Rhinehart v. Rhay
| Decision Date | 14 April 1971 |
| Docket Number | No. 26301,26098.,26301 |
| Citation | 440 F.2d 718 |
| Parties | Keith Milton RHINEHART, Petitioner-Appellee, v. B. J. RHAY, Superintendent, Washington State Penitentiary, Respondent-Appellant. Keith Milton RHINEHART, Petitioner-Appellant, v. B. J. RHAY, Superintendent, Washington State Penitentiary, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Malcolm Edwards, Seattle, Wash., for Keith Milton Rhinehart.
Stephen C. Way, and Lee D. Rickabaugh, Asst. Attys. Gen., Slade Gorton, Atty. Gen., Olympia, Wash., for B. J. Rhay.
Before KOELSCH, CARTER and WRIGHT, Circuit Judges.
This case has a prolonged history of consideration by both state and federal trial and appellate courts. At this stage, Rhay appeals from a judgment of the federal district court ordering that the state conviction of Rhinehart be vacated unless the state should re-try him within sixty days.
We reverse because we believe that the ruling of the district court poses a standard of state prosecutorial conduct which is unrealistic.*
Because of the peculiar history of the case and our conclusion to reverse, a somewhat lengthy recital of facts is necessary.
Petitioner Rhinehart was convicted in December 1965, on a state charge of sodomy. The state's principal witnesses were James Miller and Seattle Police Officer William R. Von Allmen. Miller was then 16 years old and had had previous difficulties with the state juvenile authorities.
He testified that he and two friends were standing on a street corner in downtown Seattle shortly after 1:00 a. m. on April 11, 1965. A light colored convertible automobile stopped across the street and its driver sounded the horn at them. Miller walked to the car and the driver, Rhinehart, initially indicated that he had mistaken Miller for someone else. He then asked Miller if he would like to make some money. Receiving an affirmative response, Rhinehart drove them to Rhinehart's apartment where Miller testified that an act of oral sodomy took place. Miller subsequently described in some detail the interior and exterior of Rhinehart's apartment.
Miller testified that Rhinehart gave him $15 in currency and drove him to the business district where Miller rejoined his friends. Rhinehart wrote his phone number on a piece of paper and told Miller to call any time he wanted to earn more money.
Miller testified that he rejoined his friends at 1:30 a. m. and went to the home of one of them to get some more money. They went back down town and "goofed around all night." When asked for more details, Miller said they had spent most of their time in "a corner restaurant", the name of which he was unable to recall.
Some time later that morning, Miller and his friends were seen by Seattle police officers standing next to a parked car. At that time, approximately 11:00 a. m., they were taken in hand for suspicion of car prowling. Since he was 16 at the time, Miller was taken to the King County Youth Center and detained there over night.1
The next morning he appeared before a Juvenile Court judge who determined that the evidence against him was insufficient and dropped the charges relating to the car prowling. Miller was not, however, released at that time because the juvenile authorities indicated to the court that Miller's mother was unable to control him and that he should remain at the Youth Center until proper home placement could be arranged. On April 15, Miller was released following arrangements for other living quarters, and a formal order dismissing the charges was signed on April 22.
On April 13, following dismissal of the charges but while Miller was awaiting release from the Youth Center, he was visited by Officer Von Allmen. The officer inquired about his contact with Rhinehart the night before he was arrested. Miller said he didn't know for sure how Von Allmen heard about it but guessed the other two boys must have told him. Miller gave the facts and signed a statement which Von Allmen first prepared and reviewed with him.
The charge of sodomy was then filed against Rhinehart. Miller was subsequently released from the Youth Center and prior to trial was visited by a Mrs. Lemmon who was a friend of Rhinehart's and from time to time had attended services at the Aquarian Church where Rhinehart was an ordained minister.
After meeting Mrs. Lemmon, Miller went to the office of Rhinehart's trial counsel and signed a second statement, in which he said, "There was no sexual act of any description between Rev. Rhinehart and myself." He added that the police had influenced him to sign the original statement because "they were really out to get Rhinehart and they needed a statement from me to help them." He added that he had "met Rev. Rhinehart and he had taken me to his home where I had confided my problems to him and he had tried to help me."
