Gillihan v. Rodriguez

• Decision Date: 28 February 1977
• Docket Number: No. 75-1514,75-1514
• Citation: 551 F.2d 1182
• Parties: Riley I. GILLIHAN, Petitioner-Appellant, v. Felix RODRIGUEZ, Warden, New Mexico State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1182

551 F.2d 1182

Riley I. GILLIHAN, Petitioner-Appellant, v. Felix RODRIGUEZ, Warden, New Mexico State Penitentiary Respondent-Appellee.

No. 75-1514.

United States Court of Appeals Tenth Circuit.

Argued and Submitted March 24, 1976.

Decided Feb. 28, 1977.

David E. Booth, Asst. Federal Public Defender, Albuquerque, N.M., for petitioner-appellant.

Andrea R. Buzzard, Asst. Atty. Gen., Santa Fe, N.M. (Toney Anaya, Atty. Gen., Santa Fe, N.M., on the brief), for respondent-appellee.

Before SETH and McWILLIAMS, Circuit Judges, and MORRIS, Chief Judge. ^*

MORRIS, Chief Judge.

This is an appeal from a denial of a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 (1970). In September, 1968, Riley I. Gillihan was convicted by a jury in the District Court of Grant County, State of New Mexico, on each of four separate counts of murder in the first degree. Capital punishment was imposed on each conviction. On appeal, the Supreme Court of New Mexico issued a mandate on September 10, 1969, remanding for resentencing as provided in newly enacted New Mexico statutes limiting capital punishment. ¹ On remand, the trial court resentenced the defendant to life imprisonment on each of the four separate convictions, and provided that the second, third and fourth convictions be served concurrently with each other but consecutively to the life sentence imposed upon the first conviction. The imposition of the consecutive sentences was affirmed by the New Mexico Supreme Court in State v. Gillihan, 81 N.M. 535, 469 P.2d 514 (1970).

Gillihan then filed a motion asserting three grounds for postconviction relief. The trial court denied the motion without a hearing, which denial was affirmed on appeal. State v. Gillihan, 85 N.M. 514, 514 P.2d 33 (1973). Thereafter, Gillihan sought postconviction relief on five different grounds. Again, the trial court's denial of relief without a hearing was affirmed on appeal. State v. Gillihan, 86 N.M. 439, 524 P.2d 1335 (1974).

Having exhausted his available state remedies, Gillihan petitioned the United States District Court for the District of New Mexico for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1970). After an evidentiary hearing, the district court denied the petition setting forth its reasons in a memorandum opinion. Gillihan v. New Mexico, No. 74-414 (D.N.M., May 14, 1975), Record, vol. 1, at 55, 60. This appeal followed.

Petitioner-Appellant asserts the following claims for relief:

1. Appellant was denied effective assistance of counsel at his state court trial.

2. Appellant was denied effective assistance of counsel on appeal from his state court conviction.

3. Appellant's conviction was rendered void by the imposition of the death penalty.

4. The submission to the jury of the death penalty as a possible verdict deprived appellant of due process of law.

5. The trial court's imposition of consecutive life sentences after the death sentences had been vacated constitutes enhancement of sentence in violation of the double jeopardy clause.

6. The trial court erred in giving certain instructions.

7. The trial court erred in allowing into evidence certain testimony of a pathologist.

I. Appellant's Claim of Ineffective Assistance of Counsel at the State Court Trial.

Appellant alleges that he was denied effective assistance of counsel at his state court trial in violation of the Sixth Amendment to the Constitution of the United States because his court-appointed lawyers (1) failed to seek a change of venue; (2) failed to demand a full pretrial hearing outside the presence of the jury on the question of the validity of his confession; (3) failed to require the prosecutor to disclose to the defendant the existence of exculpatory material; (4) failed to object to the prosecution's characterization of appellant as a "mad dog" during closing argument; (5) withdrew appellant's plea of "not guilty" and substituted therefor a plea of "not guilty by reason of insanity" without appellant's consent; and (6) failed to insist upon the defense of diminished responsibility.

