Iverson v. State of North Dakota, 72-1600.

Citation480 F.2d 414
Decision Date11 June 1973
Docket NumberNo. 72-1600.,72-1600.
PartiesJames LeRoy IVERSON, Appellee, v. STATE OF NORTH DAKOTA, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

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Robert A. Alphson, Grand Forks, N. D., and Mart R. Vogel, Fargo, N. D., for appellant.

John G. Shaft, Grand Forks, N. D., for appellee.

Before LAY and ROSS, Circuit Judges, and NICHOL,* District Judge.

LAY, Circuit Judge.

The petitioner, James LeRoy Iverson, was found guilty in the Grand Forks County District Court of North Dakota of the strangulation murder of two young women. His conviction was affirmed by the North Dakota Supreme Court. State v. Iverson, 187 N.W.2d 1 (N.D.1971), cert. denied, 404 U.S. 956, 92 S.Ct. 322, 30 L.Ed.2d 273. Thereafter petitioner sought and was granted on August 31, 1972, a writ of habeas corpus in the federal district court. 347 F.Supp. 251 (D.N.D.1972). The State of North Dakota appeals. We reverse and remand with directions.

The federal district court for the District of North Dakota, the Honorable Ronald N. Davies presiding, reviewed the state proceedings and, without evidentiary hearing, determined (1) that during petitioner's state trial there was received into evidence certain items which were obtained by a search warrant issued without probable cause; (2) that the petitioner was denied due process of law since he was mentally incompetent at the time of his preliminary hearing; and (3) that the petitioner had been compelled to be a witness against himself at the State's Attorney's Inquiry contrary to his constitutional privilege against self-incrimination. Petitioner raised in the federal district court the additional ground that he was denied effective assistance of counsel by reason of his trial counsel's incompetency. The trial judge found it unnecessary to pass on this latter question in view of the grant of the writ of habeas corpus on the other grounds.

The bodies of Carol Mayers and Diane Bill were discovered in Miss Mayers' apartment at approximately 10:30 a. m. on November 27, 1968. Investigation was immediately commenced by the authorities. The state's attorney conducted what is known as a State's Attorney's Inquiry at which witnesses are subpoenaed to appear and testify. At this inquiry, which was held at the police station, statements were taken from two young men who lived in the apartment below Miss Mayers. An additional statement was taken from the petitioner who at that time was employed by the Nodak Cab Company. The petitioner's testimony lasted about twenty minutes and he was permitted to leave at its conclusion. Later that same evening, complaints were prepared for the arrest of the petitioner and were submitted simultaneously along with two affidavits to the county judge seeking arrest warrants as well as the issuance of a search warrant to search Iverson's automobile and residence. Within the affidavits city detective Robert Siverson swore that at the State's Attorney's Inquiry Iverson had admitted to him that he knew one of the victims (Carol Mayers) and that on past occasions he had transported her to the Golden Hour Cafe in his cab; that Iverson had been in the victim's apartment on several occasions and that the most recent time was at 6:00 a. m. on Monday, November 25, 1968; that during the course of his conversation with Iverson, the detective observed scratches on the back of Iverson's hand and neck. In another affidavit the administrative assistant for the state's attorney's office swore that he had observed Iverson later that same day at a local bowling alley and he noticed a considerable number of scratches above his elbow on both arms. Based upon these facts a warrant was issued to search Iverson's car and residence for "ladies' garments either torn or with blood stains on them, men's garments either torn or with blood stains on them, ladies' purses, identification for Carol Mayers . . . ."

As a result of the search of Iverson's residence, a pair of trousers, a towel and a coat were seized. Blood stains were found on the trousers and towel that matched the victims' type of blood; hairs were taken from the various items that were seized which bore the same characteristics as the hair of both victims. These items were admitted into evidence at the trial.

A. THE SEARCH WARRANT

The first issue on appeal is whether there existed probable cause for the issuance of the search warrant. We cannot agree with the district court that no probable cause existed to make the search. This case does not present the usual problems generally associated with search warrants — whether the affidavits demonstrated the reliability of an unknown informant or whether sufficient underlying circumstances were alleged to corroborate the reliability of the facts and information disclosed. See, e. g., United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); United States v. Marihart, 472 F.2d 809 (8 Cir. 1972).

