Andrews v. Morris

• Decision Date: 13 February 1980
• Docket Number: No. 16168,16168
• Citation: 607 P.2d 816
• Parties: William ANDREWS, Plaintiff and Appellant, v. Lawrence MORRIS, Warden of the Utah State Prison, Defendant and Respondent.
• Court: Utah Supreme Court

Page 816

607 P.2d 816

William ANDREWS, Plaintiff and Appellant, v. Lawrence MORRIS, Warden of the Utah State Prison, Defendant

and Respondent.

No. 16168.

Supreme Court of Utah.

Feb. 13, 1980.

John T. Caine, Richard W. Giauque of Berman & Giauque, Salt Lake City, Timothy K. Ford, Seattle, Wash., for plaintiff and appellant.

Robert B. Hansen, Atty. Gen., Earl F. Dorius, Robert R. Wallace, Asst. Attys. Gen., Salt Lake City, for defendant and respondent.

HALL, Justice:

Appellant, William Andrews (hereinafter "Andrews"), appeals from the order of the Third Judicial District Court which dismissed his petition for postconviction relief. ¹ Said petition challenged his commitment under a sentence of death by shooting for murder in the first degree ² as being in violation of the Constitution of the United States. (Andrews asserts no violation of the Constitution of Utah although it affords similar, if not more extensive protections).

Andrews and a co-defendant, Dale S. Pierre, were convicted of a triple murder and robbery perpetrated on April 22, 1974, at the Hi-Fi shop in Ogden, Utah. The subsequent verdict of the jury ³ that they be sentenced to death was rendered and the court thereafter sentenced them to death by shooting. ⁴ Their unsuccessful appeals to this Court ⁵ resulted in the affirmance of their conviction and sentence and rehearings were subsequently denied. Their petitions for certiorari to the United States Supreme Court were also unsuccessful and have since been denied. Each defendant now seeks habeas corpus relief. See companion case, Pierre v. Morris, Utah, 607 P.2d 812, also filed this date.

In his petition for habeas corpus, Andrews urges two general contentions: (1) that the jury was predisposed to convict because of racial tensions which deprived him of a trial by a fair and impartial jury, and (2) that the death sentence violates the Constitution. Specifically, in support of the latter contention he urges:

A. That Utah's sentencing statutes ⁶ permit an arbitrary and discretionary imposition of the death penalty in violation of the constitutional principles enunciated in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

B. That the pattern of imposition of the death penalty in Utah and the United States reflects that the sentence of death is imposed so rarely and arbitrarily and discriminatorily as to violate constitutional principles, and again cites Furman v. Georgia.

C. That the imposition of the death penalty upon Andrews, he not having personally taken life or intended to take life, is unconstitutionally cruel and disproportionate to the crimes.

D. That execution of the sentence of death by shooting or hanging inflicts pain inconsistent with evolving standards of decency and is "cruel" and "unusual."

In his argument to the court below, Andrews delineated the issue presented as whether or not new, significant developments of fact or law have occurred since the taking of the direct appeal which have created issues that should now be litigated and which would not have been litigated in prior proceedings. He conceded that the racial issue, the issue as to the constitutionality of the sentencing statutes, and the issue as to whether the death penalty should be imposed upon one not having personally taken life or intended to take life, were substantially raised and addressed on the direct appeal.

Andrews conceded further that a collateral attack by way of habeas corpus may not be utilized as a substitute for, or a duplication of a direct appeal. ⁷ Nevertheless, he contends that there are certain constitutional rights yet to be adjudicated, and which have not been deliberately waived. ⁸

In support of his request for an evidentiary hearing, Andrews urged the applicability of certain cases which he termed "new," among which were: Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977); Presnell v. Georgia, 439 U.S. 14, 99 S.Ct. 235, 58 L.Ed.2d 207 (1978); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Roberts v. Louisiana, 431 U.S. 633, 97 S.Ct. 1993, 52 L.Ed.2d 637 (1977); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); and Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977).

