Gann v. Smith

• Court: U.S. District Court — Northern District of Mississippi
• Citation: Gann v. Smith, 318 F.Supp. 409 (N.D. Miss. 1970)
• Decision Date: 29 October 1970
• Docket Number: No. EC 7044-K.,EC 7044-K.
• Parties: Melvin GANN, Petitioner, v. W. D. SMITH, Jr., Sheriff of Chickasaw County, Mississippi, Respondent.

318 F. Supp. 409

Melvin GANN, Petitioner, v. W. D. SMITH, Jr., Sheriff of Chickasaw County, Mississippi, Respondent.

No. EC 7044-K.

United States District Court, N. D. Mississippi, E. D.

October 29, 1970.

John P. Fox, Houston, Miss., James A. Lewis, Oxford, Miss., for petitioner.

Guy N. Rogers, Asst. Atty. Gen., Jackson, Miss., James S. Gore, County Atty., Houston, Miss., for respondent.

MEMORANDUM OPINION

KEADY, Chief Judge.

This petition for writ of habeas corpus is brought by Melvin Evans Gann under 28 U.S.C. § 2241. Petitioner, presently on bond, attacks his conviction and sentence by the Circuit Court of Chickasaw County, Mississippi, on the ground that certain evidence introduced against him at trial was obtained under a search warrant based upon an invalid affidavit and also that the Circuit Court increased his sentence after a trial de novo following an appeal from his initial conviction in Justice of the Peace Court. After response to the petition by the State of Mississippi, briefing by counsel and submission by stipulation of the state court record, the case is now before the court for decision on the merits, without necessity of a further evidentiary hearing.

The facts, as revealed by the record, are as follows: Shortly after noon on August 31, 1968, agent Keith Roberts of the Mississippi Alcoholic Beverage Control Board (ABC) made an affidavit charging petitioner with keeping intoxicating liquors at his home for unlawful purposes. Relying on Roberts' affidavit, the Justice of the Peace for Chickasaw County, District #1, issued his warrant authorizing a search of petitioner's premises. About 4 p.m. that afternoon ABC agents Roberts, Shanks, Braswell, Greer and Floyd proceeded to petitioner's house, after having first raided several other suspected bootleggers. From their automobile the agents observed a man walking away from a side window of petitioner's house carrying two cans of beer. While one agent spoke to that man, the other agents scattered out around the house, noticing a padlock on the front door and a sign taped thereto which read: "No Beer". The agents announced their presence and purpose at the front door, back door and side window. Hearing no reply, agent Shanks kicked in the front door. The agents entered the house, and when Roberts saw petitioner emerge from the bathroom, he served him with a search warrant in a hallway near the kitchen. Roberts then searched a refrigerator by the side window which he found to be filled with beer. Another agent discovered more beer in a second refrigerator in the kitchen. The agents then placed petitioner under arrest and seized 102 sixteen-ounce cans of assorted brands of beer, all of which had Mississippi tax-paid stamps affixed. The seized beer was removed to Pontotoc where it was destroyed, except for the six-pack of Schlitz later introduced as evidence. Under local option law, beer has been outlawed in District #2, Chickasaw County, and merely possessing it is a crime.

On September 17, 1968, in Justice of the Peace Court, petitioner was tried, convicted and fined $500 for unlawful possession of beer. A timely appeal was taken to the Circuit Court, entitling him to a trial de novo. At that trial his counsel objected to the introduction of the affidavit and search warrant, which objection was overruled. Then without further objection the three agents testified as to the beer they had found in petitioner's residence and offered into evidence 1 six-pack. At the close of the prosecution's case, defendant moved to exclude the State's evidence on the ground of his objections to the introduction of the affidavit for search warrant and the search warrant itself, as "not in proper form." This motion was overruled. Again at the conclusion of his own case, defendant moved for a directed verdict, which was denied. Following a jury verdict of guilty, the court sentenced him to pay a $500 fine and serve 90 days in jail with 60 days to be "held up pending good behavior." Petitioner moved for a new trial, which was denied, and appealed to the State Supreme Court, asserting that the affidavit for search warrant was invalid and that the prosecution had failed to prove that the alcoholic content of the beer exceeded 4% as required by state statutes and the local option liquor election of Chickasaw County, District #2.¹

The Supreme Court of Mississippi affirmed the conviction, holding that proof of the beer's alcoholic content was unnecessary since the local option election in Chickasaw County had failed, and that, therefore, the general statute outlawing all alcoholic beverages regardless of percentage of alcohol was applicable.² The Court also held that petitioner had waived his objections to the affidavit and the fruits of the search by taking the stand and admitting possession of the beer and claiming that he kept it only for medicinal purposes, as prescribed by his chiropractor, whose testimony was disallowed by the trial court as not that of a qualified physician. Gann v. State, supra, at 628.

