Narten v. Eyman

• Decision Date: 13 June 1972
• Docket Number: No. 22249.,22249.
• Citation: 460 F.2d 184
• Parties: Karl Hines NARTEN, Appellant, v. Frank A. EYMAN, Superintendent of Arizona State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

460 F.2d 184

Karl Hines NARTEN, Appellant, v. Frank A. EYMAN, Superintendent of Arizona State Penitentiary, Appellee.

No. 22249.

United States Court of Appeals Ninth Circuit.

April 15, 1969.

Rehearing Denied June 13, 1972.

William H. Tinney (argued) and W. Edward Morgan, Tucson, Ariz., for appellant.

Carl Waag (argued) Asst. Atty. Gen., Darrell F. Smith, Atty. Gen., Gary K. Nelson, Asst. Atty. Gen., Phoenix, Ariz., for appellee.

Before POPE^*, HAMLEY and CARTER, Circuit Judges.

JAMES M. CARTER, Circuit Judge.

This is an appeal from a judgment of the district court, after hearing, denying a writ of habeas corpus sought by a state prisoner awaiting execution for the crime of murder, and serving a life sentence for the crime of assault with intent to commit murder. We affirm.

The appeal presents the following questions:

1. Did publicity, prior to and during the trial, deprive the appellant of a fair trial and an impartial jury in the trial of his case?

2. Was the prosecution of appellant, by information without an indictment by a grand jury, a violation of the Fifth Amendment of the United States Constitution?

3. Was there a denial of due process, equal protection, and the right not to plead guilty and demand a jury trial, where the state jury has the power to assess the death penalty in a capital case without hearing evidence solely in mitigation of punishment, while on a guilty plea to a state judge the court may hear such evidence?

4. Was the exclusion, under the M'Naghten rule, of expert testimony concerning appellant's alleged diminished mental capacity a violation of due process?

5. Was there a violation of a privileged communication between appellant and his wife, and was the statement inadmissible due to lack of counsel?

Appellant, Karl Hines Narten, now imprisoned in the Arizona State Prison at Florence, Arizona, was charged in an information with first degree murder and assault with intent to commit murder. He went to trial on May 14, 1963, and was convicted of both counts by a jury which fixed the punishment for murder at death. On May 31, 1963, appellant was sentenced to be executed for the murder conviction and sentenced to life imprisonment for the assault conviction. Appellant's convictions and sentences were affirmed by the Arizona Supreme Court, State v. Narten, 99 Ariz. 116, 407 P.2d 81 (1965); the United States Supreme Court denied his application for writ of certiorari, Narten v. Arizona, 384 U.S. 1008, 86 S.Ct. 1985, 16 L.Ed.2d 1021 (1966).

Appellant thereafter filed a petition for writ of habeas corpus with the Arizona district court. The district court held a hearing, considered the evidence, and on June 20, 1967, denied the writ. Appellant now appeals.

On January 31, 1963, Rickel Hanson and his fiance Patricia Crosby were hiking in a remote area near Tucson, Arizona. As they were returning to their car, they had to pass an area where appellant was standing with a rifle in his hand. Hanson greeted appellant, who then shot him eight times, causing his death. Appellant then ordered Crosby to accompany him, threatening to kill her if she did not behave. He made several sexual advances to her; when she refused to co-operate, he shot her in the head and left. She recovered and identified appellant as her assailant and as the person who had killed Hanson.

I. FAIR TRIAL AND IMPARTIAL JURY

The command of the Sixth Amendment for a trial by an impartial jury is made applicable to the States through the Fourteenth Amendment, Parker v. Gladden, 385 U.S. 363, 364, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966). The United States Supreme Court has considered state convictions, where pretrial and trial publicity was present, under the Due Process clause of the Fourteenth Amendment. Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965) and Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). This court recently considered the problem of pretrial and trial publicity in Silverthorne v. United States, 400 F.2d 627 (9 Cir. 1968).

(a) Pretrial Publicity

Appellant argues that there was extensive publicity immediately following the commission of the crimes on January 31, 1963 and until the capture of appellant six days later. But appellant states the publicity "diminished gradually, although still comprehensive and extensive, until the conclusion of appellant's preliminary hearing on February 28, 1963. * * * During the months of March and April when appellant was awaiting trial, the publicity in the communication media dropped off to an insignificant degree."

