Robert William Wallace v. Carl G. Hocker, Warden, the Nevada State Prison

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…

(dissenting).

I dissent from the majority opinion:

I would affirm.

The majority holds that the Nevada trial judge “made no preliminary finding about Wallace’s physical condition when the statements were made.”

As shown hereafter, this issue was never raised in the state trial court, or on appeal to the Nevada Supreme Court, or before the district court below. Instead, the issue was whether the confession was voluntary and whether there had been sufficient compliance with the Miranda rule to permit the admission of the confession.

*222 The record of the trial in the state court shows that after the defendant rested, the state called officer Pelizzari preparatory to offering the statements and confession of the defendant. The jury was then excused. [Tr. p. 304] The trial court then stated, “Well I guess we are now in the voir dire process of determining whether or not the proper foundation was laid in accordance with the Supreme Court decisions. Is that right?

Mr. Ahlswede: (The prosecuting attorney) That’s right.

The Court: And this is outside the presence of the jury. This is my initial determination to make.” [Tr. p. 305]

There followed discussion and evidence as to the…

441 F.2d 219 Robert William WALLACE, Appellant, v. Carl G. HOCKER, Warden, the Nevada State Prison, Appellee. No. 24526. United States Court of Appeals, Ninth Circuit. April 13, 1971. Robert William Wallace, in pro. per. Harvey Dickerson, Nev. Atty. Gen., Carson City, Nev., for appellee. Before ELY, CARTER, and HUFSTEDLER, Circuit Judges. PER CURIAM: 1 Robert Wallace, a Nevada state prisoner, appeals from an order denying his petition for habeas corpus without an evidentiary hearing. 2 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. 3 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…