Kruchten v. Eyman

• Decision Date: 17 January 1969
• Docket Number: No. 22706.,22706.
• Citation: 406 F.2d 304
• Parties: Lawrence George KRUCHTEN, Appellant, v. Frank A. EYMAN, Superintendent, Arizona State Prison, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

406 F.2d 304 (1969)

Lawrence George KRUCHTEN, Appellant, v. Frank A. EYMAN, Superintendent, Arizona State Prison, Appellee.

No. 22706.

United States Court of Appeals Ninth Circuit.

January 17, 1969.

Arthur E. Ross (argued), Phoenix, Ariz., Laurence Davis, Washington, D. C., for appellant.

James S. Tegart (argued), Deputy Atty. Gen., Darrell F. Smith, Atty. Gen., Carl Waag, Asst. Atty. Gen., Phoenix, Ariz., for appellee.

Before MERRILL and DUNIWAY, Circuit Judges, and CRARY, District Judge.^*

CRARY, District Judge.

Appellant, Lawrence George Kruchten, appeals from the order of the United States District Court for the District of Arizona dated December 1, 1967, denying appellant's petition for Writ of Habeas Corpus filed with the United States District Court, under Title 28, United States Code, Section 2254, Kruchten v. Eyman, 276 F.Supp. 858.

The appellant and his co-defendant, Joseph William Janovic, Jr., pleaded guilty in the Superior Court of the State of Arizona, in and for the County of Yuma, to the crime of first degree murder, and sentence to death was imposed on both defendants July 26, 1963. Appeal of appellant Janovic has been considered separately and decided contemporaneously with the instant appeal.

Post sentence proceedings, and appeals to this Court, of Kruchten and Janovic, have been the same except for some variance in the grounds urged on appeal to the Supreme Court of Arizona, for Habeas Corpus relief, and in their respective specifications of error on appeal to this Court.

During August, 1963, different and separate counsel were substituted for Kruchten and Janovic, and notice of appeal to the Supreme Court of Arizona was filed by each of the appellants from the conviction and sentence and separate appeals were perfected.

The Supreme Court of Arizona ordered a hearing in the nature of a Coram Nobis proceeding which was held on November 15 to 19, 1965, inclusive, in Yuma, Arizona, before the Honorable Ross Jones, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa. Judge Jones made detailed Findings of Fact and Conclusions of Law on subjects specified by the Supreme Court of Arizona. State v. Kruchten, 101 Ariz. 186, 417 P.2d 510, footnote 1, page 514. That Court affirmed the conviction after reviewing the transcript of the Coram Nobis proceedings and all exhibits and Reporter's Transcript of proceedings in the trial court. 101 Ariz. 186, 417 P.2d 510 (Aug. 2, 1966), supra; cert. denied, Kruchten v. Arizona, 385 U.S. 1043, 87 S.Ct. 784, 17 L.Ed.2d 687 (1967).

Following the filing of Kruchten's petition for Writ of Habeas Corpus in the United States District Court for the District of Arizona on March 31, 1967, that Court, on the same date, issued an Order to Show Cause why said petitioner should not be released from custody. Hearing pursuant to that Order was held on September 27 and 28, 1967. That hearing included a petition for Writ of Habeas Corpus, also filed on March 31, 1967, by Janovic. The District Court denied both petitions by its opinions and orders filed December 1, 1967, Kruchten v. Eyman, 276 F.Supp. 858, and Janovic v. Eyman, 276 F.Supp. 862, and both Kruchten and Janovic perfected appeals to this Court.

The appellant, Kruchten, asserts he did not receive due process of law from the State of Arizona, as required by the 14th Amendment of the United States Constitution and "* * * to the extent that their provisions inhere in the concept of due process, under the 5th, 6th, and 8th Amendments."

The specifications of error urged by Kruchten in this appeal are:

(1) He pleaded guilty in ignorance of the nature and cause of the accusations against him.

(2) He did not receive a fair trial because of ineffective assistance of counsel.

(3) Lack of due process in the totality of circumstances.

Under point (2) above, appellant urges (a) "Failure of communication" between Kruchten and his attorney, Mr. Brandt, (b) "Conflict of interest" between Kruchten and Janovic, and (c) "Lack of performance" by counsel.

STATEMENT OF FACTS

The appellant and Janovic, both age 22, and both residents of Chicago, Illinois, were jointly charged with the crime of first degree murder of one Sally Ann Pierce, age 20, on December 21, 1962, while traveling in Miss Pierce's 1959 automobile from Los Angeles to Florida. It appears from the evidence that Miss Pierce had been an acquaintance of appellants since early December, 1962. They had been in California some months prior thereto.

