of the state. The safeguards erected by the Constitution are intended to protect the rights of all citizens alike. They protect the rights of the guilty as well as those of the innocent. The court cannot give its sanction to the conviction of any person accused of crime where the proceedings on which the judgment is based show the denial of a right to which the defendant was entitled under the Constitution. Such judicial sanction, in any case, would destroy the efficacy of the constitutional safeguards to protect the rights of all citizens of the state." (pp. 84, 85.)

The defendant in this case is still presumed innocent because the defendant was not tried by due process of law, and in such cases the court loses jurisdiction to enter any valid judgment. Knox County Council v. State ex rel.McCormick (1940), 217 Ind. 493, 29 N.E.2d 405, 130 A.L.R. 1427.

Section 12 of Article 1 of the Constitution of Indiana provides:

"All courts shall be open; and every man, for injury done to him in his person, property, or reputation, shall have remedy by due course of law. . . ."

The next section gives the accused the right to be heard by himself and by counsel.³ Is this court to put on judicial blinders and permit an order book entry, that the defendant "elects to represent himself in this cause, without the aid of counsel, and requests a trial by Jury and announces ready for trial," to preclude an examination by this court as to what actually happened in open court as disclosed by the uncontradicted affidavit of an officer of the court and of this court, under a solemn duty to protect the integrity of every court in which he may practice, containing the uncontradicted admissions of the trial judge, which as a matter of law, revealed not only that the defendant did not waive representation by counsel, but that he was positively denied representation by counsel? To do so would permit judicial tyranny in the trial of every criminal cause. The constitutional guarantees of liberty and equal justice under the law are self executing. Webb v. Baird (1854), 6 Ind. 13; Hendryx v. TheState (1891), 130 Ind. 265, 29 N.E. 1131; Knox County Council v. State ex rel. McCormick (1940), 217 Ind. 493,29 N.E.2d 405, 130 A.L.R. 1427; 12 C.J., § 115, p. 733. They are not to be destroyed by any legal fiction that court records are conclusive as to facts when undisputed facts reveal such records are erroneous. See Marino v. Ragen (1947), 332 U.S. 561, 68 S. Ct. 240, 92 L. Ed. 203.

This court has many times investigated the circumstances under which pleas of guilty were accepted or trials conducted, and in spite of the presumption of regularity, if upon the facts it appeared that the accused had been denied adequate representation by counsel, relief was granted. Batchelor v. State (1920),189 Ind. 69, 125 N.E. 773; Bielich v. State (1920),189 Ind. 127, 126 N.E. 220; Dobosky v. State (1915), 183 Ind. 488, 109 N.E. 742; Mislik v. State (1915), 184 Ind. 72, 110 N.E. 551;Sanchez v. State (1927), 199 Ind. 235, 157 N.E. 1; Rhodes v. State (1927), 199 Ind. 183, 156 N.E. 389. If the facts contained in the affidavit were not true, it was the duty of the state to have filed a counter-affidavit setting forth the true facts. In the absence of this counter-affidavit, and in spite of the order book entry there is no other conclusion to be reached than that the defendant's constitutional rights were grossly violated.

The defendant in this case also filed a motion for nunc pro tunc entry to correct the record.

"A party to a judicial proceeding is entitled as a matter of right to have the record correspond to the facts and obviously has a right that the presiding judge correct an inaccurate record whenever an inaccuracy materially prejudices his interests. It is the recognized rule of this state that a court has the inherent power to correct its own records on its own motion and is, of course, under a solemn duty to do so. . . ." State ex rel. Eggers v. Branaman (1932), 204 Ind. 238, 243, 224, 183 N.E. 653, 655.

Under this authority if the defendant had filed a petition in this court to mandate the trial court to correct the record, it would have been the duty of this court to see that it was corrected. There is no reason why a cause may not be reversed for failure to correct the record when the matter is brought to our attention upon appeal when a defendant has been deprived of his liberty without due process of law under our Bill of Rights.

The appellant's brief does not properly assign error that the denial of counsel was a violation of the Federal Constitution. In appeals of this nature there has been a great deal of confusion concerning a proper assignment of error that the rights of the accused under the Federal Constitution were violated. This court is bound by the Federal Constitution the same as it is by the Constitution of Indiana, but very important procedural results follow as a consequence of an improper assignment of the violation of federal rights. The confused situation may have resulted in part from some of the language of the decisions of this court, which have not clearly distinguished between a violation of the Sixth Amendment by federal action, and a violation of the Fourteenth Amendment by some state action.

