Greenhaw v. Wyrick, 78-0967-CV-W-1.

• Decision Date: 14 June 1979
• Docket Number: No. 78-0967-CV-W-1.,78-0967-CV-W-1.
• Citation: 472 F. Supp. 730
• Parties: T. J. GREENHAW, Petitioner, v. Donald WYRICK, Warden, Missouri State Penitentiary, Respondent.
• Court: U.S. District Court — Western District of Missouri

472 F. Supp. 730

T. J. GREENHAW, Petitioner, v. Donald WYRICK, Warden, Missouri State Penitentiary, Respondent.

No. 78-0967-CV-W-1.

United States District Court, W. D. Missouri, W. D.

June 14, 1979.

COPYRIGHT MATERIAL OMITTED

T. J. Greenhaw, pro se.

Robert L. Presson, Asst. Atty. Gen., Jefferson City, Mo., for respondent.

MEMORANDUM AND ORDER

JOHN W. OLIVER, Chief Judge.

Petitioner, presently confined at the Missouri State Penitentiary, has filed a pro se habeas corpus petition under 28 U.S.C. § 2254 challenging his 1975 conviction for first degree murder in the Circuit Court of Jasper County, Missouri. Pursuant to that conviction, he now serves a life sentence. His direct appeal was unsuccessful. State v. Greenhaw, 553 S.W.2d 318 (Mo.App.1977).

Petitioner presents twelve claims:

1. that the first information against him was dismissed and that a second information was then filed;

2. the state court should have suppressed the evidence obtained from petitioner after his arrest because that evidence was obtained as the result of a complaint that was subsequently dismissed for lack of probable cause;

3. that the state reviewing courts failed to note that the state did not appeal from the dismissal of the first information for lack of probable cause;

4. the state should not have been allowed to introduce evidence taken from petitioner at the time of his arrest because it was obtained pursuant to a complaint that was dismissed for lack of probable cause;

5. petitioner was denied a fair trial when the state courts refused to apply principles of "collateral estoppel" after the first information was dismissed for want of probable cause;

6. the state courts erred by requiring petitioner to show that certain custodial statements were involuntary;

7. petitioner's custodial statements were involuntary because he suffered from "mania" and the effects of drug abuse at the time he made them;

8. the state failed to come forth with sufficient evidence of petitioner's sanity after he presented contrary expert testimony and the state failed to produce sufficient evidence of his sanity;

9. the trial court erred in failing to give a manslaughter instruction;

10. the state requirement that petitioner prove his insanity by a preponderance of the evidence was unconstitutional;

11. the state court denied petitioner due process when it permitted the state to call a psychiatric witness on rebuttal who had not previously been endorsed; and

12. the state court lacked jurisdiction to try or convict petitioner after the first complaint was dismissed for lack of probable cause.

In response to an earlier order, the state submitted a full response to these claims. Petitioner then filed a traverse. The state argues that petitioner has not exhausted state remedies on certain claims presented in this action and that all of his points are without substantive merit. The Court will first address the exhaustion argument.

It is axiomatic that a state prisoner seeking federal habeas corpus relief must first exhaust state remedies by giving state appellate courts a fair opportunity to rule upon the claims to be presented in the federal petition. See, e. g., Pitchess v. Davis, 421 U.S. 482, 95 S.Ct. 1748, 44 L.Ed.2d 317 (1975); Picard v. Connor, 404 U.S. 270, 91 S.Ct. 1620, 29 L.Ed.2d 110 (1972); Harkins v. Wyrick, 589 F.2d 387 (8th Cir. 1979); Tolliver v. Wyrick, 469 F.Supp. 583 (W.D. Mo.1979). Where a petition contains both exhausted and unexhausted claims, the court must dismiss those that are unexhausted and consider the exhausted claims. Triplett v. Wyrick, 549 F.2d 57 (8th Cir. 1977).

To determine whether petitioner has exhausted state remedies, and, if so, the extent of exhaustion, the Court must examine the records, pleadings, and briefs compiled in or submitted to the state courts. United States ex rel. Geisler v. Walters, 510 F.2d 887 (3d Cir. 1975); Martin v. Parratt, 412 F.Supp. 544 (D.Neb.1976). The records of petitioner's direct state appeal show that he presented seven claims to the Missouri Court of Appeals:

1. The state failed to produce sufficient evidence that petitioner was sane after he carried his burden of showing that he was insane by production of expert testimony.