This publicity appeared in newspapers, magazines, TV and radio. A record of this publicity was made before the state trial judge and was amplified in the hearing before the district court on the habeas corpus petition.

Three pulp magazines, two with dates of May and one of June 1963 contained purported factual accounts of the case. There were three editorials in local papers. On February 18, 1963, an editorial, "Pampering Criminals—Can be Criminal Neglect," urged capital punishment. On March 8, 1963, an editorial, "Crime, Punishment—and More Crime," urged that punishment in criminal cases be quick and certain. On May 12, 1963, an editorial, "Jurist Shows Excellent Reasoning," commented on a death sentence imposed by a California judge. None of the three mentioned appellant or his case.

In the early publicity, there were references to matters of which appellant now particularly complains,¹ but as the district court judge pointed out, these items appeared long before trial. It does not appear that defense counsel questioned any prospective juror about them during the voir dire.

Motions for change of venue and continuances were made prior to the voir dire of the jury panel. The motions were denied. The denial of a motion for a continuance

"was in the sound discretion of the trial court and a denial of such a motion, prior to the voir dire examination, is not an abuse of that discretion. United States v. Medlin, 353 F.2d 789 (6 Cir. 1965), cert. denied, 384 U.S. 973, 86 S.Ct. 1860, 16 L.Ed. 2d 683, reh. denied, 385 U.S. 889, 87 S.Ct. 14, 17 L.Ed.2d 123 (1966)."

Silverthorne v. United States, supra, p. 634. We think the same rule applies as well to the motion for change of venue. The effect of pretrial publicity can be "better determined after the voir dire examination of the jurors." United States v. Medlin, 353 F.2d 789, 792 (6 Cir. 1965), cert. denied 384 U.S. 973, 86 S.Ct. 1860, 16 L.Ed.2d 683.

(b) The Voir Dire Examinations

The voir dire examination was conducted first by the judge in very general terms and then by the prosecution and defense in turn, with questions to the individual jurors. The voir dire was exceedingly fair. Although some objections were sustained as to the form of defense questions and as to questions involving insanity, in no instance were defense counsel limited in the length of time taken by their examination, nor in the scope of their questions concerning what publicity the jurors had heard, seen or read. During their examination the defense counsel controlled the subject matter and the extent of questioning; they made no request to interrogate any juror in the absence of the other jurors.

After the voir dire was completed, and before the exercise of peremptory challenges, a motion for a continuance and a change of venue was again made. Such motions were made again after the state had concluded its case and the defense had begun to present its witnesses. Appellant renewed all motions after the presentation of the case by prosecutor and defense. They were again denied.

The voir dire took two and one-half days and covered 586 pages of transcript. Included were defense motions and other proceedings out of the presence of the prospective jury.

The prospective jurors, in response to inquiries as to what they recalled as to publicity from newspaper or TV, gave replies like "It's some time ago" or "It's dim in my mind" or "I couldn't tell you the details" or "I can't even recall the headlines." Several, knowing they were on a jury panel, stated they had made a conscious effort to avoid hearing or reading about the case. Others had working hours that left little time for conversation, reading or watching TV.

A total of 49 prospective jurors were questioned before peremptories were exercised; an additional 11 were examined in order to secure the 2 alternates.

Under the Arizona practice, the voir dire continues until 32 prospective jurors have been passed for cause. The peremptory challenges not exceeding 10 to a side, are then exercised and the first 12 jurors remaining become the jury panel. The transcript of the voir dire of the 32 prospective jurors passed for cause, shows that only a few were asked if they had read the editorials; all those to which the question was addressed, said they had not.

Similarly, only certain jurors were asked if they had seen or read the pulp magazines; all of whom inquiry was made stated they had not.

Of the 12 who eventually constituted the jury, 8 stated they had formed no opinion; 2 said they had formed previous opinions but did not have them at the time of questioning. The record is uncertain as to whether the remaining 2 had previously formed opinions; however, they had none at the time of the voir dire.

Midway through voir dire defense counsel challenged seven prospective jurors for cause on the ground they had previously formed an opinion as to the guilt or innocence of the appellant. The motion was denied. The challenge described the seven jurymen by number and not by name. Appellant contends that jurors Linner, McClure and Hardman were among the seven challenged, but were allowed to remain on the panel and sat on the case; this he contends constituted prejudicial error.

An examination of the voir dire transcript reveals that Hardman had not yet been examined at the time the above challenge was made; therefore, she could not have been...