Culp v. Bounds

• Decision Date: 05 April 1971
• Docket Number: 2645.,Civ. A. No. 2599
• Citation: 325 F. Supp. 416
• Parties: Harvey CULP, Petitioner, v. V. Lee BOUNDS and the State of North Carolina, Respondents. Harvey CULP, Petitioner, v. David P. HENRY, Administrator, Central Prison, and State of North Carolina, Respondents.
• Court: U.S. District Court — Western District of North Carolina

325 F. Supp. 416

Harvey CULP, Petitioner, v. V. Lee BOUNDS and the State of North Carolina, Respondents.

Harvey CULP, Petitioner, v. David P. HENRY, Administrator, Central Prison, and State of North Carolina, Respondents.

Civ. A. Nos. 2599, 2645.

United States District Court, W. D. North Carolina, Charlotte Division.

April 5, 1971.

George S. Daly, Jr., Charlotte, N. C., for petitioner.

Jacob L. Safron, Asst. Atty. Gen., N. C. Dept. of Justice, Raleigh, N. C., for respondents.

McMILLAN, District Judge.

Petitioner, Harvey Culp, is presently detained at North Carolina Central Prison in Raleigh serving two consecutive sentences of ten (10) years for felonious breaking and entering and felonious larceny imposed at the September 2, 1968, Schedule "D", Regular Criminal Session of the Superior Court of Mecklenburg County upon his conviction by a jury. Petitioner appealed his conviction to the North Carolina Court of Appeals, which found no error, State v. Culp, 5 N.C.App. 625, 169 S.E.2d 10 (1969). Subsequently, Culp petitioned the North Carolina Supreme Court for a writ of certiorari which was denied, State v. Culp, 275 N.C. 596, 169 S.E.2d 10 (1969). Culp now petitions this court, in two separate petitions which were consolidated by order of this court filed April 9, 1970, for a writ of habeas corpus, alleging the following as grounds for relief:

(1) That certain questioning of the petitioner by his trial counsel in the presence of the jury denied the petitioner his right "to remain off the witness stand";

(2) That the trial judge's charge to the jury denied him a fair trial because (a) the trial judge instructed the jury that they should "not consider any charge of receiving stolen goods against petitioner" and (b) the trial judge referred to petitioner by his alias on several occasions during the charge; and

(3) That the petitioner is entitled to credit for time spent in jail awaiting trial.

ALLEGATION ONE: Petitioner claims that he was prejudiced when his counsel, in the presence of the jury, questioned him as to whether he the petitioner wanted to take the witness stand. While the North Carolina Court of Appeals' opinion recognizes that "the better procedure would have been to have this statement placed in the record outside the hearing of the jury" (5 N.C.App. at 628, 169 S.E.2d at 12), that court held that any possible prejudicial effect to the petitioner of the questioning was cured by the trial judge's charge which fully instructed the jury not to consider the fact that the petitioner did not testify.

This court has examined the trial judge's charge and agrees with the conclusion of the state court that the charge effectively cured this error. Moreover, in light of the overwhelming evidence presented against the petitioner at his trial, this error, if it were error, was harmless. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).

ALLEGATION TWO: A. Petitioner was originally indicted for three crimes: felonious breaking and entering, felonious larceny, and receiving stolen property. He has never been tried for receiving stolen property. At petitioner's trial, the trial judge during his charge erroneously read the indictment charging petitioner with receiving stolen goods. The North Carolina Court of Appeals found that this error was inadvertent and was cured by the trial judge's subsequent instructions to the jury when he told them not to be confused by his earlier mistake and when he reread the applicable indictments. This disposition seems clearly correct. Few, if any, trials are completely error free, and the inadvertent mistake of the trial judge which was later corrected does not provide a claim of constitutional scope in the circumstances of this case. "Normally * * * instructions to the jury in state trials are matters of state law * * * (and) only in circumstances impugning fundamental fairness * * * (is) a federal question * * * presented." Grundler v. North Carolina, 283 F.2d 798, 802 (4th Cir., 1960).

B. Petitioner also alleges error because the trial judge in reading the indictments and elsewhere in his charge referred to Culp by his alias. The North Carolina Court of Appeals, in considering this claim, held that while the use of alias in a jury charge might in certain circumstances be prejudicial, under the facts of Culp's case, where the identity of the defendant was not in doubt, it had not been prejudicial. This court concludes that the use of petitioner's alias, if it were error, was harmless. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824 (1967); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726 (1969).

ALLEGATION THREE: Culp contends that he is entitled to credit for time spent in jail prior to commitment. Petitioner was given the maximum statutory sentences (ten years on each crime) upon his conviction of felonious breaking and entering and felonious larceny. See, N.C.G.S., §§ 14-54, 14-70, and 14-2. Petitioner was arrested on August 2, 1968, and his commitment was issued September 12, 1968. Apparently petitioner spent that entire forty-day period in custody and now seeks credit for that time.

Respondents contend that since Culp has failed to exhaust available state remedies with respect to this particular allegation, this court lacks power to consider petitioner's claim. While exhaustion of state remedies is normally a prerequisite to federal court consideration of habeas corpus claims, it has been held that where proceeding in the state courts would be ineffective, the exhaustion requirement is satisfied. 28 U.S.C. § 2254 (b); Evans v. Cunningham, 335 F.2d 491, 493 (4th Cir., 1964); Ralph v. Warden, 438 F.2d 786 (4th Cir. 1970) (footnote 1).

The leading case in North Carolina dealing with credit for time served before commitment is State v. Virgil, 276 N.C. 217, 172 S.E.2d 28 (1970). In Virgil, the defendant was in custody from February, 1963, until March, 1965, when, in his third trial, he was convicted and committed. Defendant's first trial ended in a mistrial; his second trial resulted in a conviction but was reversed on appeal. In the third trial, defendant was convicted of non-burglarious breaking and entering with intent to commit a felony. He was sentenced to a term of nine to ten years. (The maximum penalty for this crime is ten years. See, N.C.G.S., § 15-54.) No credit was given for the more than two years that defendant had already spent in jail. In a 5/2 decision (with Chief Justice Bobbitt and Justice Sharp dissenting) the North Carolina Supreme Court held that the state did not have to credit Virgil for time spent in jail before commitment.

The Virgil case is factually indistinguishable from petitioner's situation here. The essential question in each case is whether the time a prisoner spends in custody prior to trial when added to the sentence to be served upon commitment can total more than the statutory maximum punishment for the crime involved.¹ Since this question was clearly (and recently) decided in Virgil, petitioner's recourse to the state courts would be ineffective and he has thus exhausted state remedies.

North Carolina's failure to give Culp credit for time served before trial where petitioner has received a maximum sentence violates the Constitution in two ways. First, it constitutes multiple punishment for a single offense, thereby offending the double jeopardy clause of the Fifth Amendment which is applicable to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

Second, the fact that only those accused who are unable to raise bail are subjected to extra pre-trial incarceration when their prison time exceeds the statutory maximum (as with Culp) is an invidious discrimination against the poor in violation of the equal protection clause of the Fourteenth Amendment. See, e. g., Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, (1963); Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L. Ed.2d 130 (1971).

In North Carolina v. Pearce, 395 U.S. 711, 718-719, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the Supreme Court held:

"* * * The constitutional guarantee against multiple punishments for

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