Bates v. Nelson

• Decision Date: 07 January 1974
• Docket Number: 71-3043.,No. 71-3042,71-3042
• Citation: 485 F.2d 90
• Parties: Clyde BATES, Plaintiff-Appellant, v. Louis S. NELSON, Warden of San Quentin Prison at San Quentin, California, Defendant-Appellee. Manuel Joe CHAVEZ, Plaintiff-Appellant, v. Louis S. NELSON, Warden of San Quentin Prison at San Quentin, California, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

485 F.2d 90 (1974)

Clyde BATES, Plaintiff-Appellant, v. Louis S. NELSON, Warden of San Quentin Prison at San Quentin, California, Defendant-Appellee.

Manuel Joe CHAVEZ, Plaintiff-Appellant, v. Louis S. NELSON, Warden of San Quentin Prison at San Quentin, California, Defendant-Appellee.

Nos. 71-3042, 71-3043.

United States Court of Appeals, Ninth Circuit.

August 9, 1973.

Certiorari Denied January 7, 1974.

Ezra Hendon (argued), Berkeley, Cal., for plaintiff-appellant Bates.

Roderick P. Bushnell (argued), Bushnell & Caplan, San Francisco, Cal., for plaintiff-appellant Chavez.

Charles R. B. Kirk, Deputy Atty. Gen. (argued), Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Joyce F. Nedde, Deputy Atty. Gen., San Francisco, Cal., for defendant-appellee.

Before HAMLIN and TRASK, Circuit Judges, and SOLOMON,^* District Judge.

Certiorari Denied January 7, 1974. See 94 S.Ct. 877.

TRASK, Circuit Judge:

This is an appeal from the district court's denial of petitioners' writs of habeas corpus. The consolidated appeal is the latest in a long series of judicial proceedings since appellants were originally indicted on six counts of murder and one of arson for an incident on April 4, 1957, when gasoline and lighted matches were thrown into a bar; six persons died, others were seriously injured. Bates, Chavez and Manuel Hernandez were jointly tried before a jury and convicted on all counts. The jury fixed the punishment of Bates and Chavez at death and that of Hernandez at life imprisonment. Their convictions and sentences were upheld by the Supreme Court of California. People v. Chavez, 50 Cal.2d 778, 329 P.2d 907 (1958), cert. denied, Chavez v. California, 358 U.S. 946, 79 S.Ct. 356, 3 L.Ed.2d 353; Bates v. California, 359 U.S. 993, 79 S.Ct. 1126, 3 L.Ed.2d 982. This is the second federal habeas corpus proceeding brought by appellants and the fifth time this case has been before this court. In 1959, Chavez and Bates filed habeas corpus petitions. Relief was denied; this court reversed and remanded for the trial court to verify the accuracy of certain transcribed statements and to determine whether certain photographs which had been admitted in the state trial violated the accuseds' rights of due process. Chavez v. Dickson, 280 F.2d 727 (9th Cir. 1960). On remand, the district court again denied the applications; this court affirmed in 1962. Chavez v. Dickson, 300 F.2d 683 (9th Cir.), cert. denied, 371 U.S. 880, 83 S.Ct. 151, 9 L.Ed.2d 116 (1962). Bates and Chavez filed the present petitions in 1963. The first order, disposing of some issues and ordering a hearing on others, was entered on February 24, 1964. Bates v. Dickson, 226 F.Supp. 983 (N.D.Cal.1964). The district court entered its final order denying the petitions on June 29, 1966. This court affirmed, Bates v. Wilson, 385 F.2d 771 (9th Cir. 1967). Petition for certiorari was granted by the Supreme Court and the Supreme Court in Bates v. Nelson, 393 U.S. 16, 89 S.Ct. 50, 21 L.Ed.2d 21 (1968), in a per curiam order vacated and remanded the cause for reconsideration in light of Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968). This court in turn remanded the cause to the district court for consideration of newly announced principles. Bates v. Wilson, 406 F.2d 555 (9th Cir. 1969). The district court's order denying the petition was filed in Bates v. Nelson, 333 F.Supp. 896 (N.D.Cal. 1971). This court has jurisdiction under 28 U.S.C. § 2253.

