Janovic v. Eyman

• Decision Date: 01 December 1967
• Docket Number: No. Civ-6305.,Civ-6305.
• Citation: 276 F. Supp. 862
• Parties: Joseph William JANOVIC, Jr., Petitioner, v. Frank A. EYMAN, Warden, Arizona State Penitentiary, Respondent.
• Court: U.S. District Court — District of Arizona

276 F. Supp. 862

Joseph William JANOVIC, Jr., Petitioner, v. Frank A. EYMAN, Warden, Arizona State Penitentiary, Respondent.

No. Civ-6305.

United States District Court D. Arizona.

December 1, 1967.

Darrell F. Smith, Atty. Gen. of the State of Arizona, for respondent.

Joe W. Contreras, Phoenix, Ariz., Leonard Lawrence, Chicago, Illinois, for petitioner.

OPINION

CRAIG, District Judge.

In the above entitled cause petitioner filed his petition for writ of habeas corpus under Title 28 U.S.C. § 2254. It appearing that all state remedies had been exhausted, the petition for writ of habeas corpus was received by this Court.

Petitioner pleaded guilty to the crime of first degree murder in the Superior Court of the State of Arizona in and for the County of Yuma. An appeal was taken to the Supreme Court of Arizona from the judgment of conviction and the sentence of death. Following a coram nobis hearing, ordered by the Supreme Court of Arizona to make findings of fact and conclusions of law, the Arizona Supreme Court affirmed the conviction. State of Arizona v. Janovic, 101 Ariz. 203, 417 P.2d 527 (1966). The Supreme Court of the United States denied certiorari. Janovic v. Arizona, 385 U.S. 1036, 87 S.Ct. 777, 17 L.Ed.2d 683 (1967). An order to show cause, pursuant to the petition for writ of habeas corpus was granted by the United States District Court for the District of Arizona on March 31, 1967. A hearing, pursuant to that order was held on September 28-29, 1967.

The facts, as developed in the earlier proceedings, are that petitioner and Lawrence George Kruchten, petitioner in a companion case, Kruchten v. Eyman, 276 F.Supp. 858 (1967) were each 22 years old, and residents of Illinois on December 21, 1962. For some months prior to that date they had been working sporadically at a variety of jobs in Southern California. While in California they met Sally Ann Pierce, aged 20. Miss Pierce had a 1959 Chevrolet automobile and One Hundred Forty Dollars cash; the three decided to take her car and drive to Florida. Sometime after the original formation of the plan, the three decided to stop in Chicago for the Christmas holidays. On December 21, 1962, they left California, taking with them some brandy and beer which they consumed, along with other intoxicants, during the day.

About ten miles outside Salome, Arizona, in Yuma County, the three stopped near a roadside rest area, and walked about two miles into the desert. At that point Janovic picked up a rock and hit Miss Pierce on the head two or three times; Kruchten then took the rock and hit the deceased twice more. Janovic and Kruchten returned to the automobile and drove away, taking the deceased's money, clothing, portable television, and phonograph. The clothes were discarded later that day, along with Kruchten's blood-stained shirt. The television was sold in Kansas City, the phonograph in suburban Chicago. Miss Pierce apparently died where she fell; the rock was found near the body, covered with hair and blood stains.

In the Superior Court, Janovic and Kruchten were charged on a single information with the crime of first degree murder. They were represented by Ralph Brandt, Esquire, an experienced Yuma attorney. He had been hired by Janovic's parents, and agreed to represent Kruchten after discussing the case with petitioner. Pleas of guilty were received on July 16, 1963. A mitigation hearing was held on July 26, 1963, and the death sentence was imposed by Judge William W. Nabours.

Petitioner's first allegation to support his claim that he is in custody unlawfully is that the failure of the trial court to have him given a psychiatric examination prior to entry of a plea and imposition of sentence constituted a violation of due process under the Fifth and Fourteenth Amendments to the United States Constitution. There is no question that conviction of an accused person, while he is legally incompetent, violates due process. Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956).

Janovic served in the United States Marine Corps for a period of twenty months, spending the last five months in psychiatric wards at military hospitals in Honolulu and Philadelphia. His enlistment was terminated on February 25, 1959, "by reason of honorable discharge (COG) as unsuitable for military service," because of "emotional instability" described at length in the Board of Medical Survey report of February 11, 1959. That report became part of his permanent military medical record.

