Mason v. State of Ariz.

• Decision Date: 03 October 1974
• Docket Number: No. 73-2266,73-2266
• Citation: 504 F.2d 1345
• Parties: Eugene MASON, Petitioner-Appellant, v. STATE OF ARIZONA, A. E. Gomes, Superintendent, Arizona State Prison atFlorence, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1345

504 F.2d 1345

Eugene MASON, Petitioner-Appellant, v. STATE OF ARIZONA, A. E. Gomes, Superintendent, Arizona State Prison atFlorence, Respondent-Appellee.

No. 73-2266.

United States Court of Appeals, Ninth Circuit.

Oct. 3, 1974

Certiorari Denied Feb. 18, 1975

See 95 S.Ct. 1145.

Bruce Rinaldi (argued), of Post-Conviction Legal Assistance Clinic, University of Arizona College of Law, Tucson, Ariz., for petitioner-appellant.

William J. Schafer, III, Asst. Atty. Gen. (argued), Phoenix, Ariz., for respondent-appellee.

OPINION

Before HAMLEY, WRIGHT and KILKENNY, Circuit Judges.

HAMLEY, Circuit Judge:

Eugene Mason, incarcerated in Arizona State Prison under a life sentence for first degree murder, appeals a district court judgment denying his application for a writ of habeas corpus.

Mason, an indigent, was represented in the state criminal proceedings by court-appointed counsel. Several times prior to the trial Mason's attorney moved for court appointment of an investigator. Counsel also sought an allowance of funds for travel expenses in connection with investigation of certain witnesses. These motions were denied, except that Mason's attorney was allowed one hundred dollars for investigative expenses, and was advised to submit a claim for fifty dollars' expense incurred in preparing interrogatories.

Mason contends on appeal that the failure of the state trial court to appoint an investigator to assist Mason's counsel or to allow more public funds than were actually provided for the use of Mason's attorney in conducting investigations: (1) denied Mason his rights to a fair trial, to the effective assistance of counsel, and to confront and cross-examine witnesses in violation of the Due Process Clause of the Fourteenth Amendment, and (2) denied him equality of treatment with indigent defendants represented by the Maricopa County Public Defender's office in violation of the Equal Protection Clause of the Fourteenth Amendment. We affirm.

Mason and Thomas Anthony Sanchez were jointly charged with the first degree murder of Charlie 'Casey' Byrn on or about February 11, 1967. Byrn operated a bar in Phoenix, Arizona. On the night of his death, while carrying a roll of currency from the cash register, Byrn was struck down in a dark alley behind the bar by someone wielding an iron rod.

Mason and Sanchez were both originally represented by the Public Defender's office of Maricopa County, Arizona. Following two preliminary hearings and the entry of pleas of not guilty by Mason and Sanchez, the Public Defender moved to withdraw as counsel for both defendants, because of an asserted conflict of interest between them. The state court granted the motion and appointed a separate private attorney to represent each defendant. Six weeks later, and with the consent of Mason, his court-appointed attorney was replaced by another court-appointed attorney. ¹

On December 13, 1967, the attorneys for both Mason and Sanchez moved that the court provide them with copies of the transcripts of the two preliminary hearings. They also moved that each defendant to provided, at state or county expense, with an investigator skilled in the investigation of criminal cases. In a supporting memorandum, counsel stated, as justification for this motion, that the state had endorsed upon the information some twenty-three witnesses. A good many of these witnesses, counsel advised, were not police officers and some were out-of-state witnesses.

The court denied the motions. However, the court ordered that the transcripts of the preliminary hearings be made available to counsel for reasonable periods of time. In denying the motion for investigators, the state court observed that it had been advised that the investigative staff of the Public Defender's office would be available to assist the defendants.

On January 26, 1968, Mason's attorney again moved the state court to appoint an investigator to assist him, pointing out that the conflict of interest between Mason and Sanchez had precluded the Public Defender's office from rendering investigative assistance. On February 9, 1968, the state court relieved the Public Defender's office from investigative responsibilities insofar as Mason and Sanchez were concerned. The renewed motion by Mason's counsel was taken under advisement.