The appellant's brief charges that the denial of counsel was a violation of the Sixth Amendment to the Federal Constitution. This presents no federal question for determination by this court, since the first ten amendments are not a limitation upon state action. Barron v. Mayor and City Council of Baltimore (1833), 7 Pet. 243, 8 L. Ed. 672; Loftus v. Illinois (1948),334 U.S. 804, 68 S. Ct. 1212, 92 L. Ed. 1294; Foster v.Illinois (1947), 332 U.S. 134, 67 S. Ct. 1716, 91 L. Ed. 1955. When a federal constitutional question is not raised or considered in this court, its decision will not be reviewed by the United States Supreme Court. Wade v. Mayo (1948),334 U.S. 672, 68 S. Ct. 1270, 92 L. Ed. 1246; Loftus v. Illinois (1948), 334 U.S. 804, 68 S. Ct. 1212, 92 L. Ed. 1294.

It is the due process clause of the Fourteenth Amendment that is violated by a state court when an accused is denied the right to counsel, and this is the error that must be assigned if this court be required to consider the federal question. The fundamental and inherent concepts of liberty and justice which are embodied in the Bill of Rights to the Federal Constitution become a part of due process of law under the Fourteenth Amendment. Gitlow v. New York (1925), 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138; Powell v. Alabama (1932), 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158, 84 A.L.R. 527. In many cases the protections afforded to the individual under the Fourteenth Amendment are much broader than the exact language embodied in the Bill of Rights of the Federal Constitution. Everson v.Board of Education (1947), 330 U.S. 1, 67 S. Ct. 504, 91 L. Ed. 711, 168 A.L.R. 1392; McCollum v. Board of Education (1948),333 U.S. 203, 68 S. Ct. 461, 92 L. Ed. 451; Pennekamp v.Florida (1946), 328 U.S. 331, 66 S. Ct. 1029, 90 L. Ed. 1295.

The denial of counsel in this case came at the trial, and therefore was properly raised by the motion for a new trial. The majority opinion denies relief. Unless present precedents on coram nobis be overruled, the appellant has no remedy by this procedure, and even if this remedy could be sought, the same issue on the order book entry would be presented. There would be no logic in holding an order book entry conclusive on appeal from the judgment of conviction and not conclusive on a proceeding for a writ of error coram nobis.⁴ A petition for a writ of habeas corpus in the state court is not an adequate remedy. Potter v. Dowd, Warden (7th Cir. 1944), 146 F.2d 244. He has been denied "remedies by due course of law" as required by § 12 of Article 1 of the Constitution of Indiana. In the interest of orderly administration of justice the Indiana courts should correct their own errors and not force an accused person to go before the United States District Court in a habeas corpus proceeding to obtain relief under the due process clause of the Fourteenth Amendment, when he has been deprived of representation by counsel in violation of § 13 of Article 1 of the Constitution of Indiana. If and when this matter is presented to the proper United States District Court, the order book entry purporting to show waiver of counsel will not be regarded as conclusive in order to prevent an inquiry into the truth of the matter as to what in fact happened at the time of trial. Marino v. Ragen, Warden (1947),332 U.S. 561, 68 S. Ct. 240, 92 L. Ed. 203. Nor should it in this court.

Since Gitlow v. New York, supra, the courts of this state are not free to make their own mistakes on issues involving a fair trial for an accused under due process of law, and until the appeal in this cause was decided the Constitution, statutes and precedents of this state afforded full protection.

The judgment should have been reversed.

¹ One of the purposes of Ch. 189, Acts 1947, was to provide a deterrent for perjury.

² Rule 3-21. Oath of Attorneys.

³ "In all criminal prosecutions, the accused shall have the right to a public trial, by an impartial jury, in the county in which the offense shall have been committed; to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor." Section 13, Article 1, Constitution of Indiana.

⁴ "The exhaustion of but one of several available [state] alternatives is all that is necessary," before filing a petition for habeas corpus in the U.S. District Court. Wade v. Mayo (June 14, 1948), 334 U.S. 672, 68 S.C. 1270, 92 L. Ed. 1246.