Reply Brief — Burchett v. Cardwell

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CEPR IN pine pad pray

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1973

JAMES BURCHETT, )

| )

Petitioner, )

) NO. 73-1767

-vs- )

)

HAROLD J. CARDWELL, Warden,)

Arizona State Penitentiary,)

Respondent.

— —

RESPONSE TO PETITION FOR

WRIT OF CERTIORARI

GARY K. NELSON

The Attorney General

for the State of Arizona

WILLIAM J. SCHAFER III

Chief Counsel

Criminal Division

Attorneys for RESPONDENT

SIS ORIEL fH: Pa OLE ies Eee? a i ue eee D ai

INDEX

QUESTIONS PRESENTED

STATEMENT OF THE CASE

ARGUMENT

I

PETITIONER WAS PRO-

VIDED EFFECTIVE ASSISTANCE

OF COUNSEL.

If

THE FINDINGS BY THE

COURTS BELOW THAT

BURCHETT'S GUILTY PLEAS

WERE VOLUNTARILY ENTERED

WERE SUPPORTED BY THE

RECORD,

Iit

THE CIRCUMSTANCES UNDER

WHICH THE SUPREME COURT

OF ARIZONA AFFIRMED

BURCHETT'S CONVICTIONS

DID NOT DENY HIS RIGHTS

TO DUE PROCESS AND EQUAL

PROTECTION OF THE LAW.

CONCLUSION

18

22

25

o TABLE OF CASES AND AUTHORITIES

Case . Page

Beasley v. United States

491 F.2d 687

(6th Cir. 1974) 11,12,16

Bray v. Barry

160 A.2d 577

Bruce v. United States

379 F.2d 113

(.¢. Cir. 1967) 11,12

Busby v. Holman

356 F.2d 75

(5th Cir. 1966) 11

Center School Dist. No. 58

of Jackson County v. Kenton

345 S.W.2d 120

(Sup.Ct. Mo, 1961) 24

Chambers y. Maroney

399 U.S. 42

90 S.Ct. 1975

26 L.Ed.2d 419

(1970) 16

Commonwealth v. Myers

402 Pa. 202

167 A.2d 274

(1961) 24

Doughty v. Beto

396 F.2d 128

(Sth Cir. 1968) 17

o £4 «

1

:

— PRE Ai DAA DM AES ie ONT a Rw OEE AIO IL TE EY MEO I Og

TABLE OF CASES AND AUTHORITIES

Case

Dredge Corp. v. Penny

338 F.2d 456

(9th Cir. 1964)

Dukes v. Warden

406 U.S. 250

92 S.Ct. 1551

32 L.Ed.2d 45

(1972)

Fette v. City of St. Louis

366 S.W.2d 446

(Sup.Ct. Mo. 1963)

Hoyt v. Hoyt:

351 S.W.2d 111

(Ct.Civ.App. Tex. 1961)

Kress v. United States

411 F.2d 16

(8th Cir. 1969)

McMann v. Richardson

397 U.S. 759

90 S.Ct. 1441

25 L.Ed.2d 763

(1970)

Morrison v. United States

434 F.2d 532

(D.C. Cir. 1970)

Nelson v. Union Wire Rope Corp.

39 Ill.App.2d 73

187 N.E.2d 425

(1963)

Page

22

16

24

24

ll

10

1l

23

TABLE OF CASES AND AUTHORITIES

Case ; Page

O'Malley v. United States

285 F.2d 733

(6th Cir. 1961) 10

Scott v. United States

427 F.2d 609

(D.C. Cir. 1970) 11,12

Slawek v. United States

413 F.2d 957

(8th Cir. 1969) 10

Tollett v. Henderson

411 U.S. 258

93 S§.Ct. 1602

36 L.Ed.2d 235

(1973) . 10

United States v. American

Foreign S.S. Corp.

