Warren Carl Sherrick v. Frank A. Eyman, Warden, Arizona State Prison

plaintiff was foreseen because the SHERRICK, Appellant, Carl Warren injury.2 A particularly susceptible to passing instruction reference v. existing already condition

“an aggravated EYMAN, Warden, Frank A. Arizona State miscon- Prison, Appellee. the tortfeasor’s confusing duct”, or errone- if otherwise No. 21876. ous, affirmance corrected Appeals United States charge, point appellant’s second Ninth Circuit. any explicitly consideration removed Feb. 1968. from aggravation of emotional condition Rehearing Denied March emphasized case, tort- that a injuries those is liable feasor actually This last caused. has which he point at was reiterated charge, very removed end of its on remained

whatever doubts subject. Moreover, appellant had ob-

the jected only generally the instruction aggravation,

containing the reference to at- court’s failed to call to and thus objection a sin- went that his

tention unquestiona- gle in an otherwise clause

bly instruction. correct appellant

Finally, asserts that plain $22,000 in favor of

the verdict Betty There

tiff Tabor was excessive. expert that she

was credible dis irremediable

suffered serious neck, mobility of her

comfort and loss required to wear

and that she would be indefinitely a result

a neck as brace light evi of this accident. dence, despite plaintiff’s modest Ely, part. Circuit Judge, dissented expenses, conclude cannot medical we verdict, approved the trial court, in was so that we excessive it.

terfere correct protective

Plaintiffs have taken a 16743)

peal (No. denial of their from the for a new trial all defend-

motion

ants conditional on the reversal

judgments Because court below. judgments,

of our affirmance

sustain the denial of motion. judgments will be affirmed appeals.

both 2. Alexander v. Knight, Pa.Super. pp. Pavorsky Engels, at 300-01. See aff’g opinion 100, 102-103, A.2d below 25 410 Pa. A.2d (C.P.Phila.1962); Pa.Dist. & Co.R.2d 649 (3d 1964), Prosser on Torts § ed.

Arizona. was affirmed His conviction Supreme Arizona. v. State Sherrick, 98 Ariz. 402 P.2d 1 petition Supreme Court of the His of certiorari United States for a writ Arizona, 384 was denied. v. Sherrick 16 L.Ed.2d He filed, Court in the District United States Arizona, petition for a for the District of corpus. held a writ of That court habeas hearing advise- and took the case under point petitioner’s at- At ment. torney requested to consider grounds ground, as- two additional to the granting petition, for serted corpus. The court refused writ habeas grant petitioner request unless the petition Court would first corpus on Arizona for a writ habeas ground. petitioner file did petition, such a and the Then the Arizona denied it. petition in United. filed an amended pe- Court, which amended States District grounds asserted tition included the two original petition third ground referred above. stated, amended, petition As Sherrick’s grounds upon as the which the corpus, the writ of habeas issue (1) involuntary had that an confession (2) trial; against him

