State of Arizona v. Hunt

• Decision Date: 04 April 1969
• Docket Number: No. 18428.,18428.
• Citation: 408 F.2d 1086
• Parties: STATE OF ARIZONA, Intervenor-Appellant, v. Ernestine W. HUNT, Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

408 F.2d 1086 (1969)

STATE OF ARIZONA, Intervenor-Appellant, v. Ernestine W. HUNT, Appellee.

No. 18428.

United States Court of Appeals Sixth Circuit.

April 4, 1969.

Carl Waag, Asst. Atty. Gen., Phoenix, Ariz., Darrell F. Smith, Atty. Gen., Phoenix, Ariz., on brief for appellant.

Clark Shanahan, Owosso, Mich., and B. J. George, Jr., Ann Arbor, Mich., for appellee.

Before O'SULLIVAN, PHILLIPS and CELEBREZZE, Circuit Judges.

O'SULLIVAN, Circuit Judge.

The State of Arizona, as intervenor, appeals from an order of the United States District Court for the Eastern District of Michigan, entered on October 25, 1967, granting habeas corpus relief to appellee, Ernestine W. Hunt. Appellee has moved to dismiss Arizona's appeal on the ground that Arizona should not have been allowed to intervene.

In March of 1964, in the Superior Court of Pima County, Arizona, sitting at Tucson, Ernestine W. Hunt, after a jury trial, was convicted, along with her husband, Dr. Maurice Hunt, of aggravated assault and battery upon their five-year old adopted daughter. On October 5, 1965, Dr. and Mrs. Hunt were granted a new trial by the Court of Appeals of Arizona, State v. Hunt, 2 Ariz.App. 6, 406 P.2d 208 (1965).¹ Thereupon, in violation of her appearance bond, she left the State of Arizona and has ever since refused to return there, and has thwarted every effort of Arizona to obtain her physical presence for trial. The retrial of her case, first set for February 1, 1966, was continued some seven times up to April 25, 1967, chiefly upon the assertions of her Arizona lawyer that Mrs. Hunt was too ill to leave her place of abode in Michigan. She has refused to submit to medical examination by Arizona doctors. Upon her failure to appear for trial or examination, and in March of 1967, Arizona began extradition proceedings to return her to Arizona. During the pendency of these proceedings in Michigan and because Dr. Hunt, appearing through separate counsel and claiming that any further delay would deprive him of his right to a speedy trial, objected to any further continuance, Mrs. Hunt was tried in absentia under an Arizona criminal rule permitting it where a defendant is voluntarily absent. She and her husband were on May 3, 1967, again convicted by jury verdict.

The extradition proceeding went forward, the Michigan authorities being advised of Mrs. Hunt's intervening conviction, and after hearings on May 22 and May 23, 1967, the Governor of Michigan, on May 24, honored Arizona's request and a rendition warrant was issued. Admitted to bail, Mrs. Hunt employed M.S. A. §§ 28.1264 and 28.1285 Comp.Laws Mich. §§ 776.7 and 780.1 et seq. to test the validity of the rendition warrant in the state courts of Michigan. The Circuit Court of Jackson County, Michigan, the Michigan Court of Appeals and the Supreme Court of Michigan denied her any relief. Thereupon, she filed the habeas corpus petition now before us, claiming, inter alia, that the Arizona statute permitting her trial in absentia offended the Fourteenth Amendment to the United States Constitution. Processing of the rendition warrant was stayed and, on October 25, 1967, the United States District Judge concluded that the conviction of Mrs. Hunt was invalid. He ordered that unless the State of Arizona would make a commitment to vacate the conviction of Mrs. Hunt and grant her a new trial, he would not release her to the Arizona authorities. His opinion is reported as In re Hunt, 276 F.Supp. 112 (E.D.Mich.1967). Upon order of the District Court she has been at liberty upon her personal bond of $1,000.

We reverse.

Preliminarily, we think that the District Judge's characterization of Mrs. Hunt as a helpless victim of attempted oppression by the Arizona courts is misplaced. We fear that this laudable compassion and concern was the product of some wrong impressions. Ernestine Hunt has been treated with rather special patience by Arizona.

Mrs. Hunt was charged in 1964 with what could be fairly characterized as quite aggravated criminal conduct, which occurred in 1963.² She and her husband were convicted upon jury trial at which they were represented by retained counsel.³ At some date after she was granted a new trial, she "jumped bail" and fled to Michigan. She has continued as such fugitive ever since. We are unable to agree with the District Judge's more gentle description of her conduct. He said:

"While at liberty on appeal bond the petitioner and her husband absented themselves from Arizona and established residence in Michigan. This was a voluntary departure, in the sense that it was volitional, and, although the Arizona court was aware thereof,⁴ no steps were taken to return her to the jurisdiction, or to forfeit her bond, until the proceedings hereinafter described." 276 F.Supp. at 113-114. (Emphasis supplied.)

