STRUCKMEYER, Chief Justice.
Lawrence George Kruchten, appellant herein, and Joseph William Janovic, Jr., appellant in Cause No. 1379 (decided this date), pleaded guilty in the Superior Court of the State of Arizona in and for Yuma County to the crime of first degree murder. From the judgment of conviction and the sentence of death by the administration of lethal gas, this appeal has been perfected.
The facts may at this point be briefly summarized. Appellant and Janovic, both age 22 years and residents of Chicago, Ill., had been working in California intermittently at various jobs for some months prior to the 21st day of December, 1962. While in California, they met Sally Ann Pierce, a young woman 20 years of age. Kruchten and Janovic expressed an interest in going to Florida. Sally Ann Pierce had a Chevrolet automobile and $140.00 in money and the three decided to drive to Florida in her automobile. On December 21st, they left California. Before they left, some beer and brandy were purchased and these and other intoxicating liquors were consumed during the course of that day. About ten miles outside of Salome, Arizona, in Yuma County, they stopped near a roadside rest area and the three walked about two miles out into the desert toward the nearest hill. Janovic picked up a rock and hit the deceased on the head two or three times with it. Then Kruchten took the rock and hit her twice on the head. Kruchten and Janovic went back to the car and drove away in it with the deceased's money, clothes, portable TV and record player. The clothes were thrown out of the car later that day, the portable TV was sold in Kansas City, Missouri, and the record player was disposed of at a gas station in a suburb of Chicago. Sally Ann Pierce apparently died where she had fallen. The rock which had been used as the instrument of homicide was found nearby with hair and bloodstains on it.
In the trial court, Kruchten and Janovic were charged jointly with the crime of first degree murder. They were represented by Ralph Brandt, a member of the Arizona Bar for twenty-two years. Brandt was an experienced and able general practitioner, having previously defended many criminal cases including four charges of first degree murder. In the lower court, appellants pleaded guilty and received death sentences. In this Court, appellants each employed separate counsel and filed separate appeals.
Kruchten here moved to extend the record by setting forth matters by way of affidavits and exhibits, the principal instrument being that of an affidavit by appellant in which he asserted the inadequacy of the representation of counsel in the lower court. We considered this as an improper attempt to raise facts extraneous to the record. (Facts raised by affidavits are not subject to cross-examination nor can they be determined on affidavits and counter-affidavits.) Accordingly, the motion was denied.
However, noting that Arizona has consistently held that habeas corpus may not be used to collaterally attack a judgment of conviction, Eyman v. Cumbo, 99 Ariz. 8, 405 P.2d 889; Application of Oppenheimer, 95 Ariz. 292, 389 P.2d 696; Oswald v. Martin, 70 Ariz. 392, 222 P.2d 632; State ex rel. Jones v. Superior Court, 78 Ariz. 367, 280 P.2d 691; cf. Rodriguez v. Sacks, 173 Ohio St. 456, 184 N.E.2d 93, 20 Ohio Opinions 2d 78, and considering that coram nobis was a proper remedy, Constitution of Arizona, Art. 6, § 5, A.R.S., to raise on appeal the question whether appellants were denied the effective assistance of counsel under the Sixth Amendment to the Constitution of the United States, we ordered that this cause, together with Cause No. 1379, be
We further ordered that upon the entering of the findings of fact and conclusions of law the State and appellants should each file with the Clerk of the Superior Court of Yuma County their objections thereto and that thereafter the record of the proceedings be certified to this Court. All findings of fact and conclusions of law were found against the appellants.
While we would ordinarily affirm the judgments on the basis of our rule that the findings of a trial court will be sustained where supported by any reasonable evidence, because this is a capital case carrying the death penalty, we have independently scrutinized the record. Where there are irreconcilable conflicts in
We first consider appellant's complaint that the coram nobis proceeding was unfairly conducted by Judge Ross Jones. Two attorneys, members of the bar practicing in Yuma County, entered an appearance as attorneys for Ralph Brandt, prior counsel for Kruchten. Judge Jones permitted Brandt to testify and Brandt's attorneys to participate in the proceedings by allowing them to object to questions and, in one instance, to examine a witness. Kruchten's position is that Brandt's conduct was unethical in that it was an attempt to sustain the judgments of conviction against the interest of his former clients.
