Eyman v. Alford

• Decision Date: 28 September 1971
• Docket Number: No. 22274.,22274.
• Citation: 448 F.2d 306
• Parties: Frank A. EYMAN, Superintendent, Arizona State Penitentiary, Appellant, v. Robert ALFORD, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

448 F.2d 306 (1969)

Frank A. EYMAN, Superintendent, Arizona State Penitentiary, Appellant, v. Robert ALFORD, Appellee.

No. 22274.

United States Court of Appeals Ninth Circuit.

February 24, 1969.

Rehearing Denied September 28, 1971.

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Jerry L. Smith (argued), County Atty., Flagstaff, Ariz., Darrell F. Smith, Atty. Gen., James S. Tegart, Asst. Atty. Gen., Phoenix, Ariz., for appellant.

W. Edward Morgan (argued), Tucson, Ariz., John H. Grace (argued), Flagstaff, Ariz., for appellee.

Before JOHNSEN,^* MERRILL and CARTER, Circuit Judges.

JAMES M. CARTER, Circuit Judge.

This is an appeal from an order of the district court, after an evidentiary hearing, granting a writ of habeas corpus on petition of appellee, under sentence of death for the crime of murder. The district court stayed its order pending disposition of this appeal. We reverse.

Appellee exhausted his state remedies by appeal to the Arizona Supreme Court (State v. Alford, 98 Ariz. 124, 402 P.2d 551), denied June 3, 1965 and Motion for Rehearing (State v. Alford, 98 Ariz. 249, 403 P.2d 806) denied June 29, 1965.

Application for Writ of Certiorari to the Supreme Court of the United States was made June 28, 1965, and on January 24, 1966, the United States Supreme Court entered the following order (Alford v. Arizona, 382 U.S. 1020, 86 S.Ct. 625, 15 L.Ed.2d 535):

"Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted."

Amended Application for Writ of Certiorari was submitted to the Supreme Court of the United States on March 14, 1966, and on June 20, 1966, the Court entered the following order (384 U.S. 1028, 86 S.Ct. 1937, 16 L.Ed.2d 1047):

"Rehearing denied. Mr. Justice Douglas would grant the petition for rehearing, vacate the order denying the petition for a writ of certiorari and grant the petition for writ of certiorari. He would vacate the judgment below and remand the case for reconsideration in light of Miranda v. Arizona, ante, p. 436 86 S.Ct. 1602, 16 L.Ed.2d 694, it being impossible to say on the record whether the principles announced in that case have been violated."¹

The following issues were set forth in the district court's memorandum of decision and passed upon by that court.

1. Was the failure to give defendant counsel at the time of his original confession a denial of his right to counsel and a denial of due process under the 14th Amendment to the United States Constitution?

2. Was the defendant, by reason of being denied counsel at his preliminary hearing, denied his right to counsel under the U.S. Constitution, and denied due process under the 6th and 14th Amendments to the United States Constitution?

3. Was the prosecution of the defendant by information without indictment by a grand jury a violation of the 5th Amendment of the United States Constitution?

4. Was the refusal of the trial court to set the level of criminal responsibility under either the "Durham Rule" or the Model Code of Criminal Law a denial of due process of law, a denial of equal protection of the law under the United States Constitution's 14th Amendment, or a failure to comply with the standards of the doctrine mens rea?

5. Was the denial under the applicable state laws of Arizona of the right to admit evidence of insanity less than that permitted by the M'Naghten Rule and other evidence of mitigation of punishment, a denial of equal protection of the law under the 14th Amendment to the United States Constitution?

6. Was the trial court's conduct in obtaining a psychiatric opinion concerning the condition of the defendant without the knowledge of the defendant or defendant's counsel, and without affording the defendant or his counsel the right of cross-examination, and in part determining from said extra judicial evidence the punishment of the defendant, a denial of counsel under the 6th Amendment to the United States Constitution and a denial of the right of cross-examination under the provisions of the United States Constitution providing the defendant the right to confront witnesses under the 6th Amendment of the United States Constitution?

7. Was the refusal of the trial court, prior to sentencing, of the defendant's request to change his plea from guilty to not guilty when the Court had the statement under oath of the defendant that he was not guilty, a denial of due process under the 14th Amendment to the United States Constitution?

8. Was defendant properly convicted when his court appointed counsel could not afford to contact out of state witnesses to his client's alleged innocence by reason of the fact that counsel did not have money to undertake such an investigation, in violation of the 6th and 14th Amendments to the United States Constitution?

The district court based its decision granting the writ on issues 6 & 7 above and found against appellee on the remaining issues.