Following his contact with Mrs. Lemmon and his new statement but still prior to the trial, Miller signed a third statement which repeated the incident as he had originally reported it to the police. He repudiated the statement given to Rhinehart's attorney and explained that it had been given because he was anxious to leave Seattle and Mrs. Lemmon had promised him a ticket to Alaska if he would copy a statement she had prepared and sign it.
He said he was later told that he would not get the ticket but instead that she would buy him new clothes. He indicated that she had bought him $80 worth of clothing and she testified to the same effect, adding that she had done so for humanitarian reasons and that it had nothing to do with Miller's statement. Miller also said that Mrs. Lemmon had given him money at that time and on one additional occasion, a fact which Mrs. Lemmon also confirmed in her testimony.
Rhinehart testified to his version of the incident with Miller. He said that he had stopped and sounded his horn, thinking that Miller was the son of a member of his congregation. Learning his error, he told Miller but the boy expressed an interest in Rhinehart's car and asked for a ride. Rhinehart agreed.
As they were driving the boy told Rhinehart that he would permit Rhinehart to perform homosexual activity on him for a price. Rhinehart said he declined and told Miller that he was a minister and, though he knew many homosexuals, was not so inclined himself. He denied that Miller had been to his apartment for either sexual or counseling reasons.
The defense version therefore was that Miller was a male prostitute who had made unsuccessful advances at Rhinehart. When Officer Von Allmen testified he was asked if he knew of any incidents of Miller "hustling" homosexuals and he replied that he did not.
To support this theory, the defense called a witness who testified that he had been approached by Miller, some time after the Rhinehart incident, at a homosexual rendezvous where Miller expressed willingness to engage in deviant conduct for a price.
The defense sought to show that Rhinehart had been singled out for prosecution because of his association with the Aquarian Foundation which advocates sexual freedom and because of his recent appearance on a television show with homosexuals and an interracial married couple.
In furtherance of this theory, the defense offered to prove the existence of other local homosexual gathering places where overt acts of homosexuality took place under the approving eyes of Seattle police officers. The offer of proof was rejected and is the basis of Rhinehart's cross-appeal, discussed in Section V, infra.
Rhinehart's conviction was appealed to the Washington Supreme Court which unanimously affirmed and subsequently denied a petition for rehearing. State v. Rhinehart, 70 Wash.2d 649, 424 P.2d 906 (1967). His petition for certiorari was denied by the Supreme Court. Rhinehart v. Washington, 389 U.S. 832, 88 S.Ct. 102, 19 L.Ed.2d 92 (1967).
After his incarceration in the Washington State Penitentiary, Rhinehart filed a petition for writ of habeas corpus in the federal district court. That petition was denied without hearing and his appeal to this court resulted in a remand to the district court directing a hearing on the questions of equal protection and alleged use of perjured testimony. Rhinehart v. Rhay, 409 F.2d 208 (9th Cir. 1969).
After the remand, the district court heard detailed testimony on the circumstances of Rhinehart's trial and the several statements of Miller. The court concluded that Rhinehart's claimed denial of equal protection was without merit but ruled that he be retried or released within 60 days because his "conviction was obtained in violation of the due process clause of the United States Constitution in that he was convicted of a crime by a trial in a State court in which material evidence in the possession of the State was withheld from him and therefore was suppressed."2
The district court went on to point out that, in its view of the evidence, "such suppression, although unwitting and unintentional insofar as the prosecutor was concerned, was a `knowing' suppression in the sense required by the due process clause and the cases decided thereunder, such as Giles v. Maryland, 386 U.S. 66 71, 87 S.Ct. 793 17 L. Ed.2d 737 (1967)."3
Rhay appealed and Rhinehart has filed a cross-appeal objecting to the district court's refusal to hear evidence concerning his equal protection claim.
In our remand to the district court, we noted Rhinehart's claim that "perjured testimony was knowingly used by the state."4 and ordered an evidentiary hearing on this point because the adequacy of previous state court findings "has been subjected to serious doubt by new evidence contained in the principal witness' latest retraction."5
The district court went somewhat beyond the scope of the remand order in its inquiry into matters other than the retraction by Miller....
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