Fajeriak v. State
| Citation | 520 P.2d 795 |
| Decision Date | 18 March 1974 |
| Docket Number | No. 1761,1761 |
| Parties | George FAJERIAK, Appellant, v. STATE of Alaska, Appellee. |
| Court | Supreme Court of Alaska (US) |
Alexander O. Bryner, Asst. Public Defender, Herbert D. Soll, Public Defender, Anchorage, for appellant.
Stephen G. Dunning, Asst. Dist. Atty., Seaborn J. Buckalew, Jr., Dist. Atty., Anchorage, John E. Havelock, Atty. Gen., Juneau, for appellee.
Before RABINOWITZ, C. J., CONNOR and BOOCHEVER, JJ., and DIMOND, Senior Justice.
Appellant George Fajeriak was convicted of first degree murder in 1966. He appeals from the summary dismissal of his application for post-conviction relief.
On November 7, 1964 Anthony Rizzo was murdered; his body was found on the tidal mudflats of Turnagain Arm two days later. George Fajeriak was arrested soon afterward, and a jury subsequently found him guilty of first degree murder. His conviction was affirmed by this court. 1 In 1970 appellant instituted an application for post-conviction relief pursuant to Criminal Rule 35, 2 and the public defender was appointed to represent him. After a host of motions, pleadings, and affidavits, relief was denied on May 31, 1972 without holding an evidentiary hearing. This appeal was brought shortly thereafter.
Criminal Rule 35(g)(3) sets forth the applicable standard for appraising motions for summary disposition in post-conviction relief proceedings:
The court may grant a motion by either party for summary disposition of the application when it appears from the pleadings, depositions, answers to interrogatories, and admissions and agreements of fact, together with any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
Although this standard differs but slightly from the rule governing the summary dismissal of petitions for post-conviction relief in the federal courts, 3 Criminal Rule 35(g)(3) does enjoy the advantage of providing an orderly procedure for the expeditious disposition of non-meritorious applications for post-conviction relief without the necessity of holding a full evidentiary hearing. 4 We thus must decide whether any of Fajeriak's four substantive allegations present a 'genuine issue of material fact' so as to require an evidentiary hearing.
The appellant surrendered to police on November 11, 1965 upon learning that he was being sought in connection with Anthony Rizzo's murder. Unable to post bail, he remained incarcerated until at least January 3, 1966. On November 22, Fajeriak wrote Superior Court Judge Ralph E. Moody (to whom the case had been assigned) to complain that the jail authorities were electronically monitoring his conversations with his attorney. 5 Considerable evidence substantiating this charge was adduced at the hearing on a motion by Fajeriak's newly-appointed attorney, Stanley McCutcheon, to compel the jail authorities to permit him to interview his client in privacy. 6 According to McCutcheon, a number of attorneys had known of the existence of a concealed microphone in the jail conference room for several years. 7 McCutcheon stated that it was his practice to short out the device during conferences with his own incarcerated clients, while another prominent Anchorage attorney covered it with books. He disclosed to the court that the Anchorage Times had recently published an expose of the 'bug', replete with a picture of the device and an admission by the Chief of Police that inmate-attorney communications had in fact been monitored on previous occasions. The outcome of this hearing was a blanket order directing the Chief of Correctional Institutions for the State of Alaska to make available to all inmates facilities for private and confidential consultations with their attorneys. The trial court did not, however, attempt to determine whether, as Fajeriak had claimed in his letter, the state had already eavesdropped on appellant's confidential attorney-client communications.
