Walker v. Fogliani

• Citation: 425 P.2d 794,83 Nev. 154
• Decision Date: 03 April 1967
• Docket Number: No. 5240,5240
• Parties: Joseph Miles WALKER, Petitioner, v. Jack FOGLIANI, Warden, Nevada State Prison, Respondent.
• Court: Supreme Court of Nevada

Page 794

425 P.2d 794

83 Nev. 154

Joseph Miles WALKER, Petitioner, v. Jack FOGLIANI, Warden, Nevada State Prison, Respondent.

No. 5240.

Supreme Court of Nevada.

April 3, 1967.

Jojn Squire Drendel, Jerry Carr Whitehead, Reno, for petitioner.

Harvey Dickerson, Atty. Gen., and George G. Holden, Deputy Atty. Gen., Carson City, William J. Raggio, Washoe County Dist. Atty., Reno, for respondent.

OPINION

ZENOFF, Justice.

Joseph Miles Walker has filed a petition for a writ of habeas corpus with this court seeking release from prison on the ground that he was denied certain constitutional rights at trial. We believe that his contention is sound.

Joseph Miles Walker was convicted of murder and sentenced to death. The conviction was affirmed. Walker v. State of Nevada, 78 Nev. 463, 376 P.2d 137 (1962). ¹ Certioari was denied by the U.S. Supreme Court (Walker v. State of Nevada, 375 U.S. 882, 84 S.Ct. 153, 11 L.Ed.2d 112 (1963)). Walker then petitioned the U.S. District Court for a writ of habeas corpus contending (1) that he was denied the right of counsel, and (2) that there was an accumulation of errors during his trial in the state court which considered in the aggregate deprived him of a fair trial in accordance with due process of law. The Federal District Court denied the petition. On appeal, the Ninth Circuit Court of Appeals reversed and remanded directing that the district court enter its order holding further proceedings in abeyance to afford Walker a reasonable opportunity to apply to the Nevada courts for their re-examination of the question of whether or not in the light of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), he was denied the benefit of counsel. United States ex rel. Walker v. Fogliani, 343 F.2d 43 (9th Cir. 1965). Complying with that order, a hearing was held in the state trial court below on the question narrowed to Walker's assertion that he had asked for the assistance of counsel but that it had been denied. The trial court found from the hearing that Walker had not requested an attorney. Whether or not such a request was made is now immaterial in that the United States Supreme Court in Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), has ruled that the doctrine of Escobedo need not be applied retroactively. We turn, therefore, to the second point.

The clear and unmistakable purport of the Ninth Circuit Court of Appeals to the second point in issue compels another review of the aggregate of trial court errors as constituting grounds for a new trial. 'Conceding that the contention presents an issue worthy of serious consideration, our meeting it now would overlook the possibility of its elimination by future developments in orderly and proper procedure.' United States ex rel. Walker v. Fogliani, supra, 343 F.2d p. 48.

The court in the first appeal acknowledged three trial court errors but disclaimed them as harmless. The so-called harmless errors included (1) the remark by the prosecuting attorney in his opening statement to the effect that appellant was apprehended at the Oklahoma State Penitentiary (2) the asking by the prosecutor of a question of a witness during the presentation of the prosecution's case in chief of a question concerning homesexuality when the prosecutor, after objection, admitted that he could not connect the subject of homesexuality with the appellant, and (3) the refusal to grant the motion by defense counsel for the production of a written report of the investigation made by a police officer who testified for the prosecution.

We do not believe that the strong current of present judicial authority permits the sort of errors which together are so serious as to amount to a denial of a fair trial. In Chapman v. State of California, 386 U.S. ---, 87 S.Ct. 824, 17 L.Ed.2d 705, filed February 20, 1967, the U.S. Supreme Court decided that the harmless error rule merely blocks the setting aside of convictions for small errors or defects and that before a constitutional error can be held harmless the court must be able to declare a belief that it was harmless beyond a reasonable doubt.

Reference to past criminal history is reversible error. Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959); Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948); Boyd v. United States, 142 U.S. 450, 12 S.Ct. 292, 35 L.Ed. 1077 (1892); Vol. 1, Wigmore, Evidence #193--94 (3rd ed. 1940). Refusal to allow production of the written statement deprived defendant of his valuable right to impeachment by cross-examination. Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Incidence of homosexuality in the prison, particularly when the prosecutor admitted that it had no relevancy whatsoever to the defendant could only contribute adversely to the already prejudiced climate of the trial proceedings. The Ninth Circuit Court clearly indicated that the errors were not harmless, nor can we say otherwise in view of Chapman, that the errors complained of were harmless beyond a reasonable doubt.

