Tahl v. O'CONNOR

• Decision Date: 23 November 1971
• Docket Number: Civ. No. 70-234.
• Court: U.S. District Court — Southern District of California
• Parties: William A. A. TAHL, Petitioner, v. Joseph O'CONNOR, Sheriff of San Diego County, Respondent.

336 F. Supp. 576

William A. A. TAHL, Petitioner, v. Joseph O'CONNOR, Sheriff of San Diego County, Respondent.

Civ. No. 70-234.

United States District Court, S. D. California.

November 23, 1971.

Charles M. Sevilla, William A. Brockett, John J. Cleary, of Federal Defenders of San Diego, Inc., San Diego, Cal., for petitioner.

Evelle J. Younger, Atty. Gen., by Jay D. Coulter, Deputy Atty. Gen., San Diego, Cal., for respondent.

MEMORANDUM OF DECISION

TURRENTINE, District Judge.

On February 24, 1966, petitioner, William A. A. Tahl, was sentenced to death by the Superior Court of California, in and for the County of San Diego, subsequent to his pleas of guilty to two counts of murder in the first degree, one count of attempted armed robbery, one count of rape, and one count of grand theft auto. Pursuant to 28 U.S.C. § 2254, petitioner now seeks to overturn his conviction on the following basis:

(1) The standards for the acceptance of a guilty plea as enunciated in the case of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), were not satisfied;

(2) The guilty pleas were not voluntarily and intelligently entered due to:

(a) Inadequate and misleading examination by the trial court as to the meaning and consequence of his pleas;

(b) The disabling effects of petitioner's ingestion of six one-quarter grain tablets of phenobarbital;

(3) The incompetence of counsel rendered the guilty pleas involuntary and generally reduced the entire trial to a sham or farce;

(4) The prosecutor failed to disclose to the defense evidence favorable to the defendant, in direct contravention of the mandate in the case of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963).

After thoroughly reviewing the pleadings, the points and authorities submitted by the parties, the evidence adduced at the evidentiary hearing which was held on September 16 and 17, 1971, and October 14, 1971, as well as the arguments of counsel, this court determines that the Petition of Writ of Habeas Corpus should be denied for the reasons set forth hereinafter. This memorandum of decision embodies the court's findings of fact and conclusions of law pursuant to Rule 52, Federal Rules of Civil Procedure.

I. APPLICABILITY OF THE DOCTRINE ENUNCIATED IN THE CASE OF BOYKIN v. ALABAMA, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed. 2d 274 (1969).

With respect to the first contention, this court is of the opinion the doctrine of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), is inapplicable because of its wholly prospective nature. United States ex rel. Sanders v. Maroney, 438 F.2d 1185 (3rd Cir. 1971); Benn v. Eyman, 436 F.2d 1074 (9th Cir. 1971); Jones v. Fitzharris, 435 F.2d 553 (9th Cir. 1971); Simmons v. Craven, 435 F.2d 554 (9th Cir. 1971); Smith v. Cox, 435 F.2d 453 (4th Cir. 1970); United States ex rel. Baity v. Maroney, 435 F.2d 1254 (3rd Cir. 1970); United States ex rel. Rogers v. Adams, 435 F.2d 1372 (2nd Cir. 1970); United States ex rel. Sadler v. Commonwealth of Pennsylvania, 434 F. 2d 997 (3rd Cir. 1970); Meller v. State of Missouri, 431 F.2d 120 (8th Cir. 1970); Lawrence v. Russell, 430 F.2d 718 (6th Cir. 1970); Perry v. Crouse, 429 F.2d 1083 (10th Cir. 1970); United States ex rel. Grays v. Rundle, 428 F.2d 1401 (3rd Cir. 1970); Moss v. Craven, 427 F.2d 139 (9th Cir. 1970); Miller v. Cupp, 427 F.2d 710 (9th Cir. 1970); Del Piano v. United States, 427 F.2d 1156 (3rd Cir. 1970); United States ex rel. Fear v. Commonwealth of Pennsylvania, 423 F.2d 55 (3rd Cir. 1970); United States ex rel. Hughes v. Rundle, 419 F.2d 116 (3rd Cir. 1969).

II. VOLUNTARINESS OF THE GUILTY PLEAS.

(1) Petitioner's contention that the examination by the trial court as to the meaning and the consequences of the pleas was inadequate and misleading.

This court notes that petitioner previously has raised this point before the Supreme Court of California in an original proceeding in habeas corpus. In re Tahl, 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449 (1969). In an able and exhaustive opinion, that court gave careful consideration to this contention and ruled adversely to the petitioner. After a review of that decision and after hearing testimony on this issue, this court concurs with the finding of the Supreme Court of California for the reasons set forth in its decision, that "the trial court here adequately examined petitioner prior to accepting his plea of guilty." In re Tahl, supra at 1 Cal.3d 122, 129, 81 Cal. Rptr. 577, 582, 460 P.2d 449, 454.

