Corbett v. Patterson

• Decision Date: 03 July 1967
• Docket Number: Civ. A. 67-C-25.
• Citation: 272 F. Supp. 602
• Parties: Joseph CORBETT, Jr., Petitioner, v. Wayne K. PATTERSON, Warden of the Colorado State Penitentiary, Respondent.
• Court: U.S. District Court — District of Colorado

272 F. Supp. 602

Joseph CORBETT, Jr., Petitioner, v. Wayne K. PATTERSON, Warden of the Colorado State Penitentiary, Respondent.

Civ. A. 67-C-25.

United States District Court D. Colorado.

July 3, 1967.

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William H. Erickson, Denver, Colo., and H. Malcolm Mackay, Denver, Colo., for petitioner.

Duke W. Dunbar, Atty. Gen., by John P. Moore and Paul D. Rubner, Asst. Attys. Gen., Denver, Colo., for respondent.

MEMORANDUM OPINION AND ORDER

ARRAJ, Chief Judge.

This matter is before the Court on a petition for a writ of habeas corpus. The petitioner was convicted in 1960 of first-degree murder and was sentenced to life imprisonment. The victim of the murder was Adolph Coors III, a prominent Colorado businessman. Petitioner's conviction was affirmed by the Colorado Supreme Court, Corbett v. People, 153 Colo. 457, 387 P.2d 409 (1963); his petition for rehearing was denied, 154 Colo. 238, 389 P.2d 853 (1963); and the United States Supreme Court denied certiorari, Corbett v. Colorado, 377 U.S. 939, 84 S. Ct. 1346, 12 L.Ed.2d 302 (1964). Respondent has conceded that petitioner has exhausted his available state remedies, as required by Title 28 U.S.C. § 2254, with respect to all of the issues in the petition except one, which will be discussed later in this opinion.

Although the petition is quite lengthy and its allegations legion, we believe that the basic grounds for relief can be summarized as follows:

1) Petitioner was deprived of due process of law and of his right to effective counsel by the trial court's denial of bail; 2) Various rulings by the trial court and actions of the prosecuting authorities effected a deprivation of petitioner's right to effective counsel; 3) The prejudicial publicity and conduct of the press created an envenomed atmosphere in which petitioner was unable to receive a fair trial consonant with due process of law; and 4) Petitioner was deprived of due process of law by the trial court's failure to declare a mistrial when prejudicial incidents occurred during the trial.

-I-

We shall first examine the claim that the trial court's denial of bail constituted an encroachment upon petitioner's constitutional rights. It is generally said that the denial of bail is not an available basis for seeking post-conviction relief, see, e. g., Midgett v. Warden, 217 F.Supp. 843, 846 (D.Md.1963). However, since petitioner claims that the denial deprived him of the assistance of counsel and of a fair trial, we shall examine the merits of his assertion.

It is definitely beyond cavil that the right to bail is not absolute.

Neither the Eighth Amendment nor the Fourteenth Amendment requires that everyone charged with a state offense must be given his liberty on bail pending trial. * * * Traditionally and acceptedly, there are offenses of a nature as to which a state properly may refuse to make provision for a right to bail. Mastrian v. Hedman, 326 F.2d 708, 710 (8th Cir. 1964), cert. denied, 376 U.S. 965, 84 S.Ct. 1128, 11 L.Ed. 982.

Certainly first-degree murder, with which petitioner was charged, is such an offense.

Factors which should be considered by a trial court in determining whether bail should be set, and the amount of such bail, include the seriousness of the offense, the possible danger to the community, the penalty, the character and reputation of the accused and the probability of his appearing. See, e. g., Jones v. Grimes, 219 Ga. 585, 134 S.E. 2d 790 (1964). We note that petitioner was charged with first-degree murder, punishable by death, and that he had previously been convicted of second-degree murder and had escaped. Applying these facts to the relevant standards, it is obvious that the bail denial cannot be viewed as unreasonable or arbitrary, or as an infringement upon petitioner's constitutional rights.

In support of his claim petitioner has pointed to Colo.Rev.Stat.Ann. § 40-2-3 (1953), which provides that the death penalty cannot be imposed on the basis of only circumstantial evidence. He claims that once the prosecution conceded that they probably did not have the direct evidence necessary to seek the death penalty, then at that point petitioner ceased to be charged with a "capital" offense and was entitled to bail as a matter of right. We do not agree. The offense with which he was charged was still a capital one, even if it should later develop that the type of evidence adduced did not support a verdict imposing the death penalty.

