Harding v. Lewis

• Citation: 641 F. Supp. 979
• Decision Date: 30 April 1986
• Docket Number: No. CIV 85-744 TUC ACM.,CIV 85-744 TUC ACM.
• Parties: Donald Eugene HARDING, Petitioner, v. Samuel A. LEWIS, et al., Respondents.
• Court: U.S. District Court — District of Arizona

641 F. Supp. 979

Donald Eugene HARDING, Petitioner, v. Samuel A. LEWIS, et al., Respondents.

No. CIV 85-744 TUC ACM.

United States District Court, D. Arizona.

April 30, 1986.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Francisco Leon, Tucson, Ariz., for petitioner.

Jack Roberts, Asst. Atty. Gen., Dept. of Law, Phoenix, Ariz., for respondents.

ORDER

MARQUEZ, District Judge.

Petitioner, Donald Eugene Harding, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.A. § 2254. Petitioner is presently in state custody on death row at the Arizona State Prison Complex. The Petition raises six grounds for habeas relief which will be considered in the order they appear therein. The grounds alleged are; 1) ineffective assistance of counsel, 2) failure to make a knowing waiver of counsel, 3) lack of a competency hearing prior to waiver of counsel, 4) admission of prejudicial photographs, 5) failure to recuse the prosecutor and, 6) failure to suppress statements.

I. FACTS

The direct evidence presented at trial against Mr. Harding was overwhelming. No defense was presented. The evidence heard by the jury is summarized below as taken directly from the trial transcripts. The court has marked the transcripts with standard exhibit numbers 1-36.

On January 26, 1980, the Tucson Police Department was called to investigate suspicious circumstances at the La Quinta Motel in Tucson, Arizona. The Officers involved discovered two bodies, one located next to the bed and the other in the bathroom. (Exhibit (Ex) 28. pages 43-46). The bodies were identified as Martin L. Concannon and Robert A. Wise. (Ex. 28 page 95) The jury was shown approximately 150 pictures depicting the room where the crime occurred and the autopsies performed on the victims. The pictures demonstrated that the victims were bound repeatedly with various types of ligatures. The body of Martin L. Concannon was found on the floor of the bathroom covered with a bedspread. His body had been repeatedly bound, two men's socks stuffed into his mouth and a pillow placed under his head. (Ex. 29 page 62-90). Robert Wise's head was tethered to the bed and he was hogtied with his feet bound together and tied with a sheet to his elbows. A belt had been wrapped around his wrists which constricted his hands. Blood splattered on the walls indicated that Wise was beaten repeatedly. (Ex. 29 pages 116-129). Pieces of teeth were found underneath his head. (Ex. 28 page 136). Small chips of synthetic wood were found under the body (Ex. 28 page 161) which were identified as pieces from the base of the hotel room lamp. (Ex. 30 page 126). Chemical analysis showed human blood on the base of this lamp. (Ex. 30 page 146). The harp of the lamp was found near Wise's body. (Ex. 28 page 119). The lamp itself had been plugged back into the wall. (Ex. 28 page 164).

Identifiable prints were taken from; the do-not-disturb sign found outside the door, a small glass on the table near the bed, cellophane wrapping from a package of Winston cigarettes and off the top part of the lampshade. All four of these finger-prints were identified as matching those of Donald Harding. (Ex. 29 page 23). Fingerprints were also removed from the telephone receiver, a light bulb and an ashtray. These prints were also identified as matching those of Donald Harding. (Ex. 29 pages 46-52).

The pathologist testified that Robert Wise was shot in the chest from front to back and in the left temple. The wounds revealed that he was shot with the muzzle of the gun only a few inches from the skin. (Ex. 29 page 113-120; Ex. 30 page 114). He sustained a multiple fracture to the jaw and his teeth had been broken by repeated impacts with a blunt object. A tether had been placed around Wise's neck with enough force to create a U-shaped abrasion, which penetrated the skin, causing the blood vessels to rupture. The victims wrists had been tightly bound. Wise's death was caused by the bullet wound to the chest which perforated the spinal cord. The time of death was estimated by the pathologist at between 1 p.m. and 7 p.m. on January 25, 1980 (Ex. 29 pages 141-142).

The autopsy performed on Martin Concannon showed that his death was also caused by a shot to the chest which perforated the spinal cord. He had also been shot in the temple. The autopsy revealed that the two socks which had been pushed to the back of his throat had covered all breathing passages. Hemorrhaging in the scalp tissue, caused by lack of oxygen, indicated that Concannon had not died immediately. (Ex. 29 pages 143-144) (Ex. 30 pages 11-17).