363 U.S. 680

80 S.Ct. 1336

4 L.Ed, 1491

(1960) 23

United States v. Junne

453 F.2d 1156

(3rd Cir. 1972) 16

United States v, Moss

438 P.2d 147

(D.C. Cir. 1970) 1l

United States v. Ragen

166 F.2d 976

(7th Cir. 1948) 10

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PER agist0n2: a meeupenemene = —_ REALL EPL OY BO SOLO Ry VA OOO ROG LEAL TEM 5 APR he Oe et

= J

TABLE OF CASES AND AUTHORITIES

Case

United States vy. Silva

418 F.2d 328

(2d Cir. 1969)

United States y. Valenzuela-

Mendoza

452 F.2d 773

(1972)

Wells v. Wells

200 Pa.Super. 8

186 A.2d 844

(1962)

Wright v. Craven

412 F.2d 915

(9th Cir. 1965)

AUTHORITIES

Arizona Consti«ution

Art. 6, Sec. 2

Arizona Rules of

Criminal Procedure (1956)

Rule 250

United States Constitution

Sixth Amendment

Fourteenth Amendment

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9,13

23

11,9,13

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PLE TEI LON GOD OH

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AMR pe cane LLP BOAL IDE LOE EEN EY Sige POT LTS GL eat se

QUESTIONS PRESENTED

I. DID THE PETITIONER RECEIVE

EFFECTIVE ASSISTANCE OF

COUNSEL?

II. WERE THE FINDINGS OF THE

COURTS BELOW THAT PETITIONER

VOLUNTARILY ENTERED HIS GUILTY

PLEAS SUPPORTED BY THE RECORD?

III. DID THE CIRCUMSTANCES UNDER

WHICH THE SUPREME COURT

OF ARIZONA AFFIRMED PETI-

TIONER'S CONVICTION DENY HIS

RIGHTS TO DUE PROCESS AND

EQUAL PROTECTION OF THE LAW?

STATEMENT OF THE CASE

Respondent would accept petitioner's State-

ment of the Case, subsection (A) regarding the

proceedings in the courts below. Respondent's

acceptance of subsection (A), however, wherein

it states that the District Court granted a

certificate of probable cause does not mean

that respondent in any manner whatsoever agrees

that there were any valid grounds for appeal.

Respondent expressly rejects the remainder of

‘petitioner's Statement of the Case and puts

every remaining statement therein in issue.

At the evidentiary hearing in this matter,

Dr. Tuchler, a psychiatrist called by petitioner,

stated that petitioner's personality was very

passive during the time Surrounding the charges

in question. The doctor also stated that, ex-

cept: for this incident, he never saw petitioner

from 1959 to 1963 or 1964 (R.T. 13-14). The

doctor also stated that petitioner was never in

the passive state of mind. During the times he

had actually examined the appellant, he just

assumed that such a state of mind developed

(R.T. 48-49). Dr. Tuchler expressly said that

petitioner could intellectually judge right

from wrong (R.T. 35, 36). He also testified that

it would be "difficult" to judge petitioner's

state of mind by looking back from 1963 to

1961 as he was doing (R.T. p. 46). Dr. Tuch-

ler further stated that petitioner had the

ability in 1961 to discuss alternatives with

-2-

—— —————— A er tne

his attorney, to know what the death penalty

was, that it existed as a possible penalty in

his case and he would have the ability to

discuss the facts of his case with his

attorney. Dr. Tuchler also stated that peti-

tioner'’s "passivity" was due to a number of

factors including his parent's advice, his

attorney's advice, the newspaper publicity

about him and the death penalty and that this

did imply some sort of judgment (R.T. 29,

41-42). Also pertinent to Dr. Tuchler's

testimony regarding the petitioner's passive

state is the fact that although Dr. Tuchler

Stated petitioner just returned the injured girl

to her parents and waited for the police to

come (R.T. 19), there is other evidence in-

dicating that the keys were taken from his

car and other actions taken by the victim's

father so that he could not leave (Dt. Ct.

Rec. p. 31).

ro. I TIE FO.

—_—

Petitioner's second witness was his

father who testified that petitioner did not

just accept his father's decision to plead

guilty but asked why he had come to that deci-

sion (R.T. 94), and that petitioner stated he

did not "know what else we can do" (R.T.

p. 94). Much of the father's testimony will

be brought out infra in regard to petitioner's

claims of ineffective assistance of counsel.

However, petitioner's father did testif:’ that

he did not "recall" if the judge inquired

about the voluntariness of the sentencing or

not (R.T. 96). Petitioner's mother stated

that she could not remember if any questions

about voluntariness were asked at the sentenc-

ing (R.T. 127). The sentencing judge, however,

stated he was certain he asked petitioner if he

had anything to say or any legal cause why

he should not pass sentence (R.T. 250). This

judge also stated that the procedure he always

followed when sentencing a case he was new to

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a PRD NOT TOS Te ee Oo ITA E RD GIO OLEAN LL EILE NRRL AL ELE AEE ENA Rt fre

was to be very cautious and that he tried to

get the defendant to relax and always asked if

any promises were made to the person being

sentenced. He testified that he would not let

the attorney answer for the Gefendant when

asking if a plea was voluntary because it was

"my responsibility" and he went along as

if he did not know what other judges had done.

