Merrill v. State

Decision Date21 July 1969
Docket NumberNo. 1037,1037
Citation457 P.2d 231
PartiesElmer Anthony MERRILL, Appellant, v. STATE of Alaska, Appellee.
CourtAlaska Supreme Court

David J. Pree, Anchorage, for appellant.

Douglas B. Baily, Dist. Atty., G. Kent Edwards, Atty. Gen., Anchorage, for appellee.

Before NESBETT, C. J., DIMOND, RABINOWITZ, BONEY and CONNOR, JJ.

BONEY, Justice.

Appellant has appealed from two orders of the superior court rendered in the course of post-conviction proceedings pursuant to Criminal Rule 35(b). 1 Both appeals will be decided together.

Appellant has been before this court on a previous occasion when his conviction of robbery was sustained upon appeal. Merrill v. State, 423 P.2d 686 (Alaska 1967). Since the appeal was decided, appellant has filed numerous petitions and motions seeking post-conviction relief. These petitions and motions were consolidated in the superior court and treated as a Criminal Rule 35(b) post-conviction proceeding with multiple issues. Counsel was appointed for appellant and exhaustive hearings were held over the course of several months. All of the issues raised by appellant in these hearings were decided adversely to him in a memorandum of decision of the superior court rendered on June 27, 1968. Appellant has appealed from that decision to this court mainly on the question of the existence of probable cause for his arrest. This appeal, No. 688, from the superior court's decision denying relief on all issues after extensive hearings, constitutes appellant's first appeal.

The second appeal, No. 1037, arises out of the superior court's denial without hearing of an additional application for post-conviction relief. Approximately one month after the superior court rendered its opinion which is the subject of appeal No. 688, appellant filed an 'Amended Petition for Habeas Corpus.' This petition was evidently intended to amend an earlier petition of October 20, 1967, which had been treated as a Criminal Rule 35(b) motion. The amended petition was denied by the superior court without a hearing. The amended petition raised several grounds of error which had been decided previously, but the petition also contained one new allegation of error which had never been raised before; systematic, unlawful exclusion of certain classes of persons from the jury at appellant's trial. Pursuant to the policy declared in Thompson v. State, 412 P.2d 628, 636 (Alaska 1966) the amended petition will be treated as a successive application for post-conviction relief pursuant to Criminal Rule 35(b). The sole question in appellant's second appeal is whether it was proper for the superior court to deny, without a hearing on the merits, appellant's claim of unlawful discrimination in the selection of the jury at his trial, which claim was raised by appellant for the first time after the trial, after the appeal from conviction, and after lengthy post-conviction hearings had been held.

I.

After a review of the entire record concerning appellant's appeal, No. 688, from the decision of the superior court of June 27, 1968, denying post-conviction relief, we affirm all of the findings of fact of the superior court. On appeal from a Criminal Rule 35(b) proceeding, the factual findings of the lower court are judged by The superior court found 'At the time Lt. Nix signed the complaint, he had probable cause to believe that Merrill had participated in the robbery at the Edgewater Motel.' This finding which is the subject of this appeal is supported by the following evidence: the repeated testimony of Lieutenant Nix, given during the post-conviction hearings, that an accomplice, James Glenn, identified Merrill from a photograph before the complaint was signed on June 15, 1965. Although Lieutenant Nix's memory was hazy as to whether one or two pictures were shown to Glenn, and as to exactly when before the signing of the complaint the identification took place, his testimony stands uncontradicted that before the complaint was signed Glenn had identified Merrill from a photograph. Also Trooper Hagen testified that on June 15, 1965, he personally went to Glenn and showed him a picture of appellant, whom Glenn then identified. Trooper Hagen could not say when on June 15 the identification took place; however, it must have been prior to 5:45 p. m., when Trooper Hagen dictated his report describing Merrill as a participant in the robbery. Since the complaint was signed at approximately 3:30 p. m., on June 15, it is quite unlikely that the complaint was signed without the identification and without probable cause, and then in the next two hours the identification was made giving rise to probable cause for appellant's arrest. Further support to the finding of probable cause is found in Lieutenant Nix's testimony that investigation of certain leads was conducted prior to the signing of the complaint and that these leads implicated appellant. Thus there was abundant evidence adduced at the hearings to support a finding of probable cause for arrest.

the same criterion as the findings made in a judge-tried civil case. 2 We are not convinced that any of the findings of fact in this case are clearly erroneous or that a mistake has been committed by the superior court. 3 Furthermore, the legal conclusions reached by the superior court are correct.

