State v. Griswold , 105 Ariz. 1 ( 1969 )

STRUCKMEYER, Justice.

On the 4th of October, 1965, petitioner, herein, Francis Hamilton Griswold, killed his wife of over thirty years, Elsa Muriel Griswold. He was charged with murder in the first degree and on the 18th of March, 1966, entered a plea of guilty to the reduced charge of murder in the second degree. On March 30th, 1966, after a hearing in mitigation, he was sentenced to a term of imprisonment in the state prison of not less than thirty-six nor more than forty years. From the sentence and conviction he appealed. This court affirmed, State v. Griswold, 101 Ariz. 577, 422 P.2d 693.

Two questions were presented for disposition on Griswold’s appeal, the first being whether the Superior Court of Apache County had the necessary jurisdiction to hear and determine the case and the second, whether the sentence was excessive. No question was raised as to the constitutional adequacy of the procedures at the time the trial court accepted Griswold’s plea of guilty to second degree murder. Nor were any questions raised as to the propriety of the court’s denial of certain pre-trial motions such as for change of venue, for a trial continuance and for production of real evidence.

Thereafter, on April 8th, 1968, Griswold filed with this court a petition for writ of coram nobis. We directed that the writ issue, and ordered the Superior Court of Apache County to hold a hearing to determine two questions: One, whether Gris-wold fully understood his rights and the consequences of his plea of guilty at the time he entered it; and Two, whether Griswold voluntarily entered his plea of guilty to the crime of second degree murder.

A hearing was held in St. Johns, Arizona, on the 28th of May, 1968, the Honorable Porter Murry, Judge, presiding. Twenty-five findings of fact were returned to this court and both questions were answered adversely to Griswold. Judge Murry found that “The defendant, Francis Hamilton Griswold, fully understood his rights and the consequences of a plea of guilty at the time he entered his plea of guilty,” and “The defendant, Francis Hamilton Griswold, voluntarily entered his plea of guilty to the crime of second degree murder.”

At the time Griswold entered his plea of guilty, that is, in May of 1966, the Arizona Rules of Criminal Procedure provided only that a plea of quilty could not be accepted from a defendant who was not represented by counsel until the consequences of such plea were explained to him. Rule 182, Rules of Criminal Procedure. 17 A.R.S. Federal Rule 11, Federal Rules of Criminal Procedure, did not provide until July 1st, 1966, that a plea of guilty could not be accepted from a defendant even though represented by counsel without “addressing the defendant personally” to determine whether he understood “the consequences of the plea.” On June 2nd, 1969, the Supreme Court of the United States in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, where a defendant was represented by counsel in the Alabama Court, extended the procedural requirements of Federal Rule 11 to state courts holding:

“It was error, plain on the face of the record, for the trial judge to accept petitioner’s quilty plea without an affirmative showing that it was intelligent and voluntary.” At 242, 89 S.Ct. at 1711, 23 L.Ed.2d at 279.

The trial judge in accepting Griswold’s plea of guilty could not, of course, know that the only constitutionally permissible procedures were to be those which the United States Supreme Court had promulgated for use in criminal practice before the federal district courts. Neither was he endowed with the necessary precognition to anticipate that the statements of counsel made in the presence of the accused could not be relied upon as a true expression of his wishes.

The trial judge after granting the defense motion to withdraw the plea of not guilty to murder in the first degree, embarked upon these procedures:

“THE COURT: Stand up Mr. Griswold. (Defendant stood up) Francis Hamilton Griswold, to the charge of murder in the second degree, a felony, what is your plea?

“MR. GRISWOLD: Guilty.

“THE COURT: Let the record show the entry of his plea of guilty. Now, then, as I understand it, Mr. Powell, the plea just entered has been entered without any promises of any sort with regard to the penalty?

“MR. POWELL: That is right.

“THE COURT: And after you and Mr. Schuelke have advised the Defendant of the consequences of his plea ?

“MR. POWELL: That is right, and we request a hearing on the matter before sentencing.