(R.T. 250-255). He stated that his general

practice in such cases was to make sure the

éntendent understood the charges and conse-

quences of a guilty plea, and that after address-

ing the defendant personally, he would ques-

tion his attorney to check more (R.T. pp. 241-

243).

The police officer who first talked to

Officer Bradley, testified that he and his

partner had asked appellant if he wanted to

call his parents or an attorney (R.T. 200-

201). He testified that after a brief pre-

liminary questioning period of about fifteen

to twenty minutes, he and his partner stopped

questioning petitioner because the charges

appeared serious, and they immediately called

the county attorney on duty that night (R.T.

200, 202). The officer stated that he knew noth-

ing about the facts of the case except as re-

lated by the petitioner, and that the case was

still being investigated when he questioned

petitioner (R.T. 198, 213-214). He stated that

he believed petitioner's statements were voluntary

because he knew that he had not promised petitioner

‘anything, or threatened or coerced him (R.T.

212). He stated that he did not know petition-

er had ever been hospitalized until the

District Court evidentiary hearing (R.T.

211). He stated that petitioner did not write

Out any confession, and that petitioner was

not shown a stack of open cases and asked

if he had committed any of them (R.T. 207).

Mr. Roper, the County Attorney on duty,

testified that he went to the station that night

-6-

ee aE EE LOL TL SALLE NE SLO LIEBE TENE 8 OO 06 Be ee nee

YF Pe =o J ,

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with a court reporter and questioned petitioner

(R.T. 218). He never made promises regarding

sentences or treatment because he was not in

a position to make such promises (R.T. 220,

234) and he was certain that petitioner had not

written out a confession before he came, and that

he did not write one while he was there

(R.T. p. 228). He felt certain he asked

petitioner if his statements were voluntary,

of his own free will and not the result of

inebeten, threats, or promises (R.T. 220,

229-230, 235) that it was his "standard

practice” to ask persons he was going to

question if they had an attorney or wanted

one and was fairly certain he had asked

this of appellant (R.T. 222).

Pinally, when petitioner testified he

stated that he had waived the preliminary

hearing because he knew about the confession

and there was not any need to determine

if a crime had been committed (R.T. 161).

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And, the preliminary examination record

expressly states that "defendant is informed

of his right to aid of counsel" (Dt. Ct.

Rec. p. 33). Petitioner then went on to

testify that he pleaded guilty because he

wanted hospital treatment not just because

of what his father had said (R.T. 171) and

that when the State Hospital returned him

to prison (because of its decision, it could

not help him), he went to the superintend-

‘ent and told him the decision was wrong and

that he still needed treatment (RK.T. 178-

179). Petitioner also testified that the

guilty plea was "a decision that had to be

made" because (1) there was no other place

for him to go, and (2) to avoid the death

penalty (R.T. 179-180).

He did not think about his plea and its _

voluntariness until after he talked to the

"jailhouse lawyers" at the State Prison

(R.T. 181).

ARGUMENT

I

PETITIONER WAS PROVIDED

EFFECTIVE ASSISTANCE

OF COUNSEL.

Respondent contends that under Ninth

Circuit tests for determining effective

assistance of counsel the facts of this case

are more than adequate to show that petition-

er received effective assistance. Secondly,

respondent would submit that the District

Court's finding to this effect is not

‘clearly erroneous.

The Ninth Circuit, in United States v.

Valenzuela-Mendoza, 452 F.2d 773 (1972),

has recently reiterated its rule

that trial attorney's errors do not violate

defendant's right to a fair trial unless

they reduce the trial to a mockery or farce.

Such a determination must be made from the

: record as a whole. Id. at 774; see Wright v.

| Craven, 412 F.2d 915, 917 (9th Cir. 1965);

; ra - =

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a

United States v. Ragen, 166 F.2d 976, 980-

981 (7th Cir. 1948); United States v. Silva,

418 F.2d 328, 331-332 (2d Cir. 1969); Slawek

v. United States, 413 F.2d 957, 959 (8th Cir.

1969); O'Malley v. United States, 285 F.2d

733, 734 (6th Cir. 1961).

