Dustin v. Coiner

• Decision Date: 19 November 1973
• Docket Number: Civ. A. No. C-72-68-E.
• Citation: 367 F. Supp. 396
• Parties: Roscoe DUSTIN, Petitioner, v. Ira M. COINER, Warden of the West Virginia State Penitentiary, Respondent.
• Court: U.S. District Court — Northern District of West Virginia

367 F. Supp. 396

Roscoe DUSTIN, Petitioner, v.Ira M. COINER, Warden of the West Virginia State Penitentiary, Respondent.

Civ. A. No. C-72-68-E.

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

November 19, 1973.

Richard E. Hardison, Asst. Atty. Gen., Charleston, W. Va., for respondent.

MAXWELL, Chief Judge.

The Petitioner in the above-styled civil action is presently incarcerated in the West Virginia State Penitentiary at Moundsville, West Virginia, serving an indeterminate sentence of five to ten years for the crime of incest.The Petitioner was sentenced by the Intermediate Court of Kanawha County, on October 29, 1970, following his conviction by a jury.

The Petitioner now seeks federal habeas corpus relief, pursuant to 28 U.S.C. § 2241 et seq.The exhaustion of state remedies has apparently been accomplished by way of an original petition for habeas corpus relief in the West Virginia Supreme Court of Appeals.

In the petition, four grounds are advanced, each alleged to be a violation of equal protection and due process: (1)the trial court permitted testimony as to the existence of a common law marriage between the Petitioner and his wife before the existence of a ceremonial marriage between them; (2)the trial court failed to grant the Petitioner's motion for mistrial after the prosecutor commented on the Petitioner's failure to testify; (3)the trial court refused a blood grouping test to establish the paternity of the Petitioner's wife's daughter, the prosecutrix in the state criminal action; and (4)the trial court"assumed insanity afterpetitioner had been forced to stand trial and had been found guilty."

The Petitioner was indicted, in the April term of 1970, on a charge of incest, the crime allegedly having taken place with the Petitioner's minor daughter.Following a plea of not guilty, the Petitioner was tried in July, 1970.The evidence, much of it from the testimony of the Petitioner's wife, who appeared for the state, showed that the prosecutrix was born in December, 1954, that the Petitioner's wife secured a divorce from her former husband in August, 1954, and that the Petitioner was formally married to his wife in February, 1955.The wife's testimony, further, was that she married her first husband in 1947 and separated from him in January, 1949.The Petitioner's defense at the trial was, basically, that the prosecutrix was not in fact his true blood daughter, having obviously been conceived while his wife was still married to her former husband; the Petitioner vigorously resisted efforts by the prosecution to elicit testimony from the wife which tended to show that the father of the prosecutrix was the Petitioner rather than the wife's first husband.The trial court, however, permitted the wife to testify that she lived with the Petitioner, as man and wife, from 1949, following her separation from her first husband, until 1955, when she and the Petitioner were formally married.Other testimony, from third parties as well as from the wife, was also admitted, tending to show the existence of a relationship akin to that of a common law marriage between the Petitioner and his wife prior to their ceremonial marriage.

The first contention of the Petitioner is two-pronged; he contends that the admission of evidence tending to show that a common law marriage relationship existed between the Petitioner and his wife was prejudicial and he also contends, in his rebuttal to the Respondent's answer, that the wife was incompetent to testify as to any facts which would tend to bastardize her daughter by showing that the Petitioner, rather than the wife's legal spouse at the time, was the father of the daughter-prosecutrix.

Generally, the admissibility of evidence is a matter of state law and procedure, and does not involve federal constitutional issues cognizable in a habeas corpus proceeding."It is only in circumstances impugning fundamental fairness or infringing specific constitutional protections that a federal question is presented,"Grundler v. State of North Carolina, 283 F.2d 798, 802(4th Cir.1960).28 U.S.C. § 2254(a) provides that "a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State courtonly on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States(emphasis added)."SeeDelph v. Slayton, 343 F.Supp. 449(W.D.Va.1972).Neither of the evidentiary matters attacked by the Petitioner in his first contention is sufficient to raise a constitutional issue.

Whether or not a common law marriage could have been a legal possibility upon the facts of this case is a matter of state law, and evidence showing that the Petitioner and his wife lived as husband and wife prior to their ceremonial marriage is not necessarily inadmissible here.Although the prosecution's questioning of the Petitioner's wife and of other witnesses focused on the elements of a common law marriage, the term "common law marriage" was used just twice in the questioning of witnesses, both times objected to by the Petitioner's counsel, one of which objections was sustained by the trial court.Although the testimony may have brought out the elements of a common law marriage, the testimony was also necessary for another purpose—to rebut the presumption that the wife's first husband was the father of the prosecutrix.The jury was not called upon to consider whether the facts of the case amounted to the existence of a common law marriage.If the prosecution's use of the term "common law marriage" was error in that it led the jury to believe that such a relationship existed when it possibly could not have legally existed, such error, when looked at in relation to the whole of the Petitioner's trial, must be considered "harmless,"Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705(1967).¹

The Petitioner's contention that his wife was incompetent to testify as to any facts which would tend to bastardize her daughter is based upon the so-called "Lord Mansfield's rule," recognized and applied in Goodright v. Moss, 2 Cowp. 591, 98 Eng.Reprints 1257 (1777).The rule was stated by Lord Mansfield in that case in the following manner:

". . . The law of England is clear that the declarations or testimony on the stand of a father or mother cannot be admitted to bastardize the issue born after marriage. . . .As to the time of the birth, the father and mother are the most proper witnesses to prove it.But it is a rule founded in decency, morality, and policy, that they shall not be permitted to say after marriage that they have had no connection, and therefore that the offspring is spurious; more especially the mother, who is the offending party."

The Mansfield rule has long been part of the law of West Virginia.In State v. Reed, 107 W.Va. 563, 149 S.E. 669(1929), an action against a man for nonsupport of an illegitimate child, the Court stated in the third syllabus point: "On the question of the legitimacy of a child born to a married woman, in the absence of a statute authorizing her to testify to the nonaccess of her husband, she is incompetent to testify to that fact."In Ohlinger v. Roush, 119 W.Va. 272, 193 S.E. 328(1937), an action for criminal conversion, the Court held it to be "the policy of the law to prevent any testimony of the husband or the wife tending directly to bastardize the issue of a marriage between them, whether by showing nonaccess or otherwise."In State v. Lavender, 147 W.Va. 803, 131 S.E.2d 752(1963), a bastardy conviction was reversed on the basis of the Mansfield rule, the Court stating that the testimony of both a married woman and her husband as to nonaccess was improper and that "the admission of such testimony . . . constituted error highly prejudicial to the defendant."See alsoGardner v. Gardner, 144 W.Va. 630, 110 S.E.2d 495(1959).

Although the Mansfield rule has seen broad application in West Virginia, it has also been roundly criticized.Judge Calhoun, in his dissenting opinion in Lavender, supra, states that the rule "had its genesis in an obiter dictum utterance in an ejectment case almost two centuries ago, a rule which, according to eminent authority, is devoid of logic and had no precedent for its justification,"147 W.Va. at 815-816, 131 S.E.2d at 760.See also7 Wigmore on Evidence §§ 2063, 2064(3rd ed.).

Although the Mansfield rule has been applied in a variety of circumstances in West Virginia, the factual situation presented in the instant petition is unique.No state precedent exists which would indicate whether or not application of the rule would be appropriate in a criminal proceeding of this nature....