# Reply Brief — Burchett v. Cardwell

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1974
- **Citation:** 419 U.S. 874

## Text

a

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

- iv -

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

= JY @

;
|
;
|

Page

10

9,13

23

11,9,13

22

14

12
12

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+

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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

-4-

7
4
i
:
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 ,

—

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 - =

be

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).

- 10 -

—

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

-12-

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-

- 15 -

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--

- 18 -

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.

= 21 «

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-

- 22 -

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 -

-
: \ Bare.

a

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 =

POEERE BE ILA LIG | IIS LBOES TRONS S SIO TEE LOIS

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0202%3A2. Public record. Not legal advice.