We suppose that every fugitive's flight is a "voluntary departure" and its accomplishment is indeed "volitional". The record does not tell when Arizona became aware that Mrs. Hunt had gone to Michigan. In any event, it learned so when her counsel began to ask for and obtain continuances on and after the first setting of a date for retrial. It is true that no steps were immediately taken to bring her back from Michigan. We cannot, however, criticize the Pima County Court in that, without instituting extradition, it relied upon the word of Mrs. Hunt's Arizona attorney, an officer of that Court, that his client would be present on the various days to which, and to accommodate her, trial was continued. It was not until Mrs. Hunt had flaunted the Arizona Court's order that she appear for a medical examination to ascertain the truth of her Arizona counsel's statement that she was "psychologically in no condition to stand trial" that extradition proceedings were initiated.

Repeated representations were made by Mrs. Hunt's attorney that the condition of her health forbade her going to Arizona. On some occasions, these representations were merely the repetition by Arizona counsel of otherwise unsupported statements made by Mrs. Hunt's Michigan counsel. In only one instance were such representations supported. On one of the numerous adjourned trial dates, November 7, 1966, Mrs. Hunt's counsel filed an affidavit signed on November 2, 1966 by a Michigan doctor which, after describing her need for a hysterectomy, averred:

"Deponent further says that from his examination of Ernestine W. Hunt, as of this date that she is far and much too nervous and under too much stress, and having too much discomfort from her condition, to be able to withstand a trial in Court. If she is compelled to withstand the stress and strain of trial in her present condition it would have a deleterious and serious effect on her physical and mental condition.

"Deponent further says that in his professional opinion if certain tests that he must put her through because she may have diabetes, and certain other tests that he must subject her to and reports and histories that he must obtain from other examinations that she has had, indicate that he may proceed with the surgery as scheduled, then, and in that event, in his opinion she will be able to withstand a trial in Court in all probability by the 1st of February, 1967." (Emphasis supplied.)

This is the only support ever provided for the repeated gratuitous representations by Mrs. Hunt's attorney that illness prevented her appearance in Arizona. No evidence was ever presented that the contemplated operation had not been successfully performed on schedule, or that Mrs. Hunt was not, contrary to her doctor's expectations, sufficiently recuperated by February 1, 1967 to stand trial in Arizona.

Based upon this affidavit's representation, the Arizona judge continued the trial to February 28, 1967. On February 20, 1967, another motion for continuance was made, this time supported only by her attorney's statement that Mrs. Hunt could not appear for trial because of "her physical and psychological condition." Counsel's motion stated that:

"Mrs. Hunt will be examined by a qualified physician in Michigan to confirm this condition."

No such confirmation was provided. The Arizona court, seeking to obtain reliable information as to Mrs. Hunt's condition, then entered an order directing Mrs. Hunt to present herself on March 2, 1967 for examination by two Tucson doctors. This order conformed to Rule 250 of Arizona's Rules of Criminal Procedure, 17 A.R.S. Mrs. Hunt ignored the order, and we do not find that her attorney offered any excuse therefor.

On March 3, 1967, the Arizona court held Mrs. Hunt in contempt for failure to appear as ordered and directed that a bench warrant be issued for her arrest. On March 7, 1967, Mrs. Hunt's Arizona counsel again moved for a continuance, this time for "a four month postponement" averring that she was then a patient in Mercywood Hospital, Ann Arbor, Michigan,

"under the care of a Doctor of Psychiatry; that according to Mrs. Hunt\'s doctor she is incapable of traveling to Arizona to participate in this trial, and furthermore, that mentally she is incapable of assisting in her defense and she is incapable mentally in standing trial. In view of these facts she respectfully requests the Court that they be granted at least a four months\' postponement of the trial in order to enable Mrs. Hunt to effect a recovery to the extent where she will be able to travel to Arizona and to the extent where she will be able to participate in her defense in order to go to trial."

The trial judge again continued the trial, this time to April 25, 1967. Again, other than his own statement, her lawyer offered no support for his averments as to Mrs. Hunt's presence in Mercywood and her physical condition. In the meantime, the extradition proceedings had been instituted and were going forward in Michigan.

On April 25, 1967, the final day set for trial, Mrs. Hunt was no longer hospitalized, having been released from Mercywood Hospital on March 23, but her...