The trial court recited that it had reviewed this Court's rulings on Andrews' and Pierre's direct appeals and remarked that "nearly every issue that could possibly be raised in a capital case except the . . . question of whether or not the death sentence is being imposed in a fair manner," had been raised and ruled upon. ⁹ The court also observed:

One thing that disturbs me is the fact that, regardless of our feeling about capital punishment, it seems that what you are urging is that in any situation where an individual is convicted and sentenced to death I guess we should wait over a few years period and see whether or not there are others that are so convicted and sentenced and then if it is not being imposed on an equal pattern then the man should have a stay and should have a new trial or something. I'm not sure I buy that theory but I'm willing to give it some consideration. I'm not sure that I have a right to even voice an opinion about it. The question is whether or not there is a new issue that should be considered and the only one that I can see is the one involving prosecutorial discretion as it affects the imposition of the death penalty so I'll consider it . . . .

The court thereafter made the following findings and conclusions, and based thereon, dismissed the petition:

1. No developments of fact or law material to the determination of the legality and constitutionality of the conviction and sentence of the Petitioner herein have occurred since the filing of Petitioner's direct appeal to the Utah Supreme Court and that Court's decision on that appeal.

2. All the issues regarding the constitutionality of the processes for death sentencing under Utah law, the constitutionality of the death sentences in Petitioner's case, and the effect of any alleged prejudicial publicity or influences on Petitioner's trial which are raised or could have been raised by this Petition are the same issues that Petitioner raised in his direct appeal to the Utah Supreme Court.

3. Petitioner's claim that Utah's death penalty law is being applied arbitrarily and discriminatorily fails to state a claim on which relief could be granted or on which a hearing need be held. Moreover, petitioner could and should have raised such issue on direct appeal.

4. Constitutional issues identical to those raised and decided on direct appeal cannot be raised again in collateral proceedings.

5. Constitutional challenges to the pattern of application of a criminal statute or the excessiveness of a criminal sentence which were not but could have been raised on direct appeal cannot be raised through collateral proceedings.

Andrews' assertions of error consist principally of the trial court's failure to afford an evidentiary hearing and its failure to apply new case law which he asserts provides a basis for habeas corpus relief. However, a further underlying issue emerges, and that is, whether or not the waiver doctrine heretofore followed in Utah remains viable, or whether it has been diminished by said Rule 65B(i). ¹⁰

This Court has traditionally applied a restrictive waiver doctrine, similar to the common law doctrine of the federal courts prior to Fay v. Noia, ¹¹ and has consistently held that a collateral attack by way of habeas corpus may not be utilized as a substitute for, or a duplication of, a direct appeal. Further, issues not raised on direct appeal, but that could have been raised, are barred. ¹²

In Brown v. Turner, ¹³ the proper scope and limitations upon the use of habeas corpus after conviction were summarized as:

. . . It (habeas corpus) is not a substitute for and cannot properly be treated as a regular appellate review (citation omitted). It is an extraordinary remedy which is properly invocable only when the court had no jurisdiction over the person or the offense, or where the requirements of law have been so disregarded that the party is substantially and effectively denied due process of law, or where some such fact is shown that it would be unconscionable not to re-examine the conviction. (Citing Bryant v. Turner, supra, footnote 7.)

Utah law ¹⁴ appears to be entirely consistent with the evolving federal law since Fay v. Noia. In Stone v. Powell, ¹⁵ the Court held that a state prisoner who asserted that his trial had been prejudiced by the admission of evidence procured in an illegal search and seizure should be denied federal habeas relief unless he could show that he had been denied a full and fair opportunity to litigate that claim in the state court. ¹⁶

The case of Wainwright v. Sykes ¹⁷ expressly limited Fay v. Noia. Wainwright addressed a factual matter having to do with the failure of defense counsel to make a contemporaneous objection to the admission of inculpatory statements in violation of Miranda rights. Under Florida law, said failure to object constituted a waiver of the right to raise the issue again through postconviction proceedings. The court reversed the circuit court and held that the procedural default constituted a waiver that would extend to the federal system. Thus it is seen that Wainwright establishes a "cause and prejudice" test of waiver narrower than the "knowing and intelligent" standard of Fay v. Noia, and places the burden of persuasion upon the petitioner.

The obvious focus of Wainwright was on the need for finality of convictions, a worthy endeavor, long recognized and focused upon by this Court.

The portion of Rule 65B(i) which pertains to prior adjudication of issues reads as follows:

(2) . . .

The complaint shall further state that the legality or constitutionality of his commitment or confinement has not already been adjudged in a prior habeas corpus or other...