Bellew v. Gunn

• Decision Date: 24 November 1976
• Docket Number: No. C-75-0512-CBR.,C-75-0512-CBR.
• Citation: 424 F. Supp. 31
• Court: U.S. District Court — Northern District of California
• Parties: Richard B. BELLEW, Petitioner, v. Jacob B. GUNN, Warden, Respondent.

424 F. Supp. 31

Richard B. BELLEW, Petitioner, v. Jacob B. GUNN, Warden, Respondent.

No. C-75-0512-CBR.

United States District Court, N. D. California.

November 24, 1976.

Richard B. Bellew, in pro. per.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Derald E. Granberg, Don Jacobson, Deputy Attys. Gen., San Francisco, Cal., for respondent.

MEMORANDUM OF OPINION AND ORDER

RENFREW, District Judge.

Petitioner, paroled since March 5, 1975, filed this petition for a writ of habeas corpus attacking his convictions for violation of California Penal Code § 12021 and California Vehicle Code § 10851. Petitioner raises several grounds for relief: (1) the failure of the trial court to grant his motion for severance, (2) the procurement of eyewitness identifications under inherently unfair circumstances, (3) the failure of the trial court to advise petitioner of the consequences of admitting to prior felonies, (4) an unconstitutional search of petitioner's automobile and seizure of a weapon used as the basis for the § 12021 charge, (6) prejudicial error in the scope of cross-examination, and (7) prosecutorial misconduct.

Petitioner raised each of these issues by direct appeal to the California Court of Appeal and Supreme Court. His convictions were affirmed by the Court of Appeal in an unpublished opinion filed September 6, 1974; the California Supreme Court denied his petition for hearing on December 5, 1974. Petitioner has therefore exhausted state remedies as required by 28 U.S.C. § 2254(b).

The petition herein was filed on March 14, 1975. On January 9, 1976, the Court issued an Order of Service and an Order to Show Cause to respondent with respect to each of petitioner's claims. Respondent filed a return on May 10, 1976, and petitioner filed a traverse on June 1, 1976.

Factual Background

The relevant facts preceding petitioner's conviction may be summarized as follows. On the night of May 7, 1972, Sandra and Jeff Davis noticed two men moving back and forth between two automobiles in the parking lot of their apartment complex. Ms. Davis telephoned the Fremont Police Department and, shortly after 11:30 P.M., Officer Lawrence of the Department responded to the call. Arriving at the complex in his police car, the officer noticed a red Chrysler traveling down the driveway to his right and a green Dodge to his left. The officer parked his vehicle in front of the Dodge and got out of his patrol car, flashlight in hand. The driver of the Dodge, subsequently identified as Forrest Tucker, jumped out of the car, pointing a .38 caliber revolver at the officer. A scuffle followed and Mr. Tucker was subdued with the assistance of a second police officer, Officer Asselin, who arrived at the scene. Mr. Tucker was arrested that evening.

At Officer Lawrence's request, Officer Asselin proceeded to check the Chrysler. As he approached the automobile, several bystanders informed him that the Chrysler's driver had climbed over an adjacent brick wall. The officers climbed over the wall and searched for the driver for about five minutes. Having failed to find him, they returned to the parking lot. Officer Asselin then looked into the Chrysler and removed a satchel from the back seat. He opened the satchel and placed it on the roof of the automobile.

As additional police officers arrived at the scene, an Officer Murray was detailed to check both automobiles. In checking the Dodge, among other things, he found in the glove compartment a photostat of a registration indicating that the car was registered to Bob Hiam Dodge in San Jose. He radioed for information regarding the car's license plates and removed them from the car. It was subsequently determined that the Dodge had been missing, without permission, from Bob Hiam Dodge's lot since May 6, 1972, and that the license plates had been removed without permission from a San Jose resident's car the night of May 7.

Next checking the Chrysler, Officer Murray discovered a registration in petitioner's name, a brown wallet containing a driver's license and other papers in the same name, and various tools. Opening the satchel which had previously been removed from the vehicle, he found a license plate frame marked "Bob Hiam Dodge," a ring of vehicle keys, and a Bank of America money bag.

Meanwhile, Jeff Davis informed Officer Murray that the man who had fled from the Chrysler had thrown an object over the wall before he climbed over it. At least one officer briefly searched the area which Mr. Davis pointed out but, impeded by the darkness and heavy vegetation of the area, found nothing. Officer Murray returned to the area at dawn the next morning and at that time, he found a loaded .22 caliber derringer about six inches from the wall and near the place where the Chrysler had been parked.