Both parties to this appeal have not dealt with the question of the burden of proof at the post-conviction hearing. Appellant in his brief states that the record fails to show or substantiate the state's theory of probable cause. Appellant's argument is not well-founded. If the record of a post-conviction hearing is silent with regard to an issue and the witnesses are unable to remember, the state has not failed to substantiate its case; to the contrary, the prisoner has failed in his collateral attack on the judgment of conviction. To secure relief in a habeas corpus proceeding, now largely superseded by motions under Criminal Rule 35, the petitioner has the burden of alleging and proving by a preponderance of the evidence all the facts necessary to overturn the prior judgment of conviction. 4 This rule prevails in the federal court system, 5 and is also manifested in our new Criminal Rule 35(h), which states that such motions are governed by civil rules; thus the proponent of an issue must establish the necessary facts by a preponderance of evidence.

When the above rule is applied to the present case it is apparent that at the hearings appellant had the burden of showing that Lieutenant Nix did not have probable cause when he signed the complaint against appellant. Upon appeal, appellant does not contend that the record demonstrates affirmatively an absence of probable cause; instead he argues that the record does not show that Lieutenant Nix did have probable Although the superior court in its June 27, 1968, decision specifically found that certain errors and omissions in the original appeal transcript would not have affected the prior decision of this court rendered upon appeal from the conviction 6, we deem it appropriate for this court to specifically affirm the superior court's finding on this point. On the prior appeal the transcript of the first preliminary hearing was not included. Although a transcript of the second preliminary was included, it omitted the final arguments of counsel and the decision of the district court that it was without power to change the prior decision of the district court on the issue of probable cause. Had these omitted portions of the transcript been included on the original appeal, our decision would have remained the same. Appellant has also pointed to one error in the transcript of the second preliminary hearing. It is set forth in the appendix. The difference in wording between the original transcript and the corrected transcript relates to why the picture of appellant was shown to an accomplice for identification prior to arrest. The difference does not relate to when the picture was shown to the accomplice or to the undisputed fact that it was shown to the accomplice. We conclude the difference in the two transcripts is immaterial.

cause. When appellant argues that 'the record does not show,' he appears to argue himself out of court.

II.

With regard to appellant's appeal in case No. 1037, as stated above, the Amended Petition for Habeas Corpus will be treated by this court as a successive application for post-conviction relief pursuant to Criminal Rule 35(b). According to this rule successive motions alleging new grounds for relief may normally be made at any time. 7 The new ground for relief asserted in the petition filed after the hearings is appellant's claim of unlawful discrimination in the selection of the jury at his trial. This claim has never been raised at any of the earlier proceedings.

At the conclusion of the hearings which were held in case No. 688, Judge Fitzgerald forwarded all the records and files in the case to this court. The state has argued that the summary rejection of the successive petition can be upheld because Judge Fitzgerald had forwarded the records of the case to this court and thereby deprived himself of jurisdiction over the case. The state offers no authority or further explanation for this contention. Since successive motions to the sentencing court can always be made, we do not believe it is possible for the superior court to divest itself of jurisdiction over a prisoner's application for post-conviction relief.

As the state's second point, it cites the case of United States v. Oates, 61 F.2d 536 (9th Cir. 1932) for the proposition that errors in the manner of selecting the jury do not affect jurisdiction and, therefore, cannot be raised by habeas corpus. The Oates case arose out of a decision of the District Court for the Territory of Alaska, Fourth Judicial Division. Upon close examination the case is not in point. In Oates the alleged error for which habeas corpus was denied, was the impaneling of a...

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