(2) Petitioner's contention that the disabling effects of his ingestion of six one-quarter grain tablets of phenobarbital rendered him incapable of voluntarily and intelligently entering a plea of guilty.

Petitioner contends that on the day which his guilty pleas were entered he had ingested six one-quarter grain tablets of phenobarbital which had the effect of rendering him incapable of understanding the meaning of his pleas. In support of this contention, petitioner testified that the pills were provided him by a cellmate, Edward Graham, who had "palmed" them over a period of time. Evidence was introduced to establish that Edward Graham had received four phenobarbital tablets daily for a period of four months, commencing October 8, 1965 and ending January 23, 1966, while he was incarcerated in the San Diego County Jail. Psychiatric testimony was then presented to establish that there is a cross-sensitivity between alcohol and phenobarbital so that individuals who are highly sensitive to alcohol, such as the petitioner is alleged to be, are likely to be sensitive to phenobarbital.

This contention must fail for several reasons. First, the only evidence which the petitioner has introduced in direct support of this contention is his own testimony, and the court is well aware that where a witness has a strong personal interest in the result of the suit, the temptation is strong to color, pervert or withhold the facts. Reagan v. United States, 157 U.S. 301, 15 S.Ct. 610, 39 L.Ed. 709 (1895). That some perversion of the facts did occur is evident from certain portions of petitioner's testimony, with respect to this and another matter, which can best be described as outright prevarications. In an apparent zeal to bolster his own position, petitioner testified that Edward Graham had supplied him with the phenobarbital pills during the week of the trial and subsequent thereto (RT. 157). However, evidence presented by the respondent, State of California, clearly indicates that Mr. Graham had been transferred from the San Diego County Jail ten days prior to the entry of petitioner's pleas. Also, in a matter collateral to the instant question, petitioner testified that the victim of the rape, Mrs. Diana Dawson, had visited him several times while he was in jail awaiting trial. During these visitations, according to Tahl, she repudiated her statement to the authorities concerning the alleged rape. This "backtracking" allegedly was made explicit in a letter which Mrs. Dawson mailed to Tahl before the penalty phase of the trial (RT. 119, 120). The letter, as well as the substance of Mrs. Dawson's conversations with petitioner, purportedly, were revealed to petitioner's counsel, who is now faulted for failing to use this information to petitioner's advantage. However, not only did petitioner's former attorney steadfastly deny that such information was communicated to him (RT. 212), but also when Mrs. Dawson was called to testify she unequivocally stated that she had never indicated to anyone that the charge of rape was untrue (RT. 262). The court, therefore, is, constrained to view the testimony of petitioner in a most cautious manner.

Further repudiation of petitioner's contention is found in the fact that each of the two psychiatrists who were called to testify in petitioner's behalf indicated that six tablets of phenobarbital was not a large dosage and would have little effect on the average person. While the argument might be made that petitioner is not an average man in this respect, this court is ultimately persuaded by the fact that no fewer than six witnesses testified that they had an opportunity to closely observe petitioner's demeanor at the time the pleas were entered and detected nothing which would indicate to them that petitioner was under the influence of drugs. These witnesses consisted of the presiding judge, the prosecutor, petitioner's own counsel, the court reporter and two deputies from the San Diego County Sheriff's Office. The court can, therefore, only conclude that, in the words of Albert Camus, "In prison, dreams have no limits and reality is no curb."

III. INCOMPETENCE OF COUNSEL.

The Sixth Amendment of the Constitution, made applicable to the states through the Due Process Clause of the Fourteenth Amendment, guarantees to every defendant in a criminal trial, the effective assistance of counsel. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Petitioner seeks redress on the basis that the counsel appointed to represent him in the trial was so incompetent as to afford him virtually no representation at all, thereby reducing the trial to a complete farce or sham. While this issue has never been presented to the courts of the State of California and, therefore, is not properly before this court,¹ this court, in the interest of justice, will take cognizance of the question of counsel's competency. Gingrich v. Oberhauser, 305 F.Supp. 738 (1969).

In support of this allegation, petitioner focuses mainly upon five aspects of counsel's representation: failure of counsel to raise the issue of petitioner's diminished capacity; failure of counsel to raise the issue of petitioner's sanity; failure of counsel to introduce in evidence a letter from the rape victim which is purported to have contained information which would have rendered her subject to impeachment; failure of counsel to make an opening statement; and failure of counsel to...