Codianna v. Morris

• Decision Date: 01 March 1983
• Docket Number: No. 17203,17203
• Citation: 660 P.2d 1101
• Parties: Gypsy Allen CODIANNA, Petitioner and Appellant, v. Lawrence MORRIS, Warden, Utah State Prison, Defendant and Respondent.
• Court: Utah Supreme Court

Page 1101

660 P.2d 1101

Gypsy Allen CODIANNA, Petitioner and Appellant, v. Lawrence MORRIS, Warden, Utah State Prison, Defendant and Respondent.

No. 17203.

Supreme Court of Utah.

March 1, 1983.

Ginger L. Fletcher, Salt Lake City, Timothy K. Ford, Seattle, Wash., for petitioner and appellant.

David L. Wilkinson, Atty. Gen., Craig L. Barlow, Asst. Atty. Gen., Salt Lake City, for defendant and respondent.

OAKS, Justice:

Petitioner Gypsy Allen Codianna and two codefendants were convicted of murder in the first degree in 1975. Their convictions were affirmed on appeal. In this appeal from the denial of postconviction relief by habeas corpus, petitioner urges (1) that the district court erred in refusing to hear evidence on various alleged errors at his trial (by granting partial summary judgment), and (2) that on the basis of evidence heard by the district court it should have set aside his conviction on the grounds (a) that the state withheld exculpatory evidence and (b) that he was denied the effective assistance of counsel at his trial.

The facts giving rise to this case are set forth in detail in State v. Codianna, Utah, 573 P.2d 343 (1977) (Codianna I), cert. denied, 439 U.S. 882, 99 S.Ct. 219, 58 L.Ed.2d 194 (1978). Briefly, the murdered man, Michael Hogan, answered a knock at the door of his home late one night. Three men entered, struggled with Hogan, and dragged him outside, where three gunshots were heard and where "puddles" of blood were later observed. Three men (one resembling Craig Marvell, a codefendant) then climbed into a pickup. Codianna, Marvell, and Irvin Dunsdon (the third codefendant) were apprehended in this pickup about a half hour later. By tracing its tracks, law enforcement officers located Hogan's body in a canyon. Thirteen bullets were removed from his body, which also bore fifty abrasions and contusions.

After a joint trial, Codianna, Marvell, and Dunsdon were convicted of first degree murder in connection with the commission or attempted commission of burglary or kidnapping. U.C.A., 1953, § 76-5-202(1)(d). The three defendants pursued a joint appeal, assigning eleven errors for reversal. In affirming the conviction, this Court described the murder as "a tragedy of extreme and shocking ruthlessness and brutality." Codianna I, 573 P.2d at 353.

Thereafter, on December 12, 1978, Codianna filed a petition for habeas corpus, which the district court summarily dismissed three days later. Codianna appealed, alleging sixteen constitutional violations. During the pendency of that appeal, defense counsel discovered certain depositions and physical evidence known to the prosecution prior to the trial. Based on that evidence, Codianna filed an original petition for habeas corpus in this Court. We consolidated the appeal and the petition and remanded to the district court for "a determination of facts, as to whether there has been any withholding of material evidence from which there is any reasonable likelihood that there may have been a different result, either as to the verdict rendered, or upon the sentence imposed." Codianna v. Morris, Utah, 594 P.2d 874, 877 (1979) (Codianna II).

On remand, Codianna's case was joined with similar proceedings involving his codefendants. Prior to a hearing, the district court granted summary judgment as to all issues raised in the petitions except two. After a hearing, the district court ruled as to those questions: (1) that petitioners were not deprived of effective assistance of counsel, and (2) that the prosecution's failure to disclose exculpatory evidence (certain witness statements) in its possession did not invalidate petitioners' convictions, but did taint the penalty phase. The court therefore vacated the sentence of death and ordered a sentence of life imprisonment for all three defendants.

Petitioner Codianna appeals the district court's refusal to vacate his conviction. His codefendants have not appealed. There is no appeal from the order reducing the death sentence to life imprisonment. We affirm the district court's order.

I. THE PARTIAL SUMMARY JUDGMENT

Petitioner contends that the district court erred in granting the state's motion for summary judgment on four issues, thereby effectively denying him due process of law.

