Radford v. Stewart

• Decision Date: 22 December 1970
• Docket Number: Civ. No. 862.
• Parties: John Michael RADFORD, Petitioner, v. Roy R. STEWART, Sheriff of Yellowstone County, Montana, or any other person having custody of John Michael Radford, Respondent.
• Court: U.S. District Court — District of Montana

320 F. Supp. 826

John Michael RADFORD, Petitioner, v. Roy R. STEWART, Sheriff of Yellowstone County, Montana, or any other person having custody of John Michael Radford, Respondent.

Civ. No. 862.

United States District Court, D. Montana, Billings Division.

December 22, 1970.

Charles F. Moses, Charles F. Secrest, Billings, Mont., for petitioner.

Robert L. Woodahl, Atty. Gen. of Mont., Robert P. Gannon, Asst. Atty. Gen., Helena, Mont., for respondent.

OPINION AND ORDER

BATTIN, District Judge.

Petitioner, a state prisoner, was convicted on the verdict of a jury of first degree murder and first degree assault. He is presently incarcerated in the Montana State Penitentiary. On March 9, 1970, he filed in this court a petition for a writ of habeas corpus pursuant to Title 28 U.S.C. Section 2254. Petitioner is represented by the same counsel who represented him at his trial. Respondent, through the Attorney General of the State of Montana, filed a return to the court's order to show cause why the writ should not be granted. Both parties have filed briefs in support of their positions. Hearings were held on May 6, 1970, and September 11, 1970.

Petitioner contends the Revised Codes of Montana, 1947, Section 95-1803(d), violates the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution. That section provides as follows:

"For purpose of notice only and to prevent surprise, the defendant shall furnish to the prosecution and file with the clerk of the court at the time of entering his plea of not guilty or within ten (10) days thereafter or at such later time as the court may for good cause permit, a statement of intention to interpose the defense of insanity, self-defense or alibi. If the defendant intends to interpose any of these defenses, he shall also furnish to the prosecution and file with the clerk of the court, the names and addresses of all witnesses to be called by the defense in support thereof. The defendant may, prior to trial, upon motion and showing of good cause, add to the list of witnesses the names of any additional witnesses. After the trial commences, no witnesses may be called by the defendant in support of these defenses, unless the name is included on such list, except upon good cause shown."

Prior to his trial, petitioner moved the state district court for an order relieving him from the requirements of Section 95-1803(d). The trial court ruled that petitioner's motion be deferred for determination at trial. Petitioner, with two other criminal defendants, then petitioned the Montana Supreme Court for a writ of supervisory control, alleging that the statute was unconstitutional, and seeking to be relieved of its operation. The Supreme Court denied the writ and ruled that the statute was constitutional on its face. State ex rel. Sikora v. District Court, 462 P.2d 897 (1969). Petitioner has exhausted his state remedies since the issue presented here has already been presented once to the highest court of this state. Schiers v. California, 333 F.2d 173 (9 Cir. 1960).

The question for decision is whether the application of Section 95-1803(d) denied petitioner due process of law under the Fourteenth Amendment by violating either petitioner's Fifth Amendment right to remain silent or his Sixth Amendment right to compulsory process. In Sikora, the Montana Supreme Court stated, at 462 P.2d 902:

"Thus, this type of statute does not infringe on the privilege against self-incrimination rather it sets up a wholly reasonable rule of pleading which in no manner compels a defendant to give evidence other than that which he will voluntarily and without compulsion give at trial.

"* * *

"The code provides many safeguards to defendants—substitution of a judge and discovery proceedings of a broad nature—to name two. In its attempt to achieve fairness, the state as well as the defendant is considered. Where meritorious defenses exist, notice to prevent surprise is certainly desirable; and, under our interpretation here, good cause for a delay in asserting the defenses of insanity and self-defense may be shown as the right against self-incrimination. Accordingly, we hold that the statute on its face is constitutional. We recognize that it may be applied unconstitutionally, but until that problem occurs we shall not speculate on it."

