Draper v. Rhay

• Decision Date: 18 February 1964
• Docket Number: No. 1714,1798.,1718,1714
• Citation: 242 F. Supp. 829
• Parties: Application for a Writ of Habeas Corpus of Robert DRAPER, Petitioner, v. B. J. RHAY, as Superintendent of Washington State Penitentiary at Walla Walla, Washington, and State of Washington, et al., Respondents (two cases). Application for a Writ of Habeas Corpus of Raymond LORENTZEN, Petitioner, v. B. J. RHAY, as Superintendent of Washington State Penitentiary at Walla Walla, Washington, Respondent.
• Court: U.S. District Court — District of Washington

242 F. Supp. 829

Application for a Writ of Habeas Corpus of Robert DRAPER, Petitioner, v. B. J. RHAY, as Superintendent of Washington State Penitentiary at Walla Walla, Washington, and State of Washington, et al., Respondents (two cases).

Application for a Writ of Habeas Corpus of Raymond LORENTZEN, Petitioner, v. B. J. RHAY, as Superintendent of Washington State Penitentiary at Walla Walla, Washington, Respondent.

Nos. 1714, 1718, 1798.

United States District Court E. D. Washington, S. D.

February 18, 1964.

COPYRIGHT MATERIAL OMITTED

Robert Draper and Raymond Lorentzen, pro se.

John J. O'Connell, Atty. Gen., Ralph Olson, Stephen Way, Asst. Attys. Gen., for respondents.

POWELL, Chief Judge.

These three cases have been consolidated for the purpose of trial only and will be governed by this one opinion. In Causes Nos. 1714 and 1798 petitioner Robert Draper seeks a writ of habeas corpus. The same relief is asked by petitioner Lorentzen in No. 1718.

The petitioners have been before the courts numerous times. Their trial was held in the Superior Court of Spokane County on September 12, 1960 and resulted in their conviction on two counts of robbery. For a résumé of the evidence adduced at the trial see the findings in the appendix to the dissenting opinion of Mr. Justice White in the case of Draper, et al. v. State of Washington, 372 U.S. 487, at 509, 83 S.Ct. 774, 9 L.Ed.2d 899. Other reported cases involving these petitioners are:

State v. Long, 58 Wash.2d 830, 365 P.2d 31,

Draper v. Rhay, 9 Cir., 310 F.2d 691, and

Draper v. Rhay, 9 Cir., 315 F.2d 193.

While the petitioners' appeal from the original conviction is still pending it has been determined that state court remedies are exhausted as to the contentions set forth in this opinion. These consolidated cases have been fully tried on the contentions of the petitioners.

The petitioners are in custody under judgments and sentences entered September 30, 1960 in the Superior Court of the State of Washington in and for Spokane County. They were found guilty of two counts of robbery and sentenced to twenty years on each count, the sentences to run consecutively. Petitioners claim that they were denied due process at their trial in violation of their Fourteenth Amendment rights. Their contentions are as follows:

1. They were placed in jeopardy twice for the same offenses.

2. They were denied the right to counsel.

3. Petitioner Draper was illegally arrested.

4. They were illegally detained in custody.

5. The judgments and sentences are illegal as under the wrong statute.

6. The statute under which they were sentenced was repealed prior to their sentence.

7. The information on which they were tried was void.

8. The trial court lost jurisdiction when it proceeded to try defendants on two charges of robbery when it should have required the state to elect on which one it would proceed and to proceed on one only.

9. The trial court lost jurisdiction when it permitted the state to present evidence of two unrelated crimes to the same jury.

10. The trial court lost jurisdiction when it failed to appoint counsel more than 24 hours before trial.

11. The trial court lost jurisdiction when it did not appoint separate counsel for each defendant.

The facts as found from the evidence and the exhibits are as follows:

On July 5, 1960 a complaint was filed in the court of Honorable Gordon S. Lower, Justice of the Peace, Spokane Precinct, charging defendants James D. Long and Raymond L. Lorentzen with robbery in two counts. The first count charged robbery of the TraveLodge Motel, and the second count charged robbery of the Downtowner Motel Inc., a corporation. A warrant was issued on the same day based on the Justice Court complaint.

On July 8, 1960 a complaint was filed in the same court charging defendant Draper with aiding and abetting Long and Lorentzen in the two robberies. The charges were in two counts. The complaint describes the ownership of the property taken in the same manner as the previous complaint. A warrant was issued on that complaint.

