Trombley v. Anderson

• Decision Date: 07 November 1977
• Docket Number: Civ. A. No. 7-71225.
• Citation: 439 F. Supp. 1250
• Parties: Robert A. TROMBLEY, Petitioner, v. Charles ANDERSON, Warden, State Prison for Southern Michigan, at Jackson, Michigan, Respondent.
• Court: U.S. District Court — Western District of Michigan

439 F. Supp. 1250

Robert A. TROMBLEY, Petitioner, v. Charles ANDERSON, Warden, State Prison for Southern Michigan, at Jackson, Michigan, Respondent.

Civ. A. No. 7-71225.

United States District Court, E. D. Michigan, S. D.

November 7, 1977.

Carl Ziemba, Detroit, Mich., for petitioner.

Max E. Simon, Asst. Atty. Gen., Crim. Div., Lansing, Mich., for respondent.

OPINION

FEIKENS, District Judge.

Petitioner, who was 16 at the time, was charged with the murder of a neighbor woman that occurred on March 8, 1963. On April 9, 1963 a waiver of jurisdiction hearing was held in Wayne County Probate Court Juvenile Division, and petitioner was waived to a trial as an adult. There is no indication in the record that petitioner was represented by counsel. On August 6, 1963 petitioner pleaded guilty to an open charge of murder. Thereafter, the Wayne County Circuit Court held a hearing in accordance with the statute, M.C.L.A. 750.318, to determine the degree of murder that had been committed. The court found petitioner guilty of first degree murder and sentenced him to life imprisonment.

In his application for a writ of habeas corpus petitioner raises three constitutional questions. They are the right to have appointed counsel at juvenile waiver hearings, denial of due process in the acceptance of his plea, and ineffective assistance of counsel at the plea proceeding and degree hearing.

I

It is undisputed that at the time of petitioner's waiver hearing, Michigan law did not require the appointment of counsel for such hearings. M.C.L.A. 712A.17 stated that such appointment was in the discretion of the Juvenile Court. No such right was held to exist under the United States Constitution prior to 1966. Since then, however, juveniles have had a right to counsel in all adjudicatory hearings. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). The important question is whether the rule announced in Gault and Kent should be applied retroactively.

The United States Circuit Courts of Appeal are split on this retroactivity question. The leading case holding that the right to counsel at juvenile waiver hearings must be applied retroactively is Kemplen v. Maryland, 428 F.2d 169 (4th Cir. 1970). An early case ruling against retroactivity is Mordecai v. United States, 137 U.S.App.D.C. 198, 421 F.2d 1133 (1969). More recently the Ninth Circuit, en banc, considered this question in Harris v. Procunier, 498 F.2d 576 (9th Cir. 1974). In that case the court applied the tests for retroactive application of a new constitutional standard and found that they are not satisfied in the juvenile waiver situation. No Sixth Circuit case has decided this question, and in the absence of such a decision, this Court will adopt the reasoning and result in Harris.

There is a legitimate need to bring litigation to a close at some point. In the juvenile waiver situation this need is demonstrated by the reasonable reliance on the old rule by courts in the past and the impossibility of fashioning effective relief ten, fifteen, or even twenty years after the initial waiver hearing. Petitioner is now 30 years old and his case cannot now be considered in any meaningful way by a juvenile court.

The fact that petitioner pleaded guilty in an adult court with all constitutional safeguards present amounts to a waiver of the failure of the state to provide counsel at the time of his waiver hearing. Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235; see Harris, supra, at 579.

II

The due process challenge that petitioner raises consists of two issues related to an inchoate insanity defense that remained in the shadows throughout the proceedings in circuit court. After a thorough examination of the transcripts of the circuit court proceedings and careful consideration of the briefs of counsel, this Court is convinced that the trial judge was extremely careful in his handling of this matter and afforded petitioner full due process.

The first question is whether there was a factual foundation for each element of the crime to which petitioner pleaded guilty and whether he acknowledged the existence of each element. He claims that he pleaded guilty to an open charge of murder but at the same time negated his guilt by indirectly asserting that he was insane at the time the crime was committed.

