Atchley v. Wilson

• Decision Date: 19 January 1968
• Docket Number: No. 46688.,46688.
• Citation: 300 F. Supp. 68
• Court: U.S. District Court — Northern District of California
• Parties: Veron ATCHLEY, Petitioner, v. Lawrence E. WILSON, Warden, California State Prison, San Quentin, California, Respondent.

300 F. Supp. 68

Veron ATCHLEY, Petitioner, v. Lawrence E. WILSON, Warden, California State Prison, San Quentin, California, Respondent.

No. 46688.

United States District Court N. D. California.

January 19, 1968.

Thomas C. Lynch, Atty. Gen. of California, San Francisco, Cal., for respondent.

Veron Atchley, in pro. per.

Charles Legge, Edwin W. Green, Bronson, Bronson & McKinnon, San Francisco, Cal., for petitioner.

MEMORANDUM OF DECISION ON PETITION FOR HABEAS CORPUS

PECKHAM, District Judge.

Veron Atchley brings this habeas corpus petition pursuant to 28 U.S.C. § 2241 et seq., to secure his release from an allegedly unconstitutional confinement in San Quentin State Prison. After having pleaded not guilty, he was convicted of first degree murder on January 7, 1959, and was sentenced to death. The California Supreme Court affirmed the conviction and sentence, People v. Atchley, 53 Cal.2d 160, 346 P. 2d 764 (1959). A writ of certiorari was granted but subsequently dismissed by the United States Supreme Court as having been improvidently granted. Atchley v. California, 366 U.S. 207, 81 S.Ct. 1051, 6 L.Ed.2d 233 (1961). Atchley's sentence was commuted to life imprisonment without possibility of parole in 1961, and was further commuted to allow parole in 1966.

In this application, petitioner primarily raises two constitutional claims. First, he argues that the procedure employed by the trial court for determining the voluntariness of petitioner's confession failed to satisfy federal constitutional standards. Secondly, he argues that the tape-recorded confession which was extracted from him was involuntary, and hence, inadmissible. At his trial and on his automatic appeal petitioner challenged the admissibility of his tape-recorded statements. Further, he alleges that all the grounds raised in this petition were presented in a habeas corpus petition to the California Supreme Court, which was denied on January 18, 1967, apparently without opinion. Under the rule announced in Castro v. Klinger, 373 F.2d 847 (9th Cir. 1967), petitioner has satisfied the exhaustion of remedies requirement of 28 U.S.C. § 2254 (1958), as amended 28 U. S.C. § 2254 (1966).

On March 9, 1967, an Order to Show Cause was issued by this Court. After respondent filed his return and a hearing was held, it was determined that counsel should be appointed and that a second non-evidentiary hearing should be held after further briefing by the parties. On September 28, 1967, the further hearing was held.

The facts upon which petitioner's claims are based can be briefly summarized. At Atchley's trial for the murder of his wife, the prosecution proposed to introduce a tape recording of a conversation between Atchley and one Ray J. Travers. Defense counsel requested, and the Court granted, a preliminary examination in chambers to permit defense counsel to state his objections to the introduction of the tape-recording. In chambers, the objection was made, among others, that Atchley's statements on the tape "were not given freely and voluntarily * * *." (Reporter's Transcript, Vol. IV, p. 942, 1.5 hereafter cited thusly: R.T. IV, 942, 1.5.) Defense counsel further objected because the defendant, when making the statements, was unaware that the conversation was being secretly recorded, or that Travers had been requested to elicit Atchley's statements by the Undersheriff, Officer Spann; the objection was also raised that "the defendant was tricked into making a declaration to his insurance broker Travers which he felt was a private and confidential communication to his broker concerning a policy of life insurance on the decedent; that it was not given to be transcribed or taken down." (R.T. IV, 942, 1. 24 — 943, 1.3.) The tape-recording was then played, in which Atchley admitted arming himself, concealing himself, watching and waiting for his wife, surprising her and firing several shots while the gun was in his hand.

At the outset of the recording, Travers told Atchley that "I won't write none of this down. I can remember. I don't want nothing on paper." (R.T. IV, 951, 1. 5-8; 953, 1. 4-9; 954, 1. 21-23.) Among other things, Atchley stated that from the time of his arrest at approximately 4:00 A.M. on August 3, until the conversation with Travers around noon on August 5, he had been kept "pretty well occupied * * * pretty well isolated." (R.T. IV, 956, 1. 23-24.) Further, Atchley indicated that he had been trying to get an attorney before the conversation with Travers. (R.T. IV, 1. 4-5.)