Although petitioner did not interpose the defense of alibi, the court has little difficulty with the alibi portion of Section 95-1803(d) as it relates to the Fifth Amendment. Since the commencement of this suit, the United States Supreme Court held "that the privilege against self-incrimination is not violated by a requirement that the defendant give notice of an alibi defense and disclose his alibi witnesses." Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 1897, 26 L.Ed.2d 446 (1970). The constitutionality of this portion of petitioner's contention is therefore settled. The Supreme Court, however, did not decide whether the notice of alibi rule violates the Sixth Amendment. The court stated, at 90 S.Ct. 1897, Note 14:

"We emphasize that this case does not involve the question of the validity of the threatened sanction, had petitioner chosen not to comply with the notice-of-alibi rule. Whether and to what extent a State can enforce discovery rules against a defendant who fails to comply, by excluding relevant, probative evidence is a question raising Sixth Amendment issues which we have no occasion to explore. Cf. brief for amicus curiae, 17-26. It is enough that no such penalty was exacted here."

In this case, after the decision of the Montana Supreme Court, petitioner provided notice that he intended to rely on the defense of insanity or self-defense, or both. He did not interpose the defense of alibi, nor did he provide notice of his intention to do so. No evidence favorable to petitioner was excluded by the application of the alibi portion of Section 95-1803(d). This court, therefore, is not confronted with the question of whether petitioner's constitutional rights were violated by the notice of alibi provision.

Most of the decisions concerned with notice statutes involve the defense of alibi. People v. Lopez, 60 Cal.2d 223, 32 Cal.Rptr. 424, 384 P.2d 16 (1963); Rider v. Crouse, 357 F.2d 317 (10 Cir. 1966); State v. Angeleri, 51 N.J. 382, 241 A.2d 3 (1968), cert. den. 393 U.S. 951, 89 S.Ct. 372, 21 L.Ed.2d 362; Cantillon v. Superior Court for the County of Los Angeles, 305 F.Supp. 304 (C.D. Cal.1969). Petitioner argues that a very fundamental difference exists between the defense of alibi and the defenses of insanity and self-defense. Alibi, he points out, says in effect, "I did not commit the act charged because I was not there." Insanity and self-defense on the other hand say, "I did commit the act charged but I am legally excused." As applied to self-defense and insanity, petitioner argues that Section 95-1803(d) requires a defendant to confess the crime and provide a list of witnesses if he wishes to exercise his Sixth Amendment right to call witnesses at his trial.

Section 95-1803(d) is a discovery statute. In speaking of the time for disclosure in a criminal case Mr. Justice Traynor, Chief Justice of the California Supreme Court, stated in 39 N.Y. Law Review 228, 248-249 (1966), as quoted in United States v. Fratello, 44 F.R.D. 444, 449 (D.C.1968):

"Neither the privilege against self-incrimination nor the due process requirements of a fair trial fix the time when the prosecution has presented its evidence at the trial as the only procedural hour at which the defendant can be required to make his decision whether to remain silent or to present his defense. Surely he can be required to make that decision before the trial if he is given discovery of the prosecutor's case before the trial."

The United States Supreme Court in Williams, supra, 399 U.S. 78, 90 S.Ct. at page 1898, also pointed out that a notice statute advances the time for disclosure:

"At most, the rule only compelled petitioner to accelerate the timing of his disclosure, forcing him to divulge at an earlier date information which the petitioner from the beginning planned to divulge at trial. Nothing in the Fifth Amendment privilege entitles a defendant as a matter of constitutional right to await the end of the State's case before announcing the nature of his defense, any more than it entitles him to await the jury's verdict on the State's case-in-chief before deciding whether or not to take the stand himself."

The court agrees with this reasoning. As applied to self-defense and insanity, four questions must be examined: (1) Whether discovery of evidence by the prosecution as a result of the notice required by Section 95-1803(d) violates the Fifth Amendment; (2) whether Section 95-1803(d) requires a defendant to make an unconstitutional choice between remaining silent or calling witnesses in his own behalf; (3) whether the filing of a notice stating an intention to interpose the defense of insanity or self-defense, or both, violates the Fifth Amendment; and (4) whether the lack of a provision in Section 95-1803(d) requiring reciprocity between the names of defense witnesses and the names of prosecution rebuttal witnesses renders that section unconstitutional.

DISCOVERY BY PROSECUTION

Section 95-1803(d) advances the time for a defendant to make the choice of whether or not to speak. The statute requires the choice to be made within ten days after arraignment if a defendant intends to use one or more of the enumerated defenses. Without the statute, the latest possible time a defendant may choose to speak is after the prosecution has presented its case. As a practical matter, however, in jurisdictions without the statute, the choice is made far in advance of trial.

The existence of the statute arguably creates a potential abuse. Nothing prevents the state from using evidence it obtains through a defendant's notice or under Rule 16 of the Federal Rules of Criminal Procedure as...