The Supreme Court has recognized that the

decision to plead guilty is at best very risky

and uncertain, and that mere mistakes by an

attorney will not render his assistance in-

effective as long as it is within the normal

‘bounds of competency. McMann v. Richardson,

397 U.S. 759, 769-771, 90 S.Ct. 1441, 1448-

1449, 25 L.Ed.2d 763, 772-773 (1970).

Tollett v. Henderson, 411 U.S. 258, 267, 93

S.Ct. 1602, 36 L.Ed.2d 235 (1973). A finding

of denial of effective assistance of counsel

is especially hard to establish when the grava-

men of the defendant's claim is a tactical

decision made by his attorney--(as appellee

will show Mr. Later's decision was here).

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—

3

4

See United States v. Moss, 438 F.2d 147, 149

(D.C. Cir. 1970); Morrison v. United States,

434 F.2d 532, 535 (D.C. Cir. 1970);

Wright v. Craven, supra, at id., 718. More-

over, there is a presumption that an attorney

is competent. See Kress v. United States,

411 F.2d 16, 22 (8th Cir. 1969); Busby v.

Holman, 356 F.2d 75, 79 (5th Cir. 1966).

The petitioner argues that the Ninth

Circuit standard for measuring effective assist-

tance of counsel--reducing the proceedings

to a farce or a mockery--is no longer appli-

cable by virtue of a recent Sixth Circuit

case, Beasley v. United States, 491 F.2d

687 (6th Cir. 1974) and two District o£

Columbia Circuit cases, Bruce v. United States,

379 F.2d 113 (D.C. Cir. 1967); and Scott v.

United States, 427 F.2d 609 (D.C. Cir. 1970).

In none of these cases, however, do the

Courts flatly reject the use of the language

"farce and mockery" for other courts. They

- i] @

3 recognize that this language may be merely

conclusionary, used by the courts to indicate

that there is a heavy burden on the defendant

to show the unfairness necessary to violate the

Sixth and Fourteenth Amendments, thus recogniz-

ing that some Courts may use the words "farce

or mockery" when in reality their. standard is

no lower than that used by the District of

Columbia and Sixth Circuits. Beasley v.

United States, supra at 696; Scott v. United

States, supra, at 610; Bruce v. United States,

“Supra, at 116,

It should be pointed out that what the

Circuit Court in Beasley found as error

in the District Court's use of a "farce and

mockery" standard was a finding on one hand

that "the petitioner's attorney had been in-

_ competent and ineffective in several respects”

and on the other hand that the petitioner re-

ceived effective assistance of counsel because

the attorney's incompetence has not reduced

See eee ee) ere

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pm ory ONE PNET RENE NNN Le ee eT

si Sa RE Soe AD Sa ive Ro

the trial to a "mockery or a farce". Clearly,

that District Court used the "farce and mockery"

language to justify a lower than acceptable

standard. The Ninth Circuit, however often it

has used that language in its opinions, has

never used it to justify a lower than acceptable

standard after it found that an attorney was

in fact incompetent and ineffective. United

States v. Valenzuela-Mendoza, supra; Wright v.

Craven, supra. Thus, the standard for effective

assistance of counsel used by the Ninth Cir-

cuit does not conflict with the standard used

by the District of Columbia and Sixth Cir-

cuits.

Even assuming arguendo that the Ninth

Circuit standard is lower than that in other

circuits, the assistance given to the peti-

tioner by Later would be found effective under

the alleged stricter standard. At the eviden-

tiary hearing in District Court, it was brought

out that during the two days after he was

appointed to represent petitioner, Mr. Later

- 13 -

engaged in investigation, had a copy of peti-

tioner's confession, a copy of the doctor's

report and was thoroughly familiar with what

had happened (R.T. 83). Mr. Later had repre-

sented about four persons charged with similar

crimes and at least one of the charges against

these persons had been dropped (R.T. 84).

Mr. Later met with petitioner's father two to

five times and did more research after or during

these meetings that appellant's father knew of.

Mr. Later originally intended to make a plea

of not guilty by reason of insanity (R.T. Pp.

