Chessman v. Teets

• Decision Date: 28 November 1956
• Docket Number: No. 15092.,15092.
• Citation: 239 F.2d 205
• Parties: Caryl CHESSMAN, Appellant, v. Harley O. TEETS, Warden, California State Prison, San Quentin, California, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

239 F.2d 205 (1956)

Caryl CHESSMAN, Appellant, v. Harley O. TEETS, Warden, California State Prison, San Quentin, California, Appellee.

No. 15092.

United States Court of Appeals Ninth Circuit.

October 18, 1956.

Rehearing Denied November 20, 1956.

Opinions on Denial of Rehearing November 27 and November 28, 1956.

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George T. Davis, San Francisco, Cal., Rosalie S. Asher, Sacramento, Cal., Caryl Chessman, in pro. per., for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Arlo E. Smith, Deputy Atty. Gen., State of Cal., for appellee.

Before DENMAN, Chief Judge, and LEMMON and HAMLEY, Circuit Judges.

HAMLEY, Circuit Judge.

This is an appeal from an order denying Caryl Chessman's eleventh application for a writ of habeas corpus.

He was convicted on May 21, 1948, of seventeen felonies.¹ Two sentences of death and fifteen sentences of imprisonment were entered on June 25, 1948. Following denial of his motion for a new trial, Chessman appealed to the California supreme court.

While this appeal was pending, appellant instituted several proceedings challenging the accuracy and completeness of the transcript on appeal and the validity of the proceedings in which it had been settled.² Most of these proceedings revolved around the fact that after the trial, the court reporter died before completing his transcript of the testimony. The transcript was completed by another court reporter, and certified after a hearing whch appellant was not permitted to attend.

For the most part, appellant was unsuccessful in these early efforts to invalidate or augment the transcript. He did, however, obtain inclusion in the transcript of the voir dire examination of the jurors and the opening statement of the prosecuting attorney. People v. Chessman, 35 Cal.2d 455, 218 P.2d 769, 19 A.L.R.2d 1084, certiorari denied 340 U.S. 840, 71 S.Ct. 29, 95 L.Ed. 616.

The judgments and order were affirmed on the merits by the California supreme court on December 18, 1951. People v. Chessman, 38 Cal.2d 166, 238 P.2d 1001, certiorari denied 343 U.S. 915, 72 S.Ct. 650, 96 L.Ed. 1330, petition for rehearing denied 343 U.S. 937, 72 S.Ct. 773, 96 L.Ed. 1344.

Since then, and prior to the filing of the instant application, Chessman unsuccessfully prosecuted several proceedings in state and federal courts in an effort to obtain release from custody, or to gain a new trial.³ Execution has several times been stayed to enable Chessman to pursue these remedies.

The application for a writ of habeas corpus now before us was filed on December 30, 1954.⁴ In it, Chessman alleged that the transcript on appeal had been fraudulently prepared, as a result of which erroneous and prejudicial instructions and comments to the jury had been omitted from the transcript. He also alleged that he had not been afforded effective representation of counsel in the matter of settling the transcript, and had been deprived of the right to be present at the hearing on the settlement of the transcript.⁵

On January 4, 1955, the district court, without a hearing, summarily denied the application as repetitious and completely without merit. In re Chessman, D.C., 128 F.Supp. 600. A certificate of probable cause was obtained from a judge of this court. In re Chessman, 9 Cir., 219 F.2d 162. On appeal, however, we affirmed. Chessman v. Teets, 9 Cir., 221 F.2d 276. The United States Supreme Court granted certiorari, reversed the judgment, and remanded the case to the district court for a hearing.⁶

Pursuant to the mandate of the Supreme Court, a writ of habeas corpus was issued on November 30, 1955, returnable on December 8, 1955. On the latter date, the case was set for trial on January 9, 1956, but was later continued to January 16, 1956. The hearing consumed seven and a fraction days, and was concluded on January 25, 1956.

On January 31, 1956, an opinion, findings of fact, and conclusions of law were entered, to the effect that appellant had failed to sustain the allegations of his application. Judgment discharging the writ was accordingly entered on that day. Chessman v. Teets, D.C., 138 F. Supp. 761. An application for a certificate of probable cause was granted by a judge of this court, thereby sanctioning this appeal.