We do not think so. The assertion that counsel is incompetent or inadequate is a direct attack upon the attorney. It constitutes a waiver of the attorney-client privilege and permits trial defense counsel to defend himself. United States v. Butler, 167 F.Supp. 102 (E.D.Va., 1957), affirmed 260 F.2d 574. The duty of an attorney to a client, whether in a private or criminal proceeding, is subordinate to his responsibility for the due and proper administration of justice. In case of conflict, the former must yield to the latter. Canon 37, Canons of Professional Ethics of the American Bar Association specifically recognizes that, "If a lawyer is accused by his client, he is not precluded from disclosing the truth in respect to the accusation." Brandt had not only the right but the duty to appear, to testify and to otherwise participate in the proceeding in such manner as the presiding judge felt was appropriate under the circumstances.
The assertion that Judge Ross Jones showed prejudice against the appellants by permitting Brandt to remain in the courtroom during the hearing is without merit. It is always within the sound discretion of the trial court to determine against whom the rule of exclusion shall be invoked. State v. Sowards, 99 Ariz. 22, 406 P.2d 202; State v. Romero, 85 Ariz. 263, 336 P.2d 366.
In considering the attack now made on the findings and conclusions, we recognize that claims by convicted felons that their defense counsel were ineffective or incompetent are common. It lies behind a defendant's natural inclination to bring hindsight to bear on his lawyer's performance and often contains his second thoughts concerning his plea of guilty and the advice of counsel which led to it. See Kamisarr, The Right to Counsel and The Fourteenth Amendment, 30 U.Chi.L.Rev. 1. It has been noted before that the willingness of courts to consider claims of inadequate trial representation invites a change of counsel and results in the actual trial of the former attorney. State v. Benson, 247 Iowa 406, 72 N.W.2d 438, 441; and see, Waltz, Inadequacy of Trial Defense Representation as a Ground for Post-Conviction Relief in Criminal Cases, 59 Nw.U.L.Rev. 289.
Kruchten filed objections to each of the findings of fact one through four. A consideration of these findings and the objections which are directed toward them requires a further examination of the facts. After appellant and Janovic left Arizona, they drove in the Pierce car to Chicago, arriving there Christmas Eve day, December 24, 1962. On the evening of March 19, 1963, certain agents of the Federal Bureau of Investigation, being then armed with a warrant for the arrest of both Kruchten and Janovic on the charge of interstate transportation of a stolen vehicle, went to an apartment in Chicago, Illinois, and arrested Kruchten. A few hours later, Janovic was arrested at the same address. Both Janovic and Kruchten were interrogated by agents of the Federal Bureau of Investigation and at about 3:00 a.m. of the following morning gave signed, written confessions acknowledging the murder of Sally Ann Pierce.
In his attack on the adequacy of his representation in the lower court, Kruchten dwells at length on the fact that at no time was the information in this case read to
In Arizona, by A.R.S. § 13-452,
Prior to sentencing and on three different occasions, both Kruchten and Janovic acknowledged striking Sally Ann Pierce on the head with a rock the size of a softball. She was then left unconscious and bleeding to die on the desert. Kruchten and Janovic returned to her automobile and departed in it with her money and other property. The facts of this homicide permit of only one conclusion. As a homicide perpetrated in the course of a robbery, wilfulness, deliberation and premeditation are implied.
Manifestly, if appellants had pleaded not guilty, a challenge to the information as a variance between proof and alleganda would have been futile. We fail to see how the claim of incompetency or inadequacy of Brandt's representation is established by asserting now that he should not have permitted them to plead guilty to premeditated murder.
We are not, however, as much concerned with this aspect of the case as with the fact of Kruchten's assertion that they were told by Brandt that on pleas of guilty they would get life and would be out in eight years. It was for this reason that we directed Judge Ross Jones to determine whether the appellants, and each of them, understood the effects and consequences of their pleas.
Krutchen testified at the coram nobis hearing:
Similarly, Janovic testified that he was never told of the possibility of a death sentence.
We first express doubts that a person such as Kruchten, who had little more than a grammar school education, could be unaware of the possible death penalty for murder. But irrespective, the record does not lend any credence to their testimony. Prior to sentencing and at the start of a hearing in mitigation of the offense, the following occurred:
The statement by the trial judge prior to the hearing in mitigation is corroborated by the reporter for the Yuma Daily Sun who was present at the arraignment of appellants. He testified:
Moreover, appellants, at least Janovic, had a lawyer by the name of Seaman when they appeared before the United States Commissioner after their arrest on the charge of interstate transportation of a stolen vehicle in Chicago and another lawyer by the name of Gillin who appeared at the time of their hearing on extradition to Arizona.
