310 F.2d 30 (9th Cir. 1962), 17583, Brubaker v. Dickson

Docket Nº:17583.
Citation:310 F.2d 30
Party Name:Charles Earl BRUBAKER, Appellant, v. Fred R. DICKSON, Warden of the California State Prison at San Quentin, California, Appellee.
Case Date:November 14, 1962
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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310 F.2d 30 (9th Cir. 1962)

Charles Earl BRUBAKER, Appellant,

v.

Fred R. DICKSON, Warden of the California State Prison at San Quentin, California, Appellee.

No. 17583.

United States Court of Appeals, Ninth Circuit.

November 14, 1962

Rehearing Denied Dec. 20, 1962.

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Quentin Ogren, Benjamin Kagan, and Stanley E. Tobin, Los Angeles, Cal., Marshall W. Krause, San Francisco, Cal., for appellant.

Stanley Mosk, Atty. Gen. of California, John S. McInerny, Deputy Atty. Gen., and Arlo E. Smith, San Francisco, Cal., for appellee.

Before BARNES, JERTBERG and BROWNING, Circuit Judges.

BROWNING, Circuit Judge.

Appellant was convicted in the Superior Court of Los Angeles County of murder in the first degree. He was sentenced to death. After exhausting state remedies, 1 appellant filed a petition for habeas corpus in the District Court. That court denied the petition after oral argument. Appellant then filed an identical petition in this Court. We declined to entertain it, transferring the application back to the District Court for 'hearing and determination.' 2 The District Court again dismissed the petition on oral argument, rejecting affidavits offered by both sides and declining to receive further evidence.

I.

Appellant alleged that he had been denied effective aid of counsel at his trial in the state court. He alleged that through lack of investigation and preparation his court-appointed trial counsel failed to discover and present substantial defenses which appellant had to the charge against him. These defenses were said to be (1) that at the time of the homicides appellant could not have had the specific intent required for first-degree murder; and (2) that certain confessions, which were the sole evidence of appellant's guilt,

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were obtained in violation of his constitutional rights. He further alleged that trial counsel inexcusably failed to discover and present evidence in mitigation of sentence, although substantial evidence was available.

In the court below, the State took the position that the petition for habeas corpus 'should be decided upon the basis of the Court's evaluation of the petitioner's allegations in the light of (the) record of the state court proceedings on file with this court.' The District Court adopted this view, and declined to receive additional evidence. The court entered an order stating that it had examined the petition, the return, the traverse, and the transcripts of the state court proceedings, and that there was 'nothing in the record' to sustain appellant's allegation that he had been denied effective aid of counsel.

We note at the outset that appellant's allegations of fact outside the trial record must be considered in determining whether the petition alleged a denial of appellant's constitutional right to the effective aid of counsel. 3 A contrary rule would fall short of protecting this right. When inadequate representation is alleged, the critical factual inquiry ordinarily relates to matters outside the trial record: whether the defendant had a defense which was not presented; whether trial counsel consulted sufficiently with the accused, and adequately investigated the facts and the law; whether the omissions charged to trial counsel resulted from inadequate preparation rather than from unwise choices of trial tactics and strategy. 4 If the petition, including appellant's allegations of fact outside the trial record, presents grounds which would entitle appellant to relief, he should be afforded an opportunity to support his allegations by proof. 5 With this in mind, we turn to the detailed allegations of the petition.

A. The factual allegations in support of a defense based upon appellant's mental

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state when the crime was committed may be summarized as follows.

Electroencephalographic (EEG) examinations made subsequent to appellant's conviction revealed organic brain damage. 6 His prior medical history contained episodes of head injury and infantile illness from which the brain damage could have resulted; 7 there were no such incidents subsequent to the homicides. Medical opinion indicated that the damage was such as to render appellant 'definitely seizure prone'; 8 and was 'of a type often associated with abnormal and otherwise unexplainable conduct.' 9 There was psychiatric opinion based upon post-conviction evaluations that appellant, while not 'insane,' had a compulsive personality marked by strong emotional instability. 10 There was substantial evidence of hypersensitivity to alcohol; 11 and the record established that immediately prior to the homicides appellant had drunk heavily. 12 There was competent medical opinion to support the view that, in the light of these and other factors, appellant was incapable of entertaining the specific intent required for first-degree murder at the time and in the circumstances of the homicides. 13

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  1. The following factual allegations were made in support of the inadmissibility of the confessions.

