Myers v. Rhay, 76-3666

• Citation: 577 F.2d 504
• Decision Date: 15 May 1978
• Docket Number: No. 76-3666,76-3666
• Parties: Robert Warner MYERS, Petitioner-Appellant, v. B. J. RHAY, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 504

577 F.2d 504

Robert Warner MYERS, Petitioner-Appellant, v. B. J. RHAY, Respondent-Appellee.

No. 76-3666.

United States Court of Appeals, Ninth Circuit.

May 15, 1978.

Philip Mahoney, Seattle, Wash., for petitioner-appellant.

Thomas W. Hayton, Asst. Atty. Gen., Olympia, Wash., for respondent-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before BROWNING and WALLACE, Circuit Judges, and RENFREW, ^* District Judge.

PER CURIAM:

Appellant was convicted of first degree murder in Washington state court. He seeks a writ of habeas corpus, alleging various defects in his arrest, extradition, and trial. The court below found no basis for granting relief and denied the petition. We affirm.

In August, 1969, Marjorie Thomson was murdered in Olympia, Washington. After an extensive criminal investigation, a complaint charging appellant with the murder was filed in the Seattle District Justice Court and a warrant for his arrest was issued on December 18, 1969. The next day appellant was arrested in Arizona. After being given appropriate Miranda warnings, appellant waived his right to an extradition hearing and was taken by King County detectives to Seattle for trial. In the course of the plane flight from Phoenix to Seattle, appellant, after again receiving Miranda warnings, made a statement to detectives accusing an associate of the murder. He subsequently changed this statement and made a number of incriminating statements.

In April, 1970, there was a pretrial evidentiary hearing on three issues in the case: (1) whether appellant had been competent to effect a waiver of his rights to an extradition hearing and against self-incrimination; (2) whether his statements to detectives were admissible; and (3) whether he was competent to stand trial. All of these issues were resolved adversely to appellant.

Myers entered a plea of not guilty and pleas of insanity and mental irresponsibility at the time of the crime. He was convicted of first degree murder by a jury and sentenced to life imprisonment. On appeal his conviction was affirmed by the Washington Court of Appeals, State v. Myers, 6 Wash.App. 557, 494 P.2d 1015 (1972), and the Supreme Court of Washington denied a petition for review, 80 Wash.2d 1009 (1972). The United States Supreme Court denied certiorari, Myers v. Washington, 409 U.S. 1061, 93 S.Ct. 562, 34 L.Ed.2d 513 (1972). The Supreme Court of Washington has denied relief on at least three petitions for writs of habeas corpus. The United States Supreme Court denied certiorari on one of these petitions, Myers v. Pinnock, 409 U.S. 1068, 93 S.Ct. 564, 34 L.Ed.2d 518 (1972), consolidated with Myers v. Washington, supra, 409 U.S. 1061, 93 S.Ct. 562, 34 L.Ed.2d 513. This appeal involves the third petition by Myers to seek a writ of habeas corpus from the federal courts. While the other two petitions filed with the Western District of Washington are not directly relevant to this appeal, both petitions have been consolidated into the instant petition. Appellant has apparently exhausted all state remedies with respect to the issues he now raises, with the exception of certain objections to evidence admitted at his trial.

I

Appellant raises thirteen separate issues for review by this Court:

1. No probable cause existed for the issuance of the Washington arrest warrant; therefore the arrest was void and appellant's statements to detectives should have been excluded from trial.

2. Appellant was incompetent to stand trial.

3. Appellant was incompetent to waive his rights and therefore his statements should not have been admitted.

4. The trial court lacked jurisdiction over him in that there was an improper waiver of extradition.

5. The M'Naghten test for insanity, used in the trial, is unconstitutional.

6. The charges were not proved beyond a reasonable doubt.

7. The trial court erred in not giving the jury a diminished capacity instruction.

8. Irrelevant prejudicial evidence was admitted at trial.

9. The trial court should have permitted a change of venue due to excessive pretrial publicity.

10. The trial court made prejudicial inquiries of the prosecutor in the presence of the jury.

11. The prosecutor withheld exculpatory evidence.

12. The trial court failed to investigate properly evidence of jury tampering.

13. The psychiatrists who examined appellant gave improper testimony at trial.

Counsel for appellant did not brief the issues numbered nine through thirteen, stating that he did not believe them to have any merit. ¹ He nonetheless presented these issues for this Court's consideration in accordance with his perceived duty under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). ² The district court examined these claims at length and rejected all of them. Our independent assessment of the arguments below persuades us that that judgment was proper in this regard. We now proceed to the points argued on the appeal.

