Sherrick v. Eyman
| Decision Date | 29 March 1968 |
| Docket Number | No. 21876.,21876. |
| Citation | 389 F.2d 648 |
| Parties | Warren Carl SHERRICK, Appellant, v. Frank A. EYMAN, Warden, Arizona State Prison, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Gerald Francis Sullivan (argued), Phoenix, Ariz., for appellant.
Norval Jespersen (argued), Asst. Atty. Gen., Darrell F. Smith, Atty. Gen., James S. Tegart, Asst. Atty. Gen., Phoenix, Ariz., for appellee.
Before MADDEN, Judge of the United States Court of Claims, and DUNIWAY and ELY, Circuit Judges.
The appellant Sherrick, hereinafter called the petitioner, was convicted of first degree murder in a state court of Arizona. His conviction was affirmed by the Supreme Court of Arizona. State v. Sherrick, 98 Ariz. 46, 402 P.2d 1 (1965). His petition to the Supreme Court of the United States for a writ of certiorari was denied. Sherrick v. Arizona, 384 U.S. 1022, 86 S.Ct. 1938, 16 L.Ed.2d 1024. He filed, in the United States District Court for the District of Arizona, a petition for a writ of habeas corpus. That court held a hearing and took the case under advisement. At that point the petitioner's attorney requested the court to consider a ground, additional to the two grounds asserted in the petition, for granting the writ of habeas corpus. The court refused to grant that request unless the petitioner would first petition the Supreme Court of Arizona for a writ of habeas corpus on that ground. The petitioner did file such a petition, and the Supreme Court of Arizona denied it. Then the petitioner filed an amended petition in the United States District Court, which amended petition included the two grounds asserted in the original petition and the third ground referred to above.
As amended, Sherrick's petition stated, as the grounds upon which the court should issue the writ of habeas corpus, (1) that an involuntary confession had been used against him at his trial; (2) that illegally obtained evidence had been used against him at his trial; (3) that the trial court summarily denied him a pre-trial mental examination to determine whether he was competent to stand trial and assist in his defense.
The Supreme Court of Arizona in affirming petitioner's conviction, State v. Sherrick, 98 Ariz. 46, 402 P.2d 1, supra, narrated the events leading to petitioner's conviction. Briefly paraphrased, they were that the body of the owner of a bar was discovered in his bar at 4:30 a. m. on May 24, 1962; that he had been shot twice in the back of the head; that all the money had been removed from the cash register and a "tip glass" of unusual shape, the contents of which glass were bent coins and coins marked with fingernail polish, and a billfold which had been in the possession of the victim, had been taken. On May 28 the landlady of an apartment house not far from the place of the homicide found, in an apartment which the petitioner had rented for a week but had moved out of on May 26, a glass resembling the "tip glass" which had been stolen from the bar of the victim of the homicide. In the glass was a quarter with fingernail polish on it. The lady gave these items to the police. The next day, May 29, at about 3 p. m. the police arrested the petitioner, took him to the police station and interrogated him, and he confessed to the crime. At 4:47 p. m. a court reporter took down his confession. A key which petitioner had emptied out of his pocket at the police station indicated that he had been, since he moved out of his former apartment, living at an East Thomas Road apartment under the name of Jim Meyers, and the petitioner verified that fact to the police. He admitted that he had, at the former address, possession of the odd-shaped glass which the police showed him. He gave Sergeant Nealis of the police his consent for the police to search the East Thomas Road apartment. However, Sergeant Nealis thought it would be wise to obtain a search warrant and sent Sergeant Wilson to get it, giving Sergeant Wilson the information which he, Sergeant Nealis, had from his interrogation of the petitioner and from the objects in the possession of the police. An affidavit was prepared and executed by Sergeant Wilson, who then went to a magistrate and requested a warrant. The magistrate put Sergeant Wilson under oath and obtained information from him additional to what was stated in the affidavit. The magistrate then issued the warrant. The apartment was searched and the pistol which was introduced at the trial as the murder weapon and the billfold which had been taken from the victim of the homicide and was also introduced in evidence were found there.
Before the murder trial, defense counsel made a motion to suppress the evidence which had been obtained in the search of petitioner's East Thomas Road apartment. During the trial a special hearing on the voluntariness of the confession was held in the absence of the jury. The petitioner was given the opportunity to testify in this special hearing, without waiving his right not to take the witness stand in the presence of the jury.
The asserted ground for exclusion of the confession was that it was not made voluntarily. Petitioner argues in this appeal that the failure of the police to give petitioner all of the warnings required by the Supreme Court's opinion in the case of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), taken in connection with other relevant circumstances, made the confession involuntary and therefore inadmissible. The petitioner concedes that the Supreme Court's decision in Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), makes the lack of the Miranda warnings, standing by itself, insufficient to show involuntariness in this case, which was tried in 1962. As we have said, he urges only that the lack of the Miranda warnings, plus the circumstances of this case tending to show coercion, made the confession involuntary. He relies on Davis v. State of North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966).
The petitioner's difficulty in this regard is that there weren't any circumstances tending to show coercion in fact. Although, as we have said, a hearing out of the presence of the jury on the question of voluntariness of the confession was held during the murder trial and the petitioner testified at that hearing, nothing of significance was shown at the hearing. The petitioner, on cross-examination by the prosecuting attorney, testified as follows:
It is significant that petitioner, in his appeal of his conviction to the Supreme Court of Arizona, did not raise any question as to the voluntariness of his confession. That court, however, gave attention to voluntariness because of the possible relation to the questions of probable cause for the issuance of the warrant and the petitioner's consent to the search, which questions are discussed hereinafter. The court said, "The record on this point voluntariness of the confession clearly shows it was made voluntarily, * * *."
There is no merit in the petitioner's contention that the admission of his confession was a violation of a constitutional right.
We consider now the petitioner's contention that evidence obtained by an unconstitutional search and seizure was admitted at his murder trial. The evidence was, as we have said, the pistol asserted by the police to be the murder weapon and the wallet which had been taken from the murdered man. When the search was made, the petitioner was in the custody of the police, having been lawfully arrested, and was being interrogated. The Supreme Court of Arizona, on the petitioner's appeal to that court from his conviction, held the search and seizure lawful on two grounds. One of those grounds was that the petitioner consented to the search. The reporter's transcript of the petitioner's confession contains the following colloquy between the petitioner and his interrogator:
One of the policemen testified that the petitioner orally consented to a search of his apartment by the police. The petitioner, in the pre-trial hearing concerning suppression of the items seized in the search, denied that he had given his consent. The Supreme Court of Arizona recognized that an asserted waiver of a constitutional right must be proved by the prosecution by clear and positive evidence. But the court said that the testimony of the policeman, which the trial court believed, was "clear and positive evidence in unequivocal words," and therefore sufficient. The court said, and we agree, that the fact that the petitioner readily made a full confession of the crime was consistent with his consenting to the search, "particularly where the evidence of its the confession's voluntariness is so strong." We add that the colloquy quoted above in which the petitioner told his interrogator that the gun and the wallet were in his apartment would be inconsistent with a desire to maintain the privacy of his dwelling. We agree with the Arizona court that the search was legal because the petitioner consented to it.
The other ground which the Supreme Court of Arizona held justified the search was that the police obtained a...
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