Phillips v. Hocker

• Decision Date: 16 April 1973
• Docket Number: No. 72-1715.,72-1715.
• Parties: Neil PHILLIPS, Petitioner-Appellant, v. Carl G. HOCKER, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

473 F.2d 395 (1973)

Neil PHILLIPS, Petitioner-Appellant, v. Carl G. HOCKER, Warden, Respondent-Appellee.

No. 72-1715.

United States Court of Appeals, Ninth Circuit.

January 22, 1973.

Certiorari Denied April 16, 1973.

Paul A. Bible (argued), of McDonald, Carano, Wilson & Bergin, Reno, Nev., for petitioner-appellant.

Robert A. Groves, Deputy Atty. Gen. (argued), Herbert F. Ashwede, Chief Deputy Atty. Gen., Robert List, Atty. Gen., for respondent-appellee.

Before JERTBERG, DUNIWAY and TRASK, Circuit Judges.

Certiorari Denied April 16, 1973. See 93 S.Ct. 1916.

JERTBERG, Circuit Judge:

Appellant, Neil Phillips, a prisoner of the State of Nevada, appeals from an order of the United States District Court for the State of Nevada denying his petition for a writ of habeas corpus. Following trial to a jury, appellant was convicted of first degree murder and sentenced to life imprisonment without possibility of parole.

On direct appeal to the Supreme Court of the State of Nevada, his conviction was affirmed. Phillips v. State of Nevada, 86 Nev. 720, 475 P.2d 671 (1970); Rehrg. Denied Nov. 30, 1970. His petition for a writ of certiorari to the United States Supreme Court was denied on June 21, 1971. Phillips v. Nevada, 403 U.S. 940, 91 S.Ct. 2260, 29 L.Ed.2d 719.

The undisputed facts, taken from appellant's brief, are as follows:

On December 26, 1965, the emasculated body of John Russell Blair was discovered on the mountainside of Doby Summit, Elko County, Nevada, with three bullet wounds in the head. Almost two years later, on December 16, 1967, the appellant was arrested and charged with the murder of Blair.

The evidence at the trial established that on the day the decedent's body was discovered, the appellant had appeared at the home of his brother, Chester Phillips, in an obviously troubled condition, and requested that his brother accompany him to Carlin, Nevada. His brother complied, and during the trip appellant told his brother that he had shot a man earlier that morning when the man appeared to be reaching for a knife to attack him, and had left the body on Doby Summit. Appellant's brother advised appellant to surrender to the authorities, but appellant did not do so. At the same time, Chester observed appellant remove a .22 caliber pistol from the truck, which he recognized as a pistol which had been given to appellant by their father, and also observed blood stains in the truck and on the back of appellant's shirt.

Two years later, on December 12, 1967, appellant told his wife, Lillie, and his sister-in-law, Rosemary Dimitroff, that he "killed that guy" on Doby Summit because the decedent was going for a knife. There were two subsequent conversations with regard to the decedent's death between the appellant and his sister-in-law. Approximately two months after he was taken into custody, the appellant escaped from the Elko County Jail, and was recaptured.

Appellant did not testify in his own behalf. His only witness was Robert Gutsell, a psychiatrist, who expressed the opinion that the appellant was sane at the time of the psychiatric examination, then knew the nature of the charge against him, and was competent to assist in his own defense.

On direct examination he expressed the opinion that, at the time of the homicide, appellant was under the unfounded belief that he was in danger of being attacked by the decedent, and expressed the bare opinion that appellant was insane at the time of the homicide.

On cross-examination he stated that:

He "did not believe that appellant was insane in the ordinary sense before this drinking bout took place, or when not drinking we will say, and that he was not insane after he sobered up."

And that:

"He defendant was mentally deranged at the time because of 48 hours or thereabouts, more or less, of imbibing alcoholic drinks, with the added, perhaps, factor of fatigue, which might enter into it. Loss of sleep."

He was unable to state whether appellant's state of mind at the time of the homicide was an actual state of mind or intoxication. He was unable to state whether appellant knew the difference between right and wrong at the time of the homicide. He further stated if appellant had not been drinking he would have concluded that appellant was sane at the time of the homicide.

