Robert William WALLACE, Appellant, v. Carl G. HOCKER, Warden, the Nevada State Prison, Appellee, 441 F.2d 219

PER CURIAM: Robert Wallace, a Nevada state prisoner, appeals from an order denying his petition for habeas corpus without an evidentiary hearing. Wallace was convicted of first degree murder after a trial before a jury. In the course of the trial, the prosecution presented expert psychiatric testimony in the form of responses of a qualified psychiatrist to hypothetical questions. That psychiatrist was allowed to observe part of the trial, although witnesses had theretofore been excluded.

The state also introduced into evidence, over the objection of petitioner, certain inculpatory statements made shortly after his arrest. In his petition, Wallace claimed that the prosecution had suppressed evidence and that the state court erred (1) in allowing a psychiatrist, who had not personally examined him, to testify for the state, (2) in permitting that psychiatrist to remain in the courtroom after the exclusion of witnesses rule had been invoked, and (3) in admitting before the jury his inculpatory statements without an initial voluntariness determination by the court.

Wallace says that the prosecution did not produce a liquor bottle that had been left at the scene of the crime or his own statements shortly after the crime indicating that he was intoxicated at the time of the offense. Wallace knew about both items of evidence, and he did not request the production of either. The failure of the state sua sponte to produce the evidence under these circumstances provides no foundation for a suppression claim. (See Palakiko v.

Harper (9th Cir. 1953) 209 F.2d 75, 94-95.) His contentions about the psychiatrist’s testimony and the psychiatrist’s presence after the exclusion rule had been invoked raise no federal question. These are matters of state policy with which the federal courts are not concerned. Wallace’s final contention has substance. In Jackson v. Denno (1964) 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, the Court held that a defendant’s inculpatory statements cannot be presented to a jury unless those statements had been theretofore found voluntary by a separate tribunal.

When the initial determination is to be made by the trial judge, he must resolve all of the factual conflicts upon which the voluntariness issue depends, following a full evidentiary hearing. A conviction cannot be sustained in the face of a claim that it was the product of the improper admission of self-incriminating statements of the defendant, unless the record clearly establishes compliance with Jackson. (Sims v. Georgia (1967) 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593; Javor v. United States (9th Cir. 1968) 403 F.2d 507).

There was evidence before the state court that the inculpatory statements were taken from Wallace when he was suffering from a serious gunshot wound and at a time when he may have been intoxicated as well. Wallace objected to the admission of these statements on the ground that they were not voluntary. The trial court made no preliminary findings about Wallace’s physical condition when the statements were made.

When the question arose as to whether the defendant had been intoxicated at the time the statements were given, the court stated, “I don’t know; and how much, I don’t know.” When defendant’s counsel argued that the gunshot wound and the accompanying pain would have made it impossible for defendant to have made a voluntary statement, the court said, “Maybe, Mr.

Fry, some of those things that you have referred to are factors which may be taken into consideration by the jury when the jury makes its final determination as to the validity of the confession, but I think, for my purpose, for our purpose here, I should at least let the jury listen to the story.” To prevail, the petitioner need only show that the record is ambiguous as to what function the court was trying to fulfill, to show, for example, that the court believed that its function was only to determine whether the Government had presented a prima facie case for voluntariness. (Javor v.

United States (9th Cir. 1968) 403 F.2d 507.) Here the record is not only ambiguous, it also supports the contention that the court was not following Jackson. The strong inference from the statements quoted above is that the trial court did not think that it had to resolve the conflicting evidence as to defendant’s physical condition. It therefore made no meaningful finding of any kind on the voluntariness issue. Jackson-Javor error is thus apparent.

The order is reversed and the cause is remanded to the district court to allow the State a reasonable time to afford Wallace a hearing or a new trial, failing which Wallace is entitled to his release.