The only allegation of the application regarding which the Supreme Court, in reversing and remanding, indicated concern was that which charged that the transcript on appeal had been fraudulently prepared. The district court found that there was no factual basis for this allegation. It affirmatively found that the substitute reporter was exceptionally and especially competent to transcribe the deceased reporter's notes; that he did so with fairness and competency; and that a fair and correct record was certified. It also found that no erroneous instructions or comments had been omitted from the transcript, as no such instructions had been given or comments made.

On appeal, Chessman does not directly challenge any of these findings. He contends, however, that in the proceedings under review, the district court denied him "that type of full and fair hearing ordered by the Supreme Court."

In support of this contention, appellant advances seven specific objections as to the conduct of the habeas corpus hearing. The first of these is that the trial court erroneously refused to permit the taking of depositions of material witnesses, or to order their production.

The persons whom appellant desired to subpoena, or to have their deposition taken, reside in the Los Angeles area. Hence, the trial court, which is the district court for the Northern District of California, Southern Division, was without authority to subpoena these persons to appear at the trial.⁷

No order was required to enable appellant to take the depositions of the named Los Angeles residents.⁸

On January 19, after the trial had been in progress four days, appellant moved for a two-week continuance, so that the depositions of eleven Los Angeles residents could be taken. The affidavit supporting this motion outlined the character of the testimony which each of these witnesses would give.⁹ On January 24, 1956, one day before the close of the trial, appellant moved for a two-week continuance. He desired the continuance so that he might endeavor to arrange for the appearance of some of the Los Angeles witnesses, or find additional witnesses. These motions were denied.

Some of the proffered testimony was patently hearsay, some was cumulative, and some was of doubtful relevancy. No sufficient showing was made as to why any admissible and necessary testimony could not have been obtained by deposition prior to the trial. Appellant was aided by counsel throughout, and had from November 30, 1955, to January 16, 1956, to prepare his case. Despite the denial of these motions, appellant produced seven witnesses and offered twenty-two exhibits, twenty of which were received in evidence.

We hold that the trial court did not abuse its discretion in denying these motions for a continuance made during the course of the trial.¹⁰

Concerning the conduct of the habeas corpus hearing, appellant next argues that the district court deprived him of a full and fair hearing by too narrowly restricting, or excluding, the evidence which he sought to produce. Four instances are relied upon in support of this contention:

First. The first such instance has to do with the question of whether the notes of the deceased court reporter were decipherable with a reasonable degree of accuracy. Appellant calls attention to some general statements of the court to the effect that it would not undertake to test the ability of the substitute reporter, or the accuracy of the questioned transcript.

General statements of this kind, unassociated with specific rulings excluding proffered evidence, present no question for review.

The only specific exclusion of testimony to which appellant calls attention relates to the court's refusal to require the substitute reporter to transcribe, from the witness stand, a particular page of the deceased reporter's notes. The witness stated that, because of the intervening years since he worked on the matter, he would need time to study the notes before attempting a transcription.

The court offered to have the witness do this overnight, or in an adjoining room while the trial was in progress. These were reasonable alternatives to appellant's proposal. Appellant rejected the suggestion for overnight study, and failed to avail himself of the suggestion that the study be made in an adjoining room. It follows that appellant is now in no position to complain because such a test was not made.

Second. Counsel for appellant asked the deputy district attorney who tried the original case whether the trial judge had told the witness that the transcript would be delivered to Chessman "in court." Objection to the question was sustained on the ground that it was immaterial.

The sustaining of this objection, if erroneous, was not prejudicial. Counsel for appellant got his answer to the question later in the trial, when the same witness testified that he had no recollection of such a statement by the trial judge. Still later in the trial, the trial judge testified that he had not made such a statement to the deputy district attorney.

Third. In the application for a writ of habeas corpus, it is alleged that the asserted fraud in preparing and certifying the transcript resulted in the omission of an erroneous instruction and an improper comment to the jury. Appellant now argues that, at the habeas corpus hearing, the court improperly limited to these two matters the testimony as to omissions and inaccuracies.

The court did make a general statement to the effect that the only omissions to be considered were those alleged in the application. Actually, however, the testimony was not so limited. Appellant was permitted...