282 F.2d 711 (9th Cir. 1960), 16705, Griffith v. Rhay

Docket Nº:16705.
Citation:282 F.2d 711
Party Name:Henry M. GRIFFITH, Appellant, v. B. J. RHAY, as Superintendent of the Washington State penitentiary at Walla Walla, Washington, Appellee.
Case Date:September 12, 1960
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 711

282 F.2d 711 (9th Cir. 1960)

Henry M. GRIFFITH, Appellant,


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

Page 712

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

Page 713

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

Page 714

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 of October 24, 1956, and the last on December 2, 1956. According to the hospital report, on 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 law 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...

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