Webb v. Hutto, Civ. A. No. 81-0396-R.

• Decision Date: 08 December 1982
• Docket Number: Civ. A. No. 81-0396-R.
• Court: U.S. District Court — Western District of Virginia
• Parties: David Montgomery WEBB, Petitioner, v. Terrell Don HUTTO, Respondent.

564 F. Supp. 405

David Montgomery WEBB, Petitioner, v. Terrell Don HUTTO, Respondent.

Civ. A. No. 81-0396-R.

United States District Court, W.D. Virginia, at Roanoke.

December 8, 1982.

Harry F. Bosen, Jr., Salem, Va., for petitioner.

Richard B. Smith, Asst. Atty. Gen., Richmond, Va., for respondent.

MEMORANDUM OPINION

TURK, Chief Judge.

David Montgomery Webb filed this petition for a writ of habeas corpus challenging the validity of the judgment of the Circuit Court for the City of Roanoke entered July 24, 1980, in which he was found guilty of Possession with Intent to Distribute a Controlled Substance and Possession of a Schedule II Controlled Substance. The court sentenced petitioner under those convictions, suspending one sentence and partially suspending the second sentence so that petitioner must serve a total of six years.

Petitioner now challenges the constitutionality of his confinement. Specifically, petitioner contends that the trial court granted the prosecution a continuance during the presentation of the state's evidence solely for the purpose of seeking out additional evidence against the accused. Petitioner asserts that the granting of the continuance violated petitioner's right to due process of law under the Fourteenth Amendment, right to a speedy trial under the Sixth Amendment, and right against double jeopardy.

The Commonwealth responded to the petition for a writ of habeas corpus with a Motion to Dismiss. Briefs were submitted from both the petitioner and the respondents with regard to the Motion. By Order and Memorandum Opinion entered May 20, 1982, this Court granted the respondent's Motion to Dismiss. However, upon motion of petitioner to reconsider, the Order of May 20, 1982, was vacated. The matter was set for an evidentiary hearing so that the record could be further developed. That hearing having been held, the petition for a writ of habeas corpus is again before the Court.

I. STATEMENT OF FACTS

During the night of October 30, 1979, the City of Salem police obtained a warrant and searched the residence located at 716 North Mill Road, Salem, for marijuana as the police had probable cause to believe that the occupants had possession of marijuana with intent to distribute. When the police knocked on the door, petitioner answered almost immediately.¹ The police showed petitioner the warrant, entered the premises, and proceeded directly to a bedroom in the back of the house where they found two individuals, Nancy W. Thompson and Virgil D. Spence. Spence appeared to be cutting powder over scales; Thompson stood nearby with scissors. Trial Transcript, at 10. The police advised them they were under arrest and escorted them to the living room where petitioner had been waiting.

The police subsequently continued their search of the premises. Among those items found were scales, plastic baggies containing a powder substance², a cocaine set and mirror, marijuana, a ledger book, in excess of $6,560 in cash, a bill from International Harvester in the name of petitioner with the address being searched imprinted upon it, and assorted other drug paraphernalia. Based upon the search and seizure of the items, petitioner was indicted by the Grand Jury on May 16, 1980. Thompson and Spence were similarly indicted as co-defendants.³

The first trial scheduled among the three proceeded against petitioner and was set for July 17, 1980. Prior to trial, the Commonwealth's Attorney, by his own admission at trial, made only limited efforts to obtain the testimony of the codefendants against petitioner. Trial Transcript, at 45. This is further reflected in testimony by counsel for Spence who did not recall the Commonwealth's Attorney being the "aggressor" as far as communications between the two were concerned. Hearing, at 11. Rather, counsel for Spence believed that he had contacted the Commonwealth's Attorney on one occasion regarding a plea bargain for his client but that the Commonwealth's Attorney did not seem interested. Hearing, at 11. Accordingly, any contact between the Commonwealth and the defendants was minimal at best.

Petitioner's trial commenced July 17, 1980. The Clerk asked the Commonwealth and the defendant whether they were ready to proceed. Both answered in the affirmative. Trial Transcript, at 2. The Court arraigned the defendant at that time during which he plead not guilty to both counts. The defendant further agreed that both indictments would be tried at the same time. The defendant then waived his right to a jury trial and the Commonwealth put on its evidence.

