Sneed v. Smith

Citation670 F.2d 1348
Decision Date11 February 1982
Docket NumberNo. 81-6181,81-6181
PartiesRobert M. SNEED, a/k/a Larry K. Sneed, Appellant, v. J. Richard SMITH, Superintendent, McDowell County Prison Unit 4650; Rufus L. Edmisten, Attorney General of the State of North Carolina; Amos Reed, Secretary, Department of Corrections, State of North Carolina, Appellees.
CourtU.S. Court of Appeals — Fourth Circuit

Barry Nakell, Chapel Hill, N.C. (Karen Davidson, Elizabeth Lackey, School of Law, University of North Carolina, Chapel Hill, N.C., on brief), for appellant.

Richard N. League, Sp. Deputy Atty. Gen., Raleigh, N.C. (Rufus L. Edmisten, Atty. Gen. of North Carolina, Raleigh, N.C., on brief), for appellees.

Before PHILLIPS, MURNAGHAN and ERVIN, Circuit Judges.

PER CURIAM:

Robert M. Sneed appeals from the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254 in which he challenged his North Carolina conviction of and consecutive sentencing to a total term of twenty years for one count of forgery and one count of uttering a single check in the amount of $188.90. Finding the evidence constitutionally insufficient to convict Sneed of forgery, we reverse the district court's denial of the petition in respect of that conviction. Concluding that the district court erred in rejecting Sneed's claim of ineffective assistance of counsel without conducting an evidentiary hearing, we remand for reconsideration of that claim. In all other respects, we affirm the district court's denial of habeas relief.

I

In his habeas petition Sneed asserted twenty-one grounds for relief, but only four have been raised in this appeal: (1) that the evidence was insufficient to support his conviction of forgery; (2) that he was denied the effective assistance of counsel; (3) that the warrantless search of Sneed's motel suite violated the fourth amendment; and (4) that his consecutive sentencing to the maximum term of ten years' imprisonment for both forgery and uttering was so disproportionate to the offense that it constituted cruel and unusual punishment.

In support of his first claim, Sneed introduced the transcript of his state trial. The prosecution presented four witnesses at that trial. The first, Chris Birdwell, testified that three checkbooks had been stolen in a burglary of his company in Kingsport, Tennessee. He identified as the stolen checkbooks three that had been seized in a search of a motel room occupied by Sneed. Additionally, he identified a check made out to Evelyn C. Martin for $188.90 and signed with his name as a check extracted from one of the checkbooks. He testified that he did not make out that check or sign his name to it.

The second witness proffered by the State was James Harrington, the manager of an Ingle's market in Asheville. He testified that he cashed the Birdwell check made to the order of Evelyn C. Martin at the request of a middle-aged couple. He could not, however, identify Sneed as the man in that couple.

The State's third witness was Thelma K. Bradley, Sneed's co-defendant, who actually passed the forged check. She testified that she had been hospitalized for chronic depression and severe nervousness and that when under pressure she was "absent-minded about some things." She stated that she and Sneed had come to Asheville in early March 1977 and stayed in a motel with another couple with other people coming and going all the time. Sometime during their stay in Asheville, Sneed took her to a grocery store, gave her a Birdwell check made to the order of Evelyn C. Martin and a temporary driver's license in that name, and told her to cash the check. Accompanied by Sneed and using the driver's license as identification, Bradley cashed the check, and Sneed got the money. She testified that her memory of this incident was a bit hazy because she was scared and had been drinking.

Fred W. Hensley, one of the arresting officers, was the concluding prosecution witness. He testified that on March 29, three weeks after the check had been passed, he had a suite of rooms at the Rodeway Inn near Asheville staked out as a result of information he had received and surveillance he had conducted. Hensley observed Gene Black, a man he knew to be involved in gambling, pass the vehicle in which he was sitting and enter the suite of rooms under surveillance. Fearing that they had been spotted by Black, Hensley and two other officers followed Black into the suite of rooms, where they found Sneed, Bradley, Black and four others. Sneed was standing in the center, living room, where two typewriters were found. In one of the bedrooms, Hensley found a suitcase with a bag inside containing the Birdwell checkbooks and a checkwriter.

