Weiss v. Burr

• Decision Date: 18 September 1973
• Docket Number: No. 71-1933.,71-1933.
• Parties: Horton C. WEISS, Appellant, v. Waldon C. BURR, Sheriff of Pima County, Arizona, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

484 F.2d 973 (1973)

Horton C. WEISS, Appellant, v. Waldon C. BURR, Sheriff of Pima County, Arizona, Appellee.

No. 71-1933.

United States Court of Appeals, Ninth Circuit.

May 21, 1973.

Rehearings Denied September 18, 1973.

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John F. Molloy (argued) of Robertson, Molloy, Fickett & Jones, P.C., Tucson, Ariz., for appellant.

John P. Frank, Sp. Asst. Atty. Gen., (argued); Gary K. Nelson, Atty. Gen., Phoenix, Ariz. for appellee.

Before ELY and TRASK, Circuit Judges, and SPENCER WILLIAMS, District Judge.^*

ELY, Circuit Judge:

Weiss appeals from the District Court's denial of his petition for habeas corpus. He contends that the court erred in denying his relief from a jail sentence and a fine levied against him, for criminal contempt, by an Arizona trial court.

During the prosecution of a murder trial, Weiss, the prosecuting attorney, was cited for five separate acts of criminal contempt. The first arose out of an in-court discussion, during the jury's absence, concerning the right of a prosecution witness, the mother of the accused, to claim the privilege against self-incrimination. After an acrimonious exchange between Weiss and the defense attorney, the court decided to allow the witness to claim the privilege. Thereupon Weiss complained:

"Well, it worked. That is all I can say. Erroneously. If they call this Justice."

The court responded:

"Show it is the finding of the Court that Mr. Weiss is in contempt of Court for remarks made toward the Court reflecting on the discretion and judgment of the Court. You don\'t have to have any respect for me personally, but you are going to respect this bench, Mr. Weiss."

The second citation was sparked by an exchange between Weiss and the court over the use of prior testimony of the same witness. She had previously been separately tried for the same alleged murder, and she had testified in her own defense. At her son's trial, however, she found is physically and emotionally difficult, if not impossible, to complete her testimony. As a substitute for her continued appearance, the defense counsel urged that the entire transcript of her testimony at the prior trial be read into evidence. Weiss argued that only selected portions should be read. The court, agreeing with the defense, said to Weiss:

"Well, the record may show your objection to those portions preceding where you are indicating that you are wanting to start, and the objection is overruled, and you and the defendant\'s attorney will read the transcript just starting with the beginning of her testimony and right straight on to the end, and making any record either of you want.

I would suggest, so it will be a little more understandable to the jury, that one of you read the questions and one the answers."

Weiss responded: "No, I am not going to do that." The court then stated:

"Mr. Weiss, you are going to do what I tell you to do when you are in this courtroom. Now I have warned you again and again about that.

Show it is the finding of the Court that Mr. Weiss is again in contempt of Court, and that sentence will be pronounced at the end of the trial."

The third citation also revolved around the court's treatment of the defendant's mother. In response to a defense motion, the court said:

"Show that the defense moves that the accused\'s mother be released as a witness and Mr. Weiss objects on the basis that he may need her in his rebuttal.

So show it appearing to the Court that the physical and emotional condition of the witness is such that she is unable to testify, and has been throughout the trial, it is ordered that she be released from the subpoena."

Immediately thereafter, the following colloquy occurred:

"Weiss: I would like the record to show the witness has appeared in the courtroom only once before the Judge. I don\'t know whether she has been in the Judge\'s chambers, but I would like the record to show she appeared in the courtroom one time according to my knowledge.

The Court: What do you mean by her being in the Judge\'s chambers?

Weiss: I don\'t know where she has been, because the Court said it appearing her mental and emotional and physical condition is such that she is unable to testify as a witness. You have to base it on something.

The Court: I\'m not going to take much more, and you had better quit making those sarcastic remarks. You know she hasn\'t been in the Judge\'s chambers. There is no reason for her or any other witness to be in there, and I am not going to take that sarcasm.

Show it is the finding of the Court that Mr. Weiss is found in contempt of Court and sentence will be pronounced at the end of the trial."

