Arnold v. McCarthy

• Citation: 566 F.2d 1377
• Decision Date: 13 January 1978
• Docket Number: No. 76-1421,76-1421
• Parties: Jerry Allen ARNOLD, Petitioner-Appellee, v. D. J. McCARTHY, Superintendent, California Men's Colony, Respondent-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1377

566 F.2d 1377

Jerry Allen ARNOLD, Petitioner-Appellee, v. D. J. McCARTHY, Superintendent, California Men's Colony Respondent-Appellant.

No. 76-1421.

United States Court of Appeals Ninth Circuit.

Jan. 13, 1978.

Jack T. Kerry, Deputy Atty. Gen. (argued), Los Angeles, Cal., for respondent-appellant.

James S. Russell (argued), Los Angeles, Cal., for petitioner-appellee.

Appeal from the United States District Court from the Central District of California.

Before ELY and CARTER, Circuit Judges, and ENRIGHT, ^* District Judge.

JAMES M. CARTER, Circuit Judge:

This is an appeal by the State of California represented by D. J. McCarthy, Superintendent of the California Men's Colony from Jerry Allen Arnold's successful plea in the district court for a Writ of Habeas Corpus. Appellant argues that neither the Due Process Clause generally, nor the speedy trial provisions of the Fifth Amendment were violated by the state's delay in bringing Arnold to trial for robbery and assault. Arnold contends that because of the length of the delay and the fact that before his second trial a critical witness died he was unduly prejudiced, warranting affirmance of the Writ. Additionally, Arnold argues that his right not to be placed more than once in jeopardy for the same offense was violated. We find no constitutional error justifying the grant of the petition for Habeas Corpus and reverse.

I. FACTS

A. The Crime.

In the evening of January 17, 1968, Arnold was involved in an altercation in a local bar in Santa Barbara. The bartender, Russel Walthers, requested the police to instruct Arnold not to return to the bar again that night. The police complied. At approximately 2:00 a. m. the next morning, as Walthers was closing up the bar, he was brutally assaulted and robbed. Walthers told the police and later testified at trial that Arnold was his assailant. During the robbery Walthers was robbed of his Bulova watch with a flex-band and $155.00 in cash. The officers at the scene found a different watch with a black watchband on the floor in the bar.

Earlier police bookings of Arnold showed that in 1967 he had possessed a watch and watchband similar to that found at the scene of the crime, although evidence also showed that in bookings after the robbery Arnold possessed a Timex watch, not the suspected Bulova.

James Locut, a cousin of Arnold who lives in Oklahoma, saw Arnold at Locut's mother's residence on January 20, 1968, two days after the robbery. He noticed that Arnold's hands were swollen around the fingers. Arnold maintained the bruises and the swelling were the result of a fight he had with a man who owed him money and that he had left town for a few days to let things settle down.

B. Procedural History.

On January 18, 1968, the day of the crime, a complaint was filed against Arnold for robbery and assault with a deadly weapon, in violation of California Penal Code §§ 211 and 245. A warrant for his arrest was issued, but was not served. He was first incarcerated on May 29, 1968, on an unrelated charge of murder. Although he was in state custody pursuant to this murder charge, Arnold was not arrested and arraigned on the robbery-assault charges until January 2, 1969, almost one year after filing of the complaint. On January 28, 1969, he was held to answer on the robbery-assault charges at his preliminary hearing.

Trial on the robbery-assault charges was continued because of the superseding murder trial. In March 1969, Arnold was convicted of the unrelated murder charge and sentenced to life in prison. The robbery-assault case was continued on motion of the prosecution due to the murder conviction. However, Arnold demanded a speedy trial on these charges in April 1969. In July 1969, his trial for robbery-assault was set for October 1969.

On October 29, 1969, trial was held, but resulted in a mistrial due to the failure of the jury to reach a verdict. At this point, on November 4, 1969, the state moved for and received a dismissal of the charges. The state's reasons were (1) that it was satisfied with the fact that Arnold was incarcerated on the murder charge, and (2) that as the case presently stood there was not enough evidence to convict on the robbery-assault charges.

Nevertheless, Arnold had appealed his murder conviction and obtained a retrial. On November 4, 1970, he was retried and acquitted of the murder charge. Immediately, on November 6, 1970, the state filed a second complaint against Arnold on the prior-dismissed robbery-assault charges. On the same day Arnold filed a motion to dismiss based on speedy trial grounds. Arnold was released on bail on December 1, 1970. On December 21, 1970, he was held to answer at a preliminary hearing at which the victim, Walthers, testified. (This is the third time Walthers had testified. He testified first at Arnold's original preliminary hearing, next at the trial which ended in the hung jury, and finally at the second preliminary hearing.)

