Woods v. Rhay, 34306

Citation54 Wn.2d 36,338 P.2d 332
Decision Date16 April 1959
Docket NumberNo. 34306,34306
PartiesApplication for a Writ of Habeas Corpus of Gerald R. WOODS, Petitioner, v. B. J. RHAY, as Superintendent of the Washington State Penitentiary, at Walla Walla, Washington, Respondent.
CourtUnited States State Supreme Court of Washington

J. J. Roller, F. Curtis Hilton, Tacoma, for petitioner.

John J. O'Connell, Michael R. Alfieri, Olympia, Stephen C. Way, M. Lawrence Ross, Asst. Attys. Gen., made no argument but were present at the hearing, for respondent.

ROSELLINI, Judge.

This matter is before the court on remand from the Supreme Court of the United States, which granted the petitioner's application for a writ of certiorari and vacated the judgment of this court denying a petition for a writ of habeas corpus. The order of the supreme court provided:

'It is further ordered that this case be, and the same is hereby, remanded to the Supreme Court of Washington for consideration in light of Eskridge v. Washington State Board of Prison Terms and Paroles, No. 96, October Term, 1957, decided June 16, 1958. [57 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269]'

In its order dismissing the application made in this court for a writ of habeas corpus, the court set forth the contentions on which the petition was grounded and answered them as follows 'The above-entitled cause came on for hearing before Department Two of this court on February 7, 1958. The petitioner's allegations were:

'(1) That he was arrested without a warrant.

'(2) Illegal evidence was obtained without a search warrant and used against him.

'(3) He was coerced into signing a confession which was used in evidence against him.

'(4) His court-appointed attorney would not represent him or help him prepare his case.

'(5) He was denied a free statement of facts 1 for the purposes of his appeal.

'The court has considered the petition herein, the return and answer, and the evidence submitted in this cause.

'It appears to the court that the first two allegations relate to matters which are not material to an application for a writ of habeas corpus, where the petitioner is being held by the respondent under a judgment valid on its face entered on a jury verdict of guilty.

'Allegation No. 3 is affirmatively rebutted by the excerpts of the transcript of this petitioner's criminal trial relating to the admission of the confession. The record affirmatively shows that no coercion, duress, fraud, or false promises were used to obtain the confession. The petitioner, who was acting as his own attorney, did not question the use of the confession on such grounds, as he presently asserts in this cause of action.

'It appearing to the court that the fourth allegation is without merit as a ground for a writ of habeas corpus in that the petitioner discharged his court-appointed attorney and elected to represent himself; and that the fifth allegation is without merit as a ground for a writ of habeas corpus in that there is no showing that the petitioner filed a narrative statement of facts or made any contention that his appeal could not be adequately presented with a narrative statement of facts;

'It Is Therefore Ordered that the petitioner's application for a writ of habeas corpus be denied.'

Eskridge v. Washington State Board of Prison Terms and Paroles, 357 U.S. 214, 78 S.Ct. 1061, 1062, 2 L.Ed.2d 1269, which the supreme court has held to be pertinent to the constitutional question presented in this petition, was a case in which the trial court, in the exercise of the discretion conferred on it by statute, had found that

'* * * justice would not be promoted * * * [by providing the defendant a free transcript for appeal purposes] in that defendant has been accorded a fair and impartial trial, and in the Court's opinion no grave or prejudicial errors occurred therein.'

The petitioner in that case then moved this court for a writ of mandate directing the trial judge to order a transcript furnished for the prosecution of his appeal. The petition was denied, and the state's motion to dismiss the petitioner's appeal for failure to file a certified 'statement of facts' and 'transcript of record' was granted. In 1956, the petitioner applied for a writ of habeas corpus in this court, charging that the refusal to furnish a free transcript was a denial of his rights under the due process and equal protection clauses of the fourteenth amendment to the United States constitution. This petition was denied without opinion, and the supreme court granted certiorari. Eskridge v. Schneckloth, 353 U.S. 922, 77 S.Ct. 683, 1 L.E.2d 719. The holding of the supreme court (357 U.S. 214, 78 S.Ct. 1061, 1062, supra) is as follows:

'In this Court the State does not deny petitioner's allegations of poverty, the substantially of the trial errors he alleges, or the necessity for him to have some record of the proceedings in order to prosecute his appeal properly. It does argue that petitioner might have utilized notes compiled by someone other than the official court reporter. Assuming that under some circumstances such notes could be an adequate substitute for a court reporter's transcript there is nothing in this record to show that any were available to petitioner, and the Washington courts appear to have proceeded on the assumption that he could not effectively prosecute his appeal unless the motion for a free transcript was granted. The State concedes that the reporter's transcript from the 1935 trial is still available. In Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, we held that a State denies a constitutional right guaranteed by the Fourteenth Amendment if it allows all convicted defendants to have appellate review except those who cannot afford to pay for the records of their trials. We hold that Washington has denied this constitutional right here. The conclusion of the trial judge that there was no reversible error in the trial cannot be an adequate substitute for the right to full appellate review available to all defendants in Washington who can afford the expense of a transcript. We do not hold that a State must furnish a transcript in every case involving an indigent defendant. But here, as in the Griffin case, we do hold that, '[d]estitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts.' Griffin v. People of State of Illinois, 351 U.S. 12, 19, 76 S.Ct. 585, 591.'

