Tyars v. Finner

• Decision Date: 21 May 1981
• Docket Number: No. CV 79-02008-AAH(G).,CV 79-02008-AAH(G).
• Citation: 518 F. Supp. 502
• Parties: Luther TYARS, Petitioner, v. Dr. Richard FINNER, Medical Director of Patton State Hospital, Patton, California, Respondent.
• Court: U.S. District Court — Central District of California

518 F. Supp. 502

Luther TYARS, Petitioner, v. Dr. Richard FINNER, Medical Director of Patton State Hospital, Patton, California, Respondent.

No. CV 79-02008-AAH(G).

United States District Court, C. D. California.

May 21, 1981.

Littleton M. Gunn and Andrew E. Rubin, Deputy Public Defenders, San Bernardino, Cal., for petitioner.

Jay M. Bloom, Deputy Atty. Gen., San Diego, Cal., for respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE ON PETITION FOR WRIT OF HABEAS CORPUS

HAUK, Chief Judge.

This Court has reviewed the Petition, the file, and the Report and Recommendation of the United States Magistrate who has reviewed the petition. The Court has also reviewed the Objections filed by both the respondent and the petitioner, and the Magistrate's Final Report and Recommendation upon such objections. The Court approves and adopts the original Report, including the recommended findings of fact and conclusions of law, as the opinion of the Court.

IT IS ORDERED that the Petition for Writ of Habeas Corpus is denied.

REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY

This Report and Recommendation is submitted pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and General Order No. 194 of the United States District Court for the Central District of California.

On April 12, 1976, the San Bernardino County District Attorney filed a petition under California Welfare and Institutions Code §§ 6500-6512 for the commitment of petitioner Luther Tyars as a mentally retarded person who was a danger to himself and others. The San Bernardino County Superior Court appointed the county public defender to represent Tyars and set May 5, 1976 for a jury trial. After five continuances, on September 14, 1976 the court ordered the proceedings off calendar based on the California Supreme Court's stay of the matter. The California Supreme Court vacated its stay order on October 15, 1976.

Preliminary motions were argued on February 1, 1977 and the Deputy Public Defender asked that Tyars' Fifth Amendment right against self-incrimination be respected and that Tyars be advised that any statement made by him could be used against him. The court denied the motion.

At the trial on February 2, 1977, the state called a staff psychologist and a staff psychiatrist from Patton State Hospital where Tyars was currently confined. Each of the doctors had interviewed Tyars and testified that his I.Q. ranged from 35-62 and that he had exhibited anger and hostility during the interviews. The state then called Tyars pursuant to Cal.Ev.Code § 776 (allowing cross-examination of an adverse witness out of sequence) over continuing objection of Tyars' counsel.

The court found that Tyars was incapable of understanding the customary oath, but that he did understand the importance of telling the truth. Tyars promised the judge that he would tell the truth. Because of Tyars' severe speech handicap, the court caused Lawrence Meteer (a Patton State Hospital technician who was later the state's chief eyewitness in establishing Tyars' violent episodes) to be sworn as an "interpreter" to translate "English into English." The "interpreter" did not restate the court's questions to Tyars, and on occasion, answered the court's question without even purporting to answer on Tyars' behalf. Certain of Tyars' words which were understandable (at least to the court reporter) were not the same as interpreted by Mr. Meteer (Rptr's transcript, pp. 91, 92, 93, 96). At one point, a spectator in the courtroom purported to "translate" one of Tyars' answers (Rptr's transcript, p. 91). Tyars described several of his acts of violence, punctuating his testimony with loud "pows" and attempted punching motions. Throughout his testimony, Tyars was bound in restraints.

The jury deliberated 45 minutes and on February 3, 1977 returned its verdict that Tyars was a mentally retarded person who is a danger to himself and others, and the court ordered Tyars' involuntary commitment to Patton State Hospital.

On February 7, 1977, the deputy public defender filed an appeal alleging, inter alia, that the lower court's violation of Tyars' Fifth Amendment right against compelled self-incrimination demanded a reversal of the verdict. The Fourth District Court of Appeal of California held that the purpose of the Fifth Amendment was to constitutionally compel governments to establish guilt by evidence independently so that governments may not by coercion prove a charge against an accused out of his own mouth Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493-94, 12 L.Ed.2d 653 (1964). The court also found that the availability of the Fifth Amendment privilege does not turn upon the type of proceeding, but upon the nature of the admission and the exposure which it invites In re Gault, 387 U.S. 1, 49, 87 S.Ct. 1428, 1455, 18 L.Ed.2d 527 (1966).