Appellant alleged these facts specifically and by reference to the record in his application for post-conviction relief and in an affidavit filed with this court. The state concedes on appeal that the application, in conjunction with the supplementary affidavit, presents grounds for requiring the holding of an evidentiary hearing, and we agree. We further so hold based on the application itself, without reference to the affidavit. 8 According to Criminal Rule 35(g)(3), summary disposition of an application for post-conviction relief is appropriate only when it appears that 'there is no genuine issue of material fact'. Far from discrediting appellant's allegations, the record strongly tends to corroborate them, and we find that 'a genuine issue' within the meaning of Criminal Rule 35(g)(3) has therefore been raised. Further, there can be little doubt that this unresolved factual issue is legally 'material', for interceptions of attorney-client communications have long been held violative of due process of law 9 and of the right to the effective assistance of counsel. 10 As the United States Court of Appeals for the District of Columbia wrote in Coplon v. United States: 11
. . . (The fifth and sixth) Amendments guarantee to persons accused of crime the right privately to consult with counsel both before and during trial. This is a fundamental right which cannot be abridged, interfered with, or infringed in any manner. The prosecution is not entitled to have a representative present to hear the conversations of accused and counsel. 12
The spectacle of the state spying on attorney-client communications of persons placed in its custody offends even the least refined notions of fundamental fairness and due process of law, and if it took place we find it reprehensible. Such a practice subjects the accused to having confidential information conveyed to, and possibly utilized by, an unfriendly entity. Of constitutionally greater import, it defeats the sixth amendment right to consult privately with counsel, and it affords the state an opportunity to circumvent the defendant's fifth amendment privilege against self-incrimination. 13 The devastating impact of exposure of confidential information to the prosecution similarly impinges on the right to effective assistance of counsel in defending against criminal charges. 14
If appellant's allegations are true, then his conviction was unconstitutionally obtained, and he will be entitled to relief pursuant to Criminal Rule 35(b) as we shall delineate below. This case must therefore be remanded to the superior court to determine, after a full evidentiary hearing, whether Fajeriak's conferences with his attorney between November 11th and November 19th were electronically monitored.
In his application for post-conviction relief Fajeriak alleged that the district attorney, by resort to threats and intimidation, prevented potential defense witnesses from testifying. 15 The state on appeal found itself once again compelled to acknowledge that the augmented record presents an issue which will require an evidentiary hearing, and we are once more in accord with the state's assessment. The record discloses that Fajeriak interrupted his trial and took the stand in order to inform the judge (out of the presence of the jury) that one of his witnesses would not be available to testify because the district attorney had threatened to prosecute a dormant criminal charge against him if he did so. During the trial one Susan Rogers asserted by affidavit that the district attorney had also threatened to prosecute her (for illegally cohabiting with Fajeriak) if she testified on Fajeriak's behalf. Finally, the record incontrovertibly shows that the district attorney abused his power of process by subpoenaing a number of witnesses to his office, instead of to the courtroom, during the trial. This procedure improperly utilized the power of court subpoenas to afford the district attorney the opportunity to attempt to control the witnesses.
The intimidation of defense witnesses so infects a subsequently procured conviction with unreliability that the practice has long been condemned as a transgression of constitutional proportions remediable by post-conviction relief. 16 The facts as alleged require an evidentiary hearing in order to ascertain whether such intimidation occurred.
In his application for post-conviction relief, Fajeriak asserted that he was incompetent to stand trial as a result of head injuries he had sustained prior to trial. 17 We will, for the sake of argument, credit Fajeriak's affidavit of August 23, 1971, and assume that as a result of his head injuries Fajeriak was, at the time of trial, subject to fleeting blackouts, episodes of dizziness, and lapses of memory.
We recognize at the outset that the conviction of an incompetent defendant deprives the accused of due process of law, and his sentence is therefore vulnerable to post-conviction attack. 18 This is true whether or not the defendant presented the issue of incompetency at trial. 19 But incompetency to stand trial is a concept of restricted application. As 12.45.100(a) provides:
No person who as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense may be tried, convicted or sentenced for the commission of an offense so long as the incapacity endures. 20
We cannot seriously entertain the notion that the possibility that a defendant might suffer episodes of vertigo or momentary unconsciousness during trial is enough to render a defendant mentally incompetent. It could with equal justification be argued that a chronically drowsy defendant could not be tried because he might doze off during the proceedings. This is not to make light of the problem, and we trust that had Fajeriak acutally experienced a loss of...
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State v. Kleypas, 80,920.
...Gilder, 223 Kan. 220, Syl. ¶ 3, 574 P.2d 196 (1977). See Annot., 46 A.L.R.3d 544. The danger of false claims is great. Fajeriak v. State, 520 P.2d 795, 802 (Alaska 1974). Amnesia can easily be feigned. State v. Mc-Clendan, 103 Ariz. 105, 108, 437 P.2d 421 (1968)." Owens, 248 Kan. at Kleypas......
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...in secretly audio taping their conversations with Detainees constitutes a violation of substantive due process, relying in part on Fajeriak v. Alaska, which holds that "[t]he spectacle of the state spying on attorney-client communications of persons placed in its custody offends even the le......
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