Ellhamer v. Wilson

• Decision Date: 12 September 1969
• Docket Number: No. 46545-AJZ.,46545-AJZ.
• Citation: 312 F. Supp. 1245
• Parties: William ELLHAMER, Petitioner, v. Lawrence E. WILSON, Warden, Respondent.
• Court: U.S. District Court — Northern District of California

312 F. Supp. 1245

William ELLHAMER, Petitioner, v. Lawrence E. WILSON, Warden, Respondent.

No. 46545-AJZ.

United States District Court, N. D. California.

September 12, 1969.

John H. Colteaux, Ackeret & Colteaux, San Rafael, Cal., for petitioner.

Thomas C. Lynch, Atty. Gen. of the State of California, John T. Murphy, James B. Cuneo, Deputy Attys. Gen., San Francisco, Cal., for respondent.

ORDER GRANTING IN PART PETITION FOR WRIT OF HABEAS CORPUS.

ZIRPOLI, District Judge.

In this case the court granted petitioner, a California state prisoner, an evidentiary hearing for the purpose of inquiry into the constitutional validity of petitioner's 1961 conviction of the crime of armed robbery. For the purpose of that hearing the court deemed the petition to have been amended to enable petitioner to make each of the claims hereinafter discussed and acted upon by the court, including his claim that the order of the Adult Authority of the State of California of June 30, 1961, cancelling his parole and redetermining his state sentence for robbery in the first degree imposed in 1953 was constitutionally impermissible and hence invalid.

Petitioner's contentions are five in number and consist of the following:

1. That petitioner was denied due process of law in his 1961 conviction in that the prosecution or agents of the prosecution deliberately or negligently suppressed purported evidence of the petitioner's innocence;

2. That petitioner was denied due process of law in that petitioner was deprived of the right to compel the production of a key witness;

3. That the affirmance of petitioner's 1961 conviction by the California Court of Appeal, despite the rejection by the trial court of a proffered instruction covering specific intent, deprived petitioner of due process of law and equal protection of the law;

4. That petitioner's sentence and punishment received as a result of his 1961 conviction was so wholly and arbitrarily disproportionate to the sentence given his codefendant as to constitute a denial of equal protection of the law;

5. That the revocation of petitioner's parole (on the 1953 sentence) and redetermination without a hearing and benefit of counsel of a prior term fixed by the Adult Authority deprived him of due process of law.

The evidence adduced at the evidentiary hearing and petitioner's statement of the law fail to support all but the last claim.

Summary of Evidence

A summary of the circumstances of the robbery and evidence of petitioner's guilt thereof based upon the transcript of the proceedings at petitioner's trial, which is part of the record before this court, can be found in the opinion of the California Court of Appeal affirming petitioner's conviction. People v. Ellhamer, 199 Cal.App.2d 777, 18 Cal.Rptr. 905 (1962). That summary discloses:

On March 3, 1961, at approximately 11:45 a. m., defendant Donald Baxter walked up to Donald McPherson, assistant manager for Lucky Stores in Norwalk, California, as McPherson was writing up a grocery order. Defendant Baxter pulled a gun on McPherson and told McPherson to take him to the manager. The two men walked to the manager's office at the back of the store and McPherson motioned for the manager, Kenneth Green, to come out of the office.

McPherson told the manager, "This man's got a gun on me. He said that he's going to kill us if we don't give him the money." Defendant Baxter gave the manager a pillow case and told him to put the money in it. The manager went into the back office, opened the safe, put $1,250 into the pillow case and returned it to defendant Baxter. Baxter then fled from the store. McPherson pursued him. Outside the store McPherson saw defendant Baxter running through a parking lot and into an alley. When McPherson got to the alley, he noticed a blue Corvair, license number VBK 082, parked behind a barber shop located near the store. The hood was up and the door on the driver's side was open. He saw appellant Ellhamer close the hood of the Corvair. He saw him throw a pillow case in the back seat of the car. Ellhamer then entered the car. He sped away without stopping at the street intersections, spinning his wheels as he turned the corners.

Shortly thereafter Los Angeles Deputy Sheriff Paul A. Strohman went to a Bellflower address in response to report that a car, previously reported to have been involved in a robbery, was located there. He discovered the car. There were two other deputies and several other people at the location. The deputies were informed that the two men who had gotten out of the car were in Apartment E at that address. The two deputies went to the front steps of the apartment while Deputy Strohman went around to the back. As he rounded the back of the building he observed defendant Baxter jumping from the second story window. Baxter had a pillow case with him. He apprehended Baxter, searched the pillow case and found in it $1,250, a loaded gun and some make-up equipment.