The fourth citation was imposed when Weiss revealed to the jury portions of a statement by the defendant which the court had previously ordered suppressed. After the defense counsel asked the court to admonish Weiss for introducing the excluded evidence, the court said:

"No, he is not going to get a chance to introduce such evidence again.

It is the finding of the Court that Mr. Weiss is again in contempt for deliberately, among other things, including statements that have been suppressed by the Court, . . . in an obvious attempt to cause a motion for mistrial."

The last citation was based upon statements Weiss made, during his closing argument to the jury, which the court had admonished him not to make. At trial, the state sought a first degree murder conviction against the defendant. Prior to closing arguments, however, the court ruled first degree murder out of the case. Consequently, during an interruption in Weiss' argument, the defense argued that since premeditation was no longer an issue, Weiss should not contend that the defendant had a plan which resulted in the killing. The court, agreeing, orally ordered Weiss not to

"argue premeditation and such as that, because that is what I have ruled as a matter of law is out of the case. So if you argue to the jury the facts with the inference that they can find that this was murder that had been planned by the defendant for many days prior to the incident, why then really you are arguing premediation and first degree murder.

* * * * * *

You are of course entitled to argue any of the facts, but just don\'t argue them to the effect that these were plans made by the defendant for the purpose of murdering his father."

Under the statutes involved, murder was defined as a killing "with malice aforethought."¹ First degree murder involved, in addition, the element of premeditation.²

In his argument to the jury, the defense counsel argued that the accused had no malice aforethought and explained his conception of the phrase:

"Malice aforethought meant that in your heart at the time you commit an act you do it with malice, maliciously, that in your mind it is a forethought. You thought of it before you did it. And it is incumbent upon the prosecution to establish beyond any reasonable doubt that the defendant in this case, if he is going to ask you to find this defendant guilty of murder, had malice aforethought."

During his closing presentation, Weiss attempted to convince the jury that the defendant had, in the words of the defense counsel, "thought of it before he did it." In doing so, he pointed out the suspicious nature of a number of the defendant's actions and statements prior to the killing. At one point, the following colloquy occurred:

"Weiss: All right. Now on Thursday, * * * was there any showing of belligerence on Bill Atwood\'s the decedent part? . . . Not one bit. Then why the statements by one of the witnesses concerning the purchase of a gun, . . . was there some connection between this statement and purchase of the gun, and going to see the deceased there on Saturday? Was it an explanation for having the gun? If he the deceased did get this way become belligerent, then why try to get with him alone? That is not the correct thing to do.

Defense: I will object, if the Court please. This is the very matter the Court has instructed on. This is not in the case.

The Court: I have ruled anything concerning premeditation is out of the case. First degree murder is out of the case so don\'t make this type of argument, Mr. Weiss. . . .

Weiss: I am sorry. I thought I could discuss the facts of the case. I am sorry.

I apologize to the Court for a misunderstanding on my part."

After Weiss completed his argument, and the jury was instructed and sent out for its deliberations, the judge again addressed Weiss. He said:

"Mr. Weiss, I just explained as fully as I knew how this morning that you were not to go into an argument concerning any scheme or plan or premeditation. Then when you were talking about the witness\' statement . . . and the fact that it was — what you were getting into was the fact that the statement was obviously made for having purchased the gun with the intent to use it to kill the deceased . . . . That was just applying sic; flying in the face of what I had told you to do. It is along the same line of what you did yesterday, and I avoided holding you in contempt at that time, but I don\'t see how I can avoid it at this time.

So show it is the finding of the Court that Mr. Weiss is in contempt and the matter will be dealt with at the close of the trial."

At the end of the trial, the court imposed sentence upon Weiss in a summary proceeding. For the first citation, he was fined $150. For the subsequent infractions, he was given 1, 2, 4, and 8 days in jail, respectively. Before the sentences were executed, Weiss sought review in the Arizona appellate courts. The Arizona Court of Appeals found the contempt judgment void on all counts "for a lack of the requisite factual findings . . . ." Weiss v. Superior Court, 12 Ariz.App. 527, 529, 472 P.2d 950, 952 (1970). The Supreme Court of Arizona reversed. It rejected the views of the Court of Appeals, stating:

"We do not believe a judgment which omits requisite facts is fatally defective if a transcript or

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