86). However, after discussing the insanity

defense with the State Hospital oe

Mr. Later dropped his Rule 250 (incompetency

commitment) motion because the superintendent's

statements and that of several other psychia-

trists, led him to decide that since there was

a written (not hand written however--just that

it was “written") confession it would be

best to plead guilty and hope for a life

sentence from the judge (R.T. 87-90). There

maak 2 -14-

re PPR on PRETRIAL O NEN A ON A a pepenensen v

was testimony that Later had talked with

petitioner at different "times" (R.T. 89; see

R.T. 91-92). There was also testimony directly

contradicting petitioner by his father that

Mr. Later came in and talked to petitioner for

about five minutes the day the decision to

plead guilty was made (R.T. p. 93). At the

sentencing proceedings, Mr. Later made a plea

in mitigation of appellant's sentence

(R.T. p. 97). Mr. Later knew the time for

appeal and investigated by looking for

possible errors but said he felt there were

no grounds for reconsideration (p. 99). Be-

fore the guilty plea was made, Mr. Later talked

with someone from the County Attorney's office

and he went with petitioner's father to try

to negotiate a plea or have prosecution wait

until things had "cooled off" (R.T. pp. 113-

115).

Thus, it is apparent that the assistance

afforded petitioner here is far above the in-

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a itieaaied

ac aeDes en Pann? eR RN Ie oh oes pe eet ae Devoe Re eee

a ——

competence necessary to find that the counsel

was so ineffective as to make a "mockery" of

justice or that counsel was not “counsel

reasonably likely to render and rendering

reasonably effective assistance". Beasley v.

United States, supra. Indeed, there are divers

examples of assistance by counsel far below

that afforded petitioner here being found

effective. See, e.g. United States vy. Junne,

458 F.2d 1156, 1157-1158 (3rd Cir. 1972)

(counsel appointed only two days before trial);

Dukes v. Warden, 406 U.S. 250, 252-256, 92 S.Ct.

(1551, 1512-1515, 32 L.Ed.2a 45, 49-52 (1972)

(counsel representing different defendants

advised petitioner to Plead guilty and got

other defendants off by saying petitioner led

them into a life of crime held no conflict suffi-

cient to find ineffective assistance) ;

Chambers v. Maroney, 399 U.S. 42, 53-54, 90

S.Ct. 1975, 1962-1983, 26 L.Ed.24a 419, 429-430

(1970) (defendant not denied effective

- 16 «-

«« BT sg

ween ET OTORK, 10

assistance when first met attorney on way to

courtroom); Doughty v. Beto, 396 F.2d i2é,

129 (Sth Cir. 1968) (no denial of effective

assistance when defendant pleaded guilty

after meetings of not more than fifteen

minutes with defendant).

Thus, respondent submits the District

Court's finding that appellant had effective

assistance of counsel is not clearly erroneous

and should be affirmed.

-17-

ARGUMENT

II

THE FINDINGS BY THE

COURTS BELOW THAT

BURCHETT'S GUILTY PLEAS

WERE VOLUNTARILY ENTERED

WERE SUPPORTED BY THE

RECORD.

Respondent submits that there is more than

enough evidence in the record to uphold the

District Court's decision that petitioner's

plea was not coerced but "was involuntary

only in the sense that under the circumstances

created by petitioner's own criminal acts

and the admissible strong evidence of such

acts it was the realistic choice open to him"

(Dt. Ct. Rec. p. 189-190). The court did not

have to accept Dr. Tuchler's Opinions about

appellant's lack of volition. The record shows

that petitioner asked his father why he thought

he should plead guilty, he did not just accept

his advice (R.T. p. 99). Petitioner pleaded

guilty because there was no other place for

him to go. And to avoid the death penalty--

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Ba Nace T

|

Gummo essen eenrsee cos ceben

as he said, "it was a decision that had to be

made" (R.T. 179-180). Contrary to petitioner's

claims, Dr. Tuchler did not say that petitioner

could not make intellectual judgments; and

the doctor added that petitioner had the ability

to understand the death penalty (see R.T.

37-42). Despite petitioner's claims that he

never talked to his attorney the day of the

decision to plead guilty, petitioner's father

said Mr. Later talked to r>titioner about five

minutes that day and that petiticner then

decided to plead guilty (R.T. 93). Moreover,

Dr. Tuchler twice said that part of the

reason for petitioner's unvolitional acceptance

of a guilty plea was because of his attorney's

advice (R.T. 29-30, 44). The sentencing judge

stated he was certain he asked the petitioner

if he had anything to say or any legal cause

why he should not pass sentence (R.T. 250).

