State v. Kruchten
| Decision Date | 02 August 1966 |
| Docket Number | No. 1380,1380 |
| Citation | 101 Ariz. 186,417 P.2d 510 |
| Parties | STATE of Arizona, Appellee, v. Lawrence George KRUCHTEN, Appellant. |
| Court | Arizona Supreme Court |
Darrell F. Smith, Atty. Gen., Philip M. Haggerty, Asst. Atty. Gen., for appellee.
Laurence Davis, Phoenix, for appellant.
Lawrence George Kruchten, appellant herein, and Joseph William Janovic, Jr., appellant in Cause No. 1379 (decided this date), pleaded guilty in the Superior Court of the State of Arizona in and for Yuma County to the crime of first degree murder. From the judgment of conviction and the sentence of death by the administration of lethal gas, this appeal has been perfected.
The facts may at this point be briefly summarized. Appellant and Janovic, both age 22 years and residents of Chicago, Ill., had been working in California intermittently at various jobs for some months prior to the 21st day of December, 1962. While in California, they met Sally Ann Pierce, a young woman 20 years of age. Kruchten and Janovic expressed an interest in going to Florida. Sally Ann Pierce had a Chevrolet automobile and $140.00 in money and the three decided to drive to Florida in her automobile. On December 21st, they left California. Before they left, some beer and brandy were purchased and these and other intoxicating liquors were consumed during the course of that day. About ten miles outside of Salome, Arizona, in Yuma County, they stopped near a roadside rest area and the three walked about two miles out into the desert toward the nearest hill. Janovic picked up a rock and hit the deceased on the head two or three times with it. Then Kruchten took the rock and hit her twice on the head. Kruchten and Janovic went back to the car and drove away in it with the deceased's money, clothes, portable TV and record player. The clothes were thrown out of the car later that day, the portable TV was sold in Kansas City, Missouri, and the record player was disposed of at a gas station in a suburb of Chicago. Sally Ann Pierce apparently died where she had fallen. The rock which had been used as the instrument of homicide was found nearby with hair and bloodstains on it.
In the trial court, Kruchten and Janovic were charged jointly with the crime of first degree murder. They were represented by Ralph Brandt, a member of the Arizona Bar for twenty-two years. Brandt was an experienced and able general practitioner, having previously defended many criminal cases including four charges of first degree murder. In the lower court, appellants pleaded guilty and received death sentences. In this Court, appellants each employed separate counsel and filed separate appeals.
Kruchten here moved to extend the record by setting forth matters by way of affidavits and exhibits, the principal instrument being that of an affidavit by appellant in which he asserted the inadequacy of the representation of counsel in the lower court. We considered this as an improper attempt to raise facts extraneous to the record. (Facts raised by affidavits are not subject to cross-examination nor can they be determined on affidavits and counter-affidavits.) Accordingly, the motion was denied.
However, noting that Arizona has consistently held that habeas corpus may not be used to collaterally attack a judgment of conviction, Eyman v. Cumbo, 99 Ariz. 8, 405 P.2d 889; Application of Oppenheimer, 95 Ariz. 292, 389 P.2d 696; Oswald v. Martin, 70 Ariz. 392, 222 P.2d 632; State ex rel. Jones v. Superior Court, 78 Ariz. 367, 280 P.2d 691; cf. Rodriguez v. Sacks, 173 Ohio 456, 184 N.E.2d 93, 20 Ohio Opinions 2d 78, and considering that coram nobis was a proper remedy, Constitution of Arizona, Art. 6, § 5, A.R.S., to raise on appeal the question whether appellants were denied the effective assistance of counsel under the Sixth Amendment to the Constitution of the United States, we ordered that this cause, together with Cause No. 1379, be returned to the Superior Court in and for Yuma County for a hearing to determine the issues raised. Being of the further view, from the assertion by appellant of the failure to be advised of the possible consequence of his plea of guilty to first degree murder that this was an attack on both court and counsel, we directed that the Honorable Ross Jones, a Judge of the Superior Court in and for Maricopa County, inquire into the issues and return to this Court findings of fact and conclusions of law relative thereto. 1
We further ordered that upon the entering of the findings of fact and conclusions of law the State and appellants should each file with the Clerk of the Superior Court of Yuma County their objections thereto and that thereafter the record of the proceedings be certified to this Court. All findings of fact and conclusions of law were found against the appellants. 2
While we would ordinarily affirm the judgments on the basis of our rule that the findings of a trial court will be sustained where supported by any reasonable evidence, because this is a capital case carrying the death penalty, we have independently scrutinized the record. Where there are irreconcilable conflicts in the testimony, we have accepted the facts upon which Judge Ross Jones could have predicated his findings and conclusions.