The officers then went to Apartment E where they knocked on the door and called out that they were police officers. There was no response so the officers used a pass key given them by the manager of the apartment to open the door. Upon searching the apartment Officer Strohman and the other officer discovered appellant lying under a bed. Appellant was apparently "stuck" under the bed, unable to get out until the officers dismantled the bed and lifted it off him. The only statements appellant made at this time were "They made me drive," and when asked who, he said, "Joe made me."

At the trial, McPherson identified appellant as the man who sped away from the scene of the robbery in a Corvair after closing the Car's hood. Officer Strohman identified him as the person who later was found under a bed in the apartment in front of which the Corvair was parked a few minutes after the robbery. McPherson previously had identified appellant in a police lineup on the day of the robbery. The pillow case which McPherson said he saw appellant throw into the Corvair was also identified by McPherson. According to the manager of the store, Mr. Green, the pillow case was similar to the one in which he placed the money.

During the course of the habeas corpus evidentiary hearing, it was established that both petitioner and his co-defendant Baxter had been convicted of robbery on several prior occasions, that they had known each other for a period of years and each acknowledged that he was aware that the other had been previously convicted of robbery.

Deputy Sheriff Brown testified that he and his partner, Deputy Graves, interrogated Baxter following his arrest. Baxter was positively identified as having participated in numerous other robberies in which he had been driven from the scene by an accomplice who was not identified. Baxter readily admitted his guilt and, at an early stage of the investigation, Baxter voluntarily indicated that he intended to enter a plea of guilty in order to avoid serving any unnecessary "dead time." (R.T. 140, 157-158, 160, 171).¹ While he readily admitted his own guilt, Baxter informed the deputies that he would tell them nothing with respect to the guilt of any other person (R.T. 156). Brown's account of Baxter's cooperation and indication that he intended to plead guilty were corroborated by Deputy Graves (R.T. 304-305). Charges were filed against Baxter on two Los Angeles offenses which he admitted.

During a subsequent interrogation, Baxter informed deputies Brown and Graves that he had been asked to testify on petitioner's behalf in order to "take him off the hook." (R.T. 161, 306, 313). Brown responded by asking Baxter if he was willing to perjure himself on petitioner's behalf (R.T. 161, 307, 325). Brown testified that he had asked Baxter this because he believed that petitioner was not only guilty of the offense of which he was charged but that petitioner had also participated in other robberies of a similar character in which a vehicle similar to the one owned by petitioner had been employed (R.T. 129-130). Brown was also aware that the manager of the Lucky Store had observed petitioner place the sack in the car before driving from the scene (R.T. 161).

Both deputies denied that Baxter ever told them that petitioner was innocent (R.T. 159, 308, 319). Both denied that either or both of them had approached Baxter for the purpose of dissuading him from testifying on behalf of petitioner (R.T. 158, 174). They further denied that they had ever informed Baxter that additional charges would be filed against him or that he would be prosecuted as an habitual criminal if he testified. They denied that Baxter had ever been informed that he would be allowed to plead guilty to a single count and receive a concurrent sentence if he did not testify (R.T. 142, 148, 158, 164-165, 325-326). It is undisputed that Baxter entered a plea of guilty on one count of robbery and received a concurrent sentence.

During the course of the criminal proceedings against him, petitioner was represented by attorney Robert Krause (R.T. 263), who had also represented petitioner in his 1953 trial. Robert Krause testified that during the course of his preparation of petitioner's defense, he spoke to Baxter once. Baxter refused to discuss the case and said he would not testify on petitioner's behalf because other charges were pending against him and that if he did not cooperate he would be "buried" (R.T. 266-268). Nevertheless, Krause placed Baxter under subpoena. Krause testified that he did so in the hope that Baxter might subsequently change his mind and decide to testify for petitioner (R.T. 268). The subpoena was served on Baxter in the Los Angeles County Jail on April 11, 1961. Baxter was sentenced on April 19, 1969, and was delivered to Chino on May 2, 1961.

When petitioner's case came on for trial on May 2, 1961, and Baxter was not present, Krause did not request the District Attorney to produce him or request the court to order his...