Hamric v. Bailey

• Decision Date: 07 November 1967
• Docket Number: No. 11316.,11316.
• Citation: 386 F.2d 390
• Parties: Bonnie June HAMRIC, Appellee, v. June R. BAILEY, Superintendent of the West Virginia State Prison for Women, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

386 F.2d 390 (1967)

Bonnie June HAMRIC, Appellee, v. June R. BAILEY, Superintendent of the West Virginia State Prison for Women, Appellant.

No. 11316.

United States Court of Appeals Fourth Circuit.

Argued June 20, 1967.

Decided November 7, 1967.

Leo Catsonis, Asst. Atty. Gen. of West Virginia (C. Donald Robertson, Atty. Gen., of West Virginia, and Fred M. Frisk, Jr., Asst. Atty. Gen. of West Virginia, on the brief), for appellant.

Homer A. Holt, Charleston, W. Va. (Jackson, Kelly, Holt & O'Farrell, Charleston, W. Va., on the brief), for appellee.

Before BOREMAN, BRYAN, and WINTER, Circuit Judges.

WINTER, Circuit Judge:

Petitioner, Bonnie June Hamric, was found guilty of second degree murder for shooting Glenn E. Winters on September 7, 1964. She was sentenced to an indeterminate term of five to eighteen years. On appeal, her judgment of conviction was affirmed. State v. Hamric, 151 W.Va. ___, 151 S.E.2d 252 (1966). She then sought a writ of habeas corpus from the district court, which, after plenary hearing, was granted, with leave to the State of West Virginia to retry her within three months if it should so elect. Hamric v. Bailey, 274 F.Supp. 240 (S.D.W.Va.1967). The State has appealed, and we affirm.

The facts are fully stated in the opinions of the Supreme Court of Appeals of West Virginia and the district court, and need not be restated in detail here. It is sufficient to say that the deceased, a neighbor of petitioner, was concededly shot by her at night when petitioner's husband, a deputy sheriff, was not at home. Petitioner claimed that the homicide occurred when she fired a shotgun at a window, covered by a venetian blind and closed draperies in a first floor room of her home, upon hearing the blind and draperies moving. Earlier in the evening she had become agitated by hearing the window raised. The deceased, who was somewhere on the outside, was hit by the shotgun charge and died some days later. Petitioner contended, at her trial, that the deceased was at the window, presumably seeking illegal entrance to the house, when she shot him, and that she acted in self-defense. The State, however, adduced evidence, in the form of dying declarations of the deceased, that he was on his side of the hedge or fence separating the adjoining properties when he was shot, and the State advanced the theory that petitioner shot the deceased as a result of deliberate aim. The hedge was ten feet from petitioner's house and over seventeen feet from the adjoining house.

After the shooting, it was established that the window of petitioner's home was raised three to five inches, that the shotgun charge had gone through the closed portion of the window, both glass and sash, as well as the blind and draperies, and that particles of wood and glass from the window were upon the ground outside of the house for a distance of three feet. Fatally wounded, but not dead, the deceased crawled to his trailer, parked behind the adjoining house, after he was shot, where he telephoned for an ambulance.

A laboratory examination of the clothes worn by the deceased when he was shot was made, and the findings resulting from the examination were encompassed in a written report. The examination disclosed slivers of wood and glass on the deceased's shirt, and the particles themselves were preserved. Upon his finding that petitioner's counsel were not aware of the fact of this examination and the existence of the report and the particles until the jury had retired to consider its verdict, the district judge granted the writ, in reliance on Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which held that the suppression of evidence favorable to an accused violates due process where the evidence is material either to guilt or punishment, irrespective of the bona fides of the prosecutor. Reliance was also placed on Barbee v. Warden, Maryland Penitentiary, 331 F. 2d 842 (4 Cir. 1964). In this appeal, the State contends that the district judge should have abstained from the exercise of his habeas corpus jurisdiction because petitioner failed to exhaust available state remedies and that, on the facts of this record, there was no suppression such as to deny petitioner's right to a fair trial.

