Fernandez v. Rodriguez, 83-2332

• Decision Date: 04 April 1985
• Docket Number: No. 83-2332,83-2332
• Parties: Claudio FERNANDEZ, Petitioner-Appellant, v. Felix RODRIGUEZ, Acting Warden, New Mexico State Penitentiary, Respondent- Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 558

761 F.2d 558

Claudio FERNANDEZ, Petitioner-Appellant, v. Felix RODRIGUEZ, Acting Warden, New Mexico State

Penitentiary, Respondent- Appellee.

No. 83-2332.

United States Court of Appeals, Tenth Circuit.

April 4, 1985.

Edwin Macy, Asst. Federal Public Defender, Albuquerque, N.M., for petitioner-appellant.

Paul Bardacke, Atty. Gen., and Michael E. Sanchez, Asst. Atty. Gen., Santa Fe, N.M., for respondent-appellee.

Before McKAY, DOYLE and LOGAN, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Circuit R. 10(e). The cause is therefore ordered submitted without oral argument.

Involved herein is an appeal from the denial of a writ of habeas corpus by the United States District Court for the District of New Mexico. The allegation was and continues to be that the defendant was deprived of his constitutional right against self-incrimination in the state court of New Mexico.

Appellant Claudio Fernandez was convicted and sentenced of second-degree murder with enhancement for use of a firearm in the New Mexico state courts. This conviction was affirmed by the New Mexico Court of Appeals and further review (both on appeal and by post-conviction writ) was denied by the New Mexico Supreme Court.

A writ of habeas corpus was filed in the United States District Court. The writ of habeas corpus was there denied after a review by the United States Magistrate and the United States District Court. Review of this ruling is sought by review in accordance with 28 U.S.C. Sec. 2253.

The facts of the case are as follows. This defendant was initially charged with voluntary manslaughter in connection with the death of his wife, Patsy Fernandez. On June 23, 1978 he entered into a stipulation with the state. Contained in the stipulation was a provision which called for the defendant to submit to a polygraph examination administered by the state. The defendant was unaware of the significance of this device. The defendant had been charged with manslaughter and this same agreement provided for the administration of the polygraph test and for its admission at his trial on the manslaughter charge. ¹ The defendant testified that his attorney, Mr. Natelson, had met with him only briefly before the test and had failed to explain that the polygraph test could be used against him. On the contrary, he testified that Natelson led him to believe that he was required to take the test; that the test was routine. It is important to note that this original attorney failed to explain the mechanics of the test and its consequences. Indeed the attorney was not present when it was taken. The defendant also testified that he did not understand either the stipulation or the polygraph test itself. The evidence also showed that the defendant's knowledge of English was limited.

Mr. Natelson also testified at the trial at the behest of the state. He said he had not explained the mechanics of the polygraph examination. He also testified that he had limited knowledge of this polygraph process; that he had seen only one such proceeding at a prior time. The polygraph examiner had been hired by the state. Also, he operated it on the state's behalf.

The polygraph test resulted in the filing of a more serious offense. On June 29, 1978, the defendant was charged and was arraigned on a more serious charge of murder with firearm enhancement. Mr. Natelson withdrew from the case shortly after the arraignment on the murder charge. The public defenders were appointed by the court. They at once moved to suppress the results of the polygraph examination. This was grounded on the basis that defendant had not understood the polygraph stipulation or the questions which had been asked. The defendant had such a poor grasp of English that he was unable to understand the polygraph questions. But the trial court held a hearing on this motion and admitted the polygraph testimony. Its ruling was that the defendant's English was adequate to understand the meaning of the stipulation and the questions asked during the polygraph examination. The record is replete with evidence as to the defendant's lack of understanding.

During pretrial, counsel for the defendant and for the state had entered into a stipulation which provided for disclosure and discovery. ² One of the provisions stipulated that each party be given notice of all witnesses who would testify. The state broke this agreement because it called two witnesses not on its endorsed list.

