Chessman v. Teets, 14621.

• Decision Date: 06 May 1955
• Docket Number: No. 14621.,14621.
• Citation: 221 F.2d 276
• Parties: Caryl CHESSMAN, Appellant, v. Harley O. TEETS, Warden, California State Prison, San Quentin, California, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

221 F.2d 276 (1955)

Caryl CHESSMAN, Appellant, v. Harley O. TEETS, Warden, California State Prison, San Quentin, California, Appellee.

No. 14621.

United States Court of Appeals Ninth Circuit.

April 7, 1955.

Rehearing Denied May 6, 1955.

Jerome A. Duffy, Berwyn A. Rice, San Rafael, Cal., for appellant.

Edmund G. Brown, Atty. Gen., of California, Clarence Linn, Deputy Atty. Gen., of California, for appellee.

Before DENMAN, Chief Judge, and STEPHENS, HEALY, BONE, ORR, POPE, FEE and CHAMBERS, Circuit Judges.

DENMAN, Chief Judge.

Chessman appeals from an order of the District Court denying his application for a writ of habeas corpus. The record¹ shows that among convictions on seventeen counts, he was convicted on two counts of an information charging him with the kidnapping of two young women for the purpose of robbery with bodily harm on which the jury found he should suffer the death penalty. The kidnappings and robberies were accompanied by acts of sexual perversion which Chessman compelled the women to commit. The record of his trial shows that on a third charge of kidnapping and infliction of bodily harm the jury found that he should be imprisoned for life without possibility of parole, a fact his various pleadings carefully avoid mentioning for reasons later apparent.

The gravamen of his application is that he was denied due process by the State in that the trial Court, in his prosecution for kidnapping with bodily harm, instructed the jury that it must render a verdict for the death penalty if they found him guilty on these charges, whereas the jury had the option not to fix the death penalty² and that the judge stated to the jury: "This defendant is one of the worst criminals I have had in my court."

These errors, he contends, he was unable to present on the mandatory appeal to the California Supreme Court, because the reporter of the trial died before he had transcribed the court's instructions and the comment and, by a conspiracy between the prosecuting attorney and another reporter who transcribed the shorthand record, the instruction and comment requiring the death penalty were omitted from the record on appeal. The pertinent matter here is that the omission of the alleged clearly wrongful death instruction and the judge's statements to the jury are the only wrongs specified to have been done him by the alleged conspiracy. The burden of proof on a charge of such a conspiracy is not only that it existed but that complainant was harmed thereby. Cf. Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L. Ed. 674.

The many proceedings before us show Chessman to be a person of extraordinary ability, with experience in criminal procedure since 1941 in four prior cases, three charging armed robbery, in which he was convicted, three by plea of guilty and another after trial. His voluminous citations of cases supporting his various contentions are worthy of an experienced criminal practioner.

It is apparent that, even without such intelligence, ability and long criminal trial experience, if such a wrongful instruction and court comment had been given it must have stood out in his mind like the "sore thumb" of colloquial speech. More striking is the fact that Chessman claimed in the California Supreme Court that the prosecuting attorney had stated to the jury "`that life without possibility of parole doesn't mean that at all, and that the jury should and must return the death penalty because otherwise there was imminent danger the defendant again would be loosed by a lax administration of the law to prey upon society because the defendant was a cunning individual who knew the angles.'" People v. Chessman, 35 Cal.2d 455, 465, 218 P.2d 769, 774, 19 A.L.R.2d 1084. It is inconceivable that he then thought that the court had given such an instruction and made such comment to the jury.

For purposes of this decision we may assume the remote likelihood that the claims of the obviously invalid death instruction and comment to the jury are not perjured afterthoughts, despite Chessman's careful avoidance of the fact that the jury must have disobeyed the instruction in not giving the death penalty on the third count, but were in Chessman's mind in 1948 on the appeal from his conviction. If this be so, it is apparent that he husbanded these contentions through ten habeas corpus proceedings in the State and Federal courts³ till their first appearance in a petition for the writ in the California Supreme Court, filed six years later in 1954.

Primary, however, is the fact that the State of California gave Chessman ample opportunity in the case in which he was convicted to urge the omissions from the record of his trial of the death instruction and the adverse comment of the judge which appellant now claims were made. The Superior Court which tried Chessman entertained his various contentions...