First, voir dire was insufficient, and the judge erred in failing to insulate the jury from pretrial publicity. Although the judge conducted the examination of prospective jurors as directed by the statute then in effect, U.C.A., 1953, § 77-28-1 (repealed 1980), defense counsel were permitted to question the veniremen through the judge. Petitioner contends that in light of the publicity preceding his trial, the judge erred both in failing to conduct a more searching examination of the prospective jurors and in not forbidding them to read or listen to news reports about the trial. The state responds that a failure to make searching inquiry is not error when there is no allegation that the pretrial publicity was prejudicial, that the judge solicited questions from petitioner's counsel and asked all questions submitted (with one exception that was covered in the jury instructions), that petitioner failed to preserve the issue by timely objection, and, in any case, that this Court considered the issue of voir dire in Codianna I.

Second, the court failed to require an individual determination of guilt, since it instructed the jury that it was to convict if it found that "the defendants Gypsy Allen Codianna, Irvin Paul Dunsdon, and Craig Derrickson Marvell, caused the death of Michael Hogan" under circumstances amounting to first degree murder. The state responds that petitioner's counsel failed to request an instruction specifically requiring an individual determination of petitioner's guilt, and that, in any case, the jury instructions taken as a whole made clear the necessity of an individual determination of guilt.

Third, the court failed to require the jury to reach unanimous agreement on whether the murder was committed in connection with a kidnapping or a burglary. The state responds that the jury did not need to agree on which underlying felony supported the murder so long as each juror agreed that one of them was committed or attempted, that there was ample evidence of both a burglary and a kidnapping, and that this Court held in Codianna I that "the evidence establishes overwhelmingly" a kidnapping. 573 P.2d at 350.

Fourth, the court failed to instruct the jury on the definition of second degree murder that most clearly applied to the facts of petitioner's case. The state responds that in view of the lack of evidence suggesting that petitioner was innocent of first degree murder but guilty of second degree murder, there was no rational basis for the omitted instruction and petitioner suffered no prejudice from its omission. The state also relied on petitioner's failure to raise this objection at trial.

We cannot reach the merits of any of these four issues without first addressing the threshold question of whether they may properly be raised by habeas corpus in this case.

The writ of habeas corpus has performed a vital function in Anglo-American law as a protection against illegal detention. But this Court has often reiterated that habeas corpus is not a substitute for and cannot be used to perform the function of regular appellate review. As we said in Boggess v. Morris, Utah, 635 P.2d 39, 41 (1981),

The ends of justice demand that a convicted defendant have an opportunity to appeal in timely fashion, but once the appellate process has concluded, society's interest in the effectiveness and integrity of the criminal justice system requires a finality of judgment that should severely limit repetitive appeals and collateral attacks.

It is therefore well settled in this state that allegations of error that could have been but were not raised on appeal from a criminal conviction cannot be raised by habeas corpus or postconviction review, except in unusual circumstances.

A much-quoted statement of the type of errors that are and are not cognizable by habeas corpus is the following from this Court's unanimous opinion in Brown v. Turner, 21 Utah 2d 96, 98-99, 440 P.2d 968, 969 (1968) (Crockett, C.J.):

[Habeas corpus] 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. If the contention of error is something which is known or should be known to the party at the time the judgment was entered, it must be reviewed in the manner and within the time permitted by regular prescribed procedure, or the judgment becomes final and is not subject to further attack, except in some such unusual circumstance as we have mentioned above. Were it otherwise, the regular rules of procedure governing appeals and the limitations of time specified therein would be rendered impotent. [Emphasis added.]

Among the numerous cases quoting and applying the emphasized standard is Hafen v. Morris, Utah, 632 P.2d 875, 876 (1981), where the Court held that a prisoner's contention that his counsel failed to challenge a particular juror could not be raised by habeas corpus because the petitioner had failed to use his "adequate opportunity" to raise that contention at his trial or on direct appeal from his conviction.

All four of the issues foreclosed by the partial summary judgment were issues that were known or should have been known to petitioner and his counsel at the time of his conviction. Consequently, those issues are foreclosed from consideration on habeas corpus and the partial summary judgment was proper under the test in Brown v. Turner, supra, unless there was some "unusual circumstance" of the type specified there.

As...