Palakiko v. Harper, 13394.

Citation209 F.2d 75
Decision Date10 December 1953
Docket NumberNo. 13394.,13394.
PartiesPALAKIKO et al. v. HARPER, Warden of Oahu Prison.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

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Bouslog & Symonds, Harriet Bouslog, Honolulu, Hawaii, for appellants.

Edward N. Sylva, Atty. Gen., Territory of Hawaii, Frank D. Gibson, Jr., Dep. Atty. Gen., Territory of Hawaii, for appellee.

Before STEPHENS, HEALY and POPE, Circuit Judges.

POPE, Circuit Judge.

We have here the same appellants who were before us at the time of our decision in Palakiko v. Territory of Hawaii, 9 Cir., 188 F.2d 54. That was upon an appeal from the judgment of the Supreme Court of the Territory of Hawaii affirming a judgment of conviction of the appellants of murder in the first degree. After the going down of mandate from this court, the hour for execution of death sentences was fixed at 8 o'clock on the morning of September 22, 1951. On the evening of September 21, 1951, the sister of appellant Palakiko, purporting to act on behalf of the appellants, presented to one of the Justices of the Territorial Supreme Court a petition for writ of habeas corpus. The Justice denied the petition but stayed execution and referred the petition to the full court. The court issued the writ and thereafter, upon the return and traverse thereof, held an extended hearing,1 and thereupon entered its judgment denying relief and remanding the appellants to custody. This appeal is from that judgment.2

The petition alleged that the petitioners' conviction had been accomplished through a denial of due process of law within the meaning of the Fifth Amendment; that they had been compelled to testify against themselves, and were deprived of other rights, privileges and immunities secured by the Constitution of the United States; and, in particular, that the confessions obtained from the petitioners, and which were described at length in our former opinion, were obtained by coercion and were wholly involuntary.

Because some of the issues raised here are the same as those discussed in the former appeal to this court, we shall assume a familiarity with our former decision, and not here review or restate what was there said respecting the circumstances of the crime.

Whether the Writ May Reach Issues Previously Tried.

In the opinion of the Supreme Court of the Territory, Application of Palakiko and Majors, 39 Haw. 167, that court took note of the fact that the question whether the confessions were coerced had been dealt with at length upon the former appeals from the conviction. It referred to the frequently stated rule that a writ of habeas corpus cannot be substituted for an appeal even in a case in which no appeal was taken. It recognized that under exceptional circumstances habeas corpus may serve for an appeal, for instance, in cases where facts dehors the record were not open to consideration or review on appeal. The court concluded: "But no need for the remedy afforded by the writ of habeas corpus exists where a defendant was represented by counsel and has litigated issues of coerced confessions to final determination in exhaustion of appellate remedy and where the defendant, with different counsel, seeks to relitigate and have redetermined on habeas corpus the same issues. Nor has any territorial, state or federal court permitted habeas corpus to relitigate and redetermine issues already litigated to final appellate determination. To do so would cause litigation in criminal cases to be interminable and bring confusion into the administration of justice. A defendant may not litigate issues at trial and on direct attack exhaust his appellate remedies, as Palakiko and Majors did in this case, and then supersede those remedies on collateral attack, by habeas corpus, concerning the same issues which are admissive of the jurisdiction of the trial court to determine them." Accordingly the court held that "As to those confessions, the case of Palakiko and Majors is merely one of relitigation and redetermination of issues already litigated to final appellate determination."

In United States v. Rosenberg, 2 Cir., 200 F.2d 666, 668, certiorari denied 345 U.S. 965, 73 S.Ct. 949; Id., 345 U.S. 1003, 73 S.Ct. 1151, the court, speaking of the remedy under § 2255, Title 28, and comparing it to the writ of habeas corpus, said: "It, like that writ, `cannot ordinarily be used in lieu of appeal to correct errors committed in the course of a trial, even though such errors relate to constitutional rights.'" (Emphasis added.)