Draper was arrested in Seattle on the warrant issued by the Spokane Justice of the Peace. He was transferred to Spokane. The warrant was first transmitted to Seattle by telegram. The certified copy was mailed there. The original was served by Detectives Simons and Bury from Spokane on Sunday, July 10, 1960. He was not taken before any committing magistrate or judicial officer of any kind before he was removed to Spokane. His first appearance was before Justice of the Peace Lower on Tuesday, July 12, 1960, at which time he was informed of the charge against him, of the amount of bond, his right to a lawyer and that he did not need to make any statements. The case was then continued to August 12, 1960. Prior to that date, on August 3, 1960 the Prosecuting Attorney filed an information in the Superior Court. The Justice Court proceedings were dismissed on August 12, 1960. The docket bears the notation "Dismissed O. M. Pros. Information Direct."

The same procedure was followed in the Lorentzen and Long cases in Justice Court, except that their first appearance was on July 5, 1960. That complaint was dismissed on August 5, 1960. That docket bears the same notation "Dismissed O. M. Pros. Information Direct." Defendants were not tried in Justice Court. Judge Lower explained that the notation at the top of Exhibit 4 in Cause No. 1718 and Exhibit 5 in Cause No. 1798, the portion of the docket sheet above the double line showing a penalty assessed, refers to the preceding case on that docket page. It does not refer to any of the parties here.

On August 4, 1960 the defendants were arraigned on the information which charged them all jointly in two counts with the two robberies. The information was substantially in the same words as the complaints previously filed against the defendants Long and Lorentzen. All defendants were represented by the same attorney, Thomas F. Lynch, at the arraignment. They were each asked "Are each of you represented by Mr. Lynch present in court?" All answered in the affirmative and entered pleas of not guilty to the two counts.

The case was called for trial on September 12, 1960. Attorney Thomas F. Lynch had been promised a fee by a Mrs. Petty and on the basis of that promise had appeared, prepared the case and started the defense on the first day of trial. He was not paid and asked to be relieved after the examination of five or six prospective jurors. Then at recess he prepared and filed oaths of indigency for the three defendants. The court then appointed him to represent the defendants. At no time prior to that were the defendants advised of record that they were entitled to an attorney at public expense if they could not pay the fee. They did not at any time appear without an attorney in the Superior Court and they did not appear with an attorney at any time in the Justice Court.

There is no evidence of any delay in the trial. Mr. Lynch and the court accomplished the transition from retained counsel to appointed counsel with no lag in the proceedings. The trial continued with Mr. Lynch representing all three defendants as appointed counsel. None of them took the stand. Mr. Lynch did not find during the trial there was any conflict of interest between any two or more of the defendants that interfered with his representing all of them. The jury's verdict of guilty as to both counts was returned September 14, 1960 as to all defendants. The record is silent as to any protest by any of the three defendants against the representation of Mr. Lynch at any time until after the verdict was returned and until the time of the presentation of the application for a free transcript on appeal.

The foregoing statement of facts will constitute findings of fact and there will be no necessity for making further findings on the entry of the order based on this opinion.

The contentions, eleven in number, are set forth above. They will be grouped according to subject matter and numbered in the same order they appear earlier. My conclusions as to the contentions are as follows:

A. 1. DOUBLE JEOPARDY.

Petitioners argue that they were twice placed in jeopardy for the same offense. They say they were placed in jeopardy when the complaints were filed in the Justice Court, and they were tried there, and when they were later charged in the Superior Court by the same allegations and tried before a jury and convicted. The appearance before the Justice of the Peace in a felony case is governed by RCW 10.04.030, which states as follows:

"Hearing — Judgment. On the return of any warrant issued by him, it shall be the duty of the justice to docket the cause, and unless continuance be granted, forthwith to hear and determine the cause, and either acquit, convict and punish, or hold to bail the offender, if the offense be bailable and prove to be one which should be tried in the superior court, or in default of bail, commit him to jail, as the facts and law may justify."

It is obvious from the exhibits filed in this cause that Justice Lower was sitting as a committing magistrate when petitioner Lorentzen appeared before him on July 5, 1960 and when petitioner Draper appeared before him on July 12, 1960. He continued the causes, admitting the defendants to bail if they could post it, and dismissed the complaints after the information was filed directly in the Superior Court.

This contention is not new. It was made in 1926 in the case of State v. Friedlander, 141 Wash. 1, 4, 250 P. 453. In that case the petitioner was charged with contributing to the delinquency of a minor. He was taken before the Justice of the Peace and during the trial the Justice of the Peace determined that the offense was within the jurisdiction of the Superior Court. The defendant was then bound over to the Superior Court and the Supreme Court of the State of Washingon stated as follows:

"* * * The statute is dual in its nature. It permits a justice's cou

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