Bonaparte v. Smith, Civ. A. No. 2724.

• Decision Date: 09 February 1973
• Docket Number: Civ. A. No. 2724.
• Citation: 362 F. Supp. 1315
• Parties: Joseph BONAPARTE, Petitioner, v. S. Lamont SMITH, Warden, Georgia State Prison, Reidsville, Georgia, Respondent.
• Court: U.S. District Court — Southern District of Georgia

362 F. Supp. 1315

Joseph BONAPARTE, Petitioner, v. S. Lamont SMITH, Warden, Georgia State Prison, Reidsville, Georgia, Respondent.

Civ. A. No. 2724.

United States District Court, S. D. Georgia, Savannah Division.

February 9, 1973.

COPYRIGHT MATERIAL OMITTED

Eugene H. Gadsden, Savannah, Ga., for petitioner.

David L. G. King, Jr., Asst. Atty. Gen., Atlanta, Ga., for respondent.

ORDER

LAWRENCE, Chief Judge.

Joseph Bonaparte was convicted by a jury in the Superior Court of Chatham County, Georgia, in January, 1967, of the crimes of rape and robbery. He appealed to the Supreme Court of Georgia contending that the circumstantial evidence was insufficient to support such convictions. The Supreme Court affirmed the rulings below. See Bonaparte v. State, 223 Ga. 623, 157 S.E.2d 271; 223 Ga. 648, 157 S.E.2d 272.

In 1969 Bonaparte filed a habeas corpus petition in Tattnall County Superior Court in which he contended that (1) he was illegally arrested without probable cause and without a warrant; (2) an illegal search (of his person) was conducted and an illegal seizure of his wearing apparel was made; (3) he was not given the Miranda warnings; (4) he was denied the right to have his attorney present while being interrogated by the police; (5) he was forced to appear in a police lineup and to be fingerprinted in contravention of his right against self-incrimination; (6) he was denied effective assistance of counsel because his retained attorney did not call certain alibi witnesses; (7) he did not have a fair trial; (8) the evidence submitted was circumstantial and did not support the conviction, and (9) he was indicted by an illegal grand jury and tried by an illegal petit jury in that blacks were systematically excluded from such juries in Chatham County, Georgia.

Judge Caswell denied the petition. Bonaparte failed to appeal to the Supreme Court of Georgia.

In October, 1970, he filed a § 2254 petition in this Court raising the identical issues heard by the Superior Court of Tattnall County. The petition was dismissed by me on the ground that there was deliberate bypass by knowing and intentional waiver of an appeal to the Supreme Court of Georgia. This ruling was reversed by the Fifth Circuit. This Court was directed to hold an evidentiary hearing so as to afford Bonaparte an opportunity to discharge his burden of showing that his failure to appeal was not a deliberate bypass of state remedies. See Bonaparte v. Smith, 5 Cir., 448 F.2d 385. Such an evidentiary hearing was held. I found that there was no deliberate bypass.

On February 18, 1972, an evidentiary hearing on the § 2254 motion was held. By consent of the parties evidence was confined to the claim of systematic exclusion of blacks from juries in Chatham County.¹ No evidence was heard before the Superior Court of Tattnall County in that connection.

The respondent submitted complete transcripts of both the trial and the state habeas corpus proceeding. As stated, Judge Caswell denied all of the grounds of the petition of the writ of habeas corpus. He treated the issue as to the illegally constituted juries as having been abandoned by Bonaparte. Although the Superior Court of Tattnall County dealt with each of the other grounds, I will discuss the various contentions in the order in which they appear in the § 2254 proceeding in this Court.

1. Petitioner contends that the arrest was illegal because made without a warrant and that there was no probable cause therefor. The records show that after the alleged crimes were committed neighbors reported same to the police. The latter were able to follow the apparent footprints of the assailant from the scene of the crime to a point under a house. When the police arrived, he came out from under the house and ran. He was chased for eight blocks before the pursuing officer lost sight of him. Less than thirty minutes later Bonaparte was picked up a few blocks away from that point by another policeman who heard a description broadcast over the police radio. He was identified as the same man the officer recognized when he came out from under the house. Under these circumstances, there was clearly probable cause for the arrest and no warrant was necessary. United States v. Skinner, 412 F.2d 98 (8th Cir.).