Sneed's attorney presented no evidence on his behalf. This failure to present evidence was the primary basis for Sneed's claim that he was denied the effective assistance of counsel. He alleged in his habeas corpus petition that he asked to be allowed to testify in his own defense. His attorney, however, allegedly became angry and told Sneed that the State had failed to prove its case but that if he took the stand he would cause the case to be lost. Sneed stated that he gave his "reluctant acquiescence" to this decision.

Sneed further contended, however, that his attorney failed to call seven witnesses who would have testified in his defense and of whom his attorney had knowledge. This allegation was supported by affidavits from six of the seven witnesses. The seventh witness had died prior to the time that Sneed filed his habeas action, but Sneed described what his testimony allegedly would have been. The story to be distilled from the affidavits and Sneed's assertions was that Sneed could not have been involved in the uttering with which he was charged because his car was being worked on at the time he was supposed to have driven to the Ingle's store with Bradley; that Bradley was under the influence of drugs and alcohol virtually throughout her stay in Asheville; and that Bradley actually acted in concert with a couple named Bishop in uttering the check at Ingle's.

All the affiants swore that they told Sneed's attorney of the testimony that they might provide. Sneed's attorney, however, did not attempt to subpoena any of these witnesses until he had a subpoena issued the morning of the trial in order to secure the presence of one of the witnesses at a suppression hearing. The trial judge refused to delay the hearing until the witness could be brought into court, and Sneed's attorney therefore offered no evidence at the suppression hearing.

In support of his fourth amendment claim, Sneed presented the transcript of the hearing on his pretrial motion to suppress the evidence obtained in the warrantless search of the suite of rooms in which Sneed was arrested. The sole witness at this hearing was Officer Hensley, who testified that he and other officers were canvassing motels in the Asheville area looking for a group of check forgers who had checked out of their rooms at the Quality Inn Motel just before Hensley attempted to serve a warrant to search those rooms. As the officers pulled into the parking lot of the Rodeway Inn in an unmarked car, they saw also pulling into the lot a car they recognized from their surveillance at the Quality Inn. The car was driven by a gambler known to Hensley, and Hensley testified that he "felt" he had been recognized by the gambler as the latter walked to Room 152.

Fearing that the occupants of the room might flee, as they had done at the Quality Inn, or destroy evidence, Hensley and two other officers went to the room, where Hensley opened the door and went in. Inside the suite of rooms, Hensley observed seven people, including Sneed, and there found the suitcase containing the three stolen checkbooks and a checkwriter. On the basis of this testimony, the state trial judge upheld the warrantless search and seizure on the ground "that the information available to Officer Hensley and his fellow officers overwhelmingly indicated the necessity for immediate action on their part to prevent the escape of felons and to obtain the fruits of felony crimes."

The district court considered each of Sneed's claims in his habeas petition on a motion for summary judgment and disposed of them in a lengthy memorandum decision.

With respect to the claims raised in this appeal, the district court first found that there was substantial evidence of all the elements of the crime of forgery.

The court then held that, even accepting as true all Sneed's allegations about his request to testify and the testimony that other defense witnesses might have given, there was insufficient evidence to support a finding that Sneed's attorney had been ineffective. Pointing to the unsavory reputations of several of the witnesses and the association of most of them with Sneed's arrest, the court stated that it was "improbable that petitioner's counsel would have felt comfortable using them." The court therefore concluded that it was entirely appropriate for Sneed's counsel to rely on the weaknesses of the State's case and to attack the dubious credibility of Bradley.

Turning to Sneed's fourth amendment claim, the district court found that Sneed could not overcome the bar of Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1975) to collateral review of state court dispositions of search and seizure claims because he had received a full and fair evidentiary hearing in the state court. Moreover, even were collateral review available, the district court found itself in agreement with the state trial judge's assessment that a warrantless search of Sneed's motel suite was justified by the exigency stemming from the reasonable probability that the suspects would flee or destroy the evidence if, as Officer Hensley feared, he had been spotted by one of the people entering the motel suite.

Finally, the district court determined that Sneed's...

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