Allen, In re, Cr. 5731
| Decision Date | 28 September 1956 |
| Docket Number | Cr. 5731 |
| Citation | 301 P.2d 577,47 Cal.2d 55 |
| Parties | In re John ALLEN and Louis F. Smith on Habeas Corpus. |
| Court | California Supreme Court |
Valentine C. Hammack, San Francisco, and Sidney Feinberg, San Francisco, for appellants.
Edmund G. Brown, Atty. Gen., Clarence A. Linn, Chief Asst. Atty. Gen., Arlo E. Smith and William M. Bennett, Deputy Attys. Gen., for respondent.
In 1950, petitioners Louis F. Smith and John Allen, inmates of Folsom prison, were convicted of murdering a fellow prisoner named Borton and of violating Penal Code section 4500, which makes it a crime for a person serving a life sentence to assault another with a deadly weapon. They were sentenced to death for each offense, and the judgments of conviction and orders denying a new trial were affirmed by this court. People v. Smith, 36 Cal.2d 444, 224 P.2d 719. Petitioners seek a writ of habeas corpus on the theory that they were denied due process of law.
The petition charges that a prisoner named Biersdorff testified falsely in response to promises of release made by Warden Heinze of Folsom Prison, that he was coached in his false testimony by a deputy district attorney, that as a result of deliberate fraud, or because of the persuasive influence, amounting to duress, of these officials, Biersdorff testified falsely at the trial in identifying petitioners, and that the jury, the court and defense attorneys were thereby misled into believing that petitioners had committed the assault. The petition also alleges that, because of false information given by Biersdorff, the state officials did not make a full investigation and failed to discover the actual perpetrators of the assault, convicts Patterson and Mullen, who confessed to the crime after petitioners had been convicted.
An order to show cause was issued, and Honorable John P. McMurray, judge of the Superior Court of Inyo County, was appointed referee to hear evidence relating to petitioners' charges. 1 Hearings were held at which several witnesses, including petitioners, appeared and testified. Among the documents received in evidence were an affidavit by Biersdorff, the witness who assertedly committed perjury, and confessions by convicts Mullen and Patterson. It was stipulated that the referee might consider the transcripts and exhibits from the prior trial. On the basis of this record the referee made findings of fact to the effect that no witness who testified at the trial committed perjury, that, there being no perjury committed, no representative of the state suffered any testimony to be introduced knowing it was perjured and that no representative suppressed any evidence which would have been favorable to petitioners' defense. 2 Petitioners have excepted to these findings.
While not binding on this court, the findings of fact made by the referee are entitled to great weight since he had an opportunity to observe the demeanor of the witnesses when they testified. In re De La Roi, 27 Cal.2d 354, 364, 164 P.2d 10; In re Mitchell, 35 Cal.2d 849, 855, 221 P.2d 689. After a review of the record, we have concluded that the referee's decision is correct and that the evidence fully supports his findings.
A recital of some of the evidence in support of the judgment of conviction will make it easier to understand the evidence before the referee and to pass upon petitioners' contentions. The only eyewitness presented by the People at the trial was Biersdorff, who testified that, on the morning of October 11, 1949, he heard someone shout, 'Help, they're killing me,' and, looking in a window of the prison barbershop, he saw petitioners attacking Borton. He said that Allen hit Borton on the head several times with a hatchet, knocking him down, and that, while Allen was striking Borton with a hatchet, Smith was stabbing him with a knife. Biersdorff backed away from the window and saw petitioners leave the barbershop and go to an area at the rear of the shop where there were facilities for washing. Borton then staggered out of the building with a knife in his back.
Prison officers testified at the trial that they examined petitioners shortly after the crime and found that Smith had blood sports on his arm and Allen had a fresh cut on his hand. They had blood on their clothing of group A, which was Borton's blood type. A hatchet with blood on it was found in the barbershop, and a search revealed that a leg was missing from a low table in Smith's cell. A criminologist testified that in his opinion the hatchet handle was made from the missing leg, basing his conclusion on similarities between the handle and the remaining table legs as to length, paint layering and arrangement of mortices. The hatchet handle and the handle of the knife found in Borton's back were wrapped with the same kind of paper-backed Scotch masking tape and the torn ends matched, that is the outside end of the tape applied to the hatchet handle matched the inside end of the tape applied to the knife. There was also other evidence tending to connect petitioners with the crime.
Biersdorff's affidavit, which was executed after petitioners were convicted, was set forth as newly discovered evidence in connection with their motions for a new trial. He stated therein,
In our opinion in People v. Smith, 36 Cal.2d at page 449, 224 P.2d 719, we pointed out that Biersdorff did not state that on retrial he would retract any of his testimony, or that he did in fact testify falsely, or that any officer suggested to him that he tell anything about the case that was not the truth.
At the referee's hearing, Biersdorff denied the truth of the material parts of the affidavit, repeated substantially the same testimony he gave at the trial and insisted that at no place in his affidavit did he state that his testimony had been untrue. He claimed that before, during and after the trial he was subjected to threats and physical abuse by his fellow prisoners and that he made the affidavit because he was in fear of his life.
Deputy District Attorney McDonell testified that after the trial Biersdorff complained that he was being intimidated and that he, McDonell, became concerned as to whether Biersdorff had told the truth about what had occurred at the time of the killing. McDonell said that he questioned Biersdorff at length but never discovered anything which appeared 'to be a lie, as far as his testimony was concerned.' At McDonell's request, Dr. Toler, a psychiatrist, examined Biersdorff for about three hours and Dr. Toler concluded that the 'probabilities are that he is telling the truth.' Before argument on the motion for a new trial, McDonell advised the district attorney, the defense attorneys and the trial judge of his concern as to whether Biersdorff had told the truth at the trial. As a...
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