It is impossible to believe that appellants were unaware that the death penalty could be imposed for murder. The blatant perjury here evidenced casts doubt on each and every statement of appellants. For example, if Kruchten and Janovic knew they were subject to the death penalty for murder in Arizona, then they must have known, as Brandt testified, that the principal objective of the defense was to secure a sentence of life imprisonment.
By our requested finding of fact No. 1, we asked Judge Ross Jones to determine whether Brandt fully counseled with each of the appellants in regard to the facts and the possible defenses arising therefrom before advising them to enter pleas of guilty. We considered that such a determination was a necessary predicate for the requested conclusion of law No. 2 as to whether the appellants understood the effect and consequences of their pleas of guilty.
These further facts support Judge Ross Jones' finding No. 1 and conclusion No. 2 as against what Kruchten's present counsel labels a "walk through" defense. Yuma County has a population of 46,285 and is approximately 10,000 square miles of what is principally desert (census of 1960). It borders on the Colorado River adjacent to the State of California. Its largest city is Yuma, the county seat, a city of about 26,000 people.
Brandt's employment as defense counsel came about in this manner. He received a telegram asking whether he could take the case defending Joseph Janovic, Jr., then being extradited to Arizona, signed by Joseph Janovic; that he had read about the homicide in the Yuma Daily Sun and upon receipt of the telegram went to the office of the county attorney to inquire into what information he had as to the offense. As nearly as could be recalled, the county attorney had the statements from the Federal Bureau of Investigation and Brandt was permitted to read them and they discussed the content; that he was a personal friend of the sheriff and he went to the sheriff's
Brandt stated that when he had finished his investigation, he knew everything that was against "the boys" he had to defend. Thereafter, he called Chicago on the telephone and talked with Janovic's mother. He explained to her that he had investigated the facts of the case, that he did not believe he could secure an acquittal and reached the tentative conclusion that the principal effort should be directed toward escaping a death penalty, that his acceptance of employment at this time was conditional upon the ultimate decision as to what course the defense should take.
Appellants arrived in Yuma sometime during the course of the night of the 24th day of May. They were taken at 9:30 the following morning to the office of the justice of the peace for their preliminary arraignment on the charge of first degree murder. Brandt went to the county jail about 8:30 and talked briefly with Janovic and thereafter went with them to the justice of the peace. There he asked for a short continuance while he consulted with Kruchten. On his advice, the preliminary hearing was waived by both appellants. Brandt took the position that the principal value of a preliminary hearing to an accused was the ascertainment of the facts against him; but here, there was tactical advantage in preventing repetitious newspaper stories about the murder.
Brandt testified that while, at this time, he did not discuss with Janovic the difference between first and second degree murder, he did discuss with him the two alternatives so far as penalties were concerned to the charge of first degree murder. On their return from the justice court and after walking back to the jail with appellants, he stood in the hallway and discussed the "pros and cons with each of them, and went over the major details."
An information was filed in the superior court on the 14th day of June and appellants were arraigned there on the 26th day of June. In the intervening twelve days, Brandt decided that the best course of action was to enter pleas of guilty. Prior to the arraignment in the superior court, the defendants were brought to a counter in the sheriff's office where Brandt talked with them and he went with them into the sheriff's private office and obtained the statute on homicide and explained to them what the various degrees of homicide were and what the consequences were, including the penalty for first degree murder as being either life or death sentence. He stated that it was his opinion they understood the nature and consequences of what he was recommending be done.
At the arraignment on June 26th, Brandt attempted to enter pleas of guilty to second degree murder which were not acceptable to the county attorney and hence refused by the court. Thereafter, on the 16th day of July, pleas of guilty were finally entered to the charge of first degree murder. Up to that time, Brandt had not determined how "to go about" the leniency hearing. As he explained, he could have used the device of a not guilty plea and presented mitigating circumstances to the jury and made a plea of second degree or for a recommendation of life imprisonment; or he had the alternative of entering pleas of guilty and after a leniency hearing the sentence would be determined by the judge, pursuant to A.R.S. § 13-453. It was Brandt's final judgment that the appellants would be better off to have their sentence determined by the court, after a plea, rather than by the jury after a trial. This decision was conveyed to the appellants at the jail. Thereafter, appellants entered pleas of guilty and the trial court fixed a time for a hearing in mitigation and the passing of sentence.