Here Iverson had made certain direct statements to the affiant disclosing not only his acquaintance with the victims, but the petitioner also created reasonable suspicion by disclosing that he had been at the victim's apartment in the early morning just forty-eight hours before the bodies were discovered. When this information is added to the fact that scratch marks were observed on the petitioner's hands, arms and neck, suspicion was crystalized sufficient to give reasonable cause to believe that the petitioner committed the crimes. The question is whether there was probable cause to believe that petitioner committed the crime giving rise to the search of his residence for the incriminating evidence thereafter discovered. In this regard, the North Dakota Supreme Court aptly noted that "it is reasonable to assume that in a violent crime such as murder there would be blood present, and that female victims would fight with the weapons available to them — their hands and fingernails. Accordingly, it would be reasonable to assume that their assailant would bear scratch marks." 187 N.W.2d at 28. Furthermore, since the investigation involved crimes of this magnitude we think it was reasonably established that there existed a justifiable nexus which gave cause to search the accused's living quarters and automobile for blood stained clothing. Probable cause does not require "a prima facie showing of criminal activity." Spinelli v. United States, supra 393 U.S. at 419, 89 S.Ct. at 590. We are dealing only with probabilities which the Supreme Court in Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949), characterized as "the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." See also McCreary v. Sigler, 406 F.2d 1264, 1268 (8 Cir. 1969), cert. denied, 395 U.S. 984, 89 S.Ct. 2149, 23 L.Ed.2d 773; United States v. Berry, 423 F.2d 142, 144 (10 Cir. 1970). In Aguilar v. Texas, supra 378 U.S. at 111, 84 S.Ct. at 1512, the Supreme Court observed:

"Thus, when a search is based upon a magistrate\'s, rather than a police officer\'s, determination of probable cause, the reviewing courts will accept evidence of a less `judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant\' . . . ." See also United States v. Ventresca, 380 U.S. 102, 106, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).

We concur with the observation of the North Dakota Supreme Court that:

"The affidavits in the present case are not burdened by elaborate specificity, and it is obvious that they were prepared in the midst and haste of a criminal investigation. However, when judged in a common-sense and realistic fashion, with any doubt being resolved in favor of upholding the search warrant, the affidavits in this case established the necessary probable cause, thereby justifying the issuance of the search warrant." State v. Iverson, 187 N.W.2d at 28.1
B. PRELIMINARY HEARING

We come now to the district court's ruling that the petitioner was denied due process by reason of his incompetency at the time of his preliminary hearing.

Following the arrest of Iverson, a magistrate's hearing was held in order to appoint counsel and to determine if Iverson desired to waive a preliminary hearing. Iverson refused to waive a preliminary hearing and the state prosecutor then moved that the magistrate hold an incompetency hearing. Responding to this motion, the magistrate directed that a local medical examination be made of the petitioner. Doctor Bohrod, a psychiatrist at the Northeast Region Mental Health and Retardation Center in Grand Forks, and Doctor Wallace, a senior psychologist at the same institution, conducted individual examination of Iverson.2 Both doctors found Iverson incompetent to understand the nature of the proceedings against him or to competently aid in his defense at that time. Nevertheless, the magistrate refused to hold the required statutory hearing and ruled that the state should proceed with the preliminary hearing. The magistrate interpreted the statute to require an incompetency hearing only in the event the preliminary hearing resulted in Iverson being bound over for trial. Petitioner's counsel made no objection and Iverson was held in the county jail until January 21, 1969, when the preliminary hearing took place. At the preliminary hearing petitioner's counsel appeared, cross-examined witnesses and raised several objections to the admission of the state's evidence. Iverson was not called upon to testify or present a defense. Nevertheless, the magistrate found probable cause and ordered petitioner held for trial. Thereafter the district court on February 14, 1969, ordered Iverson committed to the Jamestown State Hospital for psychiatric...

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