Larson v. Bennett

• Decision Date: 18 July 1968
• Docket Number: No. 52832,52832
• Citation: 160 N.W.2d 303
• Parties: Charles D. LARSON, Appellant, v. John E. BENNETT, Warden, Iowa State Penitentiary, Fort Madison, Iowa, Appellee.
• Court: Iowa Supreme Court

Page 303

160 N.W.2d 303

Charles D. LARSON, Appellant, v. John E. BENNETT, Warden, Iowa State Penitentiary, Fort Madison, Iowa, Appellee.

No. 52832.

Supreme Court of Iowa.

July 18, 1968.

Rehearing Denied Sept. 4, 1968.

Charles D. Larson, pro se.

Richard C. Turner, Atty. Gen., William A. Claerhout, Asst. Atty. Gen., and Robert H. Story, County Atty., Anamosa, for appellee.

MOORE, Justice.

Petitioner, Charles D. Larson, was convicted of murder in the second degree and sentenced December 30, 1946 to be confined in the Iowa State Penitentiary at Fort Madison for a term of 99 years. No appeal was taken. An accomplice, Louis B. Hofer, was earlier tried, convicted and sentenced to be hanged for murder in the first degree. The judgment against Hofer was affirmed by this court. State v. Hofer, 238 Iowa 820, 28 N.W.2d 475, sets out the facts in detail on which each was convicted. Stated briefly Larson and Hofer were convicted for killing a reformatory guard by striking him on the head with a hammer while perpetrating an escape. Hofer's sentence was later commuted to life and recently to a term of 90 years.

Petitioner, while serving his sentence in the state penitentiary, on May 1, 1967 filed his petition for a writ of habeas corpus in the Lee County District Court. He alleged his restraint was illegal and unconstitutional as he had been denied due process in his murder case conviction. We discuss his several contentions infra. Following an evidentiary hearing the trial court denied the relief sought and petitioner has appealed.

I. He first asserts the trial court erred in denying his request for appointment of counsel to assist him in the trial and also the appeal of this habeas corpus proceeding.

Long before the opinions in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733; Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and subsequent Federal cases, including Miranda, our statutes provided for appointment of defense attorneys prior to trial and on appeal of felony cases. Code sections 775.4 and 777.12. Our only post conviction remedy is that provided by habeas corpus under Code chapter 663. It contains no provision for appointment of counsel for indigents.

The 61st General Assembly in 1965 enacted the public defender law, now chapter 336A, Code, 1966. Section 336A.7 authorizes appointment of other defense counsel both for trial and on appeal but makes no such provision in habeas corpus cases. This legislation was passed subsequent to our holding in Waldon v. District Court, 256 Iowa 1311, 130 N.W.2d 728, in which we recognize habeas corpus is a civil action and there is no provision in our law for appointment of counsel in a civil action. After reviewing both state and federal constitutional rights of the petitioner, we held in Waldon the State is not constitutionally bound to furnish counsel in a habeas corpus case. Waldon, together with cases from several other jurisdictions, is cited with approval in Henderson v. State, 11 Ohio App.2d 1, 227 N.E.2d 814, 816.

It is well settled there is no constitutional right to representation by counsel in habeas corpus proceedings in the federal courts. Anderson v. Heinze, 9 Cir., 258 F.2d 479; United States ex rel. Wissenfeld v. Wilkins, 2 Cir., 281 F.2d 707; Douglas v. Maxwell, 6 Cir., 357 F.2d 320; Hampton v. State of Oklahoma, 10 Cir., 368 F.2d 9; Le Clair v. United States, 7 Cir., 374 F.2d 486; roach v. Bennett, 8 Cir., 392 F.2d 743, filed April 15, 1968. Most of these cases and also Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148, recognize the trial court has discretion to ascertain whether the claim is substantial before granting a full evidentiary hearing and the court may find it useful to appoint counsel to represent the petitioner.

United States ex rel. Manning v. Brierley, 3 Cir., 392 F.2d 197, 198, (1968) says: 'Appellant contends that the district court committed error in refusing to appoint counsel for him. As the law now stands the appellant had no absolute right to the appointment of counsel in this habeas corpus proceeding. It is still treated as a civil matter. The district court, 285 F.Supp. 78, of course, has a discretionary right to make an appointment of counsel in this case. See 28 U.S.C.A., § 1915(d). From our review of the record we are unable to find that the refusal of the district court to appoint an attorney in this case constituted an abuse of discretion.'