been used at his illegally had been obtained evidence trial; (3) that him at his used summarily him trial court denied pre-trial to determine mental examination competent stand whether he was defense. assist in af- Court Arizona (argued), Gerald Francis Sullivan firming conviction, State Phoenix, Ariz., appellant. Sherrick, 1, supra, 98 Ariz. 402 P.2d Atty. Jespersen (argued), Asst. Norval leading petition- narrated the events Gen., Smith, Atty. Gen., F. James Darrell Briefly paraphrased, er’s conviction. Phoenix, Gen., Tegart, Atty. S. Asst. body owner were that Ariz., appellee. 4:30 in his bar at a bar was discovered Judge MADDEN, Before United 1962; May 24, a. m. on had been that he Claims, States Court of and DUNIWAY head; shot twice the back of the ELY, Judges. Circuit money from the all the had been removed glass” register “tip and a of unusual cash Judge: MADDEN, glass shape, the contents which finger- appellant Sherrick, hereinafter bent coins and coins marked with petitioner, polish, of nail and a which had been called the was convicted billfold degree victim, possession had been first a state court May landlady of an on the voluntariness the con- taken. 28 the On place apartment from the held the absence house not far fession was op- found, apartment jury. in an the homicide portunity testify special rented for a hear- which the May 26, ing, waiving week moved out of but had without glass” resembling presence glass “tip which take the stand in witness jury. from of the of had been the bar victim stolen quar- glass was a of the homicide. ground for exclusion The asserted lady fingernail polish ter on it. with The made confession was it was not gave police. next items to the The these argues voluntarily. in this Petitioner May police day, 29, p. at m. about 3 give peal police the failure petitioner, him arrested the took to the warnings petitioner required all police interrogated him, and and station opinion in the Court’s p. m. he to the crime. At confessed 4:47 Arizona, 384 case of Miranda v. State reporter took his down confession. L.Ed.2d 86 S.Ct. key petitioner emptied A out which had (1966), with other taken in connection pocket police of his at the station indi- circumstances, relevant made the confes- been, cated that had since moved he he involuntary inadmis- sion and therefore living apartment, out of an his former at petitioner concedes that sible. The apartment Road East under Thomas in Court’s decision Johnson v. Meyers, name of Jim and the Jersey, State New 384 U.S. police. verified that fact to the He ad- (1966), makes L.Ed.2d 882 address, had, (cid:127)mitted that he at the former warnings, the lack of stand- the Miranda possession glass odd-shaped of the ing itself, in- insufficient to show police gave Sergeant showed him. He case, was voluntariness this Nealis of the his consent for the said, urges tried he As we have police to search the East Thomas Road only that the lack of Miranda warn- apartment. Sergeant However, Nealis plus ings, circumstances thought it would be to obtain a wise tending coercion, to show made con- Sergeant search sent Wilson involuntary. fession on Davis He relies get giving Sergeant it, Wilson the Carolina, State North Sergeant he, Nealis, formation which 16 L.Ed.2d 895 interrogation from his of the petitioner’s difficulty objects possession and from the regard any is that there weren’t circum police. prepared An affidavit was tending stances to show coercion in fact. by Sergeant Wilson, and executed who Although, said, as we out then requested went to a presence jury ques on the put Sergeant warrant. The tion of confession voluntariness Wilson under oath and obtained during was held the murder tion from him additional to what was hearing, testified at noth stated in the affidavit. ing significance at shown then apartment issued