Griffith v. Rhay

• Decision Date: 12 September 1960
• Docket Number: No. 16705.,16705.
• Citation: 282 F.2d 711
• Parties: Henry M. GRIFFITH, Appellant, v. B. J. RHAY, as Superintendent of the Washington State Penitentiary at Walla Walla, Washington, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

282 F.2d 711 (1960)

Henry M. GRIFFITH, Appellant, v. B. J. RHAY, as Superintendent of the Washington State Penitentiary at Walla Walla, Washington, Appellee.

No. 16705.

United States Court of Appeals Ninth Circuit.

September 12, 1960.

R. Max Etter, Spokane, Wash., for appellant.

John J. O'Connell, Atty. Gen., Stephen C. Way, Asst. Atty. Gen., Olympia, Wash., Gordon Swyter, Pros. Atty., Edward Cross, Deputy Pros. Atty., Ritzville, Wash., for appellee.

Before ORR, HAMLEY and HAMLIN, Circuit Judges.

HAMLEY, Circuit Judge.

Henry M. Griffith appeals from a district court order denying his application for a writ of habeas corpus. He is in the custody of the warden of Washington State Penitentiary under a death sentence following his conviction in the state court on a charge of murder in the first degree. The opinion of the district court is reported in 177 F.Supp. 386.

Griffith argues here that the district court erred in rejecting his contention that he was deprived of due process of law in the state trial court proceedings. Specifically, it is urged that the trial court should not have received in evidence a signed confession obtained while Griffith was assertedly under the influence of drugs, and while he was without the assistance of counsel. Question is also raised concerning the manner in which the jury was required to function in evaluating the weight to be accorded this confession and testimony relative to certain oral admissions.

Griffith has not raised this latter question in any state court proceeding. Since he has failed to exhaust his state court remedies the district court and this court are without jurisdiction to grant relief on that ground, however meritorious it may be. See 28 U.S.C.A. § 2254.¹

Concerning the questions raised with regard to the voluntariness of the signed confession and the lack of counsel at the time it was given Griffith has exhausted the remedies available in the courts of Washington. He did so by raising these questions in a petition for a writ of habeas corpus filed in the Washington Supreme Court on May 25, 1959. That petition was denied on the same day, without hearing, in an unreported order. The Supreme Court of the United States thereafter denied a petition for certiorari to review this order. Griffith v. Rhay, 359 U.S. 1015, 79 S.Ct. 1156, 3 L.Ed.2d 1039, rehearing denied, 360 U.S. 941, 79 S.Ct. 1464, 3 L.Ed.2d 1553.²

The evidence summarized below is relevant to the questions pertaining to the signed confession. On October 4, 1956, A. B. Davis of Lind, Washington, was shot to death in a field near that city under circumstances which indicated murder. A prompt investigation led to the giving of a state alarm for the apprehension of Griffith as the suspected murderer.

The district court opinion contains this statement concerning the background of Griffith, who was then nineteen years of age:

"* * * He had received little formal education. His childhood was unhappy and insecure. His stay in foster homes was necessary because his father abandoned the family and his mother suffered a nervous breakdown, requiring her hospitalization. He was in the army and went AWOL after boot training. He was sent to the state reformatory for forgery, and was on parole from that institution when he was arrested and charged with the crime of which he now stands convicted. The emotional instability of petitioner is shown by the testimony of his witnesses at the trial." 177 F.Supp. 388.

Late on the night of October 6, 1956, two days after the murder, a man was found lying on the shoulder of a street in Spokane, Washington. He was suffering from a self-inflicted bullet wound in the abdomen. The Spokane County sheriff's office was notified. Deputy Sheriff Warren Adams and two other officers responded to the call. Adams identified the wounded man as Griffith. Griffith was taken by ambulance to Sacred Heart Hospital in Spokane.³

Upon his arrival at the hospital in the early morning of October 7 Griffith was bleeding and in critical condition. Emergency surgery requiring from three and one half to four hours was performed. Griffith remained in a critical condition all of that day.