After the tape was finished and while still in chambers, defense counsel frequently renewed his objection that the statements elicited by Travers from Atchley constituted a confession and that they were not freely and voluntarily given. In response, the prosecutor stated that he would lay a foundation showing that the statements were freely and voluntarily given. The judge ruled that the statements on the tape "may approach the nature of a confession and that therefore before the tape is used I think the same foundation should be laid as is used for the introduction of a confession." (R.T. IV, 982, 1. 1-3; 986, 1. 5-11.)

With this in mind, two later rulings of the trial judge in chambers are significant. Defendant raised the objection that the tape contained a communication which Atchley intended to be private between himself and Travers, made for the definite purpose of helping the decedent's children, one of whom Atchley claimed was his, to recover under the decedent's life insurance policy. The trial judge ruled that such evidence would go to the weight but not to the admissibility of the tape (R.T. IV, 990, 1. 4-6). Secondly, defense counsel asked to recall the Undersheriff, Officer Spann, who allegedly had asked Travers to elicit the confession from Atchley, for cross-examination. The reason given was that "since this other matter has come up presumably the voluntariness issue * * * it would be extremely prejudicial to the defendant's case if I were not permitted to ask him before he the prosecution put the insurance agent on the stand * * *" (R.T. IV, 992, 1. 21-26). The Court apparently ruled that the cross examination would be limited to matters covered on direct examination (see R.T. IV, 994, 1. 5-8). The officer had not been examined in connection with the tape recording when he had been called earlier by the prosecution.

In the presence of the jury, at the hearing on the issue of voluntariness,¹ Travers testified that he had visited the jail in the morning of August 5 and conversed with Atchley at Atchley's request. After that conversation, Travers admitted that he was asked by the undersheriff to engage Atchley in a second conversation which would be recorded and that he complied with the request. Travers further testified that he offered no threat, promise or inducement to Atchley.

On cross examination, Travers acknowledged that he was a good friend and the insurance agent of Atchley. At this time defense counsel indicated that Atchley was unable to read or write, although these facts were not clearly established until later in the trial when Atchley took the stand in his own defense. It was also at this time that the trial judge in effect ruled that no constitutionally impermissible inducement could have occurred from the fact that Atchley had made his statements to Travers in the belief that Travers, in his capacity as insurance agent, was seeking information in order to protect the rights as beneficiaries of the decedent's children (R.T. IV, 1005, 1. 13-15). Moreover, when defense counsel offered to establish that Atchley had told Travers that he had requested a lawyer on numerous occasions from the sheriff's department and that he had not been permitted to talk with a lawyer prior to that time, the prosecution objected on the ground that "whether the man wanted a lawyer, had a lawyer or intended to get one has nothing to do with the freeness and voluntariness of the statement." (R.T. IV, 1009, 1. 22-25.) Sustaining the objection the trial judge ruled that whether Atchley "did or did not have a lawyer has no bearing on this particular point." (R.T. IV, 1010, 1. 19-22.) Further, the trial judge sustained another objection to questions relating to the conversation between the undersheriff and Travers on the ground that what the undersheriff Spann "may or may or not have said about this man, about what he wanted him to bring out on the tape. * * *" was irrelevant (R.T. IV, 1012, 1. 13-19). Finally, the Court sustained an objection on the grounds of irrelevance to the question whether or not Atchley knew that the conversation was being recorded. The tape was then played before the jury, and admitted into evidence, after the trial judge noted the objections of the defendant and stated that the court had ruled upon them.²

After the tape had been played and admitted, Travers was further cross examined by defense counsel. At this time he admitted that Atchley didn't have a lawyer and was trying to obtain one at the time he had made the statements which were recorded. Travers further admitted that he had been a deputy sheriff for three and one-half years, with experience in "homicides and all felonies", and that in questioning Atchley, he had followed a "general routine of asking questions, as a line of interrogation * * *" (R.T. IV, 1027, 1. 25 — 1028, 1.2).

In each ruling discussed above, the trial court excluded relevant and perhaps crucial evidence on the issue of whether the confession was voluntary. Evidence that the confession was extracted while the accused was attempting to get a lawyer, had been refused a lawyer, or merely had communicated to the police his desire to have a lawyer clearly bears on whether the confession was voluntary or whether the will of the accused was overborne. Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948 (1961); Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961).³ Moreover,...