At the hearing in mitigation on the 24th day of July, 1963, both Janovic and Kruchten testified. Janovic stated that at Salome, Arizona, they discussed Sally Ann Pierce as a poor traveling companion and decided that they would knock her out and take her automobile, going on without her, and that the walk into the desert was for that purpose.
Kruchten testified that he did not remember the conversation with Janovic at Salome. However, the act having occurred on the desert and there being no other means than the Pierce vehicle in which to leave, an intention to take the Pierce automobile is irrefutably apparent. The jury may not be instructed on a lesser degree of murder than first degree where, under the evidence, it was committed in the course of a robbery. State v. Folk, 78 Ariz. 205, 277 P.2d 1016; Burgunder v. State, 55 Ariz. 411, 103 P.2d 256; State v. Cochrane, supra. On a trial on pleas of not guilty, appellants would have been faced with the certainty that the case would have been submitted to the jury solely on the alternative instructions of first degree murder and not guilty.
Kruchten argues, however, that his intoxication would have required the submission of manslaughter and second degree murder verdicts. By statute, A.R.S. § 13-132, no act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such a condition but intoxication may be taken into consideration in determining the purpose, motive or intent with which the act was committed. Of this statute we have repeatedly held that testimony by a defendant that he had been drinking did not raise an issue to be submitted to a jury where the accused was able to remember the factual details of the offense. State v. Roqueni, 94 Ariz. 72, 381 P.2d 757, cert. den. Roqueni v. Eyman, 375 U.S. 948, 84 S.Ct. 359, 11 L.Ed.2d 278, and Rascon v. State, 47 Ariz. 501, 57 P.2d 304.
Here, Kruchten remembers stopping at the roadside rest area, crawling under a barbed wire fence and walking into the desert. He remembers that he was ahead, that Sally Ann Pierce was following and that Janovic was behind when Sally Ann Pierce was first struck by Janovic, that Janovic gave him the rock with which he struck her on the head, that she was not dead when they left her and that thereafter he discarded his shirt because there was blood spattered on it.
We do not think that Brandt was incompetent or inadequate as an attorney, as appellant urges, because he did not plead Kruchten not guilty and raise a defense of intoxication. Every experienced criminal lawyer is aware that juries seldom give more than scant consideration to a plea that the accused committed the criminal act while or because he was intoxicated. The probability was that, if rejected, the jury would impose the death penalty on the facts of such a brutal killing. Realistically, Kruchten's problem is that Brandt was too competent to be long misled by the hope that the claim of intoxication had any serious merit.
It is argued that Brandt could not have fully counseled with Janovic and Kruchten on possible defenses because, in order to make out a prima facie case, the State would have had to rely on the appellants' confessions and that the confessions could have been suppressed under Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479. Assuming without deciding that the confessions could have been suppressed, the weakness of the argument lies in the assumption that the State, if compelled to a trial by pleas of not guilty, would have been unable to make out a prima facie case of murder.
As to this, the county attorney stated to the court at the hearing on mitigation that
The principle here controlling is that a conviction will be held invalid only if the representation by counsel was a farce or a sham. Dodd v. United States, 321 F.2d 240 (C.A.9, 1963); Rivera v. United States, 318 F.2d 606 (C.A.9, 1963); O'Malley v. United States, 285 F.2d 733 (C.A.6, 1961); Trammell v. State, 276 Ala. 689, 166 So.2d 417 (1964); People v. Robillard, 55 Cal.2d 88, 10 Cal.Rptr. 167, 358 P.2d 295, 83 A.L.R.2d 1086, cert. den. 365 U.S. 886, 81 S.Ct. 1043, 6 L.Ed.2d 199; People v. Strader, 23 Ill.2d 13, 177 N.E.2d 126 (1961); Bryant v. Warden, 235 Md. 658, 202 A.2d 721 (1964); King v. Commonwealth, Ky., 387 S.W.2d 582 (1965).
