State v. Griswold

• Decision Date: 23 July 1969
• Docket Number: No. 1717,1717
• Citation: 105 Ariz. 1,457 P.2d 331
• Parties: STATE of Arizona, Appellee, v. Francis Hamilton GRISWOLD, Appellant.
• Court: Arizona Supreme Court

Page 331

457 P.2d 331

105 Ariz. 1

STATE of Arizona, Appellee, v. Francis Hamilton GRISWOLD, Appellant.

No. 1717.

Supreme Court of Arizona, In Banc.

July 23, 1969.

Gary K. Nelson, Atty. Gen., by Norval C. Jesperson, Former Asst. Atty. Gen., Darrell F. Smith, Former Atty. Gen., Phoenix, for appellee.

Giles & Moore, by Charles M. Giles, and Barber & Haralson, by Dale Haralson, Tucson, for appellant.

STRUCKMEYER, Justice.

On the 4th of October, 1965, petitioner, herein, Francis Hamilton Griswold, killed his wife of over thirty years, Elsa Muriel Griswold. He was charged with murder in the first degree and on the 18th of March, 1966, entered a plea of guilty to the reduced charge of murder in the second degree. On March 30th, 1966, after a hearing in mitigation, he was sentenced to a term of imprisonment in the state prison of not less than thirty-six nor more than forty years. From the sentence and conviction he appealed. This court affirmed State v. Griswold, 101 Ariz. 577, 422 P.2d 693.

Two questions were presented for disposition on Griswold's appeal, the first being whether the Superior Court of Apache County had the necessary jurisdiction to hear and determine the case and the second, whether the sentence was excessive. No question was raised as to the constitutional adequacy of the procedures at the time the trial court accepted Griswold's plea of guilty to second degree murder. Nor were any questions raised as to the propriety of the court's denial of certain pre-trial motions such as for change of venue, for a trial continuance and for production of real evidence.

Thereafter, on April 8th, 1968, Griswold filed with this court a petition for writ of coram nobis. We directed that the writ issue, and ordered the Superior Court of Apache County to hold a hearing to determine two questions: One, whether Griswold fully understood his rights and the consequences of his plea of guilty at the time he entered it; and Two, whether Griswold voluntarily entered his plea of guilty to the crime of second degree murder.

A hearing was held in St. Johns, Arizona, on the 28th of May, 1968, the Honorable Porter Murry, Judge, presiding. Twenty-five findings of fact were returned to this court and both questions were answered adversely to Griswold. Judge Murry found that 'The defendant, Francis Hamilton Griswold, fully understood his rights and the consequences of a plea of guilty at the time he entered his plea of guilty,' and 'The defendant, Francis Hamilton Griswold, voluntarily entered his plea of guilty ot the crime of second degree murder.'

At the time Griswold entered his plea of guilty, that is, in May of 1966, the Arizona Rules of Criminal Procedure provided only that a plea of guilty could not be accepted from a defendant who was not represented by counsel until the consequences of such plea were explained to him. Rule 182, Rules of Criminal Procedure, 17 A.R.S. Federal Rule 11, Federal Rules of Criminal Procedure, did not provide until July 1st, 1966, that a plea of guilty could not be accepted from a defendant even though represented by counsel without 'addressing the defendant personally' to determine whether he understood 'the consequences of the plea.' On June 2nd, 1969, the Supreme Court of the United States in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, where a defendant was represented by counsel in the Alabama Court, extended the procedural requirements of Federal Rule 11 to state courts holding:

'It was error, plain on the face of the record, for the trial judge to accept petitioner's quilty plea without an affirmative showing that it was intelligent and voluntary.' At 242, 89 S.Ct. at 1711, 23 L.Ed.2d at 279.

The trial judge in accepting Griswold's plea of guilty could not, of course, know that the only constitutionally permissible procedures were to be those which the United States Supreme Court had promulgated for use in criminal practice before the federal district courts. Neither was he endowed with the necessary precognition to anticipate that the statements of counsel made in the presence of the accused could not be relied upon as a true expression of his wishes.

The trial judge after granting the defense motion to withdraw the plea of not guilty to murder in the first degree, embarked upon these procedures:

'THE COURT: Stand up Mr. Griswold. (Defendant stood up) Francis Hamilton Griswold, to the charge of murder in the second degree, a felony, what is your plea?

'MR. GRISWOLD: Guilty.