The trial was scheduled for February 17, 1971, but on January 18, 1971, the prosecution's major witness, bartender Russel Walthers, died unexpectedly in a fall in a prison cell. Arnold immediately moved in a state court for a Writ of Prohibition to prevent the trial. Trial was continued pending disposition of the motion. See Arnold v. Superior Court, 16 Cal.App.3d 984, 94 Cal.Rptr. 589 (1971). Upon denial of the writ on April 22, 1971, Arnold appealed to the California Supreme Court. That court sustained the denial of the writ and retrial was finally held on July 26, 1971. On August 3, 1971, he was found guilty of robbery in the first degree with intent and having in fact inflicted great bodily injury.

Arnold filed successive petitions for Writs of Habeas Corpus in the Superior Court of Sacramento County, the Third Appellate District of the California Court of Appeal, and in the California Supreme Court. Each petition was denied without opinion.

C. Disposition of Petition for Federal Writ of Habeas Corpus.

After exhausting his state remedies appellee Arnold sought a Writ of Habeas Corpus in the United States District Court, Central District of California. He argued that he had twice been placed in jeopardy in violation of the Fifth Amendment and that his right to a speedy trial under the Sixth Amendment had been infringed.

The district judge, granting the Writ, ruled:

"(T)he delay between the first and second trials for robbery caused substantial prejudice to the petitioner's right to a fair trial within the meaning of the Due Process Clause of the Fourteenth Amendment. I am not prepared to go so far as to say that the second prosecution was in bad faith, but such a criticism would not be altogether unjustified."

The judge found prejudice because the victim (and major witness) had died before trial, necessitating that his testimony from the first trial be read into the record at the second. Even though the witness was a prosecution witness, the judge held that the jury should have had the opportunity to observe him to make a firsthand determination of his credibility.

II. ISSUES

A. Were Arnold's due process or speedy trial rights violated because of the delay in bringing him to trial?

B. Did the reprosecution of Arnold after the mistrial and dismissal constitute a violation of his Fifth Amendment right against double jeopardy?

III. DISCUSSION

A. Due Process and Speedy Trial.

The Constitution provides two separate safeguards against delay in the different stages of the investigation and prosecution of a crime. In the pre-indictment or pre-arrest stage delay is tested by the general proscriptions of due process. Because of statutory safeguards in the form of statutes of limitation, "the Due Process Clause has a limited role to play in protecting against oppressive delay." United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977). Pre-indictment delay is permissible unless it violates "fundamental conceptions of justice which lie at the base of our civil and political institutions," Rochin v. California, 342 U.S. 165, 173, 72 S.Ct. 205, 96 L.Ed. 183 (1952). See also United States v. Lovasco supra, 431 U.S. at 790, 97 S.Ct. 2044, 2049. Ham v. South Carolina, 409 U.S. 524, 526, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973); Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 86 L.Ed. 166 (1941); Hebert v. Louisiana, 272 U.S. 312, 316 (1926); Hurtado v. California, 110 U.S. 516, 535, 4 S.Ct. 111, 28 L.Ed. 232 (1884).

But once a person becomes "accused" the more stringent requirements of the Sixth Amendment speedy trial right apply. One becomes "accused" when there is "either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge . . . ." United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971). (Emphasis added). At this stage, although standards are still imprecise, the courts have been more willing to find delay to be constitutionally impermissible.

This case is complicated because it presents issues of delay encompassing both the pre-arrest and the "accused" stages. After a normal investigation and prosecution of the case to trial, a mistrial and dismissal occurred. Then the process repeated itself, resulting in further investigation and a new trial, this time ending with a guilty verdict. Arnold asks us to lump together the delay incurred by him during his two trials and test the whole period under the stricter speedy trial standards. This we cannot do. The procedural history of this case breaks down into four distinct periods, bringing into play at varying points both the due process and speedy trial provisions of the Constitution. Our review of each period in turn shows that there was no delay or prejudice which justifies granting the Writ of Habeas Corpus.

1. Period 1: The Initial pre-Arrest Stage (January 18, 1968 to January 2, 1969).

On January 18, 1968, the crime took place and the original...