Petitioner has also focused on the provision in the Colorado Constitution, Art. II, § 19, which states that "all persons shall be bailable by sufficient sureties except for capital offenses, when the proof is evident or the presumption great." Petitioner apparently urges that bail was required because the proof against him was not evident. This requirement simply goes to the proof of guilt, not to the kind of proof needed for the imposition of the death penalty. Even though the State's evidence was all circumstantial in nature, there was a considerable amount of it—clearly enough to constitute "evident proof" within the meaning of the Colorado Constitution. Of course a violation of the state constitution would not of itself be a proper ground for relief in this Court in any case.

Having concluded that the bail denial itself was not constitutionally improper, we need not examine those circumstances which petitioner alleges resulted from the bail denial and deprived him of his right to a fair trial and effective assistance of counsel.

-II-

The second broad ground for relief urged by petitioner is that he was deprived of his right to the effective assistance of counsel, in contravention of the Sixth and Fourteenth Amendments. Numerous incidents are complained of as having contributed to the alleged deprivation, and we shall attempt to analyze each. The breakdown and phrasing of these grounds are essentially our own.

A) Following his arrest petitioner received no preliminary hearing, was held incommunicado for two weeks without the appointment of counsel and was subjected to repeated interrogation.

Our initial observation is that a state criminal defendant has no federal constitutional right to be afforded a preliminary hearing. Goldsby v. United States, 160 U.S. 70, 73, 16 S.Ct. 216, 40 L.Ed. 343 (1895); Pearce v. Cox, 354 F.2d 884, 891 (10th Cir. 1965); Green v. Bomar, 329 F.2d 796 (6th Cir. 1964).

As to the alleged fact that petitioner was held incommunicado and interrogated without the appointment of counsel, we note the inapplicability of the United States Supreme Court decisions in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694, 100 A.L.R.3d 974 (1966). The rules enunciated in those opinions are not to be given retrospective application. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966).

Moreover, these cases, as well as the prior decisions in this area, were concerned with the situation where an accused who was not afforded counsel made a formal confession or some other incriminatory statements. The denial of counsel would preclude the later admission of the statements at trial, and in that sense operate only as an exclusionary evidence rule.

We do not feel that the absence of counsel during pretrial interrogation in and of itself deprives an accused of due process of law where, as in the present case, the interrogation yields no incriminatory statements or even remarks leading the prosecution to the discovery of evidence. At least there has been no claim to this effect. Thus, the mere fact that petitioner was interrogated prior to the appointment of counsel does not amount to a constitutional defect in the proceedings.

B) Following the appointment of counsel petitioner was again interrogated, without the presence of his counsel and against the order of the trial court that such interrogation was to cease.

The solely prospective application of the Escobedo-Miranda rules and the fact that the interrogation bore no fruit constitute complete answers to this contention as well. We might also note that the order of the trial court that defendant was not to be interrogated was apparently not broad enough to include the particular person who did the questioning. This was a fact which the trial judge himself recognized.

C) The trial court denied petitioner discovery rights as to F.B.I. investigative reports, and various documents and physical evidentiary items in the possession of the State.

Traditionally the principle of discovery has been a virtual stranger to the criminal law. In recent years, however, it has been recognized by decision, rule and statute that a defendant is entitled to some limited discovery to enable him to prepare a meaningful defense. Thus, in Jencks v. United States, 353 U. S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957) it was held that a defendant has a right to inspect written statements of a witness for the purpose of impeachment after the witness has been called to testify at trial. In Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giles v. State of Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 731 (1967), it was held that a defendant is entitled to inspect suppressed evidence favorable to his case. And in Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966), the defendant was held entitled to inspect the grand jury minutes. Discovery rights have also been conferred by the Jencks Act, Title 18 U.S.C. § 3500, and by Fed. R.Crim.P. 16. These latter provisions are not, however, of constitutional origin, and they represent exceptions to the general rule concerning discovery.

The discovery claims raised by petitioner do not fall within any of the exceptions recognized by the Supreme Court as being...