Galloway v. Burke
| Decision Date | 19 March 1969 |
| Docket Number | No. 67-C-237.,67-C-237. |
| Citation | 297 F. Supp. 624 |
| Parties | Thomas Albert GALLOWAY, No. 19543, Petitioner, v. John C. BURKE, Warden, Respondent. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Edward D. Cleveland, Milwaukee, Wis., for petitioner.
Bronson C. La Follette, Atty. Gen., William A. Platz, Robert E. Sutton, Asst. Attys, Gen., Madison, Wis., for respondent.
OPINION AND ORDER
Petitioner, Thomas Albert Galloway, was convicted of burglary on July 6, 1965, after a jury trial in the Circuit Court of Milwaukee County. An appeal was denied by the Wisconsin Supreme Court on November 1, 1966, in Galloway v. State, 32 Wis.2d 414, 145 N.W.2d 761, 147 N.W.2d 542 (1966).
All of the issues raised before the Wisconsin Supreme Court, except for the claim of invalidity of the warrant, which has been omitted in this petition, are again raised in the present petition for writ of habeas corpus. The facts out of which the issues arise are the same facts presented to the Wisconsin Supreme Court. The transcript of the trial court proceedings together with a statement of facts submitted by petitioner and not challenged by the state have made an evidentiary hearing in this court unnecessary.*
Petitioner, who is incarcerated in the Wisconsin State Prison pursuant to the conviction of burglary, claims that he was denied due process by the state courts for essentially the following reasons:
1. The trial court denied his request for a continuance, made on the day of trial, to obtain the presence of certain witnesses.
2. The trial court refused to grant him a continuance, again on the day of trial, to allow him to hire an attorney to replace his court-appointed counsel.
3. There was no evidence upon which conviction could rest.
4. Misconduct by the prosecution denied him a fundamentally fair trial.
5. The trial court committed procedural errors which denied him a fundamentally fair trial.
Thomas Albert Galloway was taken into custody in the City of Milwaukee, Milwaukee County, Wisconsin, on March 7, 1965. A complaint and warrant for his arrest on the charge of burglary, in alleged violation of § 943.10(1), Wisconsin Statutes, were issued on March 8, 1965. Being unable to raise bail, Mr. Galloway remained in the county jail thereafter until his case was tried.
On April 5, 1965, Mr. Galloway was brought before Branch No. 11 of the Milwaukee County Circuit Court and asserted his indigency. The court appointed an attorney as Mr. Galloway's counsel and adjourned the case to April 8, 1965, after entry of a not guilty plea, counsel waiving preliminary hearing.
On April 8, 1965, a plea of guilty was entered and testimony was then taken. During the testimony, Mr. Galloway expressed his desire to re-enter a plea of not guilty. All proceedings were then set aside and held at naught. A plea of not guilty was entered, and the case was transferred to Branch No. 12 of the Milwaukee County Circuit Court. The case was adjourned to April 9, 1965.
On April 9, 1965, Mr. Galloway expressed to the court his dissatisfaction with the manner in which his attorney was representing him, and the attorney asked leave to withdraw as counsel. The court then appointed another attorney as counsel. The case was adjourned to the afternoon of the same day. When court reconvened, a jury trial was requested and scheduled for July 6, 1965, at 9:00 A.M.
On appearing for trial, Mr. Galloway objected to being represented by counsel paid by the state, told the judge that he was not satisfied that his attorney was adequately prepared or disposed to conduct his defense (particularly because the attorney had not procured the attendance of witnesses that Mr. Galloway had asked him to procure), and requested a continuance to obtain counsel of his own choice who would procure the attendance of such witnesses. No previous request for a continuance had been made. There was no showing that Mr. Galloway's financial condition had changed so that in fact he could hire an attorney. After a statement by the attorney to the effect that he did not feel such witnesses would be helpful in Mr. Galloway's defense, the judge denied the request for a continuance, and the case proceeded immediately to trial.
The petitioner was accused, tried, and convicted by a jury of having entered the office of U. S. Mercantile Systems, Room 401, in the Warner Theater office building in Milwaukee with intent to steal. Nothing was missing from such office, and Mr. Galloway had nothing from the office on his person when arrested. Mr. Galloway was apprehended on the roof or patio outside the fourth floor corridor and offices involved on Sunday afternoon, March 7, 1965.