The district judge concluded that petitioner had exhausted available state remedies, and in this ruling we think he was correct. Irrespective of whether they might have learned of the results of the laboratory examination of the deceased's clothes and obtained access to the written report, the fact is that, as the district judge correctly found, petitioner's counsel subjectively were not aware of them until the jury had retired to deliberate on its verdict. When a verdict of guilty was returned, petitioner's counsel moved for a new trial, inter alia, on the ground of suppression of evidence, citing the results of the examination and the report and on the ground of the knowing use of false evidence. In the direct appeal, the issue of suppression of evidence was pressed in the Supreme Court of Appeals in the original application for a writ of error; and it, and the claim of knowing use of false evidence, were asserted in the application for rehearing which was denied.

The trial court and the Supreme Court of Appeals dealt with the contentions under the restrictive and inflexible rules applicable to after-discovered evidence. The Court of Appeals made no finding that petitioner's counsel knew of this evidence before the jury had retired, but concluded that a motion based thereon should have been made before the jury returned its verdict, that the information could have been ascertained by the use of due diligence before or during the trial, and that the materiality of the evidence was questionable because it could be used only to discredit or impeach witnesses and was of doubtful value, even for that purpose. State v. Hamric, 151 S.E.2d, at 265. The dissenting judge, although agreeing that petitioner had not made a proper showing for a new trial on the ground of after-discovered evidence, concluded that deliberate suppression of evidence had been shown, in that the evidence was of "crucial importance to further corroborate the defendant's recital of the circumstances," and that the State had adduced testimony that no slivers of wood and glass were found on the deceased's shirt while, in fact, the State possessed information at the time the trial began to the contrary. Id., pp. 275-276.

It thus appears that both the issues of alleged suppression of evidence such as to violate the right to a fair trial and knowing use of false evidence, were litigated in the direct appeal. Grundler v. State of North Carolina, 283 F.2d 798 (4 Cir. 1960), does not require more by way of exhaustion. See also Edmondson v. Warden, Maryland Penitentiary, 335 F.2d 608, 609 (4 Cir. 1964); United States ex rel. Frinks v. Barwick, 331 F.2d 597 (4 Cir. 1964). Miller v. Boles, 248 F.Supp. 49 (N.D.W.Va.1965), which suggested to the contrary, was expressly disapproved by us in Sheftic v. Boles, 377 F.2d 423 (4 Cir. 1967).

To deal properly with the conclusion of the district judge that petitioner's constitutional right to a fair trial was denied, we must first state further facts. The beginning point is a consideration of the materiality of the evidence. In her direct appeal, a majority of the judges of the Supreme Court of Appeals of West Virginia concluded that the evidence would not have affected the outcome of petitioner's trial, although the majority opinion recognized that under the law of West Virginia self-defense was an available defense and petitioner was not required to retreat from an illegal intrusion because she was in her own home. Sharply in contrast, the dissenting judge termed the evidence of "crucial importance." The district judge had no doubt as to the materiality of the evidence; nor do we on the facts, even as we have briefly stated them. Whether the deceased was trying to make entrance to the window, or whether he was at least ten feet away from the petitioner's house on the other side of the hedge bordering her property, would appear to be the determination vital to her claim of self-defense. The presence of particles of wood and glass on his shirt would tend to prove that the deceased was at the window. Certainly, we would be engaging in speculation to say that the undisclosed evidence would not have influenced the fact-finder, and we feel free to disagree with the majority of the Supreme Court of Appeals of West Virginia in this regard, since we are concerned with the redress of a claimed violation of a federal constitutional right. Although the findings of fact of a state court are presumptively correct in a federal habeas corpus proceeding, 28 U.S.C.A. § 2254, it is necessary for the protection of federal rights that a federal court make an independent determination of the legal effect of the facts upon which rest a claimed violation of a federal right. Napue v. People of State of Illinois, 360 U.S....