“MR. GREER: (The Prosecuting Attorney) May the record further show I was called in by Counsel and the Defendant and he repeated to me it was his will he enter this plea, and I did hear him say it at that time. * * * ”

We do not view every procedural error as automatically giving rise to such prejudice that a reversal is required. Due process under the Constitution of the United States can sometimes be satisfied by returning to the trial court for the determination which procedurally should have been made at an earlier time. See e.g. Wade v. United States, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L. Ed.2d 908, 1 A.L.R.3rd 1205. Sometimes where constitutional rights have been found wanting the holdings have been made prospective only. See Johnson v. New Jersey, 384 U.S. 719, 16 L.Ed.2d 882, 86 S.Ct. 1772. In this court’s decision in Application of Billie, 103 Ariz. 16, 436 P. 2d 130, we examined into the retroactivity of the Supreme Court’s holding in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed. 2d 527, and decided that we would give it prospective application only. We hold that we will apply the decision in Boykin v. Alabama, supra, prospectively and that consequently Griswold is not automatically entitled to a reversal of his conviction. We also hold that in circumstances such as these, where in an excess of caution after an appeal, we choose to inquire into the plea of guilty we will not reverse if the facts upon which the plea rests can be determined favorably to the state at an appropriate hearing.

The evidence at the coram nobis hearing ' sustains the conclusion of Judge Murry that Griswold fully understood his rights and the consequences of the plea of guilty. Griswold testified:

“Q At the time you were considering the change of plea and at the time you went into court and actually changed your plea, what was your thought on the amount of time you might have to serve in the Arizona State Prison ?

“A Well, it could have been ten years to life.”

This is the statutory punishment for second degree murder; His attorney, Edwin R. Powell, testified that he read the statute of second degree murder to Griswold and told him that the judge would not commit himself as to what sentence would be imposed. A.R.S. § 13-453. The record <5f his arraignment on the second degree murder charge establishes that both counsel had advised Griswold of the consequences of his plea. We think it is conclusively established that Griswold intelligently entered his plea of guilty to second degree murder.

The second question which this court requested the Superior Court to examine into was the voluntariness of the plea of guilty. Griswold relies upon many compulsive circumstances as grounds for his claim of involuntariness but we are principally concerned with the averments in his petition for a writ of coram nobis that he was coerced into a plea of guilty because his attorneys demanded more money for the trial. It was alleged:

“Approximately four (4) days before the date set for the trial, defense counsel visited Appellant-Petitioner in St. Johns, Arizona, and informed him that they required additional attorneys’ fees in a substantial amount to represent him at the trial. Because of civil actions which had been initiated at that time, Appellant-Petitioner was reasonably certain that he did not have the ability to acquire the funds necessary to satisfy the requests of defense counsel.

“At this same time, he was informed by defense counsel that the State had offered to allow him to plead guilty to the ■.crime of second degree murder. This possibility was discussed at the time, but no decision was reached. During the remainder of the day, Appellant-Petitioner contemplated the situation and, on the following day, indicated that he would be willing to enter a plea of guilty to second degree murder. He made this decisions not because he was guilty of the crime to which he agreed to enter the plea, but because he did not have the money available to satisfy his attorneys, because he felt under the circumstances his attorneys were not prepared to defend his case at trial * *

On direct examination by his present counsel at the coram nobis hearing Gris-wold testified:

“You have indicated that Mr. Powell told you that he wanted an additional $5,000.00.

“A That is right.

“Q Did you, after he made that statement, at any time attempt to get an additional $5,000.00 to him ?

“A Yes, I did.

“Q. You did that by way of check?

“A By way of check.

Later, on cross-examination he testified:

“Q I believe you also stated, Mr. Gris-wold, a few moments ago one of the reasons you decided to plead guilty to second degree murder was your lack of funds, is that correct ?

“A That is correct.

“Q Did you also testify in response to a request by Mr. Powell, one of your attorneys, for additional fees you wrote him out a check for an additional $5,-000?

“A He was satisfied with it, except he couldn’t cash my check after I gave it to him. My funds had been tied up.

“Q And I think you said your attorneys demanded additional funds before they would proceed with the trial, is that right?