2. The trial judge abused his authority in questioning the state's expert psychiatric witness.

3. The trial court erred in overruling petitioner's pre-trial motion to suppress because the arresting officer lacked reasonable suspicion of criminal activity sufficient to justify petitioner's arrest; the illegality of the arrest required the trial court to suppress all evidence seized as the result of the arrest.

4. Petitioner's arrest was illegal because the complaint and warrant issued in Cedar County, Missouri, were based solely upon hearsay insufficient to support an independent determination that probable cause existed.

5. The prosecutor lacked authority to file an information.

6. The trial court erred in admitting testimony from the state's ballistics expert because it was based upon hearsay.

7. The Court erred when it refused to give the Missouri pattern instruction on manslaughter.

State v. Greenhaw, 553 S.W.2d 318 (Mo. App.1977), petitioner's brief at 5-8.

When the points raised on direct state appeal are compared with those submitted in this action, it is clear that the second, fifth, sixth, seventh, and eleventh claims in this action have not previously been presented to the Missouri appellate courts. Because petitioner has not yet filed a motion under Missouri Rule 27.26, he still has an available avenue of relief in the state courts through which he may press his second, fifth, sixth, seventh and eleventh claims in this petition. Accordingly, these claims will be dismissed for failure to exhaust state remedies, Picard v. Connor, supra, and the Court will consider his remaining, exhausted claims. Triplett v. Wyrick, supra.

Petitioner's remaining claims are presented in no particular order, but they may readily be grouped into certain categories for analysis. The first and third claims appear to be no more than assertions of fact concerning the state proceedings or the analysis employed by the state courts. Hence, they warrant no separate consideration. Cf. Toler v. Wyrick, 563 F.2d 372 (8th Cir. 1977). Petitioner's fourth claim, which relates to the alleged lack of probable cause for his arrest, dismissal of the first information, and the alleged need for suppression of evidence, will be considered separately. The eighth and tenth claims, which relate to petitioner's defense of incompetence, will be considered together. The ninth claim, with relates to the omitted manslaughter instruction, and the twelfth claim, concerning jurisdiction, will be considered separately.

Petitioner's fourth claim reads as follows:

Petitioner was prejudiced and denied a fair trial wherein the State was allowed to use evidence obtained in an illegal arrest in complaint and warrant numbers 6331 and 6334 the original complaints issued against petitioner and later dismissed to obtain a conviction in complaint and warrant 6591, for the reasons that the exclusionary rule, when used to effectuate the Fourth Amendment, serves interests and policies that are distinct from those it serves under the Fifth Amendment, since it is directed at all unlawful searches and seizures and not merely those that happen to produce incriminating material or testimony as fruits. All of the evidence used to convict in case number 6591 was the fruits of the arrest in case numbers 6331 and 6334 that had been dismissed for lack of probable cause and no appeal taken therefrom.

Emphasis original. The Missouri Court of Appeals viewed this claim as a two-pronged attack based on the Fourth Amendment:

Petitioner first contends his being stopped by the Blue Springs police officer was an unlawful seizure and all evidence seized as a result of the arrest which followed should have been excluded at his trial. The second prong of his Fourth Amendment attack on the lower court's ruling is that his arrest was unlawful because it was based upon an invalid arrest warrant and therefore evidence obtained as the result of the arrest was tainted.

State v. Greenhaw, 553 S.W.2d 318, 323 (Mo.App.1977).

The facts underlying this claim arose in the following fashion. After receiving information tending to show that petitioner had abducted his estranged wife some days earlier, officials in Cedar County, Missouri, applied for an arrest warrant charging petitioner with kidnapping. Officials placed this information into the National Crime Information Center computer on the date the warrant was issued, March 4, 1974.

Four days later, a Blue Springs, Missouri, police officer stopped petitioner and three other young men along the side of a state highway in that community. The police officer, who also acted as a juvenile officer, stopped the four men because they appeared to be of school age and school was in session. He asked each of the four to produce identification and checked the names of each with the police dispatcher. The Cedar County warrant came to light during this check, and the officer asked petitioner if he knew of its existence. Upon receiving a negative answer, the officer contacted his dispatcher again for confirmation that the warrant was still outstanding. Blue Springs officers contacted Cedar County officials and found that the warrant was still valid and might involve a homicide. The officer placed petitioner under arrest, informed him of his "Miranda rights," and asked if he knew where his wife was. Petitioner stated that he thought she had left the state. Id. at 322.

Upon his arrival at the police station, petitioner was booked and searched by Blue Springs officers. This search revealed an incriminating note in petitioner's wallet. Later, in response to a subsequent request from Cedar County officers, Blue Springs police again gave petitioner "Miranda warnings" and asked if he knew about a...