The testimony of the police officers as to what they did and saw prior to their apprehending Mr. Galloway on the roof and relative to his alleged presence inside such office contained inconsistencies. However, both men positively identified Galloway as the man they saw in the office prior to making the arrest.
At the time of his arrest, Mr. Galloway was 52 years of age, and he claims a man of his years could not have climbed through a transom. The only testimony as to the manner in which Mr. Galloway might have entered the office involved was to the effect that entry was possible through the transom above the door opening from the corridor into such office. Such transom was 14 inches high and 28 inches wide, was about 7½ feet above the floor, and opened to the inside of the office. The transom could be opened only as far as the horizontal position, extending some 14 inches into the office, and the glass therein was not broken. There was no means or projection below the transom by which a person could elevate himself to the level of the transom, except the knob on the door itself. I believe that it is for the trier of the fact to determine whether or not the petitioner did in fact climb through the transom.
The police did not find any fingerprints or materials within the office involved, or upon any of the means of access thereto which could be identified as belonging to or in any way connected with the person of Mr. Galloway.
Mr. Galloway testified in his own behalf and denied ever having been in the office involved. He stated that, having been suffering from very sore and swollen heels (due to ill-fitting new shoes), and having noticed in the lobby of the building that a Dr. Avellone had an office on the fourth floor, he had gone to the fourth floor in the hope that he might find the doctor in his office and might obtain medication for his heels.
Having knocked at Dr. Avellone's office (which was next to that of the office involved) and receiving no response, Mr. Galloway said that he was about to go downstairs when he heard what seemed to be a violent disturbance on the stairway. Wishing to avoid trouble (having been only recently released from prison), he said he went out the corridor window to the roof where he was standing only a short time when a police officer came out the corridor window and arrested him.
Mr. Galloway was taken to the U. S. Mercantile office and interrogated, during which time he observed the police also interrogating a young man who admitted having a record. This young man, unknown to Mr. Galloway, was released, while Mr. Galloway was charged with burglary.
The police had come to the building in response to a call that there was a noisy disturbance therein.
On the same evening of his arrest, at 6:07 P.M., Mr. Galloway was admitted to County General Hospital where he was treated for infected blisters on both feet.
No witnesses other than Mr. Galloway testified for the defendant at his trial.
At Mr. Galloway's trial, the court instructed the jury that the prosecution had the burden of proving his intent to steal beyond a reasonable doubt. Immediately following such instruction, without stating any distinction between intent and motive, the court instructed the jury as follows:
"Proof of said motive to commit a crime is not essential or indispensable to a conviction."
The jury returned a verdict of guilty, and the court adjudged Mr. Galloway guilty on such verdict and sentenced him to an indeterminate term of not more than eight years in the Wisconsin State Prison, Waupun, Wisconsin, said sentence to commence on July 7, 1965. Mr. Galloway has been incarcerated at Waupun since that time.
Petitioner had requested that his attorney call as witnesses three persons whose testimony it is assumed would have tended to corroborate petitioner's story. The persons whose presence Mr. Galloway desired were: the custodian of the building in which petitioner was arrested, the young man who was interrogated by police in the same office of the theater building at the same time as petitioner, and the nurse who later treated petitioner at the hospital for infected blisters on his feet.
Petitioner's defense counsel determined that the testimony of these people would not be helpful to the defense and they were not called. Had they been called, petitioner claims (and the state has not contested the claim) that they would have offered approximately the following testimony.
Mr. Halverson, the custodian of the Warner Theater Building on duty the day that Mr. Galloway was arrested, would have testified that there were a number of other persons creating a disturbance on the stairway above the ground level of the Warner Theater Building prior to the time that the police were called, that it was because of this disturbance that the police were called, and that the disturbance occurred shortly prior to the time that Mr. Galloway was arrested.
The nurse who attended him on the evening of March 7 at the Milwaukee County General Hospital would have testified that Mr. Galloway was in police custody at the time, that both of his heels were sorely infected...
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