We first consider appellant's complaint that the coram nobis proceeding was unfairly conducted by Judge Ross Jones. Two attorneys, members of the bar practicing in Yuma County, entered an appearance as attorneys for Ralph Brandt, prior counsel for Kruchten. Judge Jones permitted Brandt to testify and Brandt's attorneys to participate in the proceedings by allowing them to object to questions and, in one instance, to examine a witness. Kruchten's position is that Brandt's conduct was unethical in that it was an attempt to sustain the judgments of conviction against the interest of his former clients.
We do not think so. The assertion that counsel is incompetent or inadequate is a direct attack upon the attorney. It constitutes a waiver of the attorney-client privilege and permits trial defense counsel to defend himself. United States v. Butler, 167 F.Supp. 102 (E.D.Va., 1957), affirmed 260 F.2d 574. The duty of an attorney to a client, whether in a private or criminal proceeding, is subordinate to his responsibility for the due and proper administration of justice. In case of conflict, the former must yield to the latter. Canon 37, Canons of Professional Ethics of the American Bar Association specifically recognizes that, 'If a lawyer is accused by his client, he is not precluded from disclosing the truth in respect to the accusation.' Brandt had not only the right but the duty to appear, to testify and to otherwise participate in the proceeding in such manner as the presiding judge felt was appropriate under the circumstances.
The assertion that Judge Ross Jones showed prejudice against the appellants by permitting Brandt to remain in the courtroom during the hearing is without merit. It is always within the sould discretion of the trial court to determine against whom the rule of exclusion shall be invoked. State v. Sowards, 99 Ariz. 22, 406 P.2d 202; State v. Romero, 85 Ariz. 263, 336 P.2d 366.
In considering the attack now made on the findings and conclusions, we recognize that claims by convicted felons that their defense counsel were ineffective or incompetent are common. It lies behind a defendant's natural inclination to bring hindsight to bear on his lawyer's performance and often contains his second thoughts concerning his plea of guilty and the advice of counsel which led to it. See Kamisarr, The Right to Counsel and The Fourteenth Amendment, 30 U.Chi.L.Rev. 1. It has been noted before that the willingness of courts to consider claims of inadequate trial representation invites a change of counsel and results in the actual trial of the former attorney. State v. Benson, 247 Iowa 406, 72 N.W.2d 438, 441; and see, Waltz, Inadequacy of Trial Defense Representation as a Ground for Post-Conviction Relief in Criminal Cases, 59 Nw.U.L.Rev. 289.
Kruchten filed objections to each of the findings of fact one through four. A consideration of these findings and the objections which are directed toward them requires a further examination of the facts. After appellant and Janovic left Arizona, they drove in the Pierce car to Chicago, arriving there Christmas Eve day, December 24, 1962. On the evening of March 19, 1963, certain agents of the Federal Bureau of Investigation, being then armed with a warrant for the arrest of both Kruchten and Janovic on the charge of interstate transportation of a stolen vehicle, went to an apartment in Chicago, Illinois, and arrested Kruchten. A few hours later, Janovic was arrested at the same address. Both Janovic and Kruchten were interrogated by agents of the Federal Bureau of Investigation and at about 3:00 a.m. of the following morning gave signed, written confessions acknowledging the murder of Sally Ann Pierce.
In his attack on the adequacy of his representation in the lower court, Kruchten dwells at length on the fact that at no time was the information in this case read to him nor did he have a copy of it; that when he pleaded guilty he did not know that he was pleading guilty to a charge of wilful, deliberate and premeditated killing and that he would not have pleaded guilty to such a charge for the reason he never premeditated the death of Sally Ann Pierce. At the coram nobis hearing, he testified that he had no recollection of planning the assault and that had these facts been adequately presented in a jury trial he would have been convicted of no more than second degree homicide or possibly even manslaughter.
In Arizona, by A.R.S. § 13--452,
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...Appellant complains that he did not receive a fair trial because he was denied effective assistance of counsel. Since State v. Kruchten, 101 Ariz. 186, 417 P.2d 510 (1966), cert. denied 385 U.S. 1043, 87 S.Ct. 784, 17 L.Ed.2d 687, (1967), the standard in Arizona has been whether counsel was......
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