'THE COURT: Let the record show the entry of his plea of guilty. Now, then, as I understand it, Mr. Powell, the plea just entered has been entered without any promises of any sort with regard to the penalty?

'MR. POWELL: That is right.

'THE COURT: And after you and Mr. Schuelke have advised the Defendant of the consequences of his plea?

'MR. POWELL: That is right, and we request a hearing on the matter before sentencing.

'MR. GREER: (The Prosecuting Attorney) May the record further show I was called in by Counsel and the Defendant and he repeated to me it was his will he enter this plea, and I did hear him say it at that time. * * *'

We do not view every procedural error as automatically giving rise to such prejudice that a reversal is required. Due process under the Constitution of the United States can sometimes be satisfied by returning to the trial court for the determination which procedurally should have been made at an earlier time. See e.g. Wade v. United States, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3rd 1205. Sometimes where constitutional rights have been found wanting the holdings have been made prospective only. See Johnson v. New Jersey, 384 U.S. 719, 16 L.Ed.2d 882, 86 S.Ct. 1772. In this court's decision in Application of Billie, 103 Ariz. 16, 436 P.2d 130, we examined into the retroactivity of the Supreme Court's holding in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527, and decided that we would give it prospective application only. We hold that we will apply the decision in Boykin v. Alabama, supra, prospectively and that consequently Griswold is not automatically entitled to a reversal of his conviction. We also hold that in circumstances such as these, where in an excess of caution after an appeal, we choose to inquire into the plea of guilty we will not reverse if the facts upon which the plea rests can be determined favorably to the state at an appropriate hearing.

The evidence at the coram nobis hearing sustains the conclusion of Judge Murry that Griswold fully understood his rights and the consequences of the plea of guilty. Griswold testified:

'Q At the time you were considering the change of plea and at the time you went into court and actually changed your plea, what was your thought on the amount of time you might have to serve in the Arizona State Prison?

'A Well, it could have been ten years to life.'

This is the statutory punishment for second degree murder. His attorney, Edwin R. Powell, testified that he read the statute of second degree murder to Griswold and told him that the judge would not commit himself as to what sentence would be imposed. A.R.S. § 13--453. The record of his arraignent on the second degree murder charge establishes that both counsel had advised Griswold of the consequences of his plea. We think it is conclusively established that Griswold intelligently entered his plea of guilty to second degree murder.

The second question which this court requested the Superior Court to examine into was the voluntariness of the plea of guilty. Griswold relies upon many compulsive circumstances as grounds for his claim of involuntariness but we are principally concerned with the averments in his petition for a writ of coram nobis that he was coerced into a plea of guilty because his attorneys demanded more money for the trial. It was alleged:

'Approximately four (4) days before the date set for the trial, defense counsel visited Appellant-Petitioner in St. Johns, Arizona, and informed him that they required additional attorneys' fees in a substantial amount to represent him at the trial. Because of civil actions which had been initiated at that time, Appellant-Petitioner was reasonably certain that he did not have the ability to acquire the funds necessary to satisfy the requests of defense counsel.

'At this same time, he was informed by defense counsel that the State had offered to allow him to plead guilty to the crime of second degree murder. This possibility was discussed at the time, but no decision was reached. During the remainder of the day, Appellant-Petitioner contemplated the situation and, on the following day, indicated that he would be willing to enter a plea of guilty to second degree murder. He made this decisions not because he was guilty of the crime to which he agreed to enter the plea, but because he did not have the money available to satisfy his attorneys, because he felt under the circumstances his attorneys were not prepared to defend his case at trial * * *.'

On direct examination by his present counsel at the coram nobis hearing Griswold testified:

'You have indicated that Mr. Powell told you that he wanted an additional $5,000.00.

'A That is right.

'Q Did you, after he made that statement, at any time attempt to get an additional $5,000.00 to him?

'A Yes, I did.

'Q You did that by way of check?

'A By way of check.

Later, on cross-examination he testified:

'Q I believe you also stated, Mr. Griswold, a few moments ago one of the reasons you decided to plead guilty to second degree murder was your lack of funds, is that correct?

'A That is correct.

'Q Did you also testify in response to a request by Mr. Powell, one of your attorneys, for additional fees you wrote him out a check for an additional $5,000?

'A He was satisfied with it, except he couldn't cash may check after I gave it to him. My funds had been tied up.

'Q And...