Byrd v. Lane
Decision Date | 25 July 1968 |
Docket Number | No. 16535.,16535. |
Citation | 398 F.2d 750 |
Parties | Warren H. BYRD, Petitioner-Appellant, v. Ward LANE, Warden of Indiana State Prison and David P. Morton, Superintendent of Dr. Norman B. Beatty Memorial Hospital, Respondents-Appellees. |
Court | U.S. Court of Appeals — Seventh Circuit |
Ferdinand Samper, Forrest Bowman, Jr., Indianapolis, Ind., for petitioner-appellant.
John J. Dillon, John F. Davis, Indianapolis, Ind., for respondents-appellees.
Before MAJOR, Senior Circuit Judge, KILEY and FAIRCHILD, Circuit Judges.
Petitioner is incarcerated in a State prison located in the Northern District of Indiana, pursuant to a commitment of the Henry Circuit Court of that State. He was charged with and found guilty of murdering his wife by the administration of arsenic poison. He was arrested March 15, 1961, and the trial in the State court commenced June 15, 1961, resulting in a verdict on June 19, 1961, the same date that the Supreme Court of the United States announced its decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. The judgment of conviction was affirmed by the Indiana Supreme Court, Byrd v. State, 243 Ind. 452, 185 N.E.2d 422 (1962).
The case before us was initiated by a twenty-page petition for a writ of habeas corpus, complaining that he was detained by the State of Indiana in violation of his rights under the Constitution of the United States. A supplemental petition was filed alleging the exhaustion of all State court remedies. We see no point in relating or discussing the proceedings in the State court by which such remedies were alleged to have been exhausted for the reason that respondents take no issue in this respect; in fact, they tacitly concede that such remedies were exhausted. Neither do we need to discuss Mapp v. Ohio because concededly it is applicable insofar as pertinent to the instant situation.
The petition is unique in that it was predicated solely upon the premise that the two attorneys who represented petitioner in his State court trial were incompetent and that the "restraint and detention of petitioner is in violation of his constitutional rights as guaranteed by the Sixth and Fourteenth Amendments to the Constitution of the United States and specifically his constitutional rights to counsel, due process of law and equal protection of the laws, all by reason of the following facts: * * *." Then follow some fifteen pages of allegations, all directed to such premise.
Following a lengthy hearing devoted in the main to petitioner's contention that his Sixth Amendment rights had been violated, Judge Robert Grant rendered a memorandum opinion in which he noted that the competency of one of the attorneys was conceded by petitioner and found on the proof that the other attorney was also competent.
Among numberous allegations contained in the petition was that in paragraph (j):
The petition alleged that this evidence was obtained as a result of an illegal search of petitioner's home, admitted without objection on the part of petitioner's counsel, and was in violation of his constitutional rights under the Fourth, Fifth and Fourteenth Amendments to the Constitution of the United States. In response to this allegation, the court in its memorandum opinion stated:
by Warren Davis, Henry County Sheriff, and other officers.
It further found:
By its order entered August 10, 1967, the court denied the petition for writ of habeas corpus, from which order petitioner appeals.
The sole issue before this court is whether the search of petitioner's home, resulting in the seizure of a bottle of poison, violated his constitutional rights. The resolution of this issue is dependent upon whether petitioner voluntarily consented to such search or whether it was made pursuant to a lawful arrest.
It has been often held that whether a consent to search is voluntary is a question for the trier of facts and its finding, if substantially supported, will not be disturbed on review. Drummond v. United States, 8 Cir., 350 F.2d 983, 988; United States v. Thompson, 2 Cir., 356 F.2d 216, 220, cert. den. 384 U.S. 964, 86 S.Ct. 1591, 16 L.Ed.2d 675, and Ruud v. United States, 9 Cir., 347 F.2d 321, 322.
We agree with the District Court that petitioner's consent to search his home was given freely and voluntarily, without duress, promise or coercion; in fact, we think the testimony unmistakably discloses that such consent was given both orally and in writing.
Petitioner cites a number of cases in support of his contention that under the circumstances any consent obtained to search was as a matter of law involuntary. We defer a discussion of these cases for the reason that many of them consider the legality of a search made either by voluntary consent or incident to a lawful arrest.
This brings us to the contention relied upon by respondents that the search in question was proper because made incident to a lawful arrest. Unfortunately this issue was not developed in the trial court as it might have been. Neither petitioner on brief here nor the court in its memorandum opinion makes any mention of it. We suspect that this situation is due to the fact, already noted, that petitioner's able counsel in the instant matter devoted their main effort in an attempt to prove incompetency of petitioner's trial counsel, and that the issue regarding the search was merely incidental.
Petitioner was arrested in his own home, in the execution of a lawful warrant, at about 4:30 p. m. March 15, 1961. Petitioner has engendered some confusion as to whether the search was made following the arrest or the next day by alleging in his petition and repeating in his statement of facts, "That State's witness Eugene Short testified that he found said bottle behind the furnace of the Byrd home during a search he made of the Byrd home on March 16, 1961." This allegation was denied in respondents' response to the petition. Respondents on brief state, "In the case at bar the Appellant was arrested with a lawful warrant and the search was contemporaneous in time and space with the arrest." Petitioner does not challenge this statement either directly or indirectly.
It appears to us that petitioner on brief abandons any contention that the search was not made immediately following his arrest. In his argument he states, "The evidence shows that at the time of the search four, five or six police officers went into the home of the petitioner in the company of the Sheriff, who had with him a warrant for the arrest of the petitioner on a charge of first degree murder." Referring to the written consent which was signed by petitioner at the time of his arrest, the brief states, It is not reasonable to think that if there was any question as to when the search was made with reference to the time of arrest, petitioner would have made inquiry of the officers who made the arrest, conducted the...
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