O'Berry v. Wainwright

• Decision Date: 11 February 1977
• Docket Number: No. 75-2568,75-2568
• Parties: Charles Wesley O'BERRY, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1204

546 F.2d 1204

Charles Wesley O'BERRY, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Director, Division of Corrections,

Respondent-Appellant.

No. 75-2568.

United States Court of Appeals, Fifth Circuit.

Feb. 11, 1977.

Rehearing and Rehearing En Banc Denied March 10, 1977.

Robert L. Shevin, Atty. Gen., Stephen R. Koons, Harry M. Hipler, Asst. Attys. Gen., West Palm Beach, Fla., for respondent-appellant.

Daniel S. Pearson (Court-appointed), Miami, Fla., for petitioner-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before BROWN, Chief Judge, and JONES and GOLDBERG, Circuit Judges.

JOHN R. BROWN, Chief Judge:

The State of Florida appeals from the grant of a writ of habeas corpus to Charles Wesley O'Berry (Petitioner). The writ was granted by the District Court for the Southern District of Florida on the grounds that evidence obtained as a result of an unconstitutional search of Petitioner's automobile was introduced at Petitioner's trial. Since we find that Petitioner received a full and fair consideration of his Fourth Amendment claims in the Florida state courts, we are precluded by the doctrine announced in Stone v. Powell, 1976, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067, from considering Petitioner's Fourth Amendment claims in a federal habeas proceeding. Accordingly, we reverse the District Court.

On the night of May 13, 1969, at approximately 9:00 p. m., Petitioner was arrested at his residence and taken to the Ft. Lauderdale Police Department, where he was charged with two counts of rape of the prosecutrix, a 17 year old girl. At the time of Petitioner's arrest, a 1961 white Falcon automobile was sitting in the driveway. ¹ The arresting officer did not check the car at the time of the arrest, ² but he "secured" it and had it towed to a police storage area. ³

Sometime between 10:00 a. m. and 11:00 a. m. of the following day, May 14, 1969, Detective Tanner, the fingerprint technician, processed and inspected this car at the police storage area. The car was closed at this time, it was secured in a police storage area, and no search warrant had been issued to allow inspection of the car. This search revealed a milk carton container, three pig knuckle bones, three pennies behind the driver's seat, and a whisk broom. The detective also found a number of latent prints and smudges in the front seat area, none of which were those of Petitioner or of the prosecutrix. Finally, the detective determined that the backseat area had been "wiped down clean" recently.

The major portion of the State's evidence in Petitioner's rape trial was the testimony of the prosecutrix. She testified that the Petitioner forced her into the backseat of his car at gunpoint and drove her to a deserted area, where he forced her out of the car and raped her. Afterwards, Petitioner forced her into the backseat again, drove to another area, and again raped prosecutrix in the backseat. Prosecutrix testified that he then dragged her out of the car, choked her, and left her for dead.

In corroboration of the fact of the rape (which fact was uncontested at trial), the State offered proof that (i) prosecutrix reported the rape shortly after it occurred; (ii) prosecutrix had, according to the medical examiner, had intercourse within the time fixed and had bruising near the neck; and (iii) her clothes were in a dirty and disheveled condition. In corroboration of the fact it was Petitioner who had committed the rape, the State offered (i) prosecutrix's testimony identifying certain features of Petitioner's automobile which corresponded to photographs and other testimony concerning the interior of Petitioner's Petitioner took the stand and testified that he had dated the prosecutrix before the night in question and that she had been in his car on prior occasions. ⁵ Petitioner also used an alibi defense and testified that he was not with the prosecutrix on the night in question. Thus, the testimony of Detective Tanner that the backseat of Petitioner's automobile had recently been wiped clean was the only evidence which corroborated prosecutrix's testimony that Petitioner was the man who had raped her on the night in question.

                automobile; and (ii) Detective Tanner's testimony that the Petitioner's automobile, searched about 36 hours after the rape (about 14 hours after Petitioner's arrest), had recently been wiped clean of fingerprints.  4 Petitioner's court-appointed counsel did not object or file a motion to suppress Detective Tanner's testimony.  Counsel also engaged in extensive cross-examination of the witness
                

The jury returned a verdict of guilty on both counts and the state trial judge sentenced Petitioner to a total of 150 years on both counts.