II

Appellant contends that the warrant for his arrest was improperly issued in that it was supported only by a criminal complaint filed by the prosecutor and was not based upon probable cause. He relies upon Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); and State v. Klinker, 85 Wash.2d 509, 537 P.2d 268 (1975), for the proposition that the information procedure used by the State of Washington is unconstitutional since it results in warrants issued without probable cause. Myers makes two contentions flowing from this alleged procedural defect: (1) that his arrest was void and therefore his conviction was void as well; and (2) that his statement to detectives should have been excluded at trial since it was obtained incident to an illegal arrest.

With respect to the first claim, this Court need not reach the validity of the statute. It is well settled that illegal arrest or detention of a suspect does not void a subsequent conviction. Gerstein v. Pugh, supra, 420 U.S. at 119, 95 S.Ct. 854; Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952); Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed.2d 421 (1886); United States v. Sanchez-Rodriguez, 475 F.2d 61 (9 Cir. 1973). The proper time to challenge the probable cause underlying an arrest is prior to the prosecution of the case, while the illegal detention is in progress. Gerstein v. Pugh, supra, 420 U.S. 103, 95 S.Ct. 854; Ierardi v. Gunter, 528 F.2d 929 (1 Cir. 1976).

Appellant's second contention is that his statement to police constituted "fruit of the poisonous tree", Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939), and was therefore inadmissible at trial. See Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Respondent maintains that Stone v. Powell,428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), forecloses review of this issue in a habeas corpus proceeding.

It is important to note that the nature of this claim is not that the confession was gained through duress or coercion, but merely that it was obtained as a product of the allegedly illegal arrest. ³ The issue before us is the scope of the Fourth Amendment's protection against illegal searches and seizures and the exclusionary rule. Even assuming that the Washington arrest warrant was unconstitutionally issued and that the subsequent arrest in Arizona was therefore illegal, ⁴ we find that there is no basis for relief on this claim in light of Stone v. Powell, supra, 428 U.S. 465, 96 S.Ct. 3037.

Brown v. Illinois, supra, 422 U.S. 590, 95 S.Ct. 2254, held that it was error for the Illinois courts to adopt a per se rule that Miranda warnings given to a suspect render the products of an otherwise unconstitutional custody admissible. The Supreme Court concluded that it was necessary to analyze the statement given in view of the circumstances of the case and the principles which underlie the exclusionary rule. 422 U.S. at 597-604, 95 S.Ct. 2254. The Court was careful to note that " '(d)espite its broad deterrent purpose, the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons.' " 422 U.S. at 600, 95 S.Ct. at 2260, quoting United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974).

In Stone v. Powell, supra, the Court held that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." 428 U.S. at 494, 96 S.Ct. at 3052 (footnote omitted). Since we view the claim presented, like that in Brown, as arising under the exclusionary provisions adjunct to the Fourth Amendment, and we find that appellant had a full and fair opportunity to present his claims to the state courts, we hold that Stone v. Powell is dispositive of this matter. This Court has previously held that since Stone represented no new formulation of the exclusionary rule at the time it was announced, that it may be applied retroactively. Bracco v. Reed, 540 F.2d 1019, 1020 (9 Cir. 1976). It therefore constitutes the law applicable to this case.

III

Appellant next contends that the record indicates that he was " irrational" and "delusional" and therefore incompetent to waive his rights to an extradition hearing and against self-incrimination. He further urges that he should not have been allowed to stand trial. We find no merit in these arguments.

The trial judge convened an extensive evidentiary hearing on Myers' competence and found him capable of waiving his rights. These findings were affirmed by the Washington Court of Appeals, State v. Myers, supra, 6 Wash.App. at 561-562, 494...