the warrant. hearing. petitioner, on cross-exam pistol searched which was prosecuting attorney, ination tes introduced at the trial as the tified as follows: weapon and the billfold which had been Q. Brady Did Mr. Nealis or Mr. use taken from the victim of the homicide any you force ? was also introduced evidence sir, they A. No did not. found there. Q. they any promises? Did make trial, Before the murder defense coun- sel suppress a motion to made the evi- sir, they A. No did not. dence which had been obtained Q. they any Did make threats? search of East Thomas Road apartment. During special the trial a A. No. empty gun say Q. nicely? You you very They Q. treated casings probably still are shell they Yes, did.

A. gun? Q. spite of the circumstanc- And in Yes, are. far as I know as A. along go here, will I think es anything at Q. else And is there Brady and Nealis that both the fact your apartment, house, your at man ? like a treated the bar ? came The billfold. man, A. yes, They treated like

A. sir. Q. This would be ? billfold His you shot billfold? man’s that petitioner, significant It is A. Yes. appeal conviction pe- any ques- Arizona, policemen that the testified did not raise One orally a search con- consented to of his as to the voluntariness tion titioner gave peti- by police. The court, apartment at- the however, That his fession. hearing tioner, pre-trial concern- of the voluntariness because tention prob- seized given questions ing suppression of items possible the the relation to search, his that he of the warrant denied able cause for the issuance the search, Arizona petitioner’s The consent to the consent. and the a recognized waiver of asserted questions that an are discussed herein- by proved said, must be record after. “The constitutional The positive by prosecution evi- point clear and confes- of the the [voluntariness the testi- clearly court said that volun- the shows it was made dence. But sion] * * trial mony tarily, policeman, which the of the positive believed, “clear and was petitioner’s There is no merit in the words,” unequivocal evidence contention that admission con- the his said, The court sufficient. therefore fession was a of a constitutional violation petitioner agree, the that fact that the readily the a confession made full petition consider now consenting We the with his crime was consistent by search, “particularly er’s contention that evidence obtained where volun- confession’s] an evidence its [the unconstitutional search and seizure strong.” add We tariness is so The was admitted at his trial. peti- colloquy quoted in which the above was, said, pistol evidence as we gun interrogator told his that the tioner police asserted to be the murder apartment wallet were in his weapon and the wallet which had been a desire to would inconsistent with taken from the murdered man. When the dwelling. privacy maintain the of his made, petitioner search was was agree Arizona that the We with the custody having police, been legal petitioner search was because lawfully arrested, being inter was consented to it. rogated. Arizona, petitioner’s appeal ground on the The other to that court conviction, justified held Court of Arizona his the search and held the search grounds. police lawful on two of was that the obtained warrant seizure One grounds opinion, have, those was for it. earlier in this that the con We reporter’s sented to recounted the search. The the events connected with the transcript magis- confession issuance warrant following colloquy petitioner says contains trate. The that because between interrogator: probable insufficient facts to show cause his po- for a warrant were contained Q. gun? is the Where accompanying liceman’s affidavit know, plication A. As far as I un- it’s home for a warrant is- boys got boys. by less it. Your sued invalid.