2. Petitioner claims that at the time of his arrest there was illegal search of his person in that the police unlawfully took his shoes for a comparison with the impressions found under the vacant house. The claim that the search and seizure was illegal is without merit. The search was incidental to a lawful arrest. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The shoes were in plain view and their seizure was incidental to the arrest. See Davis v. United States, 409 F.2d 1095 (5th Cir.). Evidence of a non-communicative nature may be taken from defendant without violating any Fifth Amendment right against self-incrimination. Cassady v. United States, 410 F.2d 379 (5th Cir.).

3-4. Bonaparte claims that the police failed to advise him of his Miranda rights. The failure to inform a defendant of such rights does not in and of itself require the granting of habeas corpus without some showing of prejudice. Petitioner has not shown that he was prejudiced by the lack of such warnings. No confession was given or was used at the trial. It is not contended that exculpatory statements were elicited in any interrogation, if indeed he was questioned out of the presence of counsel. See Gregoire v. Henderson, D. C., 302 F.Supp. 1402.

5. Neither the lineup itself nor anything required therein violated petitioner's Fifth Amendment privilege against self-incrimination. Merely exhibiting one's self for observation by witnesses involves no compulsion to give evidence of a testimonial nature. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The privilege protects an accused only from being compelled to testify against himself or otherwise provide the prosecution with evidence of testimonial nature. The Fifth Amendment "offers no protection against compulsion to submit to fingerprinting, photographing or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture." Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908 (1966); Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910). Petitioner has made no showing that the identification procedure was so suggestive as to give rise to substantial likelihood of irreparable mis-identification. His appearance in a police lineup and the taking of his fingerprints was evidence of a non-communicative nature and such may be obtained without violating his rights against self-incrimination. Cassady v. United States, 410 F.2d 379 (5 Cir.); Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).

6. Petitioner retained the legal services of Messrs. Limerick Odom and James F. Becton. He now claims that he received the ineffective assistance of counsel. Relief from a conviction because of incompetent or ineffective representation will be granted only when the trial was a farce or a mockery of justice, or was shocking to the conscience of the reviewing court, or if the purported representation was only perfunctory, in bad faith, a sham, a pretense, or without adequate opportunity for conference and preparation. The right of the accused to counsel does not require errorless counsel. See Bell v. Alabama, 367 F.2d 243 (5 Cir.); United States v. Long, 419 F.2d 91 (5 Cir.). Upon examination of the transcript of the trial I find no ineffective assistance of counsel. Mr. Odom called numerous witnesses on behalf of the defendant and conducted a vigorous cross-examination of the prosecution's witnesses. Petitioner's claim that there were alibi witnesses available but not called by his attorneys is refuted by his own statement at the State habeas corpus hearing that he had been in several bars on the night in question but that the patrons therein could not remember him being there.

7. I find no evidence in the record to show that petitioner received anything other than a fair and impartial trial. The seventh claim is without merit.

8. So is the contention that the evidence was circumstantial and did not support the conviction. Besides the evidence that I have previously referred to, his fingerprints were found on the victim's car. He was identified by a policeman as being the man who emerged from under the house where the victim's purse was found. He fled when approached by the police. Bonaparte was identified by the victim both in a lineup and in the courtroom. Sufficiency of the evidence is not a ground for federal habeas corpus relief. Pleas v. Wainwright, 441 F.2d 56 (5th Cir.); Fulford v. Dutton, 380 F.2d 16 (5th Cir.). The evidence fully supported a verdict, as the Supreme Court of Georgia has held.

9. Petitioner's final allegation (illegal grand jury and petit jury) was the subject of a lengthy evidentiary hearing in this Court. Bonaparte was represented by court-appointed counsel, Mr. Eugene Gadsden of the Savannah bar.

In Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967) the Supreme Court held that the use by the State of a jury selection system which had been previously condemned constituted a prima facie case of purposeful discrimination, shifting the burden of proof from petitioner to the State. The applicable Georgia law involved in Whitus (and in the present case) required the jury commissioners of each county to select from the books of the tax receiver "upright and intelligent citizens" to serve as jurors. Under the Georgia statute the 1964 tax digest was made up from segregated tax returns on which names of Negroes were designated by a "(C)" opposite them.² In Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, ...