APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. (Civil Action No. 73-287)
Seitz, Chief Judge, and Hastie and Aldisert, Circuit Judges. Seitz, Chief Judge (concurring). Hastie, Circuit Judge (dissenting).
This appeal by the Commonwealth of Pennsylvania requires us to decide whether late appointment of counsel in a state criminal proceeding in which appellee pleaded guilty on the second day of trial deprived him of his Sixth Amendment right of counsel. Magistrate Naythons reviewed the trial transcript and state post-conviction proceedings, including the state evidentiary hearing. The district court adopted the report of the magistrate and granted federal habeas corpus relief. No federal evidentiary hearing was held.
These proceedings relate to a plea of guilty to three indictments of aggravated robbery entered by Lonnie Davis in the Criminal Court of Philadelphia County, Pennsylvania, on December 22, 1954. Pertinent to our consideration are Bills of Indictment No. 1033, covering a robbery of an American food store (ACME) on West Hortter Street on October 23, 1954; No. 1032, a robbery of a similar store on North Front Street on October 11, 1954; and Bill No. 1038, a robbery of a similar store on West Oak Lane on September 17, 1954. Because we are not reviewing factual determinations based on oral testimony at a federal habeas hearing, we are not restricted by the confines of the clearly erroneous rule as to the historical or narrative facts underlying the adjudicative findings. United States ex rel. Binion v. O'Brien, 273 F.2d 495, 497 (3d Cir. 1959), cert. denied, 363 U.S. 812, 4 L. Ed. 2d 1154, 80 S. Ct. 1249 (1960). We are thus free to evaluate the records from the standpoint of both historical and adjudicative facts. On ultimate constitutional facts the Supreme Court has placed a heavy duty upon the reviewing court. For example, on the question of the voluntariness of a confession, the reviewing court has the duty to examine the entire record and make an independent determination of the ultimate issue of voluntariness. This duty exists whether the court is reviewing district court denial of habeas corpus relief without an evidentiary hearing in reliance on a state court factual determination, Davis v. North Carolina, 384 U.S. 737, 741, 16 L. Ed. 2d 895, 86 S. Ct. 1761 (1966); or reviewing district court denial of habeas corpus relief after an evidentiary hearing. Boulden v. Holman, 394 U.S. 478, 480, 22 L. Ed. 2d 433, 89 S. Ct. 1138 (1969). We perceive no logical reason why the same responsibility does not attach in reviewing a Sixth Amendment question of effectiveness of counsel as in a Fifth Amendment voluntariness question.
Davis' case came on for trial on December 21, 1954, in a consolidated action with three other defendants, Parris, McCray and Ricks. His counsel, John F. Hassett, a member of the Philadelphia Public Defender staff, requested a continuance: "Counsel have not had sufficient time and we have not interviewed the defendants and have not had time to prepare a defense. The defendants tell us at this time that they are not guilty on all charges."*fn1 The Commonwealth opposed the oral motion because the multiple cases had been postponed previously, and it was represented that a Commonwealth witness was very ill. It succeeded in its opposition to the motion for a continuance, and Davis stood trial on the multiple indictments emanating from the 1954 robberies. Police detective Harry P. McCann testified that Davis "admitted participating in the [October 23, 1954] holdup . . ."; and that Davis "told us that he had thrown a gun on Lincoln Drive. Officers Kelly and McPeak went with the defendant Davis to Lincoln Drive . . . whereupon Davis showed him where he threw the gun. . . ." (Appendix 41a.) Both a cashier and a clerk for the Hortter Street store identified Davis as a participant in the October 23, 1954, holdup. Later a statement signed by Davis was read into evidence in which Davis gave graphic details how he participated in two of the three hold ups.*fn2
Co-defendant Clifford Ricks, shot by the police during the Hortter Street robbery and diagnosed as a cancer victim upon being hospitalized for the gun shot wound, pleaded guilty and testified that Davis participated with him in all three robberies. Describing Davis' activity at the West Hortter robbery, he said: "Me and McCray we went and got the manager of the store and I went in and Davis went to hold some people in the car. When he opened the safe I heard some one at the door." (Appendix at 33a.) He testified that Davis was one of five participating in the Front Street robbery, stating that Davis entered the store with Ricks, Perry and McCray. As to the West Oak Lane robbery, Ricks testified Davis participated in the hold up.
Davis took the stand in his own behalf on the second day of trial. He denied participation in any of the robberies and contended that his signed confession was coerced by police beatings and induced by promises of immediate release. At the conclusion of his testimony, his defense rested. The McCray defense then opened with McCray entering a guilty plea to the West Hortter Street robbery and testifying that Davis participated in this robbery with him and the others.
At the conclusion of the Parris and McCary cases, Attorney Hassett requested and was granted a five minute recess to consult with his client. Upon resumption of the court proceedings, Davis entered a guilty plea to six indictments, all pertaining to the three hold ups.
What Davis admitted at sentencing is significant:
THE COURT [Judge John Morgan Davis, now a district judge but then a Pennsylvania Common Pleas Court Judge]: Davis, you started out with a very good name.
DEFENDANT DAVIS: Your Honor, I don't know what to say.
THE COURT: It would have been better for you to tell me the truth.
DEFENDANT DAVIS: I understand you now. The onliest reason I didn't come out with it different ones talked to me about it when I was up there. When I was up in jail they would tell me if I didn't say what they want me to say -- I mean I got it there, and I said a lot and I am sorry I said it, but some boys they told me what to say, and the onliest reason that I accompanied Jack Ricks on these hold-ups is because that I was living away from home, your Honor, and I haven's never been in the City before in my life before I came here.
THE COURT: And of course our Probation Department will be glad to help him to return to West Virginia and make it possible for him, after him having served the sentence that I am going to impose. If you told me the truth I might have been more lenient with you, because of your age, but regardless of that you were under oath and you were given one ...