Bowers v. Coiner

• Decision Date: 31 January 1970
• Docket Number: Civ. A. No. 2548.
• Citation: 309 F. Supp. 1064
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Timothy J. BOWERS, Petitioner, v. Ira M. COINER, Warden, West Virginia Penitentiary, Respondent.

309 F. Supp. 1064

Timothy J. BOWERS, Petitioner, v. Ira M. COINER, Warden, West Virginia Penitentiary, Respondent.

Civ. A. No. 2548.

United States District Court, S. D. West Virginia, Huntington Division.

January 31, 1970.

COPYRIGHT MATERIAL OMITTED

Nye King, Huntington, W. Va., for petitioner.

Chauncey H. Browning, Atty. Gen., Frank M. Ellison, Willard A. Sullivan, Asst. Attys. Gen., Charleston, W. Va., for respondent.

CHRISTIE, District Judge:

This proceeding comes before the Court on a petition for a writ of habeas corpus filed in forma pauperis by Timothy J. Bowers, a prisoner of the State of West Virginia, pursuant to the provisions of 28 U.S.C.A. § 2241. The sentence under which petitioner is confined was imposed by the Common Pleas Court of Cabell County for a term of fifteen years, on January 6, 1967, following a jury verdict finding him guilty of armed robbery. Having exhausted his state court remedies, petitioner seeks relief in this court based upon his various allegations of deprivation of his constitutional rights under the Fourth, Fifth, Eighth and Fourteenth Amendments.

Counsel was appointed and an evidentiary hearing was held on August 22 and 23, 1969, to test the validity of the constitutional deprivations alleged. On the basis of the evidence as developed at that hearing, the Court is of the opinion that the writ must be granted.

The facts bearing on the constitutional issues are found to be as follows: Petitioner was arrested in Columbus, Ohio, on June 24, 1966, by agents of the Federal Bureau of Investigation, upon a warrant issued at Huntington, West Virginia, for interstate flight to avoid prosecution, issued pursuant to 18 U.S. C.A. § 1073. At the time of his arrest petitioner was wanted as the alleged bandit in the daylight armed robbery of the Diversified Savings and Loan Company, located in Huntington.

The evidence reveals that petitioner was frequently a guest in the apartment of one William Engle and that he had a key to this apartment. At the time of his arrest, petitioner was asleep in Mr. Engle's apartment, as an invited guest. After the agents gained entrance to the apartment, petitioner was placed in handcuffs and, while there is conflicting testimony about the time when he was advised of his Fifth Amendment rights in compliance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966), there is no conflict that the agents did seize two revolvers, a .38 calibre and a .25 calibre, and did conduct a thorough search of the premises. Before allowing petitioner to dress himself, the agents searched his clothes and removed some $375.00 from his trousers and some $19.00 from a shirt pocket. This money was never identified as a part of the money taken in theobbery. It is also to be noted that while the agents had knowledge of the existence of the outstanding fugitive warrant against the petitioner, they did not have the warrant with them, nor did they have a search warrant, although a United States Commissioner was available and they had sufficient time to have obtained a search warrant.

Subsequent to his arrest, petitioner was taken to the Franklin County Jail, in Columbus, where he was incarcerated after routine booking. Later that day, June 24, 1966, he was arraigned before the United States Commissioner, with counsel present, on the federal charge of interstate flight to avoid prosecution. Following his arraignment and while he was being returned to the Franklin County Jail, handcuffed and in the custody of a United States Marshal, he was observed by one William F. McMillan, an employee of the loan company. Mr. McMillan had been transported from Huntington to Columbus by two members of the Huntington Police Department for the purpose of identifying the suspected bandit. Mr. McMillan, later a key prosecution witness at petitioner's trial, related to the Huntington police, following this confrontation, that petitioner was a "dead ringer" for the bandit. Also, during this transfer, petitioner was photographed by a news photographer and his picture was subsequently published in both the Columbus and Huntington newspapers.

Extradition was performed and petitioner was taken to the Cabell County jail on September 16, 1966. Prior to petitioner's return to Huntington, the grand jury of Cabell County, West Virginia, returned an indictment on September 12, 1966, charging petitioner with the armed robbery of the loan company. On September 19, 1966, petitioner was taken before the Common Pleas Court of Cabell County. On that date he was appointed counsel and the judge of that court set October 10, 1966, as the trial date.