The state failed to identify Tom Cruz and Tina Martinez. Cruz was called the second day of the trial. The defendant objected, claiming that he was unable to investigate the witness or his testimony. The state advised the court that it intended to also call Martinez. The state advised the court that it would turn its report on the testimony of both Cruz and Martinez over to defense counsel. The court allowed both witnesses to testify and ruled that defense counsel would have an opportunity to interview both witnesses before they testified. Both witnesses testified that they had seen the defendant on a road on June 4, 1978. This testimony was pertinent to the question of whether the defendant had told the truth as to his whereabouts to the investigating officers.

On March 17, 1978, the defendant was convicted of second-degree murder by a jury. He was sentenced to a term of not less than 15 nor more than 55 years.

After exhausting his New Mexico state remedies, the defendant sought but was denied habeas corpus relief in the United States District Court.

The strange proceedings described above brought about the equivalent of a detailed confession.

The waiver of the accused's right against self-incrimination and the conviction were carried out without the slightest warning to the accused. It also brought out a new charge--one which was grossly more serious than the original manslaughter case. But beyond that it brought about a sentence of great magnitude--15 to 55 years. In addition he was forced to take a polygraph test--a procedure about which he had no understanding and which introduced evidence which had not been possible.

The defendant raises two issues on appeal. The important contention is whether the trial court erred in admitting the polygraph testimony. ³

This polygraph examination led to the filing of the murder charge and it brought about the grossly more serious sentence mentioned above. The defendant argues that his inability to comprehend English prevented him from understanding the polygraph stipulation, and that therefore the stipulation was not a valid waiver of his right against self-incrimination.

Defendant argues that his decision to sign the polygraph stipulation was essentially a decision not to object to inadmissible evidence. But worse than that it amounted to a waiver of consent to waive his right against self-incrimination. Unquestionably the defendant made his decision to sign the polygraph stipulation without knowing that he was thereby convicting himself; with the advice of his then counsel. He did not have "sufficient awareness of relevant circumstances and likely consequences," Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970), all of which is required for a valid waiver of a constitutional right. Our reading of the record convinces us that the defendant was unable to understand either the polygraph stipulation or its consequences. There is ample evidence which supports his meagre grasp of English. His lack of understanding of English is apparent from the attached appendix. Had he understood the workings of the polygraph test he would not have participated. This coupled with his language problem resulted in his conviction.

Because the defendant was unable to speak and understand the English language fluently, it was imperative that his attorney explain to him the possible consequences of taking the polygraph test. This was not done here. We do not dwell on the issue of the adequacy of counsel. Rather, we view the failure of counsel to apprise the defendant of the implications of the polygraph as another indication that the defendant's waiver lacked an intelligent conclusion, if not from him, from his attorney.

The trial judge held a hearing on the motion to suppress the polygraph and determined that the defendant's familiarity with English was sufficient for him to understand the stipulation. Factual issues such as the claimed inability to understand English are properly decided by the trier of facts. State v. Ramirez, 89 N.M. 635, 556 P.2d 43 (1976). But whether there was an intelligent waiver of his constitutional rights against self-incrimination at the time he stipulated to the polygraph examination is a question of law and fact which requires a full examination of all the circumstances involved. When such mixed questions of fact and law are presented to federal habeas corpus courts, the federal judge need not defer to the legal determinations of a The Supreme Court has clearly ruled that the violation of fundamental constitutional rights is a highly sensitive matter which is not readily waived. This has been emphasized on numerous occasions. The leading case is Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). In a stellar opinion by Justice Black the high importance was brought out. The Court said: " '[C]ourts indulge every presumption against waiver of fundamental rights,' and ... 'do not presume acquiescence in the loss of fundamental rights.' " Id. at 464, 58 S.Ct. at 1023 (citations omitted). In deciding whether the defendant did validly waive his right against self-incrimination, Zerbst directs us to evaluate "... the particular facts and circumstances surrounding [the] case, including the background,...