Sallie v. State of N. C.

Decision Date28 November 1978
Docket NumberNo. 75-2042,75-2042
Citation587 F.2d 636
PartiesDanny L. SALLIE, Appellant, v. STATE OF NORTH CAROLINA, C. T. Caudill, Odom Prison, Jackson, North Carolina, Appellee.
CourtU.S. Court of Appeals — Fourth Circuit

Michael S. Shelton, Richmond, Va. (Cohen, Abeloff & Staples, Richmond, Va., on brief), for appellant.

Joan H. Byers, Associate Atty. Gen., Raleigh, N. C. (Rufus L. Edmisten, Atty. Gen. of N. C., Raleigh, N. C., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, WINTER, Circuit Judge, and CHAPMAN, * District Judge.

WINTER, Circuit Judge:

Danny L. Sallie, convicted of second degree murder, attacks the validity of his state conviction on fourth, fifth and sixth amendment grounds. He urges that the warrantless search of his mobile home was unreasonable and that the resultant photographic and testimonial evidence gathered and later introduced at trial should have been excluded. He also contends that the instructions to the jury were improper under Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). Finally, he urges that he was denied effective assistance of counsel by the oversights of his appointed attorney. The district court denied Sallie's petition for habeas corpus. We affirm.

I.

On July 17, 1970, three-year-old Pamela LeGros died from the simultaneous rupture of her heart and liver. The pathologist who performed the autopsy indicated these ruptures were produced by a forceful blow to the abdomen. His examination revealed a semicircular bruise on the child's abdomen and, in addition, three lacerations on the head, three huge bitemarks and eighty-five to one hundred bruises and scars on the child's body.

Pamela lived with her mother, Dorothy LeGros, and her eleven-year-old sister, Lynda, at a trailer park in Fayetteville, North Carolina. The park manager rented lot 117 to Danny Sallie and Dorothy LeGros, who represented themselves as Mr. and Mrs. Danny LeGros. Sallie lived much of the time at the trailer, kept personal belongings there and contributed to the support of the family. He also maintained quarters at Fort Bragg, where he was stationed.

On July 17, 1970, Sallie left the mobile home around 8:00 a. m. accompanied by Mrs. LeGros. Around 11:00 a. m., he returned alone. Shortly thereafter, he sent Lynda to a store across from the trailer park for sandwich meat. This left Sallie and Pamela in the mobile home.

The next time anyone saw either Pamela or Sallie was when Sallie drove up to a gas station seeking medical assistance for Pamela. Lynda, who was apparently returning from the store, joined him there and got into the car. Sallie received no aid at the gas station or at another station, where he also stopped. Finally, he took Pamela to a hospital, but by this time she was lifeless.

Sometime between noon and 1:00 p. m., the park manager received a telephone call concerning the LeGros trailer. She walked over and found the door standing open, water running and overflowing the tub, and the television blaring. She turned off the spigot and unsuccessfully attempted to turn off the television, before closing the door and departing.

Subsequently, a policeman arrived at the trailer park after receiving information on his radio about the arrival of a dead child at the hospital. From speaking with the manager, he learned that the dead girl had a sister but that no one knew where she was. Concerned about the sister's safety, the officer insisted on inspecting the trailer, although, according to her testimony (but denied by the officer), the manager told him she had just been inside the trailer and had seen no sign of the sister. After a fruitless search, he called a photographer to take pictures of the interior of the trailer because, as he later explained, he thought photographs might be useful to the Department of Social Services.

The photographs taken that day were admitted at Sallie's trial to corroborate the policeman's testimony. They disclosed the disarray and clutter of the trailer's interior, and, more specifically, the presence of an iron standing on the ironing board. This last detail was especially significant because it flatly contradicted a key element of Sallie's own testimony; his testimony suggested that Pamela had been killed by the fall of an iron from the ironing board and indicated that he had rushed Pamela to the hospital without replacing the iron on the board. By showing the iron sitting neatly on the top of the board, the photographs conclusively impeached evidence crucial to the defense theory of Pamela's death. Defense counsel raised no objection to either the policeman's testimony or the introduction of the photographs. Sallie was convicted of second-degree murder.