The rule thus stated finds its support in numerous cases some of which are there cited. In some, as in Smith v. United States, 88 U.S.App.D.C. 80, 187 F.2d 192, certiorari denied 341 U.S. 927, 71 S.Ct. 792, 95 L.Ed. 1358, no appeal was taken.3 It would appear that if the fact that the accused has not taken the appeal which was available to him prevents a collateral attack upon a conviction by petition for writ of habeas corpus, or under § 2255, a similar result must obtain where, as here, the appeal was actually taken and the issue decided adversely to the appellant. Other cases in accord with those cited in the Rosenberg case, supra, are: Howell v. United States, 4 Cir., 172 F.2d 213, 215, certiorari denied 337 U.S. 906, 69 S.Ct. 1048, 93 L.Ed. 1718; Price v. Johnston, 9 Cir., 125 F.2d 806, certiorari denied 316 U.S. 677, 62 S.Ct. 1106, 86 L.Ed. 1750; Barber v. United States, 10 Cir., 197 F.2d 815, certiorari denied 344 U.S. 857, 73 S.Ct. 94; Cf. Goto v. Lane, 265 U.S. 393, 402, 44 S.Ct. 525, 527, 68 L.Ed. 1070.4

Counsel for appellants here assert that they should be permitted to relitigate the question of whether the confessions were procured by means amounting to a denial of due process for several reasons. In the first place it is said that there now has been presented evidence which was not introduced at the original trial and which is therefore matter dehors the record of the criminal conviction. For this reason it is said habeas corpus is a proper remedy.

It is true that there is now presented additional evidence upon the question of the voluntariness of the confessions which was not offered at the trial. The appellants did not testify at the trial, but at their hearing before the court below both testified at great length. Palakiko testified that he was beaten by two of the police officers and that his confession was given to avoid further beating. Majors testified that he was afraid of being beaten and that the first of his confessions was given during a long sustained questioning by police officers at a time when he was ill and not in possession of his faculties as a result of medication. Upon the habeas corpus proceeding appellants had a new attorney who assiduously procured subpoenas for the attendance of every available member of the Honolulu police force who was shown to have been at or about the police station at the time of the giving of the confessions. In addition the new attorney produced an expert witness to testify as to the effects of the dose of phenobarbital which Majors was given before he gave his first confession.

We cannot believe that the fact that additional evidence was adduced upon the hearing on this petition, albeit that this new evidence was not in the record of the original trial, is alone sufficient to permit a retrial of the original issue at this time. Were that the rule the prosecution of persons accused of crime would never come to an end. As stated in Bowen v. United States, 5 Cir., 192 F.2d 515, 517: "Especially is it of the essence of orderly trials that the right to counsel accorded to defendants by the constitution be not regarded, as the argument here would seem to regard it, as a mere one way street such that, if the strategy and tactics of his trial counsel, in determining not to raise constitutional questions, prove unsuccessful, defendant, without appealing from the judgment, may many years later set it aside in order that, on another trial with another counsel, another course raising these questions may be taken, and so on ad infinitum."

Representation of Counsel.

It is asserted that the rule above quoted from the Rosenberg case can have no application here because these appellants were denied effective representation of counsel and hence had no fair opportunity to present the question of the voluntariness of their confessions at the trial or upon the appeal from their conviction.

The Territorial Supreme Court found as a fact that such was not the case. It found that the appellants "had the assistance of counsel for their defense by three able and competent attorneys." The record sustains this finding. It is wholly lacking in any support for appellants' contention.

Counsel attempts to draw the inference that the appellants lost the opportunity to testify before the court, and in the absence of the jury, as to circumstances under which their confessions were obtained because their counsel did not know that they had the right thus to testify prior to the trial court's initial determination of the admissibility of the offered confessions. The transcript of the proceedings at the trial discloses that after a number of police officers had testified, (the jury being then absent), as to the circumstances under which the statements were given, the court inquired as to whether the defense desired to put on any evidence on the voluntariness of the confessions. The transcript then reads as follows: "Mr. Kobayashi: Well, at this time, Your Honor, before the defense put on any evidence I'd like to argue to the jury. The Court: Tomorrow morning at nine? Mr. Kobayashi: Yes. The Court: Well, that gives you an opportunity if you desire to present any evidence, counsel. Mr. Kobayashi: We haven't decided yet. Mr. Hawkins: May counsel be instructed, Your Honor, if he does he shall be ready to produce evidence at that time, 10 o'clock, the jury is being called for 10. The...

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