Before leaving Los Angeles on the morning of December 21, 1962, they purchased some beer and brandy, which, with other intoxicating liquors, were consumed during that day. At dusk, when they were about ten miles out of Salome, Arizona, in Yuma County, they stopped near a roadside rest area and the three walked about two miles into the desert toward the nearest hill. Kruchten preceded Miss Pierce and she was followed by Janovic. Janovic picked up a rock and hit Miss Pierce on the head with it two or three times and Kruchten then took the rock and hit her twice on the head. Kruchten and Janovic then returned to Miss Pierce's car, leaving her lying on the desert, and drove the car to Chicago, taking her money (approximately $140), portable television, record player and personal effects. The television was sold in Kansas City and the record player disposed of at a gas station in the suburbs of Chicago on their arrival in that city on December 24, 1962. Miss Pierce died, apparently where she had fallen, and the rock which appellants had used to strike her was found nearby with hair and bloodstains on it.

On the evening of March 19, 1963, F.B.I. agents arrested Kruchten in his apartment in Chicago, under a warrant for the arrest of both Kruchten and Janovic, on the charge of interstate transportation of a stolen vehicle. A few hours later Janovic was arrested at the same address. They were interrogated separately commencing about 12:00 midnight. After a conversation between Janovic and Kruchten, held at the request of Janovic, about 12:35 A.M., Janovic said, "This has been bothering us a long time. Let's tell them and get it over with." Kruchten agreed and thereafter each, under interrogation in separate rooms, related the facts contained in their respective statements. The reduction of the statements to writing by the F.B.I. agents and their review, correction and signing, by Kruchten and Janovic, was completed between 4:00 and 4:30 A.M. the following morning. As set forth in their comprehensive statements, both admitted striking Sally Pierce on the head with the rock, leaving her on the desert, apparently unconscious and taking her car and other property.

Both appellants were returned to Yuma, Arizona, on May 24, 1963.

Following their arrests and prior to appellants' arrival in Yuma, Janovic's parents employed Mr. Ralph Brandt, a lawyer in Yuma, to represent their son and thereafter Mr. Brandt, on request of Janovic, Kruchten and Kruchten's wife agreed to and did represent Kruchten, as well as Janovic, in the proceedings in the trial court and to and including the filing of the notice of appeal to the Supreme Court of Arizona. Mr. Brandt had been a member of the Bar of Arizona since 1940. He was an able, general practitioner, having previously defended many persons charged with crime, including four charged with first degree murder.

Brandt told Janovic's mother in a telephone conversation about May 17, 1963, after he had reviewed the statements of Kruchten and Janovic and discussed the case with County Attorney Richards and the sheriff, that he had investigated the facts of the case and concluded he could not secure a verdict of not guilty and his principal effort should be directed toward obtaining a sentence to life imprisonment.

At the Coram Nobis hearing, Attorney Brandt testified that he did not make up his mind definitely that the plea should be guilty to first degree murder until the day that plea was made and, until then, he had not finally determined how to go about the plea for leniency. He said he had the alternative of pleading the boys not guilty and urging mitigation to the jury if they were convicted or enter pleas of guilty to the Court. He concluded it would be to the best interest of his clients for them to plead guilty and argue the issue of mitigation to the Court. One of the reasons for this conclusion was that there had never been a death sentence imposed, after a plea of guilty, by Judge Nabours, who was presiding in the case, nor by any other judge in Yuma County. Furthermore, Judge Nabours had been a former law partner of his and he knew him well enough to believe he would impose a sentence to life imprisonment in the circumstances. It is true that Brandt, on September 5, 1963, wrote a letter to Kruchten's new counsel stating he was retained only for the purpose of entering the plea and presenting the leniency hearing.

The record is clear that Brandt did not inform Kruchten that he had accepted his case only on the condition that he enter a plea of guilty.

FAILURE OF COUNSEL TO INFORM KRUCHTEN OF THE NATURE OF THE ACCUSATION

Kruchten testified at the Coram Nobis hearing that the first time he talked to Mr. Brandt was the morning of the first hearing in the justice court (May 25, 1963), when Brandt said he would represent him but nothing was said of a fee and he did not believe Brandt received any fee. He further testified that Brandt did not explain to him what second degree murder was, or the penalty therefor, and he did not remember any more conversation with Brandt or what the Judge said on that day.

He did not remember the next time he went to court (June 26) but he and Janovic had a conversation with Mr. Brandt on the way to court about pleading guilty and he understood that if he plead guilty he would "get off with life" and serve about eight years in prison.

On the day of plea (July 16), he did not recall what Brandt said to the Judge or if the...