the defender's files, which included several short memoranda written by lawyers and investigators for the defender's office. Furthermore, he discussed "trial techniques" with the office. Here, then, even though the first interview with the relator was on the day of the trial, the appointment of counsel was in the period after the relator had been granted a continuance, October 4, 1966, until the day of trial, October 13. Arguably, then, this is not the kind of case where there is a late appointment of counsel of an "inherently prejudicial" nature. We assume, however, that this was, and conclude, on the basis of Mathis, that the Commonwealth has made a showing sufficient to rebut relator's prima facie case.
The evidence against the two defendants was circumstantial. Both men were seen at the place of the burglary on the evening of the crime. Several hours later, they were apprehended in Baltimore, Maryland on a traffic violation while driving a car, in the partially open trunk of which was the stolen safe. In addition, Huntt had worked for the owner of the safe and had some familiarity with the premises.
Counsel for Huntt testified at the hearing that he had investigated all of Huntt's contentions that would be relevant to the defense. This is not a case where hasty preparation deprived the defendant of any possible defense or the presence of any witnesses otherwise available. Compare Twiford v. Peyton, 372 F.2d 670 (C.A.4, 1967), with United States ex rel. Kelley v. Rundle, 242 F. Supp. 708 (E.D.Pa.1965), aff'd 353 F.2d 214 (C.A.3, 1965). It was stipulated at the habeas corpus hearing that there were no alibi witnesses.
The relator suggests that an indication of the ineffectiveness of counsel was the failure to call the codefendant Weaver to testify, in the light of the fact that it was Huntt's contention that it was Weaver and not Huntt who was responsible for the crime and the presence of the safe in the trunk of Huntt's automobile. But defense counsel testified that he decided not to call Weaver after conferring with Weaver's attorney and learning what Weaver would say. Knowing what testimony he could expect from Huntt, defense counsel concluded that the testimony of Weaver would have been damaging to Huntt's case. Whether or not this decision might have been a strategic error is a question not before us. We do not sit to review trial tactics. In any case, if counsel erred in his judgment, and there is no evidence of this, it did not result from any haste in his appointment.
In spite of the fact that the relator was not denied the effective assistance of counsel we are constrained to indicate our disapproval of the fact that his counsel first conferred with him on the day of the trial. It is not only important that justice be done, but also that such procedures be used that it is apparent that justice is being done.
III. CO-DEFENDANT'S CHANGE OF PLEA TO GUILTY BEFORE THE JURY
On the first day of the trial, October 13, 1966, in open court before the jury, Weaver, Huntt's co-defendant, changed his plea of not guilty to guilty. No instruction was given to the jury, nor was any requested, that they should not consider Weaver's guilty plea as evidence of Huntt's guilt. Relator complains that this change of plea before the jury, absent an effort to cure the possible prejudice to the relator through judicial instruction or impanelling a new jury, constituted a denial of due process on the authority of Hudson v. State of North Carolina, 363 U.S. 697, 80 S. Ct. 1314, 4 L. Ed. 2d 1500 (1960).
Hudson was really a pre-Gideon right to counsel case involving three co-defendants. The relator and one co-defendant were without counsel when the trial began. Although counsel for the other co-defendant offered to represent all three shortly after the trial began, this was not permitted by the court because of a possible conflict of interest. At the conclusion of the state's case, a plea of guilty was tendered on behalf of the codefendant represented by counsel and upon its acceptance by the court, the only lawyer in the case then withdrew.
The Court pointed out that the petitioner was "left to go it alone" at the "moment of great potential prejudice" when the co-defendant's plea was entered and counsel withdrew. The Court also noted that "[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." Mr. Justice Stewart concluded:
"* * * 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 found himself when his codefendant pleaded guilty before the jury raised problems requiring professional knowledge and experience beyond a layman's ken. * * *" Hudson v. State of North Carolina, supra, at 703-704, 80 S. Ct. at 1318.
Huntt, of course, was represented by counsel at all stages of the trial. However, we think we must go further and inquire whether Weaver's plea under the circumstances resulted in a "failure to observe that fundamental fairness essential to the very concept of justice." Lisenba v. People of State of California, 314 U.S. 219, 236, 62 S. Ct. 280, 290, 86 L. Ed. 166 (1941). "[The] fact that a trial court error is prejudicial to defendant [does not] necessarily transform an otherwise fair trial into one which offends Fifth Amendment due process. It does not do so unless it has the effect of converting what was otherwise a fair trial into one which is repugnant to an enlightened system of justice." Vandergrift v. United States, 313 F.2d 93, 96 (C.A.9, 1963).
In our judgment, the error complained of here falls far short of reaching the stature of the constitutional concept of fundamental unfairness. Curiously enough, neither counsel's diligence nor our own research have turned up any authority on the precise question involved, i.e., whether a co-defendant's guilty plea before the jury, without more, makes the remaining defendant's trial constitutionally unfair. However, in Booth v. United States, 57 F.2d 192 (C.C.A.10, 1932), the trial court itself instructed the jury, inter alia, that certain of the named defendants had pled guilty, with no cautionary instruction and without objection or exception, as here. In affirming defendant's conviction, the court said, at page 197:
"* * * In the instruction complained of, the trial court advised the jury as to the disposition of the case as to certain defendants who had entered pleas of guilty, and as to the sustaining demurrers and motions for directed verdicts as to other defendants. No objections or exceptions were interposed to this instruction. It is the duty of a defendant to take his exceptions to the charge of the court in the presence of the jury before it retires to consider the verdict. * * *