DocketNumber： 629-3
Citation Numbers： 509 P.2d 92, 8 Wash. App. 725, 1973 Wash. App. LEXIS 1499
Judges： McInturff, Munson, Green
Filed Date： 4/16/1973
Status： Precedential
Modified Date： 10/19/2024
Petitioner Harry I. Little appeals from the denial of his application for a writ of habeas corpus. .
In his application petitioner alleged that: Following his conviction by a jury on June 20, 1967 of one count of indecent liberties and one count of sodomy, the prosecuting attorney for King County filed a supplemental information charging him with being an habitual criminal. Thereafter, an attorney was appointed to represent him. On the day of trial petitioner informed his attorney that he wanted a jury trial. Petitioner claims his attorney informed him the hearing was to determine if previous convictions could be used against him on the charge. A hearing was then conducted before the court withopt a jury. The court found petitioner to be an habitual criminal and sentenced him to' life imprisonment.
The return and answer filed by the State of Washington on April 2, 1971 asserted that petitioner had waived his right to trial by jury. Attached thereto were the findings, entered by the trial court on October 6, 1967, reciting that, petitioner had waived his right to trial by jury. The state recited in its answer that the preparation of a statement of facts supporting that finding had been requested.
On May 4, 1971 a supplemental return and answer was filed by the state, alleging that the statement of facts in the habitual criminal proceedings was silent regarding petitioner’s waiver of a jury trial. This leaves the finding of fact without any evidentiary basis. Attached to the supplemental return was the affidavit of Mr. Lewis, petitioner’s appointed attorney, which states that he informed petitioner of his right to trial by jury, and that petitioner waived it.
Petitioner moved to strike the Lewis affidavit upon the ground it was hearsay and incompetent as evidence. The
Thereafter a rehearing was granted to allow petitioner to present affidavits or testimony countering his former attorney’s affidavit. A subsequent motion for authority to issue subpoenas to two King County deputy sheriffs was denied. Affidavits of these two deputies were obtained and filed. In essence, these affidavits stated that they could not recall whether petitioner expressed a desire to waive his right to jury trial. Also filed was the affidavit of the deputy prosecuting attorney, who stated that he witnessed a conversation between the trial judge and petitioner’s counsel; that petitioner’s former counsel left the judge’s chambers, announcing he would advise petitioner of his right to a jury trial.
Based upon these affidavits, petitioner’s testimony,, and the documents on file, the trial court entered findings of fact, conclusions of law, and an order denying the application for writ of habeas corpus.
The sole issue we reach on this appeal is whether the trial court erred in refusing to allow petitioner a full and fair evidentiary hearing by placing sole emphasis upon the affidavits.
If a petitioner’s allegations raise a serious question of fact concerning the denial of constitutional rights, and the record is inadequate for an appropriate determination
this case should be remanded to the trial court for a full, factual hearing, affording the petitioner a fair and reasonable opportunity to call witnesses in his behalf, and to produce documentary or other evidence in support of his claims, if such evidence exists.
Scruggs v. Rhay, 70 Wn.2d 755, 763, 425 P.2d 364 (1967). See also Ritchie v. Rhay, 63 Wn.2d 508, 387 P.2d 967 (1963). Under the statutory scheme of RCW 7.36, if the petition is sufficient in form, directed to the proper court, and states sufficient facts showing petitioner is illegally detained, a fair evidentiary hearing must be granted.
Whether there is a waiver of a right to a jury trial is a serious question of both fact and law, which entitles one to an evidentiary hearing to determine the validity of his claim. When affidavits are controverted by other affidavits and by testimony, a serious factual question is presented.
A jury trial in a criminal case is a matter of constitutional right, which has been made applicable to the states through the due process clause of the Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145, 20 L. Ed. 2d 491, 88 S. Ct. 1444 (1968). The Washington Constitution, article 1, section 21, has all along provided “[t]he right of trial by jury shall remain inviolate.” State v. Furth, 5 Wn.2d 1, 104 P.2d 925 (1940); State v. Robinson, 2 Wn. App. 39, 466 P.2d 164 (1970). This right may be waived but the waiver must be intelligently, voluntarily and freely given. State v. Lane, 40 Wn.2d 734, 246 P.2d 474 (1952). Waiver is not to be presumed, but must be knowing, and with the understanding of the petitioner, who is not necessarily bound by the decision or default of his counsel. Humphrey v. Cady, 405 U.S. 504, 31 L. Ed. 2d 394, 92 S. Ct. 1048 (1972). Moreover, courts indulge every reasonable presumption against the waiver of fundamental constitutional rights. Griffith v. Rhay, 282 F.2d 711 (9th Cir. 1960); cert. denied, 364 U.S. 941, 5 L. Ed. 2d 373, 81 S. Ct. 460 (1961); Ritchie v. Rhay, supra; Johnson v. Zerbst, 304 U.S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019 (1937).