Jeri Wise testified that her husband was the district manager for KAR Products. She testified that he left the 24th of January to see Marty Concannon, one of his salesmen, and to make a call in Ft. Huachuca. Mrs. Wise expected him to return the next day, January 25, around 6:30 p.m. At approximately 8:40 on that night a man came to the Wise's home and asked if Bob was there. Mrs. Wise testified that the man was holding one of her husband's business cards and acting very nervous. She stated that he was wearing a rust colored jacket and a burgundy shirt. The man left the Wise's home when she told him she expected her husband home soon as he was already overdue. Mrs. Wise positively identified Donald Harding as the man at her door that night. (Ex. 30 page 151-166).

January 26, 1980 a Northern Arizona University police guard was assigned to a parking lot near the athletic dome on the NAU campus to ensure that only members of the booster club parked in the lot. He observed a man driving an Oldsmobile, with Ohio plates, pull into the lot. The guard told the driver that he would not be allowed to park in the lot. The driver asked if there was a place he could park and the guard suggested a lot north of the dome. The guard identified the driver of the car as Donald Harding. (Ex. 30 pages 22-26). The Oldsmobile he was driving belonged to Martin Concannon. (Ex. 18 page 506).

The guard testified that Harding appeared a little strange because he spoke with a Southern accent but was driving a car with Ohio plates. He testified Harding was also wearing two jackets and had numerous articles in the back seat. The guard ran a warrants check on the car and was told that it had been stolen from Tucson. He called for back up units and they arrested Harding. A body search revealed a .25 automatic in Harding's jacket pocket. (Ex 30 pages 25-41). A ballistics check run on the gun showed that it was the same weapon used to kill Concannon and Wise in Tucson. (Ex. 30 pages 116-122). Two security badges, a wallet and an identification card issued to Ronald Svetgoff were also found on Harding. Harding told the NAU police that he was Svetgoff but looked different because he had lost some weight and changed his hair. (Ex. 30 pages 37-38).

Robert Svetgoff testified that he was robbed in a motel in Waco, Texas on December 18, 1979 by a man he identified as Donald Harding. He said that Harding approached him, showed him a security badge, identified himself as a security officer and demanded that Svetgoff produce identification. Svetgoff identified one of the badges found on Harding as the one used during this robbery. When Svetgoff opened the door to his hotel room, Harding pulled a gun, forced Svetgoff onto the floor and tied him up with a tie, a torn dress shirt and his jumprope. (Ex. 28 page 33). Harding put a sock in Svetgoff's mouth, wrapped a t-shirt around that and then tied a belt around his mouth. Harding then rolled Svetgoff in a bedspread, dragged him into the bathroom and placed a pillow under his head. Harding stole all of Svetgoff's clothes and left in his car. (Ex. 28 page 28-41).

The Tucson police executed a search warrant on the car that Harding was driving when he was arrested. In it were found; 1) a tan attache case (which Mrs. Wise identified at trial as her husband's), 2) loose credit cards in the name of Robert Wise and 3) a box of pens and a memo pad with KAR logo. (Ex. 28 pages 69, 81, 162).

The Tucson police obtained clothing from the Coconino County Jail which included a burgundy colored long-sleeved shirt, a pair of black shoes and two jackets. Jeri Wise identified the burgundy shirt as the one Harding was wearing when he came to her house. (Ex. 30 page 162) Chemical tests performed on this shirt showed the presence of human blood. (Ex. 30 page 144). Inside one of the jackets was Robert Wise's drivers license and page C-D torn out of an address book with the names of Pam and Martin Concannon circled. (Ex. 30 page 67).

Two statements made by Harding were introduced into evidence at the trial. The first was made while Harding was being transported from Flagstaff to Tucson. A Tucson police detective testified that it was a cold day and Harding was wearing only a short-sleeved shirt. The detective opened his suitcoat to protect him from the wind while they waited for the airplane. The detective testified that Harding looked at him and said "you don't need to do that, I deserve whatever I get." (Ex. 30 pages 85-87)

Harding made a second statement in Tucson. The same detective testified that Harding asked if he could get some of his clothes returned and that the detective told him that the police had to keep the clothes in order to look for evidence. Harding told the detective that he might find something on the burgundy shirt and shoes but the rest of the clothing had not been worn. (Ex. 30 pages 90).

II. PROCEDURAL HISTORY

April 27, 1982: Donald Harding was convicted, by a Pima County Superior Court jury, of two counts of armed robbery, two counts of kidnapping, theft of property valued at over $1,000 and two counts of murder in the first degree.

May 26, 1982: An aggravation hearing was held in front of the trial court. The court found four aggravating and no mitigating circumstances. No mitigating evidence was presented. The court sentenced Mr. Harding to two consecutive 21 year terms for...