Purvis v. State of California

• Decision Date: 11 September 1964
• Docket Number: No. 42639.,42639.
• Citation: 234 F. Supp. 147
• Parties: Thomas E. PURVIS, Petitioner, v. The STATE OF CALIFORNIA, and the Superior Court of the State of California, for the County of Alameda, Respondent.
• Court: U.S. District Court — Northern District of California

234 F. Supp. 147

Thomas E. PURVIS, Petitioner, v. The STATE OF CALIFORNIA, and the Superior Court of the State of California, for the County of Alameda, Respondent.

No. 42639.

United States District Court N. D. California, S. D.

September 11, 1964.

John D. Nunes, Public Defender, Oakland, Cal., for petitioner.

Stanley Mosk, Atty. Gen., State of California and Albert W. Harris, Jr., Deputy Atty. Gen., and John F. Kraetzer, Deputy Atty. Gen., San Francisco, Cal., for respondent.

WOLLENBERG, District Judge.

On December 19, 1957, petitioner was arrested for the murder of his paramour, Hazel Wilson. On January 30, 1958, an information was filed against him in the Superior Court of Alameda County, State of California. He was brought to trial on September 29, 1958 and on October 9, 1958 a jury found him guilty of first degree murder. Pursuant to the California bifurcated trial procedure (Cal. Pen.Code § 190.1), on October 23, 1958 the same jury imposed the death penalty. The first degree murder conviction was affirmed by the California Supreme Court, People v. Purvis, 52 Cal.2d 871, 346 P.2d 22 (1959), but the death penalty was reversed because of error in the penalty phase of the trial.

On July 5, 1960 a new proceeding, limited solely to the penalty issue, was commenced. After six weeks of trial a newly selected jury returned another death verdict. This judgment was also reversed by the California Supreme Court because of prejudicial error. People v. Purvis, 56 Cal.2d 93, 13 Cal.Rptr. 801, 362 P.2d 713 (1961).

On March 12, 1962, a third hearing was begun on the penalty issue. After two months of trial still another jury imposed the death penalty. This judgment too was reversed by the California Supreme Court because of prejudicial error in the proceeding. People v. Purvis, 60 Cal.2d 323, 33 Cal.Rptr. 104, 384 P.2d 424 (1963).

Since the third reversal counsel for petioner have made several attempts to prevent the holding of a fourth penalty trial. In January, 1964, a motion to set the sentence at life imprisonment was denied by the Superior Court of Alameda County. In February, 1964, a petition for Writs of Mandamus and Prohibition seeking similar relief was denied by the California Supreme Court. In March a petition for rehearing or for stay of proceedings to permit the filing of an application for certiorari in the United States Supreme Court was also denied by the California Supreme Court. On March 11, 1964 this Court stayed the state court proceedings pending the filing of an application for Writ of Certiorari in the United States Supreme Court. In April, 1964, the U. S. Supreme Court stayed the state court proceedings pending a determination of petitioner's application. On June 22, 1964, the application was denied, without comment. A fourth penalty trial has now been set for September 14, 1964, and petitioner has asked this Court to prevent the holding of such a trial.

Petitioner argues he is entitled to relief from a federal court because specifically he has been deprived of the right to a speedy trial and has been subjected to cruel and unusual punishment, and generally because a further penalty trial would violate due process of law. His arguments are grounded not merely on the length of time it has taken to fix a penalty, nor on the fact that errors have been committed by the prosecution. The gravamen of his position is that the State of California has forfeited its right to hold another penalty trial because of the wilfull misconduct of a particular deputy district attorney.

For a proper determination of this case, it is necessary that first, this Court determine what the deputy district attorney's conduct actually was, and then second, in the light of his conduct, decide what the legal implications are.

The three decisions of the California Supreme Court in this case have been incorporated into the record and the facts found therein and the opinions expressed by the California judges will be the basis for our determination.

The same deputy district attorney was the prosecutor in all three trials. The first was reversed inter alia because of the introduction of irrelevant and misleading parole records into evidence. Justice Traynor, writing for the majority, commented that, "the error in admitting the challenged records was aggravated by the prosecuting attorney's use of them in his argument to the jury to disparage the operation of the Adult Authority * * * and his argument, unsupported by any evidence in the record, that the Adult Authority did not give proper consideration to recommendations of prosecuting attorneys with respect to punishment." 52 Cal.2d 871, 886, 346 P.2d 22, 31.

Justice Traynor also wrote the opinion on the second trial. There, the error was committed by the introduction of hearsay statements made by petitioner's wife, Eleanor Purvis, but it was the conduct of the prosecutor which compelled a reversal.

"The prosecutor argued to the jury as if the hearsay statements of Eleanor Purvis established the truth of the matter asserted, although those statements had been admitted only to show her state of mind toward defendant. In both his opening and closing arguments the prosecutor stated that defendant would take lighted cigarettes and burn Eleanor Purvis' thighs and her vaginal tract. These highly inflammatory statements of defendant's conduct could only have been made to persuade the jury that defendant was such a depraved person he deserved the death penalty. The prosecutor's argument thus served to compound the original error in admitting these hearsay statements. Even if they could be admitted to show Eleanor Purvis' state of mind, the prosecutor's assumption in his argument that they were true would far exceed the bounds of proper argument. Particularly when guilt has been established and the question is one of life imprisonment or death must strict standards of fairness be observed. The serious errors both in the admission of evidence and the highly prejudicial misconduct of the prosecutor in his argument to the jury, deprived defendant of a fair trial on the issue of penalty and therefore compel a reversal." 56 Cal.2d 93, 99, 13 Cal. Rptr. 801, 804-805.

Justice Shauer, with Justice McComb concurring, dissented from the conclusion of the majority that reversal was required. He, too, however, found himself compelled to remark disapprovingly on the conduct of the prosecuting attorney.

"In the instant case the manner in which the district attorney used the statements * * * suggests that he deliberately presented inadmissible hearsay concerning prior depraved conduct of defendant, with full awareness of the impropriety of such evidence. The prosecuting attorney

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