Decisions of the United States and Washington Supreme Courts make it clear that the writ of habeas corpus is meant to be a meaningful vehicle for postconviction relief. Townsend v. Sain, 372 U.S. 293, 9 L. Ed. 2d 770, 83 S. Ct. 745 (1963); Fay v. Noia, 372 U.S. 391, 9 L. Ed 2d 837, 83 S. Ct. 822 (1963); Scruggs v. Rhay, supra; Honore v. Board of
Affidavits sworn under the penalty of perjury are presumptively true. Giving the present affidavits this presumption, and further presuming against waiver of a constitutional right where the record is silent, a serious factual issue is presented and a full and fair hearing is required.
Inherent in the concept of granting petitioner a hearing is the due process concept of a full and fair hearing. More than a mere contravening affidavit is required to sound the death knell for the constitutional concept of a fair hearing. Courts cannot adequately determine credibility from mute notations; truth cannot be fully gleaned from silent hearsay on a written page. This does not mean that affidavits may not be considered. See Somday v. Rhay, 67 Wn.2d 180, 406 P.2d 931 (1965); Little v. Rhay, 68 Wn.2d 353, 413 P.2d 15 (1966), cert. denied, 385 U.S. 96, 17 L. Ed. 2d 196, 87 S. Ct. 331 (1966). Nevertheless, they should be considered by the court only to assist in formulating issues of fact. They may not in and of themselves be used to conclusively decide ex parte disputed questions of material fact. Machibroda v. United States, 368 U.S. 487, 7 L. Ed. 2d 473, 82 S. Ct. 510 (1962); Walker v. Johnston, 312 U.S 275, 85 L. Ed. 830, 61 S. Ct. 574 (1941); Sanders v. United States, 373 U.S. 1, 10 L. Ed. 2d 148, 83 S. Ct. 1068 (1963); Schiebelhut v. United States, 357 F.2d 743 (6th Cir. 1966); Scott v. United States, 349 F.2d 641 (6th Cir. 1965).
Although the Sixth Amendment right to confront witnesses a la Pointer v. Texas, 380 U.S. 400, 13 L. Ed. 2d 923, 85 S. Ct. 1065 (1965); Barber v. Page, 390 U.S. 719, 20 L. Ed. 2d 255, 88 S. Ct. 1318 (1968); Berger v. California, 393 U.S. 314, 21 L. Ed 2d 508, 89 S. Ct. 540 (1969) may not be applicable to habeas corpus proceedings based on the rationale that habeas corpus is a civil proceeding, the due process of law clauses in the Fifth and Fourteenth Amendments give one the opportunity to cross-examine in civil proceedings as a matter of constitutional right. Goldberg v. Kelly, 397 U.S. 254, 25 L. Ed. 2d 287, 90 S. Ct. 1011 (1970);
Once committed to the adversary system in our search for truth, we must acknowledge the right of all parties in civil litigation to confront those who will give evidence for an adversary — only thus is there a reasonable opportunity of checking and verifying testimony.
In Townsend v. Sain, supra at 313, the Supreme Court held that petitioner was entitled to a plenary hearing to determine whether or not the allegations advanced in his petition were true, and whether he was being illegally confined. The court further made it clear that where state court proceedings were inadequate, federal court judges would grant hearings de novo:
We hold that a federal court must grant an evidentiary hearing to a habeas applicant under the following circumstances: If (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.
Five of the circumstances above enumerated are lacking in the instant case. There is little doubt that petitioner could acquire another hearing at the federal level.
There are several well-written treatises evaluating problems facing state and federal courts in handling writs. See Habeas Corpus and the State Prisoner, 3 Gonz. L. Rev. 115 (1968); The Development of the Plenary Hearing Requirements in Federal Habeas Corpus for Prisoners, 34 Brooklyn L. Rev. 247 (1968); Developments in the Law, Federal Habeas Corpus, 83 Harv. L. Rev. 1038 (1970).