State v. Turley

¶1(concurring in result).

¶2As best I can determine this seems to be the first case before this court where the claim of error in refusing to appoint counsel for an indigent defendant at a preliminary hearing, is based on the proposition that under our Rule 23.03 and the statute, § 544.350, RSMo 1959, counsel at a preliminary hearing could not and would not be denied an accused who could afford to employ counsel, but is denied an accused who is without funds to hire a lawyer, which defendant contends is a denial of equal protection and an unfair discrimination based solely on lack of funds to employ counsel.

¶3Rule 23.03 states:

“The magistrate before whom an accused is brought shall advise … him and, if requested, shall read to him the complaint. The accused shall he allowed a reasonable time to advise with his counsel and shall be permitted to send for counsel if he so desires. … ” (Emphasis added).

¶4Sec. 544.350, supra, states:

“The magistrate shall strictly inform the prisoner of the charge made against him, and read to him the complaint, if requested to do so, and he shall allow the prisoner reasonable time to advise with his counsel, and, for that purpose, to send for counsel, if he require it”. (Emphasis added).

¶5By § 544.350 and Rule 23.03, the legislature and the court have concluded that a preliminary hearing is of sufficient importance and gravity that the magistrate is required to permit the accused to have counsel if the accused so desires. But as it works out in practice, only the accused who can afford to hire counsel, gets counsel. The accused who cannot afford to hire a lawyer does not get one, no matter how much he may desire one. This is not equal justice for all. It is as if the words “if, but only if, the accused or prisoner can employ counsel” were added to the rule and the statute. If this is not an unfair discrimination based on difference in ability to pay, it is hard to see what could be.

¶6The state argues that counsel at a preliminary should be considered as a luxury which, like any other luxury, is available to those who can pay for it. The state compares the situation to expert witnesses, paid investigators, bail, having a new suit of clothes in which to present the best pos*81sible appearance at trial — all these “the cost of which any criminal defendant — indigent or not —must hear, or do without … ” This is the argument that if the state does not have to provide equality in all areas, it ought not to have to provide it in any. Granted we cannot provide equality in all areas, this does not mean we are not required to provide equality in those areas which are of basic, bedrock importance and access to counsel is one of these. If we do not consider counsel important at the preliminary, why do we go to so much trouble to insure that the court cannot deny counsel to those who can employ counsel? It is no more important to the man who can hire a lawyer to have one at the preliminary than it is to the man who cannot, and we insure that the former has counsel. What would be the attitude of counsel for a defendant with means to retain counsel if he were told he could not represent his client at the preliminary ? Would he feel that his client was merely being deprived of a luxury? Suppose any of us had a member of our family who is an accused and who has to face a preliminary hearing. Would we feel that it was merely a matter of a luxury for this person to be represented by counsel at the preliminary? We know from our experience as former trial judges, prosecuting attorneys and defense counsel how valuable an opportunty the preliminary hearing is for the defense and how much can be done for the defendant at the preliminary by counsel. This is particularly true when identification of the defendant is the key issue,1 when there is bias or prejudice on the part of the complaining witness against the defendant, when a witness makes less than a full disclosure if not cross-examined, when there is a question as to the legality of a search and seizure, and where there is a question as to the sufficiency of the evidence.

¶7The majority opinion states there is nothing in the record to show defendant was prejudiced by lack of counsel, but I respectfully submit that here, as in Hamilton v. Alabama, 368 U.S. 52, 55, 82 S.Ct. 157, 159, 7 L.Ed.2d 114 “ … the degree of prejudice can never be known. … ” Only the presence of counsel at the preliminary could have enabled defendant to act in his own best interest at that time; what could have been done will never be known. If the best player on the team misses the game, there is no need to “stop to determine whether prejudice resulted.”

¶8We know, too, that where an accused is financially able to do so, counsel is invariably retained for the preliminary. As the United States Supreme Court said in Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 796, 9 L.Ed.2d 799, about the significance of the fact that lawyers are used in criminal cases by those who can afford them, “ … That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. … ”

¶9We also know that the preliminary hearing is, in practice, an adversary judicial proceeding, required before the prosecutor can proceed by information and which the state must win in order to authorize continued constraint of the accused. Without counsel, the indigent accused has no one to turn to other than the judge. “ … But how can a judge, whose functions are purely judicial, effectively discharge the obligations of counsel for the accused? … He cannot investigate the facts, advise and direct the defense, or participate in those necessary conferences between counsel and accused which sometimes partake of the inviolable character of the con*82fessional.” Powell v. Alabama, 287 U.S. 45, 61, 53 S.Ct. 55, 61, 77 L.Ed. 158.

¶10A preliminary hearing is not required where the prosecution is by indictment. However, where there is an indictment we treat both the accused who can afford counsel and the accused who cannot alike— neither is entitled to be represented by counsel before the grand jury. But not so as to prosecution by information; here the accused who can employ counsel has an advantage.

¶11If we are to continue with Rule 23.03, making it mandatory that the magistrate allow the accused reasonable time to advise with his counsel and to send for counsel if he desires, it seems to me that we must apply the rule in an even-handed way and see to it the indigent has the benefit of this rule, too, by requiring the magistrate to appoint counsel in such instances. “ … [Ojnce having granted an accused the opportunity to have the validity of his detention to answer criminal charges determined by an independent judicial officer, this opportunity must be given on an equal basis. Even if it is possible to have a 'fair’ hearing on this question without allowing the accused the assistance of counsel, once the state has allowed this assistance, it ought not be able to deny this assistance on account of poverty.” Hunvald, Right to Counsel, 31 Mo.L.Rev. 109, 123-24. The Wisconsin Supreme Court in 1965 decided that henceforth an indigent was entitled to appointed counsel at the preliminary hearing, one ground for the decision being that “ … because an accused has a statutory right to retained counsel at a preliminary hearing, an accused who is indigent is entitled to appointed counsel under the equal-protection clause of the 14th Amendment.” Sparkman v. State, 27 Wis.2d 92, 133 N.W.2d 776, 781.2 If we do not so apply Rule 23.03 in the future, we should repeal it and make no provision for counsel whatever at the preliminary, either for those who can or who cannot pay for a lawyer.

¶12If the writer is correct in concluding that the magistrate should have appointed counsel for defendant at the preliminary, the next question is what relief is appropriate, now that defendant has been tried and convicted. The damage has already been done. Granting him a new preliminary with counsel would accomplish nothing at this point, nor would the granting of a new trial. As the main opinion points out, the evidence is sufficient to sustain the conviction, and it does not seem defendant is entitled to have the slate wiped clean by an outright reversal.

¶13I therefore concur in the result, but believe we should amend Rule 23.03, if necessary, or apply it as now written, to require appointment of counsel for the indigent at the preliminary, if counsel is requested, and would make available enforcement or relief by prohibition or mandamus as of the time of the preliminary if counsel is not appointed.