Petitioner's State Appeals

Although Petitioner did not appeal his conviction, ⁶ he filed three separate Motions to Vacate Judgment and Sentence under Florida Criminal Procedure Rule 1.850, ⁷ which is a Florida counterpart of the federal § 2255 post-conviction remedy. In two of the three Petitioner's Rule 1.850 motions, he After the denial of the third of Petitioner's Rule 1.850 motions by the Trial Judge who had sentenced him, Petitioner filed the first of his state habeas petitions in the Fourth District Court of Appeals of Florida. In his petition (as in some of the previous Rule 1.850 motions filed with the Trial Court), Petitioner alleged not only that his Fourth Amendment rights had been violated, but also that a variety of other rights had been violated, including his right to take a direct appeal. ⁸ After consideration of Petitioner's contentions, the state appellate court ordered a remand for an evidentiary hearing before a different Trial Judge, the hearing to resolve the question of "Whether or not Petitioner's right to appeal was frustrated by state action."

contended, among others, that his Constitutional rights had been violated when evidence of the allegedly illegal search and seizure of his automobile had been allowed into evidence at his trial. Each of the three motions were filed before the same State Court Trial Judge who had presided at Petitioner's rape trial. Each motion was denied without an evidentiary hearing, the Judge asserting in each case that "the Court (has) reviewed and found no substantial matter or question which would require further review * * *."

In the course of this evidentiary hearing, at which Petitioner was represented by new court-appointed counsel, most of the evidence centered on whether or not Petitioner's first court-appointed counsel had frustrated Petitioner's right to take a direct appeal and, if so, whether that constituted state action. Petitioner was allowed to list (but not argue) the contentions he had previously and unsuccessfully raised in his prior Rule 1.850 motions. In this evidentiary hearing, the Judge entered an order finding that Petitioner's right to appeal had been frustrated by state action and that he was therefore entitled to full appellate review. After full consideration of the Trial Judge's findings and order, the State District Court of Appeals granted Petitioner the opportunity "in this habeas corpus proceeding for full appellate review by this Court of the judgment and sentence of the (Trial Court), on authority of Hollingshead v. Wainwright, Fla.1967, 194 So.2d 577 * * *."

For the first time, Petitioner was given the chance in his brief and in oral argument before the District Court of Appeals to argue fully that his Fourth Amendment rights had been violated by the warrantless search and seizure of Petitioner's automobile and that the introduction of evidence from such search at his trial was plain error. ⁹

After considering all of the issues raised by Petitioner in his brief and in oral argument "Upon careful review of the record, briefs of counsel and argument in this cause we are of the opinion that no reversible error has been demonstrated and the judgment and conviction should be affirmed. Although this matter has proceeded for full appellate review by way of habeas corpus under the authority of Hollingshead v. Wainwright, Fla.1967, 194 So.2d 577, we are not convinced that the record demonstrates that petitioner's right to appeal was frustrated by state action. Nonetheless, each of the matters assigned as error were analyzed and considered and found to be without merit. Of particular significance is the fact that none of the critical contentions of the petitioner were brought before the trial court by a proper and timely objection; consequently, they have not been preserved for appellate review. State v. Barber, Fla., 301 So.2d 7, opinion filed June 12, 1974; Simpson v. State, Fla.App.1968, 211 So.2d 862; New v. State, Fla.App.1968, 211 So.2d 35; Dodd v. State, Fla.App.1970, 232 So.2d 235; State v. Jones, Fla.1967, 204 So.2d 515; 2 Fla.Jur., Appeals, sec. 68; Rule 3.190(h), FRCrP. Except where fundamental error is involved, and we find none to exist here) it is essential that a defendant properly and timely object to the introduction of evidence in order to preserve his objection for appellate review. Simpson v. State, supra.

the court denied his petition in O'Berry v. Wainwright, Fla.App., 1974, 300 So.2d 740:

Accordingly, finding no reversible error, the judgment of conviction and sentence is affirmed."

Having exhausted his state remedies, Petitioner filed this Federal Habeas Corpus petition in the District Court for the Southern District of Florida, this time alleging only that the warrantless search and seizure violated his Fourth Amendment rights and that he had been denied his Sixth Amendment right to effective assistance of counsel. The District Court found that Petitioner's Sixth Amendment right to effective assistance of counsel had not been violated, but that his Fourth Amendment right to be free from warrantless searches and seizures had been violated, basing its opinion on the latter point primarily on Coolidge v. New Hampshire, 197...