Douglas v. Commonwealth of Virginia

• Decision Date: 26 May 1971
• Docket Number: Civ. A. No. 71-C-2-R.
• Citation: 327 F. Supp. 689
• Court: U.S. District Court — Western District of Virginia
• Parties: Willie Edward DOUGLAS, Petitioner, v. COMMONWEALTH OF VIRGINIA and Circuit Court of Pulaski County, Respondents.

327 F. Supp. 689

Willie Edward DOUGLAS, Petitioner, v. COMMONWEALTH OF VIRGINIA and Circuit Court of Pulaski County, Respondents.

Civ. A. No. 71-C-2-R.

United States District Court, W. D. Virginia, Roanoke Division.

May 26, 1971.

Max Jenkins, Goldsmith & Jenkins, Radford, Va., for petitioner.

William P. Robinson, Jr., Asst. Atty. Gen., Richmond, Va., for respondents.

OPINION and JUDGMENT

DALTON, Chief Judge.

This case comes before the court upon a petition for a writ of habeas corpus, filed in forma pauperis by Willie Edward Douglas, a state prisoner, pursuant to 28 U.S.C.A. § 2241. The petition was originally filed in the United States District Court for the Eastern District of Virginia and was transferred to this court by order dated January 7, 1971.

Petitioner is currently serving a sentence of twenty years, ten of which have been suspended, pursuant to a judgment of the Circuit Court of Pulaski County imposed on August 4, 1969 for grand larceny. Petitioner, represented by court appointed counsel, entered a plea of not guilty and was tried by a jury. Following his conviction petitioner moved for a new trial based upon alleged jury impropriety and errors in the conduct of the trial. The motion was denied. His attorney then perfected an appeal to the Supreme Court of Appeals of Virginia which refused a writ of error and supersedeas.

Petitioner alleges that his conviction is constitutionally defective of the grounds a) that an in court identification by an eyewitness had been tainted by a prior illegal identification by the same eyewitness immediately after the police had apprehended the petitioner; b) that the opening statement of the Commonwealth Attorney tended to prejudice the jury; c) that a statement by a juror tended to show that the jury had acted improperly in its deliberations; and d) that he did not receive effective assistance of counsel.

The opening statement of the Commonwealth Attorney was objected to at the time by counsel for the petitioner and the point was also raised on direct appeal to the Supreme Court of Appeals. Accordingly, the court feels that the petitioner has adequately presented his contention to the state courts and has exhausted his state remedies. 28 U.S.C. A. § 2254. In the statement complained of, the Commonwealth Attorney indicated that the evidence would show that the defendant was involved with two other men in the larceny in question. Petitioner's counsel objected that this statement was improper because his client was not charged with having taken part in a conspiracy. The court overruled the motion. Since the evidence did reveal that three men apparently acted in concert to accomplish the larceny, the court sees no impropriety in the opening statement. Even assuming for the sake of argument, however, that the statement was improper, there is certainly no indication that the jury could have been so influenced by it that the petitioner was deprived of his constitutional right to a fair trial. This contention is without merit.

Petitioner's contention concerning an improper statement by a juror was also presented to the trial court and on direct appeal to the Supreme Court of Appeals of Virginia. Counsel for the petitioner has since abandoned that allegation as factually erroneous. Investigation revealed that the statement alleged to have been made after the trial by a juror was actually made, if at all, by a person who had absolutely no connection with the case. Clearly counsel was correct in abandoning this allegation because a statement by some member of the community indicating his own personal prejudice or harshness certainly does not impeach the jury's verdict.

The petitioner apparently has not presented his objection concerning the in court identification to either the trial court or the Supreme Court of Appeals. At the trial his counsel was successful in preventing the eyewitness from testifying about the circumstances surrounding his first...