This judge also stated that the procedure he

- 19 -

| Ss mbes nS

aiways followed when sentencing a case he was

new to was to be very cautious and that he tried

to get the defendant to relax and always asked

if any promises were made tc the person being

sentenced. He testified that ire would not

let the attorney answer for the defendant when

asking if a plea was voluntary because it was

"ty responsibility" and he went along as if he

did not know what o*:her judges had done (R.T.

250-255). He stated that isis general practice

in such cases was to make sure the defendant

understood the charges and consequences of a

guilty plea, and that after addressing the de-

fendant personally, he would question his attor-

ney to check more (R.T. pp. 241-243). Peti-

tioner testified that he pleaded guilty be-

cause he wanted hospital treatment not just

because of what his father had said (R.T. 171)

and that when the State Hospital returned him to

prison (because of its decision, it could not

= 20 -

ae .

GRRE Sorte we

help him), he went to the superintendent and

told him the decision was wrong and that he stiil

needed treatment (R.T. 178-179). Appellant

also testified that the guilty plea was

"a decision that had to be made" because

(1) there was no other piace for him to go,

and (2) to avoid the death penalty (R.T.

179-180).

He did not think about his plea and its

voluntariness until after he talked to the

"4 ailhouse lawyers" at the State Prison

(R.T. 181).

In addition, as respondent has shown,

Supra, that the petitioner received the

effective assistance of counsel in making

his guilty pleas.

Thus, respondent submits that the find-

ings by the Courts below tha: petitioner's

guilty pleas were voluntarily entered were

supported by the record.

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ARGUMENT

III

THE CIRCUMSTANCES UNDER

WHICH THE SUPREME COURT

OF ARIZONA AFFIRMED

BURCHETT'S CONVICTIONS

DID NOT DENY HIS RIGHTS

TO DUE PROCESS AND EQUAL

PROTECTION OF THE LAW.

Under Article 6, Section 2 of the

Arizona Constitution, the Arizona Supreme

Court is given the power to sit in division

or en banc with not less than three justices.

It is, thus, apparent that the procedure of

using only three justices to hear oral

arguments is valid under the Arizona Constitu-

tion. Oral argument is not a constitutional

imperative and petitioner was granted a

chance to be heard with a quorum of the

court. See Dredge Corp. v. Penny, 338 F.2d

456 (9th Cir. 1964).

The United States Supreme Court has re-

cognized that en banc proceedings are an in-

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herent power of courts for unusual circum-

stances, and absent statutory regulations or

other promulgated rules, courts may proceed

en banc as they desire as long as they proceed

consistently with due process. See generaily

United States v. American Foreign S.S. Corp.,

363 U.S. 680, 688-690, 80 S.Ct. 1336,

1338-1339, 4 L.Ed. 1491, 1494-1495 (1960).

There are many other states that have

rejected as without merit arguments similar

to petitioner's. They hold that en banc

proceedings require only a statutory quorum

to proceed for the entire court, and that courts

have inherent powers to regulate their pro-

cedures to go in division, en banc, or en banc

through a quorum consis*ent with due process

and equal protection. See, e.g., Nelson v.

Union Wire Rope Corp., 39 I1l.App.2d 73, 135-

136, 187 N.E.2d 425, 454 (1963); Wells v. Wells,

200 Pa.Super. 8, 10-11, 186 A.2d 844, 845 (1962);

= 23 -

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Commonwealth v. Myers, 402 Pa. 202, 167 A.2d

274, 276 (1961); Bray v. Barry, 160 A.2d 577,

581 (Sup. Ct. R.I. 1960); Center School Dist.

No. 58 of Jackson County v. Kenton, 345 S.W.2d

120, 129 (Sup. Ct. Mo. 1961); Fette v. City

of St. Louis, 366 S.W.2d 446, 448-449 (Sup.

Ct. Mo. 1963); Hoyt v. Hoyt, 351 S.W.2d 11l,

114 (Ct. Civ. App. Tex. 1961}.

Thus, respondent submits that the District

Court was not clearly erroneous in rejecting

petitioner's frivolous argument here, especially

in light of the fact that the whole Arizona

Supreme Court rejected his motion for rehearing

en Lanc with all five justices.

| ~ 24 -

denied.

, SOP CeNt ake

CONCLUSION

Respondent respectfully submits that

the Petition for Writ of Certiorari be

Respectfully submitted,

GARY K. NELSON

The Attorney General

for the = of Arizona

WILLIAM J. SY. Zs

Chief Counsel

Criminal Division

Attorneys for RESPONDENT

- 25 =

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