Only two issues are presented for review on this appeal. First, appellant contends that the District Court erred in ruling that the law of the State of Nevada, which imposes upon a defendant in a prosecution for murder, the burden of proving insanity by a preponderance of the evidence does not violate the Due Process Clause of the Constitution of the United States and thereby deprive him of a fair trial.

The law is well-settled in the State of Nevada. As stated by the Supreme Court of Nevada in Phillips, supra, 475 P.2d at page 672:

"Whether sanity is an element of the crime of murder which must be proven by the state is a question that has been well-settled. Insanity is an affirmative proposition which the defendant must establish by a preponderance of proof. Gallegos v. State, 84 Nev. 608, 446 P.2d 656 (1968)."

In Gallegos, supra, 446 P.2d at page 657, it is stated:

"Insanity is in the nature of an affirmative defense. Sanity is presumed and in order to overcome this presumption the defendant must establish his insanity by a preponderance of evidence. State v. Bourdlais, 70 Nev. 233, 265 P.2d 761 (1954); State v. Lewis, 20 Nev. 333, 22 P. 241 (1889). The jury was not only properly instructed, but its verdict is supported by substantial evidence on this issue. Elias v. State, 73 Nev. 108, 310 P.2d 621 (1957)."

In support of his contention the appellant relies primarily on Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L. Ed. 499 (1895), which held, in effect, that the prosecution must prove every element of the crime of murder, including mental capacity, beyond a reasonable doubt. The prosecution of Davis was for a federal crime, and he was convicted in a federal court. The rule in Davis was limited by Leland v. Oregon, 343 U. S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1951).

In Leland, appellant was charged with murder in the first degree. He pleaded not guilty and gave notice of his intention to prove insanity. Oregon statutes required appellant to prove his insanity beyond a reasonable doubt, and the jury was so instructed. He was found guilty and sentenced to death. His conviction was affirmed by the Supreme Court of Oregon. On appeal to the Supreme Court of the United States his conviction was affirmed, the Court holding that the requirement that the appellant prove his insanity beyond a reasonable doubt did not deprive him of life and liberty without due process of law, in violation of the Fourteenth Amendment. In the course of its opinion, the Supreme Court stated at page 797, 72 S.Ct. at page 1007:

"The decision Davis, supra obviously establishes no constitutional doctrine, but only the rule to be followed in federal courts. As such, the rule is not in question here."

And further, commencing at page 798, 72 S.Ct. at 1007:

"Nor is this a case in which it is sought to enforce against the states a right which we have held to be secured to defendants in federal courts by the Bill of Rights. In Davis v. United States, supra, we adopted a rule of procedure for the federal courts which is contrary to that of Oregon. But `its procedure does not run foul of the Fourteenth Amendment because another method may seem to our thinking to be fairer or wiser or to give a surer promise of protection to the prisoner at the bar.\' Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934), supra, at 105. * * *. We are therefore reluctant to interfere with Oregon\'s determination of its policy with respect to the burden of proof on the issue of sanity since we cannot say that policy violates generally accepted concepts of basic standards of justice."

Appellant contends that the impact of In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) has seriously undermined the holding in Leland. Winship was a juvenile case prosecuted under a New York statute which required that the elements which would otherwise constitute a crime if an adult was accused need only be proved by a preponderance of the evidence where a juvenile is accused. The Supreme Court reversed, holding that proof beyond a reasonable doubt, which is required by the Due Process Clause in criminal trials is among the essentials of due process and fair treatment required during the adjudicatory stage when a juvenile is charged with an act which would constitute a crime if committed by an adult.

It is to be noted that the issue of insanity was not involved in In Re Winship, and that case in no way related to the right of a state to formulate its own rule on the burden of proof of insanity in criminal cases.

We also note that Leland was specifically mentioned in Re Winship, and we find no intimation in Re Winship that Leland should be questioned as to its holding on the nonconstitutional aspect of the insanity defense.

We believe that Leland remains viable and conclude that the first issue urged by appellant presents no constitutional question reviewable in these proceedings. See Earp v. Cupp, 453 F.2d 378 (9th Cir. 1972).

The state trial judge instructed the jury: Instruction No. 22

"The killing of the deceased named in the indictment or information by the Defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse the homicide, will devolve on the accused, unless the proof on the part of the prosecution sufficiently manifests that the

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