For example, in O'Malley v. United States, supra, the Sixth Circuit said:
We conclude that there is nothing now before this Court to support the charge that the representation by Brandt was a farce or a sham or shocking to the conscience. The plain truth is that the unvarnished facts afforded no meritorious defense. Brandt's advice to enter pleas of guilty was founded upon the obvious hope that the court would be merciful in not inflicting capital punishment. It was a strategical decision — how to make the best out of what was a nearly hopeless situation. Strategical decisions are not the kind which courts permit convicted felons to indulge in second guessing. United States v. Stoecker, 216 F.2d 51 (C.A. 7, 1954); Application of Tomich, 221 F.Supp. 500 (D.C. Mont., 1963); Casey v. Overlade, 129 F.Supp. 433 (D.C.Ind., 1955).
Closely allied to finding of fact No. 1 was our requested finding of fact No. 3 as to whether appellants were advised directly or indirectly by Brandt that he would not represent them or either of them unless they entered pleas of guilty. We considered that this could be a form of coercion, depending on the circumstances, which might cause appellants to enter pleas of guilty.
Brandt testified concerning his first conversation with Janovic after extradition from Illinois:
Brandt also testified:
The inference we draw is that appellants were in precisely the same position as any other defendant in a criminal proceeding. They were compelled by force of circumstances to rely upon their lawyer for advice and counseling and for recommendations as to the strategy and tactics which the representation would take.
When Brandt went over to the county jail on the morning of May 25th, before the preliminary hearing, and talked to Janovic, he was asked by Janovic, as Janovic testified:
From the testimony, it is clear there was no direct compulsion by Brandt to plead guilty.
To sustain a charge of indirect compulsion sufficient to reverse these convictions, we are of the view that the representation by Brandt must have contained some element of fact or nondisclosure of fact which would tend to mislead appellants thereby inducing them to enter pleas of guilty. Such does not exist here.
Brandt was initially contacted by Janovic's parents and, in response to their telegram and a telephone call from Chicago, talked to Mrs. Janovic. Mrs. Janovic testified at the coram nobis hearing that:
Brandt testified regarding this first phone conversation with Mrs. Janovic that,
Brandt further testified:
Brandt's testimony is supported by his letter dated July 16, 1963, to Mrs. Janovic:
We do not find any misrepresentation or nondisclosure of the possible consequences of the pleas of guilty which would indirectly coerce appellants into entering such pleas.
The argument that Brandt spent very little time in the county jail with them proves no more than what was glaringly apparent. After their acknowledgment as to how the homicide was committed, there was very little to be further discussed about the facts. The problem was, as Brandt said, what could be done to prevent death sentences.
We now reach the most difficult area of resolution in this case. By our requested findings of facts Nos. 2 and 4, we indicated that this Court was interested in any possible conflict of interest in the representation of the two appellants and, in particular, whether there was a possible conflict of interest which required independent legal advice for appellant Kruchten. A consideration of the merits of the claim of a conflict of interest, however, cannot be wholly separated from the question of the asserted incompetency or inadequacies of the representation and the two are discussed together.
The leading case on conflict of interest is Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680. There, under an indictment of conspiracy to defraud the United States, the Federal District Court required Glasser's lawyer to also represent a co-defendant. It was held that this deprived Glasser of the right granted by the Sixth Amendment to the Constitution of the United States to have the assistance of counsel for his defense in that the assistance must be unimpaired by a simultaneous representation of conflicting interest. The court said:
Plainly, where a lawyer undertakes to represent two or more co-defendants and an actual conflict of interest exists, courts will not weigh the quantity of prejudice which may have resulted to one or the other. Reversible error will be presumed. But an actual conflict must, in fact, have existed or been inherent in the facts of the case from which the possibility of prejudice flowed.
From our examination of the precedents, we have reached the conclusion that an attorney may, in good faith, represent co-defendants until such time as a conflict arises or can reasonably be foreseen. As a minimum, it then becomes incumbent that independent legal advice be provided for one or the other. See, for late cases finding a conflict, Sawyer v. Brough, 358 F.2d 70 (C.A.4, 1966); Campbell v. United States, 352 F.2d 359 (C.A., D.C., 1965); Randazzo v. United States, 339 F.2d 79 (C.A.5, 1964); Case v. State of North Carolina, 315 F.2d 743 (C.A.4, 1963); Porter v. United States, 298 F.2d 461 (C.A. 5, 1962); Tucker v. United States, 235 F.2d 238 (C.A.9, 1956); Craig v. United States, 217 F.2d 355 (C.A.6, 1954); United States ex rel. Watson v. Myers, 250 F.Supp. 292 (E.D., Pa., 1966); Holland v. Boles, 225 F.Supp. 863 (N.D., W. Va., 1963); and for late cases finding that there was not a conflict, see Lugo v. United States,
Brandt was aware of the problem of potential conflicts in the representation of joint defendants. On June 27, 1963, the day after he attempted to plead appellants guilty to second degree murder, he wrote a letter to Mr. and Mrs. Janovic, a copy of which was sent to Mrs. Lawrence Kruchten, wife of appellant Kruchten. It stated, in part:
In passing, it may be observed that it could work the other way. If one was given a death sentence, the judge, in good conscience, could hardly fail to give the other a death sentence. Nevertheless, it is clear Brandt was alert to the dangers inherent in dual representation.
