Utsler v. Erickson

Citation440 F.2d 140
Decision Date23 April 1971
Docket NumberNo. 20511.,20511.
PartiesGilbert Arizona UTSLER, Appellant, v. Don R. ERICKSON, Warden of the South Dakota Penitentiary, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Richard Braithwaite, Braithwaite, Cadwell & Braithwaite, Sioux Falls, S. D., for appellant.

Gordon Mydland, Atty. Gen., William J. Srstka, Jr., Asst. Atty. Gen., for appellee.

Before VAN OOSTERHOUT, GIBSON and LAY, Circuit Judges.

GIBSON, Circuit Judge.

The petitioner Gilbert Arizona Utsler, a state prisoner, appeals from a denial of his federal habeas corpus petition in the United States District Court for South Dakota.

Petitioner was arrested and convicted in a jury trial of first degree robbery on October 4, 1966, and was sentenced to ten years imprisonment in the state penitentiary. No appeal was taken from this conviction. Post conviction relief was sought in the state court on November 13, 1968, and denied. This denial of relief was upheld by the South Dakota Supreme Court. Utsler v. South Dakota, 171 N.W.2d 739 (S.D.1969).1

The District Court, the Honorable Fred J. Nichol, denied the writ, 315 F. Supp. 480, holding that the provision for appointment of experts at public expense is within the discretion of the trial court and is not a matter of right, State v. Geelan, 80 S.D. 135, 120 N.W.2d 533 (1963); the furnishing of two experts at state expense under the circumstances was sufficient; the Sixth Amendment right to compulsory process "does not necessarily include the payment by the government of the expenses of witnesses" but leaves this matter to the discretion of the court. Feguer v. United States, 302 F.2d 214 (8th Cir.), cert. denied, 371 U.S. 872, 83 S.Ct. 123, 9 L.Ed.2d 110 (1968). Further, the initial question addressed to the petitioner was viewed as investigative and even if inadmissible "when viewed in the light of the evidence is clearly harmless," Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and finally the totality of the circumstances regarding the lineup procedure and identification were not so unfair as to be a denial of due process.

It is not the purpose of a habeas corpus proceeding to serve as an appeal from a criminal conviction. Errors or omissions in trial procedures are not to be fully reviewed on habeas corpus; only those errors constituting denial of federal constitutionally protected rights are justiciable (in a habeas proceeding contesting the legality of the detention). Atwell v. Arkansas, 426 F.2d 912, 915 (8th Cir. 1970); Durham v. Haynes, 368 F.2d 989 (8th Cir. 1966), cert. denied, 390 U.S. 959, 88 S.Ct. 1054, 19 L.Ed.2d 1154 (1968); Wilson v. Nebraska, 316 F.2d 84 (8th Cir. 1963).

Petitioner sought to advance in his state court trial the alleged defense of "involuntary intoxication." The trial court supplied the petitioner with counsel, with two examinations by state-employed psychiatrists and furnished expense money for petitioner's counsel to visit the Yankton State Hospital to investigate and discuss the matter of involuntary intoxication with the medical experts in that institution, but denied petitioner money to employ his own expert who allegedly for $50 would testify to the concept of "involuntary intoxication." The director of the Yankton State Hospital refused to allow petitioner's counsel to talk to the examining doctors because in his opinion there was no such condition or state as "involuntary intoxication." Copies of the examining physician's reports were made available to the petitioner and were filed in the case. Petitioner was advised by the trial court that he could call those physicians as witnesses, but petitioner did not see fit to do so.

Voluntary intoxication is not recognized as a defense in South Dakota, but may be shown to negative specific intent.2 Petitioner claimed involuntary intoxication at his trial, but there was no claim that the intoxication was introduced in petitioner's system by force rather than the usual compulsion associated with alcoholic addiction. Petitioner testified he drank two to five beers at a number of different taverns in Sioux Falls the night of the armed robbery.

After the robbery in Sioux Falls, South Dakota, law enforcement officers were alerted that a suspect might be driving a 1965 white Ford Mustang with California license plates. Such a car was stopped near Madison, South Dakota, and the officer asked the driver, who was the petitioner, if he had been in Sioux Falls. The answer, according to the police officer, was that he had just gone around the outskirts of Sioux Falls. At his trial petitioner denied making this statement and the police officer's testimony was used for impeachment purposes. No Miranda warnings were given. This was not a custodial interrogation according to the South Dakota Supreme Court but was merely a preliminary inquiry of a suspicious person. We think the South Dakota Supreme Court has fully and fairly considered this issue. The police in investigating a probable offense may ask preliminary questions on identification and the recent whereabouts of persons under suspicion in order to proceed with the investigation and quickly eliminate those who appear to be beyond suspicion. The police should be able to do this without accusing a person of committing a crime and thus possibly subjecting that person to an unfair accusation. And this type of questioning should be permitted without giving a recitation of the Miranda warnings.

Preliminary inquiry in the field is needed to immediately separate those individuals who by force of circumstances might give some indication of being connected with or having knowledge of an alleged offense from those who do not. The question asked did not seek to intimidate nor secure any admission or confession from the petitioner, but only sought to ascertain if further investigation should ensue. This was not a custodial interrogation. Also, under the recent case of Harris v. New York, 400 U.S. ___, 91 S.Ct. 643, 28 L.Ed.2d 1 (Feb. 24, 1971) any statement...

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  • State v. Santiago
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    ...Ark., 466 S.W.2d 478 (1971); Jorgenson v. People, Colo., 482 P.2d 962 (1971); State v. Iverson, 187 N.W.2d 1 (N.D.1971); Utsler v. Erickson, 440 F.2d 140 (8th Cir. 1971); Perez v. State, 466 S.W.2d 283 (Ct.Crim.App.Tex.1971).13 By final we mean those cases in which the judgment of convictio......
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    ...So.2d 233 (La.1973); Utsler v. State, 84 S.D. 360, 171 N.W.2d 739 (1969); Utsler v. Erickson, 315 F.Supp. 480 (D.S.D.1970), Aff'd, 440 F.2d 140 (8th Cir. 1971), Cert. den., 404 U.S. 956, 92 S.Ct. 319, 30 L.Ed.2d 272 (1971); San Miguel v. McCarthy, 8 Ariz.App. 323, 446 P.2d 22 (1968); Hought......
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    ...interrogated for the purpose of eliciting an incriminating statement" and the officer "was not seeking evidence."); Utsler v. Erickson, 440 F.2d 140, 143 (8th Cir.), cert. denied, 404 U.S. 956, 30 L.Ed.2d 272 (1971) ("The question asked did not seek to . . . secure any admission or confessi......
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    ...competent psychiatric assistence from either state-designated physicians, Utsler v. Erickson, 315 F.Supp. 480 (D.S.D.1970), Aff'd, 440 F.2d 140 (8th Cir. 1971), Cert. den., 404 U.S. 956, 92 S.Ct. 319, 30 L.Ed.2d 272 (1971); McGarty v. O'Brien, 188 F.2d 151 (1st Cir. 1951), Cert. den., 341 U......
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