“A That is correct.” [Emphasis supplied]

It is apparent from the comparison of the averments in Griswold’s petition and his testimony that the testimony falls far short of supporting the averments. Gris-wold and his wife had accumulated a community estate of in excess of $200,000.00. (County Attorney’s statement of facts on conviction.) There is no testimony whatsoever that his counsel refused to defend him at the trial after receipt of the check. It is clear that counsel did request an additional attorneys’ fee and that he gave a check in payment of the amount requested. The answer that “He was satisfied with it, except he couldn’t cash my check after I gave it to him” has an element of uncertainty, but we take it that the word “except” was used in its usual sense of a conjunction, meaning “however”. Otherwise, Powell would not have been satisfied with the fee arrangement and would have informed Griswold that he could not contin • ue in the defense of the case.

Griswold sets forth other grounds in support of his claim for an involuntary plea. These principally relate to the denial of certain preliminary motions prior to trial. We would not ordinarily consider these matters as they are present on the face of the record. If the trial court’s rulings were erroneous, they could and properly should have been assigned as grounds on direct appeal. However, since Griswold relies on all of the accumuk 'd circumstances to establish coercion, we briefly examine into them not for the purpose of determining the correctness of the lower court’s ruling, but to show the cumulative effect in the light of the actual facts as they existed at the time of the plea.

Griswold complains: First, that there were some seventy witnesses against him, none of whom he was able to talk to because he was confined in the county jail and it was difficult for his lawyers to interview the witnesses because of the distances involved and the terrain on the Navajo Reservation. However, as a minimum, it should be noted that the county attorney filed an amended list of only twenty-eight names ten days before the trial and Griswold knew this because he was ■ present at the argument on his motion for continuance. Further, there had been a two day preliminary hearing at which some of the most important witnesses must have been present and testified. Moreover, and this should be pointed out in legal justification of the trial judge’s denial of the motion for continuance, nearly five months intervened between the preliminary hearing and the date set for trial.

Second, that the court denied in part Griswold’s motion to produce. The example Griswold pointed to was his wife’s shoes which he stated were needed to determine her height. We deem that this hardly requires serious comment. There must have been other ways to establish the height of his wife of thirty-two years if this was a necessary element to a successful defense.

Third, that it was his thought that the amount of time he would have to serve in the Arizona State Prison would be from ten years to life. Griswold did not get the minimum sentence of ten years which he hoped he would get. But this could, of course, have no bearing on whether his plea prior to sentencing was voluntary. We note that he also testified “I thought anything would be preferable to the death penalty.”

Fourth, that he was concerned about the denial of his motion for change of venue. He testified he was a stranger in the community of St. Johns and that it was brought to his attention by his lawyers that Indian Traders were not held in very high esteem.

Fifth, and finally that he had heart trouble, stomach ulcers and kidney trouble and that his health was deteriorating quite rapidly while in jail. As to this and the fourth item, we assume that they could very well have been some concern to one in Griswold’s position.

We think in summation of Griswold’s case, other than his fee arrangement with Powell, that the asserted coercive influences are those which occur repeatedly in case after case. There must always be reasons why a defendant chooses to plead guilty. But this does not mean that because there are reasons, the choice made is to be considered involuntary within legal contemplation. Every person is daily, perhaps almost momentarily, required to choose between different courses of action. Some choices are made from very compelling circumstances which may in fact in the end give no reasonable alternative. But if they are freely made, that is, not under physical duress, and with full knowledge of the consequences, then it must be said that the choice is voluntarily made. As Griswold testified, “I thought anything would be preferable to the death penalty.”

We note one further matter before we conclude. Powell was asked in the coram nobis hearing what he told Griswold prior to the plea of guilty to second degree murder. Powell claimed a privileged communication and Griswold’s present counsel argued that the attorney-client privilege could not be waived. It should be pointed out that this is a privilege personal to the client and obviously can be waived. Moreover, when an attorney’s representation is under attack by his former client, there is an obligation to disclose fully and freely in order to protect the due administration of justice. State v. Kruchten, 101 Ariz. 186, 417 P.2d 510.

Writ of coram nobis ordered quashed and judgment of conviction affirmed.

UDALL, C. J., LOCKWOOD, V. C. J., and HAYS, J., concur.