Appellant (State of Arizona) on this appeal, in seeking reversal, states the issues as follows:

(A) Whether appellee was denied his rights under the 6th Amendment in being unable to confront and cross-examine witnesses in pre-sentence and sentence proceedings (Issue No. 6 before the district court).

(B) Whether it was a violation of the Due Process Clause of the 14th Amendment for the state trial court to refuse to allow appellee to withdraw his plea of guilty, prior to sentence (Issue No. 7 before the district court).

(C) Whether the district court judge erred in refusing to follow Supreme Court precedent in his interpretation of the 14th Amendment (Issue No. 6 before the district court).

Appellee states in his brief in our court that he relies upon all the contentions made before the district court. There was no cross-appeal by appellee from the adverse rulings on issues No. 1, 2, 3, 4, 5 and 8. This is probably a civil proceeding. If so, appellee may on appellant's appeal raise these issues, without a cross-appeal. Montgomery-Ward & Co. v. Duncan, 311 U.S. 243, 254, 61 S.Ct. 189, 85 L.Ed. 147 (1940); Minthorne v. Seeburg Corp., 397 F.2d 237 (9 Cir. 1968); see, Gordon Mailloux Enterprises, Inc. v. Firemen's Insurance Company, 366 F.2d 740, 741-742 (9 Cir. 1966); Moist Cold Refrigerator Co., Inc. v. Lou Johnson Co., Inc., 249 F.2d 246 (9 Cir. 1957), cert. denied, 356 U.S. 968, 78 S.Ct. 1008, 2 L.Ed.2d 1074 (1958).

Whether this habeas proceeding is or is not civil, since it involves a death penalty we will consider all the issues raised below, Nos. 1 through 8.

Appellee, now incarcerated in the county jail at Flagstaff, Arizona, pending the appeal, was charged in a criminal complaint filed July 16, 1963 in three counts of murder of three children named and aged as follows: Carol, age 14; Theodore, age 12; and Jacqueline, age 11. Their bodies had been found on June 6, 1963, one mile south of Highway 66 near Williams, Arizona. Initial investigation showed Carol had been shot four times and beaten; Jacqueline and Theodore had each been shot twice.

Appellee was arrested at Santa Rosa, California about 4:45 PM July 12, 1963. He was advised of the identity of the officers, what he was being arrested for and that he did not have to make a statement. No statement was then taken.

At about 10 PM he was interviewed by an FBI agent who fully advised him of his rights.² Appellee said he did not want an attorney. The following day, July 13, 1963, a polygraph examination was given to appellee at his request, and later in the day, he was interviewed after being again advised of his rights. Then on July 14, 1963, after again being advised of his rights, he confessed to the killing of the three children.

On July 14, 1963, after being advised of his rights by a California State municipal judge, appellee signed a waiver of extradiction.

Appellee was not indigent at the time of his arrest. He had $435 on his person and owned an unencumbered pick-up camper. He was returned to Flagstaff on July 16, 1963, and arraigned before a Justice of the Peace who advised him of the murder charges against him, his right to have an attorney and his right to a preliminary hearing.

A preliminary hearing was held on July 22, 1963. Appellee did not ask for an attorney nor employ an attorney though he had the assets described above. He was bound over for trial.

An information, permitted by Arizona law, was filed July 26, 1963. On July 30, appellee appeared with employed counsel and entered pleas of not guilty to each charge. Trial was set for September 9, 1963, but later continued to September 23, 1963. A hearing to determine appellee's mental ability to stand trial was later set for September 20, 1963.

The hearing, pursuant to Rule 250, Arizona Rules of Criminal Procedure, was held on the date set. Appellee and his employed counsel were present. The written reports of a Dr. Maier Tuchler, psychiatrist, and a psychologist, Dr. Aaron Cantor, were presented.

At this sanity hearing Dr. Tuchler was called as a witness for the appellee. His qualifications to testify as an expert witness in the field of psychiatry were stipulated to. He testified he had examined and interviewed the appellee, did an evaluation of his sensorium, a neurological examination, a review of the appellee's present predicament and had a past history available involving a mental illness in 1958-1959. He had before him also an evaluation of the subject's intelligence made by Dr. Cantor, Chief Psychiatrist at the Veterans Hospital, holding a Ph.D. in Psychology. He testified he was familiar with the M'Naghten Rule and that appellee could and did pass the M'Naghten Rule for sanity on the day he examined him and "on the basis of his statements to me, as of the period in May and June, during which the attacks on youngsters were alleged to have occurred;" that he was capable of assisting in his own defense; that the doctor was also familiar with the Durham Rule and that appellee would probably be considered a hospital case under the Durham Rule; that appellee was...