The plea proceedings and degree hearing covered four days. The trial judge heard testimony from several witnesses, two of whom related petitioner's confession. He also heard the testimony of two psychiatrists who had examined petitioner. At no time did petitioner assert an insanity defense or claim that he did not know what he was doing when he committed the crime, or that he did not know that what he was doing was wrong. On four separate occasions the trial judge offered petitioner, who was represented by counsel throughout the proceedings, an opportunity to withdraw his plea and stand trial. Each of these offers was rejected. At the sentencing the trial court stated:

The reports of the doctors, while not in full agreement, satisfy this Court that the defendant was sane and capable of performing a premeditated intention. Reviewing all the testimony and all of the circumstances, this Court can come to no other conclusion than that this act was premeditated, calculated murder. If the defendant did not deliberately intend to kill the deceased when he strangled her, then he most certainly did when he followed it up by attempting to drown her and then subsequently attempting to asphyxiate her by gas. (Sentencing transcript pp. 4, 5)

In his effort to classify the crime, the trial court had to face the questions of intent, premeditation, and deliberation. If petitioner had been found to be insane, essential elements of the crime would have been negated. By looking into the question of petitioner's sanity, the trial court was affording petitioner due process by insuring that all of the essential elements were present. His determination that petitioner was sane was in no way a denial of due process and, when considered in conjunction with the testimony adduced, established the commission of first degree murder.

The other due process challenge is based on the assertion that the guilty plea was not knowingly and understandingly made because petitioner misunderstood the consequences of a successful insanity defense. During the third day of the degree hearing a psychiatrist who had examined the petitioner was relating to the court what petitioner had told him and stated:

He said initially there had been some talk with the attorney about insanity and he decided he did not want to go before the hospital sic, so this would mean he could go to the hospital for 16, 17 years then come back and be tried for murder on his release from the hospital. He said there also had been some talk he might be in the hospital two or three years and then be released from the hospital after two or three years. He says he knows it's a bad crime he has committed but, that he has to pay for it. He said personally he would be satisfied with second degree murder, because he knows as the second degree he will get perhaps 20 years to life. (Degree Hearing transcript, pp. 128-129)

Based on this and other statements of the defendant, the trial judge ordered that a supplemental hearing be held to clear up these matters. This was the fourth day of hearings, and after the reason for the hearing was stated for the record, the following appears:

MR. KEATING Defense Counsel: Your Honor, I might state Mr. Ferris called me yesterday and advised me of the contents of the report of Dr. Gordon and I told him in view of that it would appear, as far as the record is concerned, there could be some confusion in the mind of the defendant as to exactly what he had done and as to whether or not he had pleaded guilty to an open charge of murder. I agreed with Mr. Ferris that in order the record might be clear I would come back here this morning before your Honor and on behalf of the defendant. I can advise the Court, which the Court can also question the defendant as to his understanding, but I have discussed it again this morning with the defendant. He understands that he was entitled to a trial either by a jury — or before a jury or by a judge without a jury, and in lieu of that he waived a trial and entered a plea of guilty to the charge of murder — an open charge of murder and at that point the trial was waived and that the only matter before the judge then was whether the murder was one of the first degree or a murder in the second degree.

I further explained to him before the plea was entered that first degree murder was an automatic — or incurred an automatic sentence of life imprisonment without the possibility of parole, and second degree murder was open to life imprisonment, but that there was a chance of parole. I also stated that I would do my best to bring forth facts that he should be sentenced for second degree murder.

Now, in view of Dr. Gordon's report perhaps it would be best for the Court to question him to bring out from exactly what I said.

THE COURT: Mr. Trombley, when this matter was assigned to this court for trial in the normal course of events, if you had not waived the jury you would have been entitled to a trial by jury, the jury would have determined whether or not you were guilty and the jury also would have determined, if they found you guilty, of what degree of murder you were guilty of.

There are two degrees of murder in this state. One is murder first degree and the other is murder second degree. I'm not sure you understand this and I am going to try to explain them to you, because I want you to know without any question in your mind that you are entitled to a trial by a jury or by a court without a jury, as you may choose.

The statute relating to murder in the first degree reads as...