Phillips v. Pitchess

• Decision Date: 20 December 1971
• Docket Number: No. 26394.,26394.
• Citation: 451 F.2d 913
• Parties: Marvin PHILLIPS, Petitioner-Appellant, v. Peter J. PITCHESS, Sheriff, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

451 F.2d 913 (1971)

Marvin PHILLIPS, Petitioner-Appellant, v. Peter J. PITCHESS, Sheriff, Respondent-Appellee.

No. 26394.

United States Court of Appeals, Ninth Circuit.

November 10, 1971.

Rehearing Denied December 20, 1971.

John R. Sheehan (argued), Burbank, Cal., Frank O. Walther (argued), Haverford, Pa., for petitioner-appellant.

Russell Iungerich (argued), Evelle J. Younger, Cal. Atty. Gen., Los Angeles, Cal., for respondent-appellee.

Before BARNES, BROWNING and TRASK, Circuit Judges.

BARNES, Circuit Judge:

This is an appeal from an order denying and dismissing appellant's petition for a writ of habeas corpus.

We are satisfied that the appeal has no merits. We adopt the carefully prepared and reasoned order of the District Court Judge as the opinion of this Court. It is appended hereto and made a part hereof as Exhibit "A".

The judgment is affirmed, except that rejection of petitioner's fifth contention is affirmed only on the ground that petitioner failed to exhaust his state court remedies.

EXHIBIT "A"

United States District Court Central District of California

---------------------------------------- United States of America ex rel | Marvin Phillips, | Petitioner, | | vs. > No. 69-1376-FW | Peter J. Pitchess, Sheriff, Los Angeles | County, California, | | Respondent. | ----------------------------------------

March 24, 1970

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DISMISSING ACTION

Petitioner is a state court prisoner who was convicted of second degree murder and now seeks a writ of habeas corpus. The grounds upon which he bases his petition are: (1) that he was placed in double jeopardy when he was tried the second time for the same offense; (2) that he was denied his right to counsel of his own choice; (3) that the petit jury was unconstitutionally selected; (4) that he was denied his right to cross-examination of the witnesses against him under the Sixth and Fourteenth Amendments to the Constitution when the trial court allowed at the second trial the reading of the transcript of two persons who had testified at petitioner's first trial on the same charge and who were not present at his second trial; (5) that the grand jury which returned the indictment against petitioner was unconstitutionally organized; and (6) that the evidence supporting the conviction was insufficient in that it rested solely on the testimony of a single doctor belonging to a hostile school of medicine to that which petitioner belongs.

A summary of the facts surrounding the crime and conviction of petitioner, a doctor of chiropractic, follow. The victim, Linda Epping, was an eight year old child. She developed a lump above her eye which caused her parents to take her to a doctor who referred them to Dr. Leavelle who in turn suggested she be referred to U.C.L.A. Medical Clinic. Her parents consulted with Dr. Straatsma at U.C.L.A.; he, after a biopsy, diagnosed the tumor as a cancerous growth of the eye which was of the fast developing type. Her parents were advised that a radical operation involving the removal of the eye and surrounding tissue, including the lid, was necessary to treatment. After considerable hesitation the parents agreed to the operation to be performed at U.C.L.A. Medical Center and it was scheduled for July 24, 1961. On July 21, 1961, Linda's parents were referred to petitioner, a chiropractor, who advised Linda's parents that he could cure Linda of cancer without surgery. The treatment consisted of massive doses of pills (124 per day), iodine and water, nutritional supplements, enemas, and massaging of the feet. (Rep. Tr. pp. 610, 628, 630, 631.) Her parents paid petitioner $500.00 as a fee and more than $200.00 for medicines and pills. He advised Linda's parents not to allow the operation. (Rep. Tr. p. 578.) Thus, Linda's parents were induced by petitioner's promises and representations to forego the operation. (Rep. Tr. p. 636.) He told her parents that it was not necessary to have a biopsy performed. He said that there was a machine that could detect cancer. (Rep. Tr. p. 585.) He also told Linda's parents that if you cut into a cancer it would only spread to other parts of the body. (Rep. Tr. p. 586.) When the growth continued to grow, Mrs. Epping called Dr. Phillips and he advised her that when they had reached the right amount of one particular medicine that he was giving her then the growth would dissolve. (Rep. Tr. p. 601.) During the middle of the treatment he said there was a chance Linda might have to go to a hospital to have a conservative doctor remove the eye but that it was not necessary at that time. (Rep. Tr. p. 603.) Sometime in the beginning of the treatment petitioner told Mrs. Epping how the nerve tissue of the eye was somehow connected to the underside of the feet, and he demonstrated how to manipulate Linda's feet as a part of the treatment. (Rep. Tr. p. 609.) He also told Mrs. Epping that it would get a lot worse before it would get better; that he was trying to reach a fever of 103, 104 degrees. (Rep. Tr. p. 630.) Linda was treated by petitioner from July 22, 1961, to August 13, 1961, at which time her cancer and general condition had worsened so much that her parents abandoned petitioner and his treatment and sought other methods. Linda died December 29, 1961. Expert testimony was in substance that petitioner's treatment was worthless (Rep. Tr. p. 372) and that the lack of, or delay in, the operation hastened Linda's death by a minimum of two months. (Rep. Tr. pp. 362-363, 475.)