Counsel for Kruchten argues extensively facts which, he believes, would have indicated a lessening of moral responsibility concluding that if Kruchten had had separate counsel he would have been advised to enter a plea of not guilty for the reason that a jury would likely have treated Kruchten differently than Janovic. Kruchten's position, while ostensibly reasonable, has no sound legal basis.
A.R.S. § 13-454 provides:
In Campbell v. Territory, 14 Ariz. 109, 125 P. 717, a first degree murder in which the jury imposed the death penalty, the argument was made that certain "matters ought to be heard as some evidence to weigh with the jury in fixing the quantum of the punishment." After an extensive discussion, this Court concluded, with this statement:
At a trial, the commission of a homicide having been established, the circumstances of mitigation must be confined to those surrounding the commission of the offense and relevant within the res gestae thereof, including, of course, those circumstances, of which there are none here, which might reduce the grade of the offense from first degree to second degree or manslaughter. Evidence is not relevant simply for the purpose of mitigating the severity of the punishment. State v. Narten, 99 Ariz. 116, 407 P.2d 81, 82.
Conceivably, it might be argued to a jury from the facts of the homicide that Janovic was the dominant personality, but evidence that Kruchten was always more of a follower than a leader by a former school teacher is plainly not relevant, neither would be the testimony of Kruchten's wife that Janovic was with Kruchten on the majority of occasions when he became intoxicated; nor would testimony be admissible that Kruchten had no
Were Kruchten able to introduce to a jury mitigating evidence of this nature, obviously the State should be permitted to show evidence in aggravation in rebuttal. The State might have established, for example, that Kruchten had been using intoxicating liquors from the age of fourteen years; that he was a high school dropout but had opportunities in the navy for further education of which he did not avail himself; that when the murder was committed, Kruchten was married to a nineteen-year old girl who at that time had had two children by him; that he did not live with her or provide her with a home; that although he doubtlessly could have found employment in Chicago, he joined Janovic in California, roving about and working irregularly.
Circumstances in either mitigation or aggravation are not admissible on a trial unless relevant to determine the guilt or innocence. They may be admissible to determine the extent of the punishment after pleas of guilty in a first degree murder case. State v. Levice, 59 Ariz. 472, 130 P.2d 53. This latter course was the one chosen by Brandt. We find no conflict between the appellants prior to the decision to enter pleas of guilty.
Kruchten introduced in evidence at the coram nobis hearing certain letters which he had written to his wife while in the Yuma County jail. These letters indicated that Kruchten wanted his wife to obtain the services of a lawyer from Phoenix for him. On July 5th, he wrote:
When Kruchten was asked what he had in mind when he wrote, "because you can see very plainly just what that lawyer we have now has in mind for me," he answered, "I cannot recall what I had in my mind at that time." On July 9th, he wrote:
At the coram nobis hearing, this statement was read to Kruchten and his counsel asked him this question:
After an objection was made as leading, Kruchten was allowed to answer:
Why Kruchten had no confidence in Brandt was not explained. It is plain that Kruchten had doubts, possibly concerning Brandt's strategy of pleading guilty, possibly because Brandt was unable to promise a miracle. We can sympathize with his desire to have a good lawyer and his reluctance to plead guilty, but due process does not require that a defendant be furnished a lawyer of his choosing. See People v. Mattson, 51 Cal.2d 777, 336 P.2d 937. Kruchten was aware that he was entitled to other counsel and that the court would appoint him a lawyer. Rather than have a court-appointed lawyer, he chose to take his chances with Brandt "and hope for the best."
We do not think the test of a conflict in interest can be decided on an accused's subjective mental reservations as to whether his lawyer is going to be able to accomplish the result he would like to see.