At trial, the bulk of the state's case against the petitioner was founded upon eye-witness identifications by the employees of the loan company. The testimony of these witnesses was crucial and may be tersely summarized as follows: Mr. McMillan, who had been taken to Columbus to identify the suspected bandit, positively identified the petitioner as the bandit. Mrs. Shain identified petitioner as the bandit, but stated that she reached this conclusion only after seeing petitioner's picture by itself after it was brought to her by the police. Mrs. Roach and Miss Damron testified that they picked petitioner out of a group of pictures (7 or 8) and their positive identifications were premised upon the characteristics of his mouth and nose. Mr. Duncan was unable to identify the petitioner as the bandit.

The prosecutor attempted to introduce a .38 calibre revolver into evidence as being the holdup weapon. A police officer, while on the witness stand, exhibited the weapon to the jury. It was marked for identification purposes, but ultimately was not allowed into evidence by the trial judge. The basis of the trial court's ruling was that the state had failed to connect the gun with the petitioner and the holdup. However, after this ruling, there was considerable comment about the gun by both the prosecutor and the trial judge, a subject with which we will later deal in detail. After the guilty verdict was returned, the petitioner immediately informed his court-appointed counsel of his desire to appeal. Counsel dutifully made a motion to set aside the verdict and award a new trial. On two occasions counsel was granted a continuance of a hearing on the motion on the ground that the trial record had not yet been typed and counsel had not had an opportunity to study it. Apparently, during this interval, petitioner became disenchanted with his court-appointed counsel and he and his mother retained private counsel for the purpose of appealing the conviction if his motion for a new trial was denied. After accepting employment, private counsel told petitioner he would stay in the background until the motion to set aside the verdict and award a new trial had been disposed of. The motion was denied by the trial court on January 6, 1967. On January 23, 1967, an order with an attached affidavit was entered whereby court-appointed counsel were relieved of further responsibility in the case and the privately retained counsel was noted as counsel of record. Private counsel then prepared a bill of exceptions and sought a writ of error and supersedeas in the Circuit Court of Cabell County. This was denied. The retained counsel did not prosecute the appeal further. No formal order relieving him of representation of petitioner has been entered.

For the sake of clarity, the issues raised by the alleged errors will be considered separately.

I

The petitioner alleges that the arrest warrant for unlawful flight to avoid prosecution is void since the complainant could not testify that he had personal knowledge of the allegations in the complaint that he swore to in front of the United States Commissioner. The FBI agent who signed the complaint before the Commissioner testified that his oath to it was premised upon a letter from the prosecutor of Cabell County to the United States Attorney stating that a state warrant had issued for petitioner's arrest for armed robbery. The agent candidly testified that he had no personal knowledge that the state warrant was outstanding. The petitioner asserts that under this state of facts, "probable cause" for the issuance of a warrant had not been established. We cannot agree.

It has long been an established principle that only the probability and not a prima facie showing of criminal activity is the standard of probable cause, Beck v. Ohio, 379 U.S. 89, 85 S. Ct. 223, 13 L.Ed.2d 142 (1964), and that affidavits of probable cause are tested by much less rigorous standards than those governing the admissibility of evidence at trial. McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967). In judging probable cause magistrates are not to be confined by niggardly limitations or by restrictions on the use of their common sense, United States v. Ventresca, 380 U.S. 102, 85 S. Ct. 741, 13 L.Ed.2d 684 (1965), and their determination of probable cause should be paid great deference by reviewing courts. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, 78 A.L.R.2d 233 (1960). In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the Supreme Court of the United States recognized that the constitutional requirement of probable cause could be satisfied by hearsay information. Certain guidelines to determine the reliability of the informant's information were adopted by the Supreme Court in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L. Ed.2d 637 (1969), and under this holding, the "informant" in the case at bar would be the prosecutor and the police officers who told the United States Attorney that a "state warrant" was outstanding against the petitioner. In deciding on appeal whether probable cause existed for the issuance of a warrant, the Court may consider only the information which was before the Commissioner. Aguilar v. Texas, supra; Giordenello v. United...