Davis v. Coiner, Civ. A. No. C-71-13-E.

• Decision Date: 02 April 1973
• Docket Number: Civ. A. No. C-71-13-E.
• Citation: 356 F. Supp. 695
• Court: U.S. District Court — Northern District of West Virginia
• Parties: Waldon Keith DAVIS, Petitioner, v. Ira M. COINER, Warden of the West Virginia State Penitentiary, Respondent.

356 F. Supp. 695

Waldon Keith DAVIS, Petitioner, v. Ira M. COINER, Warden of the West Virginia State Penitentiary, Respondent.

Civ. A. No. C-71-13-E.

United States District Court, N. D. West Virginia.

April 2, 1973.

John Marshall, III, Wheeling, W. Va., for petitioner.

Chauncey H. Browning, Atty. Gen. of West Va., Richard Hardison, Asst. Atty. Gen., Charleston, W. Va., for respondent.

MAXWELL, Chief Judge.

Pursuant to Petitioner's application for habeas corpus relief, brought under 28 U.S.C. § 2241 et seq., in the above styled matter, this Court on November 22, 1972, dismissed two of Petitioner's three allegations, appointed an attorney and scheduled a hearing for his third allegation. Plenary hearings were held and evidence was taken on December 19, 1972, and February 27, 1973.

Petitioner's contention before the Court is that he was denied equal protection of the law as well as the effective assistance of counsel because of the state court's application of the provisions of W.Va.Code § 62-3-1 (Michie 1966) to the circumstances of his case. He contends that he was deprived of his constitutional rights by the state court's refusal to authorize the expenditure of state funds for his court-appointed attorney to travel to North Carolina to take the deposition of a witness material to his defense or, in the alternative, to retain a North Carolina attorney for the purpose of taking the deposition.

Petitioner does not allege that his attorney's conduct amounted to ineffective assistance, as such, but only that the state court's refusal to advance funds constituted the denial of a meaningful defense, in the context of the constitutionally secured right to counsel as well as under the equal protection clause of the Fourteenth Amendment.

W.Va.Code § 62-3-1 (Michie 1966) authorizes the expenditure of state funds to defray the cost of the state being represented at the taking of an out-of-state deposition, but does not authorize any funds for an indigent defendant's court-appointed attorney to travel out of state for the purpose of taking a deposition.

The Court after consideration of the testimony adduced at the hearings and the memoranda of law submitted is of the opinion that there is merit in the Petitioner's contention and the requested relief should be granted. The essential facts are as follows.

Petitioner and his brother were arrested on October 10, 1967, shortly after the armed robbery of a small loan company in Charleston, West Virginia. They were apprehended while hiding under some brush and were charged with the offense of armed robbery. They were armed and a large sum of money was found in Petitioner's sock. Later, at his state court jury trial, Petitioner was identified by the owner of the loan company as one of the robbers. Petitioner's defense at his jury trial was that he was not involved in the robbery at all, nor was he near the scene when it occurred. He contends that he met his brother shortly after the robbery and tried to convince him to return the money. While attempting to do this, Petitioner and his brother were arrested. Petitioner's brother, Gary Davis, also convicted of the offense, testified at the state court trial that an unnamed man from Detroit was his accomplice and not Petitioner.

Relevant to this federal habeas corpus action is Petitioner's claim that at the time of the robbery he was with another man, David L. Young, who would have testified as to Petitioner's non-involvement in the crime. This alibi witness was incarcerated in North Carolina at the time of trial. Petitioner's attorney, acting pursuant to West Virginia Code § 62-3-1, filed with the trial court an affidavit attesting to the materiality and purpose of Young's testimony and requested funds to take Young's deposition. The court granted the motion to take the testimony but refused to advance any funds for that purpose. The Supreme Court of Appeals of West Virginia, in affirming Petitioner's conviction, held that it was not "aware of any law which would have authorized the trial court to direct or to require the payment of public funds in accordance with the motion to take the deposition of the non-resident witness . . . obviously the statutory language . . . is not in point." State v. Davis, 153 W.Va. 742, 172 S.E. 2d 569 (1970).

The issue now before this Court is whether or not the statutory language and the application of this statute, in the context of Petitioner's case, deprived him of a constitutionally fair trial. The Court, as stated earlier, is of the opinion that federal habeas corpus relief must be granted, for two reasons.

I

The statute in question effectively denied Petitioner his right to the equal protection of the law under the Fourteenth Amendment to the Constitution of the United States. West Virginia Code § 62-3-1 allows a defendant, who can afford it, a deposition from an out-of-state witness, while denying the same to an indigent defendant. A defendant in a proper case, capable of paying his attorney's traveling and other expenses necessary to an out-of-state deposition can, under the statutory language, be assured that the state will defray the needed expenses of the prosecutor's attendance at the taking of the witness's deposition, and therefore guarantees its admission at trial. An indigent, on the other hand, cannot so benefit from the statute. It is now unquestioned that an indigent must be afforded the same opportunity to defend himself as an affluent defendant. "There can be no equal justice where the kind of trial a man gets depends on the amount of money he has." Griffin v. Illinois, 351 U.S. 12, 19, 76 S.Ct. 585, 591, 100 L.Ed. 891 (1956). Here it appears from credible testimony from Petitioner's state court counsel, and otherwise, that Petitioner's trial was severely weakened by the absence of Young's testimony.

Petitioner himself testified before this Court that Young would have definitely placed him far from the scene of the robbery and corroborated his alibi. If this were the only testimony, this Court...