Hall v. Warden, Nev. State Prison

• Decision Date: 29 November 1967
• Docket Number: No. 5302,5302
• Citation: 83 Nev. 446,434 P.2d 425
• Court: Nevada Supreme Court
• Parties: Franklin L. HALL, Appellant, v. WARDEN, NEVADA STATE PRISON, Respondent.

Page 425

434 P.2d 425

83 Nev. 446

Franklin L. HALL, Appellant, v. WARDEN, NEVADA STATE PRISON, Respondent.

No. 5302.

Supreme Court of Nevada.

Nov. 29, 1967.

Lester H. Berkson, Zephyr Cove, for appellant.

Harvey Dickerson, Atty. Gen., and Peter I. Breen, Deputy Atty. Gen., Carson City, for respondent.

OPINION

COLLINS, Justice.

This is an appeal from a denial of habeas corpus. Appellant was convicted in the Eighth Judicial District Court of the crime of murder in the second degree upon his plea of guilty to that charge and was sentenced to the state penitentiary where he has served over one year. His application for a post-conviction writ of habeas corpus to the First Judicial District Court was denied, and he appeals to this court. He specifies error of the First Judicial District Court as follows:

1. That he was denied counsel before his arraignment in the Eighth Judicial District Court.

2. That his court-appointed counsel were ineffective and he was thus denied his right to counsel.

3. That his plea of guilty was not voluntary in nature.

4. That at the post-conviction hearing he was denied the right or opportunity to put in evidence pertaining to his innocence.

We conclude the denial of habeas corpus by the First Judicial District Court was correct and deny petitioner any relief from his conviction in the Eighth Judicial District Court.

On February 14, 1965, appellant was incarcerated in the Clark County jail on robbery charges. He had been in that jail approximately two and one-half months and although bail had been fixed and reduced to $500, he was unable to make bail. On that date appellant wrote and gave the following letter to a guard:

'Franz, sir:

'I wish to 'copout' to a murder. Come and take me upstairs quiety and quickly.

'Of all people--

'Franklin Hall (Francis)'

Appellant was taken to a separate room removed from the jail. He had in his possession a letter of confession which he then On February 17, 1965 appellant was visited by the Clark County district attorney in the jail. Appellant states he was advised by the district attorney: 'They had the confessions, would use them if I was going to trial, they definitely would get a conviction, and he would call for life without possibility of parole.'

turned over to the authorities. The letter ¹ confessed to a previously unsolved homicide. Appellant was next driven in a car to the scene of the homicide and was informed by the authorities that this was the location where the victim's body had been found. Following this, he was taken to the Las Vegas city jail where additional statements were taken from the appellant by the officers. Later that evening appellant wrote another full confession.

Appellant was arrested and charged with murder on February 19, 1965. He was arraigned in justice court that same day. He advised the court he was without funds to obtain counsel. Nevada law at that time did not provide for appointment of counsel at the justice court level, and none was appointed. He was advised by the justice of the peace that he had a constitutional right to counsel but that the court had no authority to appoint counsel for him at that time. Appellant waived counsel and a preliminary hearing. He was bound over to the district court on the charge of murder. On his arraignment in the district court co-counsel were appointed for him because of his indigency. The court designated Wayne Clark, Esq., and Alfred Becker, Esq. Later Mr. Becker was allowed to withdraw and Douglas Shoemaker, maker, Esq., was appointed as co-counsel.

At arraignment appellant entered a plea of not guilty to the murder charge. On April 30th, 1965 appellant in the presence of his counsel in open court withdrew his plea of not guilty and entered a plea of guilty to second degree murder.

Defendant requested probation and the court ordered the matter continued pending The transcript of the May 21st hearing conducted by the trial judge in the Eighth Judicial District Court is extensive and demonstrates a genuine concern by the trial judge, by the deputy district attorney and particularly by co-defense counsel in exploring the entire matter in depth. We attach a verbatim copy of that transcript to this opinion as an addendum.

receipt of a report and recommendation from the Department of Parole and Probation. Following receipt of that report appellant appeared in open court with his co-counsel and the deputy district attorney for the purpose of sentencing. A lengthy hearing was held at the insistence of the trial judge. The transcript of the hearing was not a part of the record before the First Judicial District court on the hearing of the petition for habeas corpus, nor was it a part of the record before this court. We consider it to be of major importance, and have ordered it made a part of the record on appeal.