On the night of the incident, both Jeff and Sandra Davis stated that they were unsure whether they could identify the driver of the Chrysler. On May 12, 1972, each was separately shown six photographs and asked to indicate whether they recognized any of the individuals. Neither made a positive identification, although Ms. Davis did indicate that two of the photographs — one a picture of petitioner — resembled the driver of the Chrysler.

Petitioner was located and arrested at the home of a friend of May 23, 1972. On May 24, both Mr. and Ms. Davis attended a line-up at the Fremont Police Department. They were given blank cards, asked to sign their names, and to denote by number any individual whom they could positively identify as having been present on the night of May 7. Both turned in blank cards and left the station.

After the line-up, Detective Rager of the Fremont Police Department contacted Mr. Davis at his place of employment and asked him why he had failed to make an identification. Mr. Davis noted that he believed that he was required to make an identification only on the basis of facial structure, without reference to other physical characteristics, and was unable to identify any of the men on that basis. After Detective Rager explained that an identification on the basis of other physical characteristics was permissible, Mr. Davis positively identified Number 3, petitioner. Similarly, about an hour after she left the station, Detective Rager went to see Ms. Davis at home. He told her that he was afraid that he had intimidated her by overly emphasizing that she must be positive about her identification. She responded that she wished to identify Number 3, petitioner.

On June 30, 1976, the District Attorney of Alameda County filed an information charging him with taking and driving the green Dodge without the consent of the owner, in violation of § 10851 of the California Vehicle Code, and with having been an ex-felon in possession of a gun on or about May 7, 1972, in violation of § 12021 of the California Penal Code. A preliminary hearing was held on June 15-16, 1972, and petitioner was ordered bound over on each and every count. Over petitioner's objection, the state's motion to consolidate petitioner's trial with that of Forrest Tucker was granted on July 19, 1972.¹

Petitioner made several pretrial motions. His motion to dismiss the indictment was denied on August 4, 1972. His motion to suppress certain evidence was denied on August 17, 1972. Finally, his motion to sever his trial from that of Tucker was argued and denied immediately prior to trial on September 28, 1972.

Petitioner was re-arraigned as to and admitted three prior felony convictions, an element of the § 12021 charge, on September 28, 1972. The two defendants then had a trial by jury. Both moved unsuccessfully for a directed verdict at the close of the state's case on October 6, 1972. On October 12, 1972, the jury returned verdicts of guilty against both defendants as to each of the offenses charged. The court denied both defendants' motions for a new trial on November 3, 1972.

Denial of Severance

Petitioner contends that the trial judge's failure to grant his motion for severance, requested in part due to the possibility that his co-defendant might in a separate trial offer exculpatory testimony which he would not offer in a joint trial,² denied him due process. He relies primarily upon Byrd v. Wainwright, 428 F.2d 1017 (5 Cir. 1970), in which the Court of Appeals for the Fifth Circuit enumerated five factors relevant to determining whether a severance motion was improperly denied by a state trial judge: (1) the extent to which the movant makes known his good faith desire to have the co-defendant testify, (2) the nature and significance of the projected testimony, as demonstrated by the movant to the court, (3) the likelihood that the co-defendant would testify if severance were granted, as shown by the movant to the court, (4) the timeliness of the motion and the demands of judicial economy, and (5) the likelihood that the co-defendant might plead guilty at or immediately before trial, thus prejudicing the movant. Applying the principles of Byrd v. Wainwright, as they have been accepted and interpreted by the Court of Appeals for the Ninth Circuit, the Court does not find that the trial judge abused his discretion in denying petitioner's severance motion.

Petitioner through his counsel did indicate to the trial judge his interest in his co-defendant's testimony. He not only offered the need for such testimony as an argument supporting his motion for severance, but also called his co-defendant to the stand during their joint trial. However, despite his apparent interest in the testimony, petitioner neither apprised the trial judge of the nature of the co-defendant's projected testimony³ nor made any affirmative showing that Tucker would actually testify at a severed trial.⁴ The Court of Appeals for this Circuit has repeatedly held that "when there has been insufficient showing that the codefendant would actually testify at a severed trial, the district...