Fugate v. Gaffney
| Decision Date | 07 May 1970 |
| Docket Number | No. 1307 L.,1307 L. |
| Citation | 313 F. Supp. 128 |
| Parties | Caril Ann FUGATE, Petitioner, v. Madolyn GAFFNEY, Respondent. |
| Court | U.S. District Court — District of Nebraska |
COPYRIGHT MATERIAL OMITTED
John McArthur, Lincoln, Neb., for plaintiff.
Melvin K. Kammerlohr, Asst. Atty. Gen., Lincoln, Neb., for respondent.
FINDINGS AND OPINION
Caril Ann Fugate, who is incarcerated in the Women's Reformatory at York, Nebraska, filed on December 5, 1967, in District Court for the District of Nebraska a petition for a writ of habeas corpus. In her petition she contends she suffered in the Nebraska state court a conviction and life sentence for first degree murder that should be invalidated and set aside because her conviction was obtained in violation of certain of her constitutional rights as will be later detailed and discussed. Eventually, both of the federal district court judges of Nebraska disqualified themselves, and on January 19, 1970, the undersigned judge was designated and authorized to process and decide this case.
On February 6, 1970, a full evidentiary hearing was accorded petitioner and respondent. At that hearing Miss Fugate and her counsel, John McArthur, testified. Additionally, the entire transcripts and records of the prior state court actions were introduced in evidence.
An examination of the record in the instant case convinces that there has been substantial exhaustion of all state court remedies and it is in the public interest, as all parties concede, that this post-conviction remedy action be entertained and decided by the undersigned court.
There is no serious dispute concerning much of the factual background leading up to the present case. Miss Fugate, who was then fourteen years old, was a companion of and stayed and traveled with Charles Starkweather for a nine day period during a series of heinous killings, some eleven in number, that took place in and around Lincoln, Nebraska, in January, 1958. She accompanied Starkweather in his efforts to elude the authorities. They were eventually apprehended in Wyoming on January 29, 1958.1 She was charged in a two count indictment, the second count alleging that she did unlawfully, feloniously, and purposely in the perpetration of a robbery, kill Robert William Jensen. Her conviction on Count II and life sentence thereon is the subject of her present post-conviction challenge.2
In this case petitioner renews certain contentions of alleged constitutional error that she presented in her state post-conviction action and in her other various state court actions.3 These present contentions which she claims, violated her fifth, sixth and fourteenth amendment rights are:
The federal standards of review in post-conviction actions concerning state criminal cases are articulated in the trilogy and in more recent federal cases such as Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969).4 Broadly stated, the inquiry is whether the state prisoner is in custody in violation of the Constitution or laws or treaties of the United States. See, 28 U.S.C. Section 2254(a) and 28 U.S.C. Section 2254(d) as amended. The more particular inquiries will be discussed as each of petitioner's contentions are examined. It is the duty of the reviewing federal court to make its own independent determination on federal questions. See, In Matter of Parker, 423 F.2d 1021 (8th C.C.A. 1970); Doerflein v. Bennett, 405 F.2d 171 (8th Cir. 1969).
In a federal habeas corpus proceeding under 28 U.S.C. Section 2254(d) as amended it is provided that the state court determination of a factual issue "shall be presumed to be correct" unless the applicant establishes a circumstance, therein enumerated, which proves the unreliability of the state proceeding. See, In the Matter of Parker, supra, and its numerous citations on this point. Of course, the presumptive correctness of the state court's finding is always rebuttable. See, Brown v. Crouse, 399 F.2d 311 (10th Cir. 1968), and the Triology cases.
First to be examined is petitioner's contention that she was deprived of the full services of counsel of her own choice.5 The facts involved are relatively undisputed.
The record discloses that about the time of petitioner's arraignment, it being apparent that she needed an attorney to represent her, she filed a motion and affidavit under oath stating that she was without funds or resources to obtain, employ and pay counsel and requested the court to appoint an attorney to defend her. She did not suggest the name of any particular attorney but left the selection to the court.
Pursuant to her written request, Nebraska District Court Judge Harry A. Spencer (now Associate Justice of the Supreme Court of Nebraska) by written order appointed John H. McArthur, of the Lincoln, Nebraska bar, to represent her. Mr. McArthur has represented petitioner from that time to and including the present time. At the time of his appointment Mr. McArthur had been an active practicing attorney for some twenty-three years and was then forty-eight years old. He was experienced in both civil and criminal matters. He immediately began preparation of petitioner's defense and from then on worked diligently on her case.
Officing with Mr. McArthur was another lawyer, Mr. Merril R. Reller, now deceased. Mr. McArthur and Mr. Reller were not partners but with varying frequency occasionally assisted each other in some legal matters and in some cases, making a separate arrangement each time as to whether it was just an informal exchange of services or on a fee-sharing or pay basis. Each had his own independent practice. Mr. McArthur soon after his court appointment asked Mr. Reller to assist him. Thereafter, Mr. Reller had considerable contact with petitioner and assisted in preparing her case, including some work with potential witnesses, and with proposed voir dire questions and instructions.
On the morning the trial commenced Mr. Reller and Mr. McArthur appeared, and Mr. Reller took the front chair at the counsel table with Mr. McArthur seated behind him. Judge Spencer called Mr. Reller into his chambers, explained to him that he had officially appointed Mr. McArthur as Miss Fugate's counsel, and that he expected Mr. McArthur to conduct the voir dire examination, also all of the examining and cross-examining of the witnesses, make the objections and the closing arguments. He advised Mr. Reller that he could sit behind Mr. McArthur and counsel and advise him in any way he desired, and assist Mr. McArthur fully in that capacity.6
Mr. Reller sat behind Mr. McArthur throughout the trial, consulted with him and with Miss Fugate frequently, made suggestions to Mr. McArthur regarding the voir dire examination, the examination of witnesses, the instructions and other matters, and generally assisted Mr. McArthur in the trial of the case.7
At the hearing on the instant case Mr. McArthur candidly testified that he could not think of anything that he was prevented from doing, or that prejudiced his representation of Miss Fugate at the original trial that could be attributed to Mr. Reller not being permitted to conduct the voir dire, examine witnesses or make the objections. Rather, at most, McArthur believed Mr. Reller may have been better prepared to conduct the voir dire and to examine Miss Fugate, but conceded he had the constant advice and counsel of Mr. Reller as these events occurred.
While there is some showing that Miss Fugate had developed confidence in Mr. Reller, there is no showing that she or Mr. McArthur ever requested Judge Spencer to appoint Mr. Reller as co-counsel in the case.8 Judge Spencer's only knowledge of Mr. Reller's situation came for the first time on the morning trial commenced and then only from Mr. Reller.
Examination of the transcript of the trial reveals Judge Spencer had indeed selected and appointed competent counsel for Miss Fugate. Mr. McArthur handled her defense in a very able and experienced manner, obviously had prepared diligently for all phases of the trial, including examination of Miss Fugate as a witness in her own behalf, and exhibited both intelligent and sound trial strategy as he vigorously represented her throughout the entire trial.
It is the undersigned judge's finding (as was the state court of Nebraska) that Miss Fugate was not denied trial counsel or co-counsel of her selection. At her request and because she appeared financially unable to employ counsel the court appointed competent counsel (Mr. McArthur) who was fully acceptable to Miss Fugate. Although not advised until the trial was ready to commence that...
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