In the case at bar the trial court granted a full evidentiary hearing attacking petitioner's 1946 conviction for murder. The record shows the trial court was careful and patient in answering all questions of procedure propounded by petitioner. The court gave him full and complete range in offering his evidence and cross-examining respondent's witnesses. Under the facts here we find no abuse of discretion by the trial court on the question of appointment of counsel.

Waldon v. District Court, supra, is modified only to the extent of vesting in the trial court the discretion of appointing counsel when the facts in a particular case make such appointment desirable.

We find no reversible error in the trial court's refusal to appoint counsel as requested by petitioner-appellant.

II. Appellant's next assignment of error states: 'The Habeas Court erred in failing to hold a review of the complete records of the criminal trial court.' Of course habeas corpus does not supplant an appeal nor provide for the determination of one's guilt or innocence. The only germane issues involve jurisdiction, due process, and the included question of the existence of the crime charged. Scalf v. Bennett, 260 Iowa 393, 147 N.W.2d 860, 863, 864; Buteaux v. Bennett, 256 Iowa 1068, 1071, 129 N.W.2d 651, 653; Nelson v. Bennett, 255 Iowa 773, 776, 123 N.W.2d 864, 865, 866; Mann v. Lainson, 250 Iowa 529, 530, 94 N.W.2d 759, 760.

Although phrased rather inarticulately we interpret appelant's second assigned error as an assertion he was deprived of due process because of the denial of his request that he be furnished a court reporter's transcript of the trial of the murder case. He made a written request for such a transcript to the Jones County District Court where he was tried in 1946 which was denied. The record is devoid of a specific basis for such denial. There was no proof such a transcript had ever been prepared or that it was obtainable in 1967.

Appellant made a like request to the trial court at his habeas corpus hearing on June 5, 1967. The court denied his request on the grounds neither the United States Constitution nor the laws of Iowa require furnishing such a transcript at state or county expense for use in a habeas corpus proceeding. We agree.

Code section 793.2 provides an appeal in a criminal case can only be taken from the final judgment and within sixty days thereafter. Section 793.8 provides an indigent defendant who has perfected an appeal pursuant to section 793.2 may be furnished a transcript of the evidence adduced in the trial court for use on appeal. This procedure is now constitutionally compelled under Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, 55 A.L.R.2d 1055. Accordingly an indigent is now entitled on direct appeal from his conviction to a transcript sufficient to insure an adequate appellate review.

Appellant, however, has at no time sought redress of his grievances through a direct appeal from his conviction. Hence, we necessarily conclude this is without the scope of coverage afforded by Griffin v. People of State of Illinois or section 793.8. The time allotted by statute for perfecting an appeal has long since passed and consequently we are without jurisdiction to entertain such an appeal or to order a transcript furnished to petitioner. State v. Birchall, 260 Iowa 756, 150 N.W.2d 715, 716, and citations.

Appellant cites Long v. District Court of Iowa, 385 U.S. 192, 87 S.Ct. 362, 17 L.Ed.2d 290, as authority for holding he is entitled to a free transcript of the murder trial for use in his habeas corpus action. Long holds a state must furnish a free transcript of a habeas corpus proceeding to an indigent state prisoner for use on appeal from an adverse decision therein where a transcript can be reasonably made available and no adequate alternatives are made available by the state. Appellant herein has been furnished a transcript of his habeas corpus hearing and it has been used on this appeal. We do not read Long as constitutionally requiring petitioner be furnished a free transcript of his murder case trial for use in his habeas corpus proceeding.

Under the facts here we find appellant was not materially prejudiced by his inability to obtain a complete transcript of his murder trial. He was furnished a Jones County District Court clerk's transcript which was introduced on trial as exhibit 4 by respondent. This certified exhibit consists of copies of the county attorney's information upon which petitioner was charged, minutes of the testimony of various witnesses, notice of additional witnesses who were to be called, the judgment and sentence, affidavit of defense attorney filed for allowance of fees, subpoenas and return of service, and detailed court minutes relating the progress and events of the murder trial.

III. Appellant next argues the trial court erred in finding two written statements signed by and used against him at the murder trial were voluntary. The question of their voluntariness was one of the issues determined in that trial. Such issue could have been further tested on direct appeal from his conviction but this was not done. Appellant's contention really amounts to an attempt in habeas corpus to perfect an appeal on this issue. As we have already pointed out habeas corpus may not be used to perform the function of an appeal. Much of the record, however, relates to evidence offered by both parties on the question of voluntariness of...