A complete statement of the facts is reported in People v. Chavez, 50 Cal.2d 778, 329 P.2d 907 (1958). It is undisputed that appellants together with a co-defendant, Hernandez, and another man, Brenhaug, originally charged with the same offenses but whose indictment was set aside, were present at the Mecca Bar in Los Angeles on the evening of the fire. Following a fight, appellants and Hernandez were physically ejected from the bar and Brenhaug subsequently left the bar and joined with the other men. The evidence and testimony presented at trial indicated that the four men, upset that they had been thrown out of the bar, returned to the Mecca Bar later with a can of gasoline they had purchased and proceeded to spread the gasoline into and around the entrance of the bar. The building was ignited with lighted matches thrown by one and the deaths and injuries of people inside resulted. Appellant Chavez asserted an alibi defense alleging he went home after being ejected from the bar and stayed there. Appellant Bates did not contest his involvement in the offense but urged that he was so intoxicated that he could not have formed the requisite mens rea to have committed the offenses charged. On this appeal appellants challenge the extra-judicial statements made by their co-defendant, Hernandez, which were admitted into evidence although Hernandez never testified at the trial. The government concedes this constituted error under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), but it urges, and the district court ruled, that the Bruton error was harmless beyond a reasonable doubt. Appellants also challenge extra-judicial statements made by Brenhaug which were admitted into evidence after Brenhaug had testified and was subjected to cross-examination and was excused as a witness. The district court ruled the Brenhaug statement was admissible because he testified and was cross-examined at trial. Mitchell v. United States, 434 F.2d 230 (9th Cir. 1970), cert. denied, 402 U.S. 946, 91 S.Ct. 1636, 29 L.Ed.2d 115 (1971). The challenged statements were presented to police during police interrogation. Hernandez' first statement was made during an interrogation session with him alone. Hernandez' second statement and the Brenhaug statement were part of a joint statement by the four men, in which Brenhaug related his version of the incident, Hernandez added his version, Bates claimed he could not remember anything because of his intoxication and Chavez stated the others were lying. Brenhaug's portion of the joint statement was not totally consistent with his testimony at trial. The government presented the earlier Brenhaug statement to bolster Brenhaug's trial testimony which had been subjected to impeaching cross-examination. Bates claims a second error based on Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). Burgett held that prior convictions which had been obtained in violation of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, could not be used to support guilt or to enhance punishment. The district court held that any Burgett error was harmless beyond a reasonable doubt. The prior convictions were for offenses between 1937 and 1947. Two were Dyer Act convictions, two were for burglary and grand theft, and one was for escape.¹ All of the convictions except the escape conviction were allegedly obtained upon the appellants' guilty plea. There is no positive showing that Bates had been represented or that he affirmatively waived representation by counsel in any of the cases except the escape conviction.

I. Effect of the Bruton Error

On remand to the district court, the court was forced to consider whether a Bruton error constituted reversible error under the circumstances of this case. Two Supreme Court cases have decided that a violation of the Bruton rule does not require an automatic reversal. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), and Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972). This court recently stated the standard for review of such error in United States v. Steed, 465 F.2d 1310 (9th Cir.), cert. denied, 409 U.S. 1078, 93 S.Ct. 697, 34 L.Ed.2d 667 (1972):

"Reversal, however, can be avoided only if, after close and careful review of the facts and circumstances of each case, a reviewing court is able to declare a belief that the violation was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)." 465 F.2d at 1318.

Depending on the circumstances of the individual case, this court has recently held that a Bruton error was reversible error in United States v. Sidman, 470 F.2d 1158 (9th Cir. 1972):

"We cannot say that the Bruton error was harmless beyond a reasonable doubt. Other evidence linking Clifford to the robbery was not overwhelming. . . . Testimony by two eyewitnesses who identified Clifford as one of the robbers was not strong. The remaining evidence was Carroll\'s testimony that Clifford told him that he and Sidman robbed the bank. The jury\'s assessment of this evidence, had it not heard Carroll testify to Sidman\'s confession, is highly problematical." 470 F.2d at 1171.

This court in Steed determined that a Bruton error there was harmless error:

"From our analysis and appraisal of the record, we have reached the conclusion that the proof of Steed\'s guilt, based on admissible evidence, was abundantly established. It is our belief, to paraphrase the quote above from Schneble, that the minds of an average jury would not have found the Government\'s case significantly less persuasive had the testimony as to Hintz\' admissions to Miss Coch, made out of the presence of Steed, been excluded.

"The violation of the Bruton rule, in light of the facts and circumstances of this case, constitutes harmless error beyond a reasonable doubt." 465 F.2d at 1319.

These cases indicate that this court has interpreted Supreme Court rulings regarding the harmless error rule so that an "overwhelming-evidence test" is appropriately applied in determining whether a specific error is harmless or reversible error. See Note, Harmless Constitutional Error: A Reappraisal, 83 Harv.L.Rev. 814 (1970).

The district court judge ruled that...