The Appellate Court acknowledged that the state's interests in protecting the mentally disabled from himself, and protecting society from the mentally disabled, were legitimate, but reasoned that the individual's interests are no less fundamental than those in criminal proceedings and his liberty is "no less precious because forfeited in a civil proceeding than when taken as a consequence of a criminal conviction," citing In re Gary W., 5 Cal.3d 296, 307, 96 Cal.Rptr. 1, 486 P.2d 1201 (1971). The opinion rendered on September 16, 1977 reversed the jury verdict on the basis that the lower court's failure to honor appellant Tyars' constitutional right not to be compelled to incriminate himself was fatal error.

On March 9, 1978, the state Supreme Court granted a hearing. In its opinion rendered January 12, 1979, the California Supreme Court's controlling rationale was that a mentally retarded person in a civil proceeding for involuntary commitment does have available the privilege afforded under the Fifth Amendment but that the privilege in such proceedings was limited to testimony which would tend to incriminate the subject of such proceedings in criminal activity. The subject of involuntary commitment proceedings, therefore, could not refuse to testify altogether in the essentially civil proceeding. The Court found that while the lower court's requirement that Tyars respond to questions regarding his assaultive behavior was error, it was harmless error, and affirmed the jury verdict. Cramer v. Tyars, 23 Cal.3d 131, 151 Cal. Rptr. 653, 588 P.2d 793 (1979).

In his Petition for Writ of Habeas Corpus, petitioner Tyars again attacks his 1977 commitment on the ground that he was denied the right to exercise his Fifth Amendment privilege against self-incrimination. By concurrently filed affidavit and application Public Defender Littleton M. Gunn requested that he be appointed as Guardian ad Litem, or, alternatively, that a ruling be made that no Guardian ad Litem is necessary to determine the federal question raised by the petition. By Order of May 31, 1979, Judge Stephens ruled that no guardian need be appointed.

The Magistrate directed that the Attorney General file a Return to the petition accompanied by all state records, and that respondent serve a copy of same upon petitioner, and allowed petitioner 20 days after the filing of the state's Return within which to file a Traverse. Respondent's Return and petitioner's Traverse were filed thereafter.

The Magistrate subsequently ordered further briefing from the respective parties on the issues of:

(1) The effect of the 1977 proceedings upon the subsequent yearly proceedings to recommit petitioner Tyars; and

(2) The collateral consequences now in existence for petitioner as a result of the 1977 commitment.

Both parties complied.

THE ISSUE OF MOOTNESS

Respondent Patton State Hospital concedes exhaustion, but contends that the legal issues raised by petitioner need not be considered since the 1977 commitment expired in 1978. Respondent argues that since petitioner is not presently in custody because of the 1977 commitment the question of whether that proceeding was constitutionally defective is moot.

Petitioner argues (Traverse) that his petition is not moot because this case presents questions of substantial importance which are likely to recur and are effectively impossible to reach during initial commitment stages. In order for petitioner to have been eligible for this Court to entertain his writ he properly should have exhausted all of his state remedies. State exhaustion of remedies would necessarily take a substantial amount of time (Traverse, p. 3).

Further, petitioner points out that he is still subject to the constitutionally infirm rule of Cramer v. Tyars, 23 Cal.3d 131, 151 Cal.Rptr. 653, 588 P.2d 793 (1979) and subject to being forced to incriminate himself over and over again at any future hearings by the State of California (Traverse, p. 3).

Petitioner contends that sound judicial administration demands that this Court entertain his petition on its merits (Traverse, p. 3) relying on In re Curry, 470 F.2d 368 (D.C. Cir. 1972), SEC v. Medical Committee for Human Rights, 404 U.S. 403, 92 S.Ct. 577, 30 L.Ed.2d 560 (1972) and Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) for that proposition, and, in addition, asserts that where claimed constitutional violations are capable of repetition, yet evade review, they are not moot (Traverse, p. 4) citing Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1974) and Carroll v. Princess Anne, 393 U.S. 197, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968). Further, petitioner correctly relies on Friend v. United States, 388 F.2d 579 (D.C. Cir. 1967) (Traverse, p. 3) since the Friend court found that although appellant Friend had been released prior to its consideration of the matter, that case was not moot since the commitment order was one of brief duration, capable of future repetition at its expiration.

Petitioner's court-ordered Supplemental Memoranda argues...