Opinion
No. 73-1449.
June 21, 1974.
B. Michael Dann (argued), of Treon, Warnicke Dann, Phoenix, Ariz., for petitioners-appellants.
William J. Schafer, III, Chief Counsel, Crim. Div., Phoenix, Ariz. (argued), Gary K. Nelson, Atty. Gen., for respondent-appellee.
Appeal from the United States District Court for the District of Arizona.
OPINION
In one respect — the rereading of the court's instruction to the jury at the jury's request and in the absence of the defendants, the facts of this case are almost a carbon copy of those in Bustamante v. Eyman, 9 Cir., 1972, 456 F.2d 269 ( Bustamante I). In Bastamante, after our remand, a hearing was held at which testimony was received as to what happened when a tape recording of the court's instructions was played back to the jury. On the basis of that evidence, the trial judge concluded that the presumption of prejudice had been overcome. We have now upheld that decision. Bustamante v. Cardwell, 9 Cir., 1974, 497 F.2d 556 (1974). ( Bustamante II) In the case at bar, such a hearing was held before the trial court denied the present petition for a writ of habeas corpus. The State was unable to produce any record, or any testimony, as to what occurred. Thus, as in Bustamante I, there is nothing to overcome the presumption that the error was prejudicial. Bustamante II is not in point. Hence, the writ must issue unless the State grants the appellants a new trial.
Petitioner Van Akins was 17 years old at the time of the crime. He claims that when the juvenile court relinquished its jurisdiction he did not receive the due process to which he was entitled under Kent v. United States, 1966, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84. In Harris v. Procunier, 9 Cir., 1974, in banc, 498 F.2d 576 (1974), we have held that Kent is not retroactive. Van Akins' claim is rejected on the authority of Harris.
Appellants raised four other claims of constitutional error in their petitions before the district court. Because it is unlikely that any of the alleged errors will occur at a new trial, we need not reach these claims. However, we assume that before the appellants' out-of-court statements made to state law enforcement officers are introduced in a new trial, the appellants will be given the constitutionally required voluntariness hearing that the district court found to have been denied to them in their first trial.
The order appealed from is vacated and the case is remanded to the district court, with directions to hold the case for sixty days to enable the State of Arizona to grant appellants a new trial. If a new trial is not granted within that time, the writ shall issue.