Codianna v. Morris

STEWART, Justice

(concurring in result).

I concur generally with the majority opinion. However, because that opinion states and applies only part of the relevant Utah law on habeas corpus, I think it appropriate to point out that there are other principles of Utah habeas law that also apply to this case. Furthermore, it is my express understanding that the majority opinion, in not referring to a line of Utah habeas cases applying those principles, does not intend to alter present Utah habeas corpus law.

The majority opinion states that habeas is not available to review errors which were known or should have been known at trial unless there are “unusual circumstances.” Certainly the contemporaneous objection rule and the rule requiring alleged trial errors to be raised on direct appeal are important rules of procedure designed to promote a number of important judicial policies, which need not be enumerated here. There is no quarrel with the general applicability of those rules. Nevertheless, there are numerous Utah cases which have addressed the merits of habeas claims even though the issues raised were known or should have been known to petitioner and his counsel at the time of conviction and could have been raised on appeal. The majority opinion does not purport to undermine these cases.

Indeed, Brown v. Turner, 21 Utah 2d 96 , 440 P.2d 968 (1968), the basic authority relied upon in the majority opinion for the proposition that errors alleged by a habeas petitioner, which were known or should have been known at the time of conviction, may not be reviewed on habeas absent “unusual circumstances,” is one such case. In Brown this Court in fact addressed the merits of the habeas petitioner’s claims; it did not dismiss them solely on the ground that the alleged errors were known or should have been known at the time of conviction. The petitioner’s claims in that case were that he had been denied his right to counsel and that he was not properly advised of the consequences of his plea of guilty. A reading of the opinion makes clear that the petitioner either knew or should have known at the time of his conviction of those errors that were later asserted in his habeas petition. Although the Court ruled that there was no merit to those claims, the critical point here is that the Court deemed it entirely appropriate to address the merits even though petitioner had failed to take a direct appeal.

Numerous other Utah cases have also addressed the merits of a petitioner’s claims even when the claims “were known or should have been known to petitioner and his counsel at the time of his conviction.” E.g., Chess v. Smith, Utah, 617 P.2d 341 (1980); Pierre v. Morris, Utah, 607 P.2d 812 (1980); Martinez v. Smith, Utah, 602 P.2d 700 (1979); Helmuth v. Morris, Utah, 598 P.2d 333 (1979); Gonzales v. Morris, Utah, 610 P.2d 1285 (1980); Rammell v. Smith, Utah, 560 P.2d 1108 (1977); Allgood v. Larson, Utah, 545 P.2d 530 (1976); Bryant v. Turner, 19 Utah 2d 284 , 431 P.2d 121 (1967).

A more full statement of the Utah law on habeas corpus than that stated in the majority opinion was expressed for a unanimous court by Mr. Justice Crockett (who was also the author of Brown v. Turner) in Martinez v. Smith, Utah, 602 P.2d 700 (1979):

It is true that we have repeatedly declared that any claims of error or impropriety should be asserted in the regular procedure provided for on appeals and that, if that is not done, a writ of habeas corpus may not be used as a belated appeal. Nevertheless, howsoever desirable it may be to adhere to the rules, the *1115 law should not be so blind and unreasoning that where an injustice has resulted the victim should be without remedy. For that reason, as indicated in the cited eases, the writ should be available in rare cases, where it appears that there is a strong likelihood that there has been such unfairness, or failure to accord due process of law, that it would be wholly unconscionable not to reexamine the conviction.

Id. at 702 (footnotes omitted). This statement of the rule, also found in several other opinions, is wholly consistent with Rules 65B(f) and (i) of the Utah Rules of Civil Procedure which state in large part the basic principles upon which Utah habeas corpus law is founded.

I agree that the writ of habeas corpus should not be available to permit ingenious defendants to deliberately forego asserting claims in the trial court or on a direct appeal for the purpose of preparing a fallback position in a habeas proceeding if the conviction is affirmed. However, the courts are fully competent to deal with that kind of problem without resorting to inordinately rigid rules that fail to take into account the realities of our criminal justice system, including the possibility of greater error because of overburdened prosecutors and swamped public defenders. Under Utah habeas law, giving due weight to all our cases, a procedural default is only one factor to be considered in deciding whether a habeas court should address the merits of claim. That factor in all cases must be viewed against the possibility that a serious injustice may have resulted from a defective trial. This State has long taken the firm position that a procedural default is not, and cannot be, solely determinative of the ultimate question of whether a trial on the merits was conducted according to fundamental concepts of basic fairness. The mechanical and inflexible application of legal procedures must not be used to overwhelm the law of the land and permit a miscarriage of justice.

Nowhere does the majority undertake an analysis of the “unusual circumstances” or “unconscionability” test. It is true that the majority refers to petitioner’s claim of “unusual circumstances” in dealing with the petitioner’s attempt to justify the failure to raise certain issues on direct appeal. The unusual circumstance alleged is the “inexperience” of petitioner’s counsel in criminal cases. I agree that petitioner’s averment is without merit as to that point, but more fundamental is the proposition that the “unusual circumstance rule” has not been defined by this Court solely in terms of inadequacy of counsel, or any particular procedural default. Incompetency of counsel would surely require habeas review, but that has never been thought to be the only basis for habeas review. Rather, the unusual circumstances test was intended to assure fundamental fairness and to require reexamination of a conviction on habeas corpus when the nature of the alleged error was such that it would be “unconscionable not to reexamine,” Martinez v. Smith, supra, at 702, and thereby to assure that “substantial justice [was] done,” Brown v. Turner, supra, at 98, 440 P.2d at 969-70 . See also Chess v. Smith, supra.

Under the standards applied in Brown, supra, Chess v. Smith, supra, and the standards stated in Rule 65B(f) and (i)(l), I concur in the majority’s conclusion that on the basis of the pleadings and the briefs of the parties, petitioner is not entitled to relief with respect to the adequacy of the voir dire, the contention that there was not an individual determination of guilt, the claim that the jury was not properly instructed on the first degree murder charges, and the contention with respect to the second degree murder instruction. I do not believe that there was such a “strong likelihood that there has been such unfairness, or failure to accord due process of law,” that it is necessary to reexamine the conviction to prevent a miscarriage of justice. Martinez v. Smith, supra, at 702.

Nevertheless, I believe that it should be emphasized, for the purpose of avoiding possible problems in the future, that the trial court’s instruction to the jury (which is set out in footnote 10 of the majority opinion) with respect to jurors reading the *1116 newspapers, listening to the radio, and watching television is clearly inappropriate. Jurors must decide a case solely on the basis of the evidence presented in the court room, and not on the basis of community feeling, or the opinions or accounts of those who publish news in the mass media. In my view, the jury should be explicitly told, and frequently reminded, that they should avoid listening to all reports concerning the trial and the defendants whether on radio or television and avoid reading any such reports in the newspaper. If that is not sufficient to assure a fair trial, the jurors should be sequestered.

In the instant case, there is no indication that any juror, in fact, received any information from newspapers, radio or television, or that if he did, he was in any way influenced by that information. Furthermore, no effort was made at trial to ask the trial judge to canvass the jury members to determine whether they had received any such information, and there is no evidence in this case to suggest that the jurors did receive such information. Surely the lawyers who tried this case were aware of what was transpiring in the community and, if the occasion had warranted, could have sought a remedy. On the record before us there is no basis to conclude that the trial of this matter was prejudiced by outside, non-evidentiary information reaching the jury.

I concur in the remainder of the majority opinion.