[*] ^{[*] [*]} Supreme Court of Arizona held that the fact, police- as testified to both the have been advisable for the magistrate, magis- proceeded man and the differently in this case. policeman question trate examined the under oath But our is whether what was “to determine if there’s cause advisable, done was but whether it for the warrant to issue” and issued then was constitutional. We hold that was. it warrant, requirement satisfied ground for writ of habeas third “ * * * no the Fourth Amendment corpus presented upon probable issue, Warrants shall but trial of the Arizona is the refusal cause, supported by Oath or affirmation trial, court, prior petitioner’s murder * * The court discussed teach- attorneys grant the motion of his ings Texas, 378 U. hearing pursuant requesting S. 84 S.Ct. 12 L.Ed.2d 723 Rules of Crim- Rule 250 the Arizona Ventresca, (1964) and United States v. Procedure, in ef- inal Rule 17 A.R.S. 13 L.Ed.2d during provides if, fect, or before The court then said: ground trial, the court has reasonable think that the defendant is insane officers magistrates mentally defective to the extent that he indicates that proceedings formation unable understand defense, him or under oath in to assist addition to affidavit. procedure deter- the court shall hold a This differs from that under condition, 41(c), mine the Rule defendant’s mental of Criminal Federal Rules may appoint quali- and two disinterested Procedure where affidavit is the the experts upon sole fied basis which to the defendant and the determina- examine testify probable hearing; to tion of at the that other evi- cause is made. If we may hearing; dence before be the us we introduced at the affidavit undoubtedly that if would the court that defend- be bound decides the to con- competent proceed; ant clude under is the trial will the Texas, supra, contrary, if the court decides to that the the it was insuffi- defendant shall cient. It would be committed to a mental have been advisable for transcript reports institution the until to the institution have a competent he is testimony, made of the officer’s be tried. gave he in affidavit, addition to the and petitioner’s attor- motion of the he should have recited on the record accompanied by neys affidavits was presented what facts to him constituted said, here attorneys far as so the “probable deficiency cause.” This pertinent: do not deem fatal under circum- the with- are affiants] 3. That [the stances herein as there in is evidence knowledge or out sufficient showing the presented record what was de- as to whether tion to form a belief magistrate prior pro- properly understands fendant question being in issued. against ceeding counsel or aid him can We think the Court in his defense. Arizona was Fourth Amend opinion two of affiants 4. That in the ment require does not or oath experts be disinterested medical affirmation of the truth of state appointed de- to examine constituting ments of facts regard his mental condi- fendant cause must be attached to a written docu justice. promote tion to the cause purpose ment. The of the Fourth Amend ment, interpose judicial on the When motion for a neutral of petitioner’s ficer made policeman between was the zeal mental condition privacy attorneys petitioner’s citizen, before served is colloquy trial, be- policeman, the examination of there was a un oath, by magistrate. der who the court and the one counsel As the tween Su preme present- present. said, affidavit Since the Arizona it would Robinson, 383 U.S. bearing The case of Pate v. on the no ed facts (1966), repeatedly 15 L.Ed.2d 815 condition, the court mental readily petitioner, seeking is dis- relied on questions elicit counsel asked significant tinguishable. question: that case facts, “Tell such as this incompetence mani- facts evidence became and what what observed during your give fest the trial. In the recent case conclu- know rise to wrong White, Rhay, Superintendent something there sion 28, 1967, mentally?” F.2d this decided November The nearest him with attorney held that the United District proach States to an answer issuing statement, Court was an order question inter- was the prisoner statements, among the custodian of a spersed unresponsive state cooperate because me “there were facts before seem to “He doesn’t sig- fully. morose, [state court of such substantial trial] believe is don’t He compelled gives per- nificance as should cooperation normal he * * * trial court recessed the son would under circumstances.” hearing upon trial and conducted judge aware would been trial question hardly whether that moroseness is abnormal mentally competent give murder, prisoner aid as- who has committed a participate sistance to his counsel confession, has made a detailed go his own defense.” now about on trial. Petitioner’s persisted in made counsel statement sig- In the instant case were no there knowledge in his affidavit no that he had nificant facts before Arizona justify or information which would him court or before the Dis- United States having expressing a belief as to corpus proceed- trict Court in this habeas properly whether under- ing suggested which even hear- proceeding against stood the him or could ing requested by would be aid defense. counsel useful. judgment United States denied the motion. We dismissing petition District Court for the are, think of the court was We corpus a writ of habeas and is course, expressing any opinion not with affirmed. regard reading to the court’s of the 250, supra. ELY, Judge (dissenting are in Arizona Rule cited We Circuit part): deciding of court’s denial the hearing, the motion for a circum by the I concur the result reached the majority, confronting quarrel court, and I do most not with was not stances the reasoning do, produces of the it. guaranty denial the constitutional sharply disagree por- however, with that process in law, due which of course majority opinion tion in which the appealing peti cludes a fair trial. In validity upheld. of the search warrant Supreme tioner’s Court conviction Arizona, Before trial was held in Arizona petitioner’s then counsel did court, hearing pur- state was conducted any not claim of error on the trial base suppress suant to Sherrick’s motions to ruling now discuss court’s arewe certain evidence which had been seized ing. say if, It cir is fair to pursuant the search conducted war- case, cumstances of the instant the trial During hearing, police rant. of- duty to set a constitutional ficer who obtained the search up concerning testified as follows: duty competence, mental such a there is “Q Judge you didn’t examine every requests in which counsel why as to war- wanted search hearing, responsibility of such rant? procedures keep rational the court its questions “A and useful is transferred He asked several and read counsel. over warrant.