According to the testimony of Dr. William Albi who performed the operation, Griffith was in a "stuporous" condition the remainder of that day but he could feel pain. A catheter had been placed in his bladder to keep it drained. A tube had been placed in his nose to empty stomach secretions. Oxygen was administered, he received a transfusion of five pints of blood, and food was given intravenously using the arms alternately. He was also under sedation, as described below.⁴

Griffith did not progress rapidly after the operation. Dr. Albi testified that his condition probably "regressed." Four additional serious operations were required, the first of these on October 24, 1956, and the last on December 2, 1956. According to the hospital report, one of these operations, which was for the removal of a kidney, was performed "because of the recurrent and steady loss of blood which kept the patient's condition constantly at low tide, seriously affecting his vitality, thinking and power to recuperate."

To relieve pain following the operation a narcotic and analgesic drug known as demerol was administered from time to time. Except for an initial dose of 100 mgms, dosages of 75 mgms were given between October 7 and 15, 1956, as indicated in the margin.⁵

The initial effect of demerol is felt in five to fifteen minutes after injection, the maximum in one-half to two hours. No effect remains after three to three and one-half hours. The medical testimony concerning the effect these dosages of demerol had on Griffith is dealt with below.

While at the hospital Griffith was guarded but not held incommunicado. He had nurses in attendance frequently. His doctor saw him twice a day. He was often visited by his mother and grandmother who were afforded the opportunity to advise him. At no time during this period did he have or request to have the services of an attorney. An information charging Griffith with the crime of murder in the first degree was filed against him on October 8, 1956.

The oral statements which were thereafter typed, signed and received in evidence as a confession were made by Griffith on the afternoon of October 11, 1956. At 3:00 o'clock that morning Griffith had been given 75 mgms of demerol to relieve lower abdominal pains. All of the tubes and attachments had been removed from Griffith except the tube which was necessary to continue intravenous feeding. It was noted on his hospital record that Griffith was having a "good day." However, a few minutes after 2:00 p. m. he again complained of abdominal pains. Before a further dosage of demerol could be given, the prosecuting attorney of Adams County in company with a stenographer and two detectives from the sheriff's office entered Griffith's hospital room, with the permission of the doctor, for the purpose of interviewing him. Before the questioning got underway, however, the nurse on duty asked them to step out of the room while she gave Griffith another 75 mgms of demerol. Five minutes later the questioning began.

The evidence is in dispute as to Griffith's condition at just this time. The nurse testified that he seemed drowsy, in quite a bit of pain, and "not real alert." Asked if Griffith responded to her questions the nurse stated, "Henry would shake his head and maybe say yes or no. He wouldn't answer long sentences. * * * If you said how do you feel, Henry, and maybe shook him he would respond in some way."

Detective James D. Allen, who was present during the interrogation on that day, testified that Griffith was coherent and readily answered questions. Adams testified that Griffith's answers were responsive, and he was evidently aware of his surroundings and what was taking place. The stenographer testified to the same effect.

At the outset of the questioning the prosecuting attorney identified himself to Griffith, told Griffith that he was charged with murder in the first degree, and warned him that anything he said could be used against him. Griffith, however, was not told that he did not have to answer. Nor was he asked if he had an attorney or wished to consult an attorney, or advised that one would be provided without expense to himself if desired. Griffith did not request the services of an attorney.

A stenographic record of the interrogation was made. After being transcribed the written statement was taken to the hospital on October 15 by a notary public employed by the sheriff's office. She found Griffith in bed in a partially elevated position, smoking and reading. He was handed the statement to read and thereafter under oath signed it.

This written statement received in evidence over objection as state's exhibit 19 purports to be a complete confession of the crime, numerous details being given.⁶ The answers given by Griffith, as recorded in this statement, appear to be responsive to the questions and no lack of coherence is apparent. Griffith could not recall certain details. In response to seven different questions he said "I don't know," or words to that effect. This inability to recollect some details, however, may not have been caused by the demerol or Griffith's physical condition.

Three doctors testified as to the effect of demerol upon the ability of one, and especially a person in Griffith's then condition, to give a voluntary and reliable confession. One of these was Dr. Albi who testified at the state trial. The other two were Dr. H. M. Rodney and Dr. O. Charles Olson who testified at the district court hearing in this habeas corpus proceeding.

For the most part the doctors seemed to be in agreement that the reliability of Griffith's hospital confession was not affected by the fact that demerol had been administered a few minutes before. The doctors, however, were in sharp dispute as to whether under these...