United States v. Hohn, 10656.

Decision Date17 September 1952
Docket NumberNo. 10656.,10656.
CourtU.S. Court of Appeals — Third Circuit

Sebastian C. Pugliese, Pittsburgh, Pa. (Paul K. McCormick, Greensburg, Pa., on the brief), for appellant.

C. Ward Eicher, Greensburg, and Randolph C. Ryder, Harrisburg, Pa. (L. Alexander Sculco, Dist. Atty., Greensburg, Pa., Frank P. Lawley, Jr., Asst. Deputy Atty. Gen., Robert E. Woodside, Atty. Gen., on the brief), for appellee.

Before BIGGS, Chief Judge, and KALODNER and STALEY, Circuit Judges.

BIGGS, Chief Judge.

On March 5, 1949, Daverse was convicted of first degree murder, and the penalty fixed at death by the jury in the Court of Oyer and Terminer, Westmoreland County, Pennsylvania. A motion for a new trial was denied by that court on December 31, 1949, and on May 22, 1950, Daverse's conviction was affirmed by the Supreme Court of Pennsylvania. See Commonwealth v. Daverse, 364 Pa. 623, 73 A.2d 405. On March 30, 1951, Daverse petitioned the Supreme Court of Pennsylvania for an order to authorize the Court of Oyer and Terminer to issue a rule for a new trial "nunc pro tunc". See 19 P.S.Pa. § 861. This was denied without opinion. On April 6, 1951, Daverse presented a petition for a writ of habeas corpus to the court below. That court entered an order, dated April 9, 1951, directing the relator to apply to the Supreme Court of Pennsylvania for a writ of habeas corpus. Daverse complied with the order on April 11, and eight days later the Supreme Court of Pennsylvania filed its opinion denying the writ.1 On April 27 the relator petitioned the Supreme Court of the United States for a writ of certiorari. The petition was denied on October 8, 1951. See 342 U.S. 812, 72 S.Ct. 25. On October 30 Daverse renewed his application for a writ of habeas corpus in the court below. The petition for habeas corpus filed in the court below set forth all grounds, save one which need not be detailed here, raised by the petition filed in the Supreme Court of Pennsylvania. The United States District Court on the same day ordered that a hearing be held on November 8, 1951. Following the hearing, the court delivered its opinion, D.C., 101 F.Supp. 17, and decreed that the petition be dismissed. Daverse has appealed from that order.

Before passing on other questions presented by this appeal, we think it desirable to comment briefly on the jurisdiction, the power, of the United States District Court to entertain Daverse's petition following the denial on its merits of a petition, identical in substance, by the Supreme Court of Pennsylvania and the refusal of the Supreme Court of the United States to grant a writ of certiorari. It is conceded that the relator has exhausted his State remedies. The question is whether the United States District Court may again examine the merits of Daverse's petition. In the absence of contrary directions from the Supreme Court of the United States, this court has settled this question in the affirmative. See United States ex rel. Smith v. Baldi, 3 Cir., 192 F.2d 540.

Daverse sets up three principal contentions in his petition for habeas corpus. None of these was considered in his appeal to the Supreme Court of Pennsylvania from the judgment of conviction, for the alleged facts on which these contentions are based were dehors the trial record. Daverse alleges: (1) that one James Bridge, a member of the jury which convicted him, entered on his duties as juror with a fixed opinion that Daverse was guilty and with such prejudice against persons of Italian extraction (of which relator was one) as to make it impossible for Bridge to exercise fair and impartial judgment; (2) that during the deliberations of the jury and in the absence of the relator, the jury transmitted a note to the trial judge and, after the judge had consulted with counsel for the parties, received from the judge a written instruction the contents of which are unknown to relator; and (3) that prior to the relator's trial and over objection of his counsel, the District Attorney obtained a court order authorizing an examination of Daverse by two psychiatrists employed by the Commonwealth, and that this examination took place in the absence of Daverse's counsel and included questions as to the commission of the crime and Daverse's possible defenses to the indictment. The relator urges that these allegations, assuming them to be true, establish that he has been deprived of his rights under the Pennsylvania Constitution and the Constitution of the United States.

The court below held that relator's second and third contentions were wholly without merit and therefore restricted the hearing of November 8, 1951 to the question of bias and prejudice of the juror Bridge. This restriction constitutes the first error claimed by Daverse.

The relator would have us presume substantial prejudice to him because of his absence during the transactions between the trial judge and the jury respecting the note sent by the jury to the Court. While it is settled in Pennsylvania that neither "court nor judge can take any step affecting a defendant's right in his absence", Commonwealth v. Corsino, 261 Pa. 593, 104 A. 739, 740, we conclude this rule has no application under the circumstances of the instant case. Daverse's petition itself indicated that the note transmitted to the trial judge contained only a question as to the eligibility of a life prisoner for parole and that the judge's instruction was nothing more than a refusal to answer the question.2 There is here no such violation of relator's rights as would deny him due process of law. "So far as the Fourteenth Amendment is concerned, the presence of a defendant is a condition of due processs to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only." Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 333, 78 L.Ed. 674. See United States ex rel. Auld v. Warden of New Jersey State Penitentiary, 3 Cir., 187 F.2d 615. The court below did not err in denying a hearing on this issue. So much for the second point raised by the relator.

The propriety of the relator's examination by state psychiatrists prior to trial is even less doubtful. While it would be undesirable to permit such an examination to serve as a fishing expedition for incriminating evidence, the relator's examination was conducted in good faith for the purpose of determining his criminal responsibility at the time of the commission of the crime. Relator had already confessed to his actions on the night of the crime. His counsel had notice of the time and place of the examination. The transcript of Daverse's answers to the psychiatrists' questions, the psychiatrists' report, and their account of the interview with Daverse were not received in evidence at the trial. In view of these facts the relator's third contention does not establish a denial of constitutional rights. Even if the examination could be proved to be violative of the relator's privilege against self-crimination under the Pennsylvania Constitution, this action by the Commonwealth could not stand as a basis for the argument that the relator was deprived of rights under the Fourteenth Amendment under the circumstances at bar. See Adamson v. California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903; Twining v. New Jersey, 211 U.S. 78, 29 S. Ct. 14, 53 L.Ed. 97, where state statutes had deprived the defendants of the privilege against self-crimination. The obliteration from the hearing of the third point raised by Daverse was clearly warranted by the law.

Before proceeding to discuss the first point raised by the relator, viz., the competence of Bridge as a juror, it is necessary to refer briefly to a specific ruling made by the court below as to a proffered amendment to...

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