Petitioner moved for rehearing, asserting for the first time that the Circuit Court had unlawfully increased his sentence after appeal. When the Supreme Court denied rehearing, petitioner sought state post-conviction review under Miss. Code Ann. § 1992.5. After denial of such relief, petitioner then instituted in federal court his present petition for writ of habeas corpus.

This court has jurisdiction under 28 U.S.C. § 2241. Petitioner has sufficiently exhausted his state-court remedies.³ We consider first the validity of the search, seizure and arrest, because if petitioner's contentions as to that point are upheld, the state conviction cannot stand. The initial inquiry relates to whether petitioner is precluded from presenting his Fourth Amendment claims by having failed to object to the testimony of the agents and the introduction of a six-pack carton of beer, when offered at the state trial, after his objections made to the affidavit for search warrant and warrant had been overruled. The state also suggests that petitioner affirmatively waived any claim of illegal search and seizure by his taking the stand and admitting possession of the beer.

Normally, objections to the admissibility of evidence must be made when the evidence is offered, and must set forth with specificity the reason for the objection so that the trial judge may have the opportunity to rule on them, and if counsel fails to make a timely and specific objection, the point is waived and may not be raised on appeal.⁴ The right to exclude evidence which may have been obtained in violation of a defendant's constitutional rights, however, is not so easily waived by procedural default. In determining whether there has been waiver of a right guaranteed by the federal constitution, federal standards govern,⁵ and those standards are highly restrictive, courts having stated that waiver of a constitutional right must be narrowly construed, will not be lightly inferred, and that courts will indulge every reasonable presumption against such waiver.⁶ The waiver must be an intentional relinquishment of a known right or privilege.⁷ Although constitutional rights may be waived by conscious decisions of trial strategy and under reasonable procedural regulations,⁸ the burden of proving such waiver rests always with the state.⁹ Under federal standards, where evidence challenged on constitutional grounds is material, has substantial evidentiary significance and is not merely cumulative, its admission may be attacked on federal habeas corpus even in the absence of any objection at trial.¹⁰ As Chief Judge Brown has stated, however, not every procedural error in the admission of illegally obtained evidence is reviewable, but only those cases in which the evidence is highly significant and virtually crucial to the defendant's case, and where there is shown some complicity of the prosecution or police in obtaining it:

"* * * For an otherwise valid state conviction to be upset, * * * surely something more than an evidentiary mistake must be shown. If mistake is enough, then never, simply never, will the process of repeated, prolonged, postconviction review cease. For in every trial, or at least nearly every trial, there will be, there are bound to be, some mistakes. What elevates the `mistake' to a constitutional plane is at least twofold. First, the mistake must be material in the sense of a crucial, critical, highly significant factor. Second, it must have some State complicity in it." (Concurring specially in Luna v. Beto, 395 F.2d 35 at 40, 41 (5 Cir., en banc, 1968).

In the Mize and Pope cases, supra, the Eighth and Tenth Circuits held that even where no objection at all was interposed at trial to the admission of the fruits of an unconstitutional search and seizure, the point was not waived unless the record showed a knowing and deliberate bypass and forfeiture of defendant's constitutional objections to the evidence as a matter of trial strategy. In the case at bar there is no indication whatsoever of any intention by petitioner or his counsel to waive constitutional objections to the affidavit, warrant and fruits thereof. Petitioner's trial counsel objected to the introduction of the affidavit and warrant themselves, renewing his objection at the close of the prosecution's evidence and after presenting his defense. Although he failed to state that he objected to the affidavit and warrant on Fourth Amendment grounds, and failed to object at all to the officers' testimony based thereon, there is nothing in the record indicating any intention to waive the right to object on those grounds. It is equally clear that the points were highly significant, since without the affidavit, warrant and their fruits, the state had no evidence whatsoever against petitioner.

The evidence in the present case also convinces us that neither petitioner nor his counsel had any intention of waiving his...