The record before us reveals that on October 16, 1956, the petitioner was convicted by a jury on a charge of robbery. He was an indigent, and the court had appointed counsel to represent him. Before the trial, he had notified the court that he had discharged his court-appointed counsel and would conduct his own defense. However, the attorney who had been appointed by the court remained in attendance and his services were available if desired.

The record before us does not disclose the ground on which the trial court determined that justice would not be promoted by providing the petitioner with a free statement of facts, there being no copy of the written order, if one was entered, denying the motion. A minute entry simply states: 'Motion for statement of facts denied.'

This court has held that the burden is on an indigent defendant to show that a narrative statement of facts will not suffice for his appeal. In Grady v. Schneckloth, 51 Wash.2d 1, 314 P.2d 930. The order of this court dismissing the application for a writ, assumed the correctness of that decision. The Supreme Court of the United States, in Eskridge v. Washington State Board of Prison Terms and Paroles, supra, has, in effect, held that if an indigent defendant alleges substantial errors requiring some record of the proceedings in order to properly prosecute this appeal, the burden shifts to the state to show that a narrative statement is adequate and is available to the defendant.

The tenth amendment of the Washington constitution provides a right of appeal in all cases.

RCW 2.32.240 provides that, on a showing by the defendant in a criminal action that he does not have the financial ability to pay for such a transcript, the judge presiding, if in his opinion justice will thereby be promoted, may have the transcript prepared at county expense.

It is not necessary in every case to have a full stenographic transcript of the evidence to adequately review the errors alleged to have been committed. Only the evidence bearing upon the question or questions sought to be reviewed need be in the statement of facts, and it is not necessary to include evidence bearing upon rulings on which no error has been assigned. An appeal on a short record is permitted under subd. (3), and an appeal on an agreed statement of facts is permitted under subd. (4) Rule 34, Rules on Appeal, 34A Wash.2d 36, RCW Vol. O, provided that a concise statement of points on which the appellant intends to rely is set forth. An issue involving a question of law may be adequately presented, under certain cirecmstances, for appellate review without a statement of facts. See State v. Moorison, 43 Wash.2d 23, 259 P.2d 1105.

Since Livermore v. Northwest Airlines, Inc., 1940, 6 Wash.2d 1, 106 P.2d 578, 586, we have recognized that a

'* * * statement of facts may be in a narrative form, and need not be in the form of a verbatim reproduction of all that transpired during the trial of the cause.'

To the same effect is Grady v. Schneckloth, supra. In State v. Mevis, Wash., 333 P.2d 1095, a twenty-eight page narrative statement of facts was held sufficient to concisely present the evidence pertinent to the issues raised by the defendant's appeal.

It is true that in Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, it was held that where a state constitution provides for...

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17 cases
  • Draper v. State of Washington
    • United States
    • U.S. Supreme Court
    • March 18, 1963
    ... ... In response, in Woods v. Rhay, 54 Wash.2d 36, 338 P.2d 332 (1959), a case which was remanded by this Court for ... ...
  • State ex rel. Acocella v. Allen
    • United States
    • Oregon Supreme Court
    • December 18, 1979
    ... ... Page 399 ...         In Woods v. Rhay, 54 Wash.2d 36, 338 P.2d 332 (1959), the Washington Supreme Court promulgated rules under ... ...
  • State v. Rutherford, 37038
    • United States
    • Washington Supreme Court
    • March 5, 1964
    ... ... United States, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331; In re Woods v. Rhay, 54 Wash.2d 36, 338 P.2d 332; State v. Lewis, 55 Wash.2d 665, 349 P.2d 438 ... ...
  • State v. Browder, 36252
    • United States
    • Washington Supreme Court
    • January 24, 1963
    ... ... 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269; and In re Woods v. Rhay (1959), 54 Wash.2d 36, 338 P.2d 332. The appellant does not argue that the trial court ... ...
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1 books & journal articles
  • A Constitutional Right to an Appeal: Guarding Against Unacceptable Risks of Erroneous Conviction
    • United States
    • Seattle University School of Law Seattle University Law Review No. 8-02, December 1984
    • Invalid date
    ...amendment of the constitution of this state guarantees a 'right to [sic] appeal in all cases.' In re Woods v. Rhay, [54 Wash. 2d 36, 41], 338 P.2d 332, 336 33. Mathews v. Eldridge, 424 U.S. 319, 335 (1976). See also Lassiter v. Department of Social Services, 452 U.S. 18, 27 (1981); Little v......

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