Austin v. Wyrick, 75-1886

• Decision Date: 10 June 1976
• Docket Number: No. 75-1886,75-1886
• Citation: 535 F.2d 443
• Parties: Wesley AUSTIN, Appellee, v. Donald WYRICK, Warden, Missouri State Penitentiary, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 443

535 F.2d 443

Wesley AUSTIN, Appellee, v. Donald WYRICK, Warden, Missouri State Penitentiary, Appellant.

No. 75-1886.

United States Court of Appeals,

Eighth Circuit.

Submitted April 16, 1976.

Decided May 6, 1976.

Rehearing and Rehearing En Banc Denied June 10, 1976.

Neil MacFarlane, Asst. Atty. Gen., Jefferson City, Mo., for appellant; John C. Danforth, Atty. Gen., Jefferson City, and Nels C. Moss, Jr., Asst. Circuit Atty., St. Louis, Mo., on brief.

Benjamin Roth, St. Louis, for appellee.

Before GIBSON, Chief Judge, and ROSS and HENLEY, Circuit Judges.

PER CURIAM.

This state habeas corpus case has heretofore been before this court in Austin v. Swenson, 522 F.2d 168 (8th Cir. 1975). In that case, before Judges Lay, Stephenson and Webster, this court reversed the judgment of dismissal theretofore entered by the district court ¹ and ordered further proceedings consistent with the views expressed in that opinion.

In our prior opinion Judge Webster summarized the facts which had been established in the evidentiary hearing before Judge Wangelin as follows Austin was tried and convicted in the Circuit Court of St. Louis on a charge of assault with intent to kill. He was sentenced to a term of 25 years imprisonment. Upon appeal, his conviction was affirmed by the Supreme Court of Missouri. State v. Austin, 496 S.W.2d 799 (Mo.), cert. denied, 414 U.S. 1044, 94 S.Ct. 549, 38 L.Ed.2d 336 (1973). The facts at trial and the issues on appeal centered upon the identification of the defendant by the victim, a police officer, who was shot in the head by a passenger at the rear of an automobile the officer was investigating. At trial, the defendant attempted to obtain access to police reports by means of a subpoena. The trial judge refused to permit the defendant to examine the reports. A challenge to that ruling on appeal was rejected by the Supreme Court. State v. Austin, supra, 496 S.W.2d at 804-05. The same contention was asserted in the District Court in petitioner's habeas corpus petition.

The District Court ordered an evidentiary hearing. At the hearing, evidence was introduced that certain police reports contained undisclosed reports of a statement by one Leroy Harvey that he was in the company of one Vernell Thomas and one Perry Pitchford when one of them shot the police officer. The presence of such statement, along with other material in the report casting doubt upon the identification of the defendant by the victim, raised significant Brady issues which are ripe for determination. (Footnotes omitted.)

Id., 522 F.2d at 169.

After deciding that Austin had exhausted his state remedies the panel ordered the district court to resolve Austin's constitutional claims upon the record before it, including the evidentiary hearing it had already conducted.

Upon remand the federal magistrate reviewed the evidence and the law relating thereto and made a report and recommendations to the district judge which the trial court relied upon in entering judgment for the petitioner granting the writ of habeas corpus. Judge Wangelin remanded the case to the Circuit Court of the City of St. Louis for retrial within 120 days. This appeal, by the state of Missouri, followed.

On this appeal the state of Missouri makes the following contentions:

1. That Austin was not deprived of his right to due process of the law as claimed in his petition for habeas corpus relief and in the evidentiary hearing in the district court below because of the manner in which he was tried and convicted.

2. That Austin was not deprived of his right to due process of the law because he was denied access to the police report.

In his report and recommendations to the district judge the magistrate dealt with these issues and although we do not adopt his findings and statements of the law as our own, we do subscribe to the basic elements of his report.

In this case it is clear that the victim at one time indicated that "the eyes of the subject * * * reminded me of a man I arrested by the name of Vernell Thomas." At another time he indicated that the driver of the car in which the assailant escaped might have been Janie Griffin who often associated with Leslie Austin, petitioner's twin brother. When the police attempted to locate Leslie Austin to permit the victim to identify him, they found Leslie to be in the penitentiary but they did locate his nonidentical twin, the petitioner, and twice brought him before the victim to be...