The testimony before the First Judicial District Court shows that in handling the case both Clark and Shoemaker not only conferred with each other but also researched the law on the subject, conferred with other attorneys and investigated the facts surrounding the first written confession. They asked for a psychiatric examination of the petitioner, which was granted by the court. In their opinion the biggest hurdle facing them was the first written confession of the petitioner. They felt that confession was admissible and greatly increased the chances of a conviction.

The record further shows that they conferred with the district attorney and were told that the state would, in exchange for plea of guilty to second degree murder, drop the open charge of murder and the robbery charge as well. The record then shows petitioner and his attorneys met to discuss this matter. His counsel related to him their opinions with regard to certain facts and situations they thought would possibly influence the court. They told him that it would be advantageous for him to accept the offer of the district attorney but they left the final decision in his hands. Five minutes before his arraignment he decided to change his plea to that of guilty to second degree murder. The court accepted his change of plea and sentenced him to not less than 10 nor more than 50 years in the state penitentiary. He could have been given a maximum sentence of life imprisonment.

We first turn to appellant's contention that he was denied his constitutional rights before arraignment. Since this case was initiated prior to June 13, 1966, the federal constitutional rights as pronounced in the case of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), do not apply. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). We must therefore look to the pre-Miranda standards.

The federal constitutional standards with regard to a defendant's right to counsel at critical stages of the proceedings against him which were applicable at the time appellant appeared before the justice of the peace were those announced in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (trial); Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961) (a proceeding at which a certain defense must be raised or be forever waived); White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963) (a proceeding where one must enter his plea); and Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) (where incriminating evidence was elicited by prosecuting officials). Under that authority we held in Victoria v. Young, 80 Nev. 279, 392 P.2d 509 (1964), that a preliminary hearing in Nevada was not a critical stage in the proceeding. Appellant's contention that the doctrine of Victoria v. Young has been superseded by Ibsen v. State, 83 Nev. ---, 422 P.2d 543 (1967), is not correct. Ibsen was predicated upon the statutory The record shows that the justice of the peace advised petitioner of his constitutional right to counsel and his right to a preliminary hearing. He waived both of those rights at that time. ³ This was all the court was then required by law to do. Nor does petitioner's federal constitutional Sixth Amendment right to counsel as pronounced in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), apply. We said in Bean v. State, 81 Nev. 25, 398 P.2d 251 (1965), that a request for counsel was necessary before the Escobedo doctrine would be invoked. The record here is devoid of any demand by petitioner for appointment of counsel prior to arraignment in the district court.

revision of NRS 171.370 ² which did not go into effect until April 3, 1965, a time after these preliminary proceedings were concluded.

An additional factor in this case is that the conviction came as a result of appellant's plea of guilty. We said in Rainsberger v. State, 81 Nev. 92, 399 P.2d 129 (1965): 'A different complexion is cast upon claimed constitutional violations and other claims of error when, as here, a defendant charged with murder, has voluntarily and with the assistance of competent court-appointed counsel, entered a plea of guilty in open court. * * * The constitutional safeguards pointing to a fair trial are greatly diluted in significance, for a trial to determine the ultimate issue of innocence or guilt has been waived by the plea of guilty. The presumption of innocence has ceased to exist, and the defendant stands before the court an admitted murder, asking mercy and understanding with respect to degree and penalty. If the plea of guilty is not itself constitutionally infirm, it would appear that one who has so confessed may not rely upon the constitution to free him. * * * Id. 95, 96, 399 P.2d 131.

'We hold that where, as here, one accused of murder voluntarily pleads guilty upon arraignment in open court, with the advice of competent counsel, the federal constitutional right to counsel is not violated, notwithstanding the fact that the accused, before entering his...