    Appellant was arrested on a Tuesday evening. He was taken to the police station and booked. He told the arresting officers he wished to contact an attorney; they said he could get his attorney 'later.' He repeated this request twice more in the course of the evening. The requests were denied. The following morning he again asked to see his attorney; the officers said, 'You'll see him.' 14

    Appellant was questioned briefly the evening of his arrest. The following day he was subjected to lie detector tests and questioned intermittently from about 9:00 a.m. until about 2:30 in the afternoon when he first confessed. This confession, much longer than those subsequently taken, was recorded, but was later destroyed and was not introduced at trial. After further questioning, a typewritten statement was prepared which appellant signed and which was introduced at trial. The questioning resumed the following day. A tape-recorded confession taken that afternoon was also introduced at trial.

    At the time of his arrest appellant was employed as a service station attendant. He had a tenth grade education, having failed the eleventh grade. He was thirty-nine years old. As noted, his personality was characterized by 'emotional instability' and 'neurotic and dissociative features.' 15 He did not know of his right to remain silent when questioned by the police. The officers did not advise him of his right; he was told that his interest lay in telling them his story fully and accurately before trial. 16

    From the final refusal of his request to contact a lawyer, appellant inferred that he would not be permitted to see a lawyer until he confessed. Before he confessed, one of the officers told him they had 'other ways' to make him talk, which appellant took as a threat of violence. Appellant states that he confessed in fear, and in ignorance of his rights; that he had no clear recollection of the critical events surrounding the commission of the crime, and that the details which appear in the recorded confessions were suggested to him by the officers as the way things must have happened. 17

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  2. The factual allegations in support of the contention that trial counsel failed to investigate and present appellant's defenses were as follows.

    Appellant's trial counsel, a Deputy Public Defender, was appointed shortly after arraignment. Appellant told trial counsel that he knew nothing of the law, and placed himself entirely in trial counsel's hands. 18 Trial counsel initially recommended to appellant that he plead guilty. In the three-and-a-half months between arraignment and trial, trial counsel saw appellant on three occasions for a total of about an hour. Two of the conferences were devoted largely to matters other than appellant's defense. 19

    Trial counsel was aware of appellant's history of head injury and extended unconsciousness and of the heavy drinking that occurred on the night of the homicide. 20 Nonetheless, he made no effort to elicit appellant's personal history, made no inquiries of appellant's family, friends or employers (although furnished the names by appellant), 21 and failed to arrange a private examination of appellant by an independent psychiatrist (although funds were available for that purpose), because he mistakenly supposed that the communications would ;not be privileged. 22 Trial counsel was told of the circumstances surrounding the taking of the confessions, including the refusal of appellant's prior requests for access to counsel, 23 but he did not pursue the matter. 24 Trial counsel did not exercise his right to obtain a copy of the initial recorded interrogation of appellant by the police, since destroyed, although it contained material of value to the defense. 25

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    The only evidence offered at trial to prove appellant's commission of the homicides was appellant's two confessions, but trial counsel made no effort to exclude them, announcing 'no objections' to the admission of the first, and stipulating to the admission of the second. When the State rested, appellant's trial counsel approached the bench with appellant, stating that he did not intend to put appellant on the stand and 'would like an expression of consent or lack of consent for the record at this time.' Appellant consented. Trial counsel then rested for the defense, calling no witnesses as to appellant's mental condition or any other matter. Trial counsel did not consult with appellant during the trial or between court sessions. 26

    Trial counsel argued in summation that appellant lacked the necessary intent for first-degree murder, relying entirely upon the immediate details of the crime as indicated in the confessions, and by the physical circumstances. None of the facts and contentions summarized...

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