On February 18, 1968, Mason's attorney moved for a bill of particulars. On the following day, both defense attorneys requested that Maricopa County advance the cost of round-trip airline transportation to Sacramento, California, of two days' lodging, and for hiring a motor vehicle. The purpose of the trip was to interview 'Mr. Chamblin who is a material witness for the State in this case.' The motion also sought round-trip airline transportation to Gettysburg, Pennsylvania, lodging and vehicle expenses to interview 'Mr. Roberts who is a material witness for the State in this case.' These expenses were stated to be necessary for defendants to 'prepare properly for the trial of this case' and assure that the indigent defendants 'are afforded the full protection and guaranty' of Article II, Section 24, Arizona Constitution, A.R.S., and the Sixth and Fourteenth Amendments of the United States Constitution.

On February 20, 1968, Mason's attorney petitioned under Rule 195 of the Arizona Rules of Criminal Procedure, 17 A.R.S., for the production of seven items of evidence. ² At the hearing on the petition to produce, the state court explained that its ruling on the advancement of costs would depend on how much information the state would turn over to defense counsel. Following this hearing the prosecution was ordered to produce items (1) through (6) by March 11, 1968. ³

On March 4, 1968, the state court denied the motion for appointment of an investigator but ordered an advancement of costs in the amount of one hundred dollars to counsel for each defendant 'to hire private investigators or as payment for their own investigation, whichever counsel prefers.' On March 19, 1968, the court denied Mason's motion for a bill of particulars but granted the application for issuance of a subpoena duces tecum to, and deposition of, the Sacramento Chief of Police.

On April 22, 1968, the state notified Mason's attorney that it intended to call co-defendant Sanchez as a witness at the trial, and that the state would move at the time of trial to dismiss the charges against Sanchez. The answers and records requested by the interrogatories were returned on April 26, 1968. ⁴ On April 29, 1968, the day before the trial, the state trial judge denied Mason's request to review his motion for appointment of an investigator and advancement of costs. The court refused to take 'testimony' on this renewed motion on the ground that the court had previously ruled on the motion. At this time the court also granted the state's motion to dismiss the charges against Sanchez.

The trial commenced on April 30, 1968. The state called ten witnesses, the first seven of which testified to general information nearly identical to that which they had given at the first preliminary hearing. The state's last three witnesses, Roberts, Williamson and Sanchez, presented testimony having the effect of directly linking Mason to the crime, through his purported statements and activities. The defense called two witnesses, Mr. Mischung (one of Roberts' former employers) and defendant Mason. The district court found that the evidence against Mason was 'overwhelming.' A jury verdict of guilty was followed by a judgment of conviction. On Mason's appeal to the Arizona Supreme Court, his conviction was affirmed. State v. Mason, 105 Ariz. 466, 466 P.2d 760 (1970).

Mason contends that the denial of investigative services described above deprived him of his right to a fair trial, to the effective assistance of counsel, and to confront and cross-examine witnesses, as guaranteed by the Due Process Clause of the Fourteenth Amendment.

In the state pre-trial proceedings, the efforts of Mason's counsel to obtain investigative assistance were primarily directed to obtaining court appointment of an investigator. Counsel did seek an allowance for travel funds in order that he, himself, could interview certain prosecution witnesses. Implicit, moreover, in his request for appointment of a special investigator is the request that, if such an investigator cannot be appointed by the court, there should be at least a reasonable allowance of funds so that counsel could employ his own investigator.

The Supreme Court has found a violation of the Constitution in a number of circumstances where a defendant's poverty has undermined his ability to defend himself. In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the Court held the Sixth Amendment right of an indigent to assistance of counsel applicable to the state criminal process through the Due Process Clause of the Fourteenth Amendment. The Court reaffirmed the earlier tenets sounded for federal defendants in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), and Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), stating:

'Not only these precedents but also reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.' 372 U.S. at 344, 83 S.Ct. at 796.

Barriers to appellate review for indigents have likewise been held violative of equal protection. In Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), the Supreme Court required that indigents be furnished with transcripts in order for their appeals to be effective. The Court explained: 'There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.' Id. at 19, 76 S.Ct. at 591. The decision in Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811...