Appellant complains that his counsel failed to move for a change of venue in spite of the fact that the murders had received massive pretrial publicity in Grant County, thereby making it impossible for the appellant to receive a fair jury trial in that county at the time of the trial. Appellant claims that prior to trial he asked his counsel to make such a motion. Hilton A. Dickson, Jr. and J. W. Woodbury, appellant's court-appointed lawyers during the state court trial, both testified at the evidentiary hearing below that change of venue was discussed with the appellant, but they could not recall that the appellant ever requested a change of venue. Record, vol. VI, at 15, 39. Counsel further testified that both of them and appellant were in agreement that the publicity in the community was not of an unusual nature, Record, vol. VI, at 15-17, and that appellant could get a fair trial in Grant County. Id. at 39. ² The district court found that appellant's allegation that he had asked his counsel prior to trial to request a change of venue was not credible, because, according to his own testimony, he did not become aware of any pretrial publicity until the prospective jurors were being questioned on voir dire. Record, vol. I, at 56. The district court's finding is amply supported by the record:

Q. (Mr. Roberts-Hohl) Now, why did you want a change of venue, Mr. Gillihan?

A. (Appellant) Silver City is a small town and there was a lot of publicity before this case.

Q. Do you have any did you have access to newspapers at the time?

A. No, sir, not at the time.

Q. Well, how did you know there was publicity?

A. In listening to the prospective jurors at my trial.

Q. Is that the extent of your notion of the extensive pre-trial publicity?

A. Yes, sir, at that time.

Q. And you had no access to newspapers?

A. No, sir.

Record, vol. VI, at 5. See id. at 7-8.

Appellant next contends that his counsel should have demanded a full pretrial hearing outside the presence of the jury for the purpose of challenging the validity of his confession. The record indicates, however, that a hearing was held outside the presence of the jury regarding the admissibility of appellant's confession. Record, vol. IV, at 343. During that hearing Mr. Woodbury zealously represented his client in repeatedly arguing to the court that the confession was involuntary and consequently inadmissible for the reason that appellant was incompetent to waive his constitutional rights. Record, vol. IV, at 348, 351, 392.

As a third ground in his attempt to show the ineffectiveness of his counsel appellant asserts that a request should have been made of the prosecution to disclose to the defendant the existence of exculpatory material pursuant to Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). At the evidentiary hearing in the federal district court appellant testified that prior to trial he learned from a police officer that casts of footprints were taken at the murder site which were of a different shoe size than appellant's. Appellant claims that he informed his counsel of this prior to trial. Record, vol. VI, at 6, 9.

Counsel testified that they had no knowledge of these footprints and could not recall any discussions with appellant concerning them prior to trial, but learned of their existence for the first time during trial. Id. at 18, 41-42. Defense counsel concluded and the district court found that the casts were not material to the defense since several people had been at the scene of the crime prior to the arrival of the law enforcement officers, id. at 19, and since appellant had admitted commission of the crime but was maintaining innocence by reason of insanity. Record, vol. I, at 56; id., vol. VI, at 19, 41.

Appellant next complains about his counsel's failure to object when the prosecution during closing argument referred to appellant as a "mad dog." At the evidentiary hearing defense counsel explained that their decision not to object was based upon the following considerations: (1) The statement was not so inflammatory as to deprive appellant of a fair trial; Record, vol. VI, at 25, 37-38; ³ (2) there was no chance of obtaining a mistrial on the basis of the remark; id. at 43; (3) the phrase was consistent with the insanity defense; id. at 37; and (4) the expression was used to appellant's benefit during the closing argument for the defense. Id. at 44. ⁴

Appellant's final two grounds urged in his attempt to show inadequacy of counsel concern his change of plea from "not guilty" to "not guilty by reason of insanity," and counsel's failure to insist upon the defense of diminished responsibility. Appellant alleges that he was not consulted and did not consent either to the change of plea or the waiving of the diminished responsibility defense. Record, vol. VI, at 6-7, 10; Appellant's Brief at 5. These allegations are refuted, however, by appellant's own testimony on cross-examination at the evidentiary hearing below:

Q. (Miss Buzzard) Did you know what an insanity defense was?

A. (Appellant) Yes, ma'am, that meant I think I do. That I didn't know what I was doing at the time, or wasn't responsible for it.

Q. Is that what you wanted your defense to be?

A. I left it up to my attorneys. I didn't know what the defense should be.

Record, vol. VI, at 11. Furthermore, the testimony of his counsel contradicts appellant's allegations. They testified that appellant not only agreed to the change of plea after it had been discussed with him, but that he actually wanted to gamble for an acquittal by relying on an all or nothing defense based on insanity. His rejection of the diminished responsibility defense, which would have allowed the jury to consider a conviction for second degree murder, was based on his desire to avoid incarceration for any length of time. Id. at 20, 33, 42, 43, 52. The district...