Shortly after petitioner's arrival in Yuma for arraignment, Brandt was informed of Janovic's prior psychiatric history. On May 29, 1963, Brandt wrote to the Marine Corps to obtain a copy of petitioner's medical record. A photostatic copy of that report was dispatched on June 17, 1963; it was subsequently introduced as an exhibit at the mitigation hearing on July 26, 1963.

On July 5, 1963, Brandt requested and obtained from the Superior Court an order directing that Janovic be given a psychiatric examination by a state psychiatrist before any plea was to be entered. That examination was never given.¹

The reason the examination was not administered does not appear in the record of the trial Court, but was explained at the coram nobis by Brandt. He stated that following his contact with and observation of Janovic, while preparing the defense, it was his opinion that an examination would have been more harmful than helpful:²

"* * * it was my judgment that a psychiatric exam would not have been beneficial, that a psychiatric exam most likely would have erased the problem and the question that we had invoked in the Court's mind by the stipulation, the order, the initiation and the record of the Marine Corps. * * * This is a matter of judgment on my part. Part of what I thought would be the best strategy * * * of defense."

At the time of the coram nobis hearing, petitioner was examined, at the request of his appellate counsel, by T. Richard Gregory, M.D., a practicing psychiatrist in Phoenix. His report to the Superior Court supports Brandt's fears that an examination might erase all doubts of Janovic's insanity. Dr. Gregory stated that it was his opinion that Janovic was able to know right from wrong, the nature and consequences of his acts, the nature of the proceedings lodged against him, and was able to assist counsel in his defense. These are the elements of the M'Naughten Rule, which is the Arizona test for criminal responsibility. State of Arizona v. Schantz, 98 Ariz. 200, 403 P.2d 521 (1965), cert. den. 382 U.S. 1015, 86 S.Ct. 628, 15 L.Ed.2d 530 (1966); or the Federal and State rules for ability to stand trial, Smith v. United States, 267 F.2d 210 (9th Cir. 1959); Arizona v. Alford, 98 Ariz. 124, 402 P.2d 551 (1965), cert. den. 382 U.S. 1020, 86 S.Ct. 625, 15 L.Ed.2d 535 (1966).

Petitioner urges upon this Court the argument concerning the difficulty that arises when attempting to retroactively determine mental condition. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). However, the testimony of Dr. Gregory establishes with reasonable certainty that Janovic's mental condition in late 1965 was essentially the same as it had been in December, 1962, or July, 1963.

"My examination was in December 1965 as I recall and I believe that with reasonable certainty his mental status was not at that time different from what it would have been in the preceding two or three years. * * * I found no disease or mental disorder which would have existed in 1962-3."³

Brandt's decision to rely at the mitigation hearing on petitioner's Marine Corps medical report rather than run the risk of a clean bill of health, which would have entirely removed the insanity defense, appears to be a reasonable decision in light of the facts then available. Brandt made that determination after examining the medical records, and after talking with and observing petitioner at various times during a period of a month and a half. The validity of that decision is supported by later expert medical testimony.

The Superior Court did not have the inherent power to compel petitioner to submit to a mental examination after competent counsel had determined that such examination would not be beneficial, but, indeed, might be detrimental, in defending against a first degree murder case. Steward v. Superior Court of Maricopa County, 94 Ariz. 279, 383 P.2d 191 (1963). Meador v. United States, 332 F.2d 935 (9th Cir. 1964), cited by petitioner is not applicable here, because in that case a mental examination requested by counsel was refused by the Court. In this case, counsel knowingly waived examination on behalf of petitioner, because he felt that was the best way to preserve the strongest defense.

The basic definition of waiver is found in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938):

"* * * an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver * * * must depend, in each case, upon the particular facts and circumstances surrounding that case * * *."

Here petitioner, through his competent counsel deliberately determined, for strategic reasons, not to risk a contemporary psychiatric examination which might have completely negated his insanity defense. This constitutes a valid waiver of a constitutionally guaranteed right; it means that petitioner cannot now raise this matter because events in the trial Court did not proceed as counsel or petitioner had hoped. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).

Petitioner alleges that the representation provided by Brandt constituted a denial of effective assistance of counsel in violation of the Sixth Amendment. Two months before Brandt was hired the United States Supreme Court held that the Sixth Amendment right to counsel is a fundamental...