II.

In appeals before the state courts, Sallie contended that the inspection of the trailer, and the photographs taken thereafter, had violated the fourth amendment. He also argued that he had been denied effective assistance of counsel by his attorney's failure to raise these fourth amendment objections. After the state courts refused relief, he petitioned for federal habeas corpus relief. The district court denied relief on the grounds that the photographs and testimony were not prejudicial and, alternatively, that Sallie lacked standing to object to the search because he had no possessory or proprietary interest in the trailer. As for the complaint that his counsel had been ineffective, the district court simply noted that the state court record demonstrated, on its face, that defense counsel had been effective and able. Sallie appealed these determinations and also contended, for the first time, that the trial court's instructions improperly allocated the burdens of proof and persuasion.

After the first panel heard argument in this case, we were greatly concerned about the merits of Sallie's claim of an unreasonable search of his mobile home. We therefore remanded the case to the district court for an evidentiary hearing in order to develop the extent of knowledge of the officer, who made the search and arranged for the taking of the photographs, prior to his entry into the trailer. The district court conducted these proceedings and certified its findings; but, in the meantime, it became necessary to reconstitute the panel because of the death of one of its original members. Before the case was reheard, the Supreme Court of the United States and we decided other cases having a significant effect on the case at bar. After requiring supplemental briefing, we heard reargument before the reconstituted panel.

III.

We speak first to Sallie's fourth amendment claim. At the outset, we note that neither of the grounds advanced by the district court to deny relief is persuasive. The assertion that the photographs and testimony were not prejudicial is belied by their impeachment value. And Sallie's standing to contest the search is established by his contributions to the rent, his regular occupation of the trailer, and his storing personal possessions there. See Creasy v. Leake, 422 F.2d 69, 70 (4 Cir. 1970); Walker v. Peppersack, 316 F.2d 119, 121 (4 Cir. 1963).

Nevertheless, we do not reach the merits of Sallie's fourth amendment claim because we think the Supreme Court's intervening decision in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), precludes habeas relief in this case. As we recently observed in Doleman v. Muncy, 579 F.2d 1258 (4 Cir. 1978), Stone holds that a state prisoner may not obtain federal habeas relief on fourth amendment grounds if the State has provided him an opportunity for the full and fair litigation of the fourth amendment claims. Sallie had an opportunity for the full and fair litigation of his fourth amendment claim. North Carolina has established a procedure for the suppression of unconstitutionally obtained evidence, N.C.Gen.Stat. §§ 15A-971 to 15A-979. In oral argument, Sallie does not assert either that he lacked this opportunity or that, if he had availed himself of it, he would not have been afforded a full and fair opportunity for litigating his fourth amendment claim. The fact of the matter is that Sallie's counsel failed to make any objection, fourth amendment or otherwise, to the introduction of the photographs or to the policeman's testimony. Having failed to use the opportunity to litigate his fourth amendment claim in state court, Sallie is foreclosed by Stone from pursuing it on federal habeas corpus.

IV.

Sallie's fifth amendment claim is raised for the first time in this appeal. Ordinarily we would decline to consider it, both because it was not raised in the district court, and, more importantly, because there had not been exhaustion of state remedies. The claim is so patently devoid of merit, however, that we think that we are justified in simplifying further proceedings by rejecting it now.

The claim arises from the trial court's charge to the jury that the element of malice necessary to a finding of second degree murder could be inferred from an act of intentional killing, unless the defendant proved that he had acted in the heat of sudden passion, in which case a verdict of manslaughter would be proper. Sallie argues that this instruction transgressed the principles of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 188, 44 L.Ed.2d 508 (1975), which held that the State must prove beyond a reasonable doubt all elements included within the definition of the crime with which the defendant is charged. The instruction was flawed, according to Sallie, because it placed on him the burden of disproving the existence of malice.

We do not think that Mullaney 's teachings concerning the allocation of proof apply to the circumstances of this case. The homicide victim here was a three-year-old child. The testimony presented at trial offered no positive basis for a finding that the defendant acted out of provocation or in the sudden heat of passion, and we think that the victim's...

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