The danger of allowing prejudicial remarks and testimony during a trial is not confined to their momentary effect upon the jurors. Trial tactics are influenced immeasurably. Counsel is forced to object and argue repeatedly. Defendant may be compelled to testify when it is his right not to do so. Ibsen v. State, 83 Nev. ---, 422 P.2d 543 (1967).

This reversal for a new trial is a hard burden to bear because Walker is a confirmed criminal. But it is a proud tradition of our system that every man, no matter who he may be, is guaranteed a fair trial. As stated by Chief Justice Traynor in People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, at 912, 50 A.L.R.2d 513 (1955), 'Thus, no matter how guilty a defendant might be or how outrageous his crime, he must not be deprived of a fair trial, and any action, official or otherwise, that would have that effect would not be tolerated.'

The requisites of a trial free of prejudicial atmosphere are too deeply implanted to require repetition; for when the death penalty is executed, its consequences are irretrievable. A fair trial therefore is a very minimal standard to require before its imposition. In order that all people be assured of fair trials, Walker, and the likes of him, must be likewise so assured. He has not had that fair trial.

We must be certain that he be tried free of prejudicial error. Were we to pass on this responsibility under the present circumstances to a higher court, the extensive delay before the next hearing might well make another trial impossible. ² This is not necessarily true now, but our determination cannot turn on that consideration. Our judgment, delicate as it may be, is that on the state of this record due process of law has been denied under the federal and state constitutions and the conviction cannot stand. It is ordered that the writ of habeas corpus must issue and Walker be discharged unless the State gives him a new trial within a reasonable time. Pate v. Robinson, 383 U.S. 375, 386, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Schnepp v. Fogliani, 83 Neb. ---, 425 P.2d 141 (1967).

THOMPSON, Chief Justice (concurring):

On appeal from the conviction, I dissented from the majority of the court. Walker v. State, 78 Nev. 463, 474, 376 P.2d 137, 142 (1962). It was then my view that the conviction should be set aside and a new trial accorded Walker, since multiple substantial errors had resulted in a denial of due process under the federal and state constitutions. The passing of time has not caused me to come to a different conclusion, and I concur fully with the opinion of Mr. Justice Zenoff.

The 'law of the case' doctrine which seems to be the basis of the present dissent of Mr. Justice Collins, is, I think, wholly inappropriate to the matter at hand. A state supreme court is not the final arbiter of federal constitutional rights. In this area, federal supervision of state criminal justice has existed throughout our history. See: Judiciary Act of 1789, ch. 20, § 25, 1 Stat. 85, providing for direct review by the Supreme Court of state decisions that turn on a question arising under the federal constitution; Judiciary Act of 1867, ch. 28, § 1, 14 Stat. 385, providing for the review of state convictions by federal habeas corpus. Mr. Justice Frankfurter wrote in Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953): 'Insofar as this jurisdiction enables federal district courts to entertain claims that State Supreme Courts had denied rights guaranteed by the United States Constitution, it is not a case of a lower court sitting in judgment on a higher court. It is merely one aspect of respecting the Supremacy Clause of the Constitution whereby federal law is higher that State law. It is for the Congress to designate the member in the hierarchy of the federal judiciary to express the higher law. The fact that Congress has authorized district courts to be the organ of higher law rather than a Court of Appeals, or exclusively this Court, does not mean that it allows a lower court to overrule a higher court. It merely expresses the choice of Congress how the superior authority of federal law should be asserted.'

It, therefore, is apparent that the prior opinion of this Court in Walker v. State, supra, cannot have the overriding significance given it by Mr. Justice Collins, since the court of appeals for the ninth circuit has strongly indicated its disapproval of that decision. See: United States ex rel. Walker v. Fogliani, 343 F.2d 43, 48 (9 Cir. 1965). That court wrote: 'No present purpose would be served by extended and detailed discussion of the second ground of appellant's petition, that in which it is urged that an accumulation of errors in the state trial proceedings resulted in a trial so substantially unfair as to violate federal requirements of due process. Conceding that the...