The Commonwealth first called the detective who had searched the premises on October 30, 1979, and found the drugs. Testimony elicited from the detective on direct examination recited the circumstances surrounding the search and seizure. The cross examination of the witness by counsel for the accused effectively implied that the accused was not involved with the drugs found in the house. On cross examination, the witness testified that the accused did not try to run and in fact invited the police into the house, Trial Transcript, at 27, that the accused answered the door immediately although it was apparent that individuals in the back room where the drugs were found probably would not have heard the knock on the door, id., at 30, that no drugs were found on the dresser with the accused's clothes, id., at 33, that many of the items seized were situated near female apparel or cosmetics, id., at 35, that the ledger book and the cash found were located next to a bank account identification card belonging to Thompson, id., at 36, and that the search warrant and accompanying affidavit executed by the police identified Thompson only as the seller of drugs, id., at 40.

Immediately upon the completion of the testimony of this witness, the Commonwealth's Attorney moved for a continuance so that he could obtain the testimony of the co-defendants against the accused:

... In the preparation of this case, the Commonwealth has not attempted, although there are two other co-defendants, has not attempted to enter into any sort of plea agreement wherein a co-defendant whether that co-defendant be Mr. Webb or Miss Thompson or Mr. Spence would testify against any of the other two co-defendants. We have approached counsel ... co-counsel about whether or not they felt it would be in their client's best interest to testify voluntarily for the Commonwealth. And in preparing for trial yesterday I touched base once again the office of Mr. Spence's attorney, that being Mr. Charles Phillips. Mr. Phillips being out of town, Mr. Doherty received the message and being unaware of this particular case attempted to contact Mr. Spence as to whether or not he perhaps might wish to testify in this case ... We're asking a continuance, so to speak, or a recess until Mr. Phillips who is Mr. Spence's attorney, who is presently on vacation would return to town on Monday, so that he might properly advise his client whether or not it would be in his best interest to voluntarily testify... I would only assume that Mr. Spence would, if he desired to testify as to the truth, from what the Commonwealth knows of the case the truth would be have tremendous impact on this particular case. And we respectfully ask the Court to grant the Court ... grant the Commonwealth that recess so that we might determine whether or not Mr. Spence does in fact wish to testify as to the truth of the facts before the Court today.

Trial Transcript, 45-46.⁴

Based solely upon the representations of the Commonwealth's Attorney, the Court understood from the statement that the witness would testify in the proceeding and the "only reason for the delay was to verify that to see that Mr. Phillips doesn't have some other plans for his client other than to..." Trial Transcript, at 46. So that the record would be clear, the court requested that the absent attorney's partner relate to the court what plans the attorney had for the co-defendant. Over the vehement objections of the accused's counsel, the Court granted the motion for the continuance:

BY THE COURT: Well, in the interest of justice as you indicated I don't know whether this person would be more favorable to the Commonwealth or more favorable to the defendant, but he can shed some light on the truth of it. Under the circumstances, the Court will recess this case and continue it over and so ... to 2 o'clock next Tuesday, July 22...

Id., at 50.

On July 22, 1980, the Court reconvened and the Commonwealth again presented its case against the petitioner. In addition to the policemen who executed the search warrant, the Commonwealth presented as witnesses the two codefendants of the accused.⁵ Based on the evidence presented after the continuance, the Court found the petitioner guilty of the charges.

II. GROUNDS FOR WRIT OF HABEAS CORPUS

Petitioner now challenges the validity of his conviction by focusing on the continuance granted by the Court which delayed the trial thereby allowing the Commonwealth to obtain the two co-defendants as witnesses. Petitioner contends that the granting of the continuance violated his rights to due process, constituted double jeopardy in violation of the Fifth Amendment, and denied him his right to a speedy trial. For the reasons set forth below, the Court is of the opinion that the double jeopardy claim merits relief.

A. DOUBLE JEOPARDY

The Fifth Amendment provides, in pertinent part, that "Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb."⁶ Although originally construed to apply to only those prosecutions commenced after a first verdict had been rendered, the Double Jeopardy Clause later evolved to include subsequent prosecutions where the first did not culminate in a conviction or an acquittal. See United States v. Perez, 22 U.S. (9 Wheat) 579, 6 L.Ed. 165 (1824). Currently, the prohibition against double jeopardy is seen to protect three interests...