654 signed

“Q you? magistrate, Then he it the Arizona court could not, course, supply it. “A Yes.” Supreme Court magistrate has held that “[i]n who of the determining whether there been an has warrant, appears issued the search there by unreasonable search and seizure state following: officers, a federal court must make an “Q procedure What is the when dependent inquiry, whether or not there issued the search warrant ? court, inquiry by has been such an a state “A First I examined officer irrespective any inquiry of how such oath, probable under if there’s see may have turned out. The one test is cause, probably if there’s determine enlarged law, by of federal what neither Then cause to issue. the warrant may countenanced, one state court sign my presence I had him under nor diminished what another oath.” colorably suppressed.” Elkins v. United mag- police Neither the officer nor the States, 206, 223-224, 364 U.S. testified, apparently istrate could tes- 1447, (1960). 4 As L.Ed.2d 1669 tify, any as to the nature of unrecorded Supreme correctly the Arizona re- Court might information which have been marked, presented affidavit to or received support was insufficient might supplied require- .which the warrant’s issuance. probable ment of cause. Texas, supra; United Giordenello v. question validity When States, 357 U.S. 78 2 L. S.Ct. presented this search (1958); warrant was to the Ed.2d 1503 Nathanson v. United Arizona, States, that court 54 L.Ed. S.Ct. upon compelled, conceded that it would faced, therefore, be Our court is authority Aguilar mag- of Tex State a mere conclusion as, 1509, 12 L.Ed.2d istrate and the Arizona (1964), affidavit, to hold that supplied the information oral alone, support itself was insufficient form to the was sufficient to issuance of provide the warrant. no can There cause the war- to issue doubt that this conclusion was correct.1 rant. We cannot consider that “informa- on, Arizona tion,” however, for, everyone else, Court went like however, uphold validity course, do And, not know what it was. upon warrant testimony assertion that “[t]he we cannot consider information officers and shown to have been communicated to the magistrates magistrate, though information indicates even given magistrate possessed by police. under oath in tion was is “It addition to the elementary affidavit.” passing State v. Sher- that on the valid- rick, 46, 53, (1965) ity 98 Ariz. warrant, 402 reviewing P.2d 6 of a (footnote omitted). It only brought is true that there consider information to the indication, is such magistrate’s an but record Aguilar since the attention.” is devoid of evidence Texas, as to of of n.1, the nature 378 U.S. 109 any such additional (emphasis original). information 1511 1. The Taylor; text of burglary shotgun; “AFFIDAVIT FOR A. loot: presented radio; SEARCH WARRANT” whisky, property half case of magistrate reads, entirety, Moore, weapon its fol as A. L. also murder clothing, Springfield lows: 30.06 rifle Serial #601128; Springfield full carton “Sgt. 30.06 Wilson, Evan Phoenix Police shells; purse also one white I.D.” Department being duly sworn, deposes says infra, he that has reason to believe As discussed indi- (aka) that WARRAN SHERRICK cates that certain of the on items the list MYERS, upon JIM has concealed in this affidavit were added it after the Ingleside Apts., granted, just residence at E. 4205 search warrant was as Road, property, namely Thomas certain were added to the search warrant itself Wallet; credit cards name of Lewis after the search. sought empha- and the officer who and obtained In disempowered issuing A search warrant. is sized that a a “ apply any proper perform ‘neutral and test as to whether warrant must merely properly per- or not a function and has detached’ not serve duty stamp police.” 378 formed unless his action can be as a rubber measured, Addition- at 1512. either the contents S.Ct. at reviewing ally, required or “oath affirmation” Court stated that “judicial amendment, uphold placed deter- fourth or if reliance is long upon mination” cause as other information claimed to so magistrate, is “substantial basis” for conclusion been furnished to the solid record of such additional present. 378 U.S. at at 1512 S.Ct. supplied. tion as was quoting States, Jones v. United 4 L.Ed.2d striking irregularity Another connect- apparent It seems ed with the search warrant relates to the proper there could never review as fact some for which items search was whether authorized the warrant there existed a “substantial specifically magistrate’s “judicial basis” for were added to warrant de- entry made, presumably somewhere, after had termination” unless been in some after, manner, “basis,” authority warrant, under whether “substan- then, time, insubstantial, appears tial” upon items the first Here, seen, record. 'discovered.2 I not as we it shall dwell further does upon strange appear. aspect proce- not so Its absence not derives only magistrate’s dure, upon me, from the nor others which trouble failure demonstrated, supposed already basis, record inasmuch as I but also from frailty think, recollection, wholly the natural of human warrant was valid and case that of ineffective. both the response questioning by these items listed on the search war- Sher- attorney, rant? rick’s officer who obtained the search warrant and who Yes, “A there were a number of participated entry actual items on the search warrant we were search testified as follows: looking for. you put “Q But did some items on “Q And items were added to the you the search warrant after found you search warrant after found them? premises? them in the Yes, “A sir. right, “A That’s sir. irregular “Q Isn’t a little bit “Q Your search warrant was not add items to a search after properly complete you when took it items have been found? Is that not a items, you out? You had five fraud Court? prem- five more after searched the ques- “THE COURT: That’s two ises? tions, Hoyle. Mr. recall, “A As I there were two your opinion, “Q In that a or three added. fraud on the Court to add items on a “Q These items were added after search warrant? premises? searched the object. Honor, “MR. SIIAW: Your “A That’s He doesn’t know whether it is or isn’t. “Q The face of “MR. I’ll the search warrant HOYLE: withdraw the question.” looking would show for all

Case Details

Case Name: Warren Carl Sherrick v. Frank A. Eyman, Warden, Arizona State Prison

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Mar 29, 1968

Citation: 389 F.2d 648

Docket Number: 21876_1

Court Abbreviation: 9th Cir.