(1) Petitioner's contention that he was placed twice in jeopardy for the same offense is totally without any merit. Petitioner was convicted of second degree murder on September 4, 1962. His appeal to the California District Court of Appeal was successful and the conviction was reversed because of an erroneous jury instruction. Petitioner was retried and convicted of second degree murder. It is this second trial which petitioner contends violated the constitutional protection against being placed twice in jeopardy for the same offense. His reliance on Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199, and Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707, is completely misplaced. Neither of these cases has application to petitioner's case since they each involve an implied or actual acquittal. In the Green case, an implied acquittal of a greater offense when the defendant was first convicted of a lesser included offense precluded retrial on the greater offense. In Benton v. Maryland, the defendant was acquitted of larceny and convicted of burglary at the first trial. On retrial he was found guilty of both. The Supreme Court held that double jeopardy prohibition of the Fifth Amendment is enforceable against the states through the Fourteenth Amendment and that conditioning the right of appeal on one offense by requiring a coerced surrender of a valid plea of former jeopardy on another offense exacts a forfeiture in plain conflict with the constitutional bar against double jeopardy. These cases stand merely for the proposition that a defendant cannot be placed in jeopardy for a second time for an offense of which he was once acquitted. This does not prevent a retrial on the precise offense of which he was once convicted and as to which he waived the double jeopardy bar when he appealed and where such conviction was reversed by a higher court. Petitioner was first convicted of second degree murder. His successful appeal and the reversal did not prevent a retrial for second degree murder.

(2) Petitioner's contention that his right to counsel was unconstitutionally abridged is without merit. Petitioner was tried and convicted in 1962 of murder in the second degree. He was represented by private counsel at that trial. An appeal was successful; the conviction was reversed; and petitioner was retried in 1967. It is petitioner's contention that the lengthy first trial and subsequent appeal rendered him indigent, and that this lack of funds made it impossible for him to secure private counsel of his own choosing immediately for the second trial; and that he was therefore in a position where he had no choice but to be represented by the public defender until October 1967. At that time he contends a fund was made available for his defense; he then requested the court to discharge the public defender and to substitute Mr. Abrahams as his attorney. This motion was denied by the court. It is this denial which petitioner contends deprived him of his right to counsel of his own choice.

The factual background supporting the trial court's denial of petitioner's motion to substitute counsel and for continuance on the eve of the trial is as follows. The first trial and conviction was reversed and the remittitur came down in May 1966. The two attorneys of record, Mr. Belli and Mr. Brody, were, in one of the subsequent initial proceedings, relieved as counsel. On September 1, 1966, almost 14 months before the denial of petitioner's motion to substitute Mr. Abrahams, defendant made a motion to continue the trial setting so that he could secure counsel. On September 22, 1966, on motion of defendant, Mr. J. Hughes was relieved as counsel for defendant and Mr. M. S. Keith was substituted as counsel. The matter was continued to December 21, 1966. On December 21, 1966, Mr. George Bock was associated as attorney of record with Maxwell S. Keith. The matter was continued to January 6, 1967.

On January 6, 1967, the matter was continued for trial until April 18. On April 14, four days before the trial date, the matter was advanced. Mr. Keith was relieved as counsel. The matter was continued to the trial date of April 18, 1967. On that date the matter was continued to May 9 for trial. On May 9, 1967, attorney Bock was relieved as attorney for petitioner. The public defender was then appointed. The matter was continued to May 16, 1967, for trial setting.

On May 16, 1967,...