After the court had imposed sentences of death on appellants, Brandt indicated that
Brandt's testimony on this point is that there was an area of possible weakness in the State's case in that appellants "may have agreed to accept equal blame." He testified:
The testimony of the two lawyers does not appear to be wholly reconcilable. But, assuming that a statement was made by Brandt which was understood by other counsel present to mean that there was possibly a greater degree of guilt on the part of one of the appellants than the other, it is clear from Brandt's testimony that he had in mind legal guilt in the sense that one may have committed the act of homicide and appellants may then have agreed to accept the blame equally. It may be noted that shortly thereafter, when Brandt was asked to sign an affidavit prepared by Kruchten's present counsel, he refused to do so. Further, neither appellant at the coram nobis hearing two years later testified that there was, in fact, any understanding to share the blame equally.
In conclusion it should be emphasized that the court at the time of sentencing had before it the original confessions, the statements made to the adult probation officer who investigated the offenses on behalf of the court after the pleas of guilty, the testimony of both appellants and of other witnesses. Kruchten's present argument is an attempt to shift the moral culpability for the offense to Janovic. We do not think the facts now pointed to establish a difference in culpability and, therefore, prejudice has not been shown within the meaning of Glasser. Morally, the minutiae now urged, if it establishes a difference, is not such as would justify a court in imposing the death penalty on one and a life sentence on the other.
Moreover, we think the record before the trial court at the time of sentencing adequately reflected the slight differences in background, personality and characteristics of these two appellants.
For all practical purposes, both legally and morally, these appellants occupied nearly identical positions. Accordingly, we conclude that appellant Kruchten was not deprived of the effective assistance of counsel under the Sixth Amendment to the Constitution of the United States.
Judgment is affirmed.
BERNSTEIN, V.C.J., and UDALL and McFARLAND, JJ., concurring.
NOTE: Justice LORNA E. LOCKWOOD did not participate in the determination of this decision.
"1. Did the appellants' attorney fully counsel with each of them in regard to the facts and possible defenses arising therefrom before advising them to enter pleas of guilty?
"2. Were both appellants fully advised as to a possible conflict of interest relative to their degree of complicity before entering pleas of guilty?
"3. Were the appellants directly or indirectly advised by their counsel that he would not represent them or either of them unless they entered pleas of guilty?
"4. Was there a possible conflict of interest of any kind requiring independent legal advice for the appellant Kruchten?
"5. Did the appellant Janovic have the benefit of a psychiatric examination as ordered by the Superior Court?"
These conclusions of law were directed to be returned:
"1. Whether the facts and circumstances as found deprived the appellants, or either of them, of effective assistance of counsel under the Sixth Amendment to the Constitution of the United States.
"2. Whether appellants understood the effect and consequences of their pleas of guilty.
"3. Whether, under the facts and circumstances as found, the appellant Janovic should have had the benefit of psychiatric examination before entering a plea of guilty."
The findings of fact and conclusions of law requested were necessarily broad and general in formulation since there was no concrete evidence before the Court but merely suggestions of inadequacy of representation of counsel and possible sources of conflicts of interest.
"1. Appellants' attorney fully counseled with each of the Appellants in regard to the facts and possible defenses arising therefrom before advising them to enter pleas of guilty.
"2. Both Appellants were fully advised as to a possible conflict of interest relative to their degree of complicity before entering their pleas of guilty.
"3. Appellants were not advised directly or indirectly by their Counsel that he would not represent them or either of them unless they entered pleas of guilty.
"4. The entire record fails to disclose a possible conflict of interest of any kind that required independent legal advise for Appellant Kruchten.
"5. Appellant Janovic did not have the benefit of the psychiatric examination as ordered by the Superior Court for the reason that the examination was waived by Counsel for the Defendant Janovic and the Yuma County Attorney before the Honorable William W. Nabours, Judge of the Superior Court, prior to the entry of the pleas of guilty for each of the Defendants."
Conclusions of Law:
"1. All the facts and circumstances as found did not deprive the Appellants or either of them of effective assistance of Counsel under the Sixth Amendment to the Constitution of the United States.
"2. The Appellants and each of them understood the effect and consequences of their pleas of guilty.
"3. From all the facts and circumstances as found the Appellant Janovic should not have had the benefit of a psychiatric examination before entering a plea of guilty."