Whetton v. Turner, 12675
| Citation | 497 P.2d 856,28 Utah 2d 47 |
| Decision Date | 30 May 1972 |
| Docket Number | No. 12675,12675 |
| Parties | d 47 William WHETTON, Plaintiff and Appellant, v. John W. TURNER, Warden, Utah State Prison, Defendant and Respondent. |
| Court | Supreme Court of Utah |
D. Gilbert Athay, Salt Lake Legal Defender Ass'n., Salt Lake City, for plaintiff and appellant.
Vernon B. Romney, Atty. Gen., David S. Young and William T. Evans, Asst. Attys. Gen., Salt Lake City, for defendant and respondent.
Plaintiff commenced this habeas corpus proceeding in the district court on December 24, 1970, seeking release from the State Prison where he is serving a sentence for second-degree murder after conviction by a jury eight years earlier, in December, 1962. He stated various claims for relief which turned out to be mainly that he did not have competent counsel, and that in proceedings prior to the trial he was subjected to improper questioning. In order to substantiate these claims he requested a transcript of the proceedings. This led to the discovery that the reporter's notes, which appear to have been filed in the county clerk's office eight years earlier, cannot be found. The inability to furnish that transcript is now the gravamen of his attack upon his conviction and contention that he should be released from prison.
The fact is that the plaintiff was represented by an attorney of extensive experience in defending criminal cases. 1 It appears from the record in the instant case that he was able to obtain a verdict of second-degree murder which he thought might have been first-degree murder. Concerning the appeal from that conviction plaintiff testified herein:
I said,
And he said, 'I can't.' He said, 'If I do you will be tried again for First Degree and shot.'
I said,
He said, 'I can't.' It was too late.
After a lapse of eight years the plaintiff attempted to persuade the trial court, and that failing, to persuade this court, mainly on the basis of his own self-serving assertions, that he was not accorded due process of law nor given a fair trial. In that regard there are several observations to be made. Our law provides for numerous and adequate protections of the rights of one suspected or accused of crime. 2 The judges and lawyers who put them into effect are professional people concerning whose competence and integrity there are also adequate safeguards. The very commitment of their lives is to the proper carrying out of the purposes of their calling and protecting the interests of those they serve. For these reasons, and based upon our own knowledge and experience, we deem it safe and proper to assume that proceedings have been carried on in conformity with the law. Accordingly, when there is no transcript as to what happened, we indulge that presumption; 3 and in the absence of persuasive proof, the trial court as the finder of the facts is not obliged to find to the contrary.
We do not desire to be so arbitrary as to say that in no instance would the lack of a transcript be deemed of critical importance. Common sense as to what fairness and justice demand should be applied to the circumstances shown. If it appears that there is any reasonable likelihood that there was some substantial failure to accord the accused the protections our law affords, or that there may have...
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