Hayton v. Egeler

• Decision Date: 08 December 1975
• Docket Number: Civ. A. No. 40334.
• Citation: 405 F. Supp. 1133
• Parties: James Edward HAYTON, Petitioner, v. Charles EGELER, Warden, State Prison of Southern Michigan, Respondent.
• Court: U.S. District Court — Western District of Michigan

405 F. Supp. 1133

James Edward HAYTON, Petitioner, v. Charles EGELER, Warden, State Prison of Southern Michigan, Respondent.

Civ. A. No. 40334.

United States District Court, E. D. Michigan, S. D.

December 8, 1975.

Stuart M. Israel, Columbus, Ohio, for petitioner.

Frank J. Kelley, Atty. Gen., A. Michael Leffler, Keith D. Roberts, Asst. Attys. Gen., Lansing, Mich., for respondent.

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND GRANTING RESPONDENT'S MOTION TO DISMISS

CORNELIA G. KENNEDY, District Judge.

Petitioner is presently serving a life sentence imposed by the Livingston County, Michigan, Circuit Court on June 26, 1968, following his conviction for first degree murder in the killing of a Hamburg (Livingston County), Michigan drug store owner during a robbery.¹ He filed the instant habeas corpus action pro se and in forma pauperis. The complex and serious nature of the constitutional issues raised required that counsel be appointed. The director of the Michigan Inmate Assistance Program, a faculty supervised, student program at the University of Michigan Law School, accepted appointment as counsel and an Amended Petition for Writ of Habeas Corpus was filed on petitioner's behalf on June 24, 1974.²

This petition raises the following constitutional challenges to petitioner's conviction:

I. That intense, localized publicity, including inaccurate and inadmissible information about petitioner saturated the trial community and influenced the courtroom proceedings, thereby denying petitioner his right to a fair trial by an impartial jury when his motions for change of venue, separate trials, and mistrial were denied;

II. That since the adverse pretrial publicity did not abate, the failure of the state to preserve any record of the voir dire examination, the ruling on the motion for change of venue, and the ruling on the motion for separate trials denied the petitioner a record from which to demonstrate fully the foregoing claim and thereby deprived him of the due process of law.

III. That petitioner was unconstitutionally penalized for exercising his privilege against self-incrimination when both the prosecutor and co-defendant's counsel revealed to the jury that he had exercised that privilege while in police custody prior to trial;

IV. That petitioner was denied the due process of law when testimony was taken while he was absent from the courtroom even though he never waived his right to be present and confronted with all the evidence;

V. That the totality of misconduct during trial by prosecuting authorities deprived petitioner of his right to a fair trial by an impartial jury upon properly admitted evidence.

Petitioner has exhausted his state remedies. Following his trial (which lasted from June 3 to June 13, 1968) his retained trial counsel filed an appeal on his behalf. This appeal raised primarily state law issues. The conviction was affirmed by the Michigan Court of Appeals. People v. Hayton, 28 Mich.App. 673, 184 N.W.2d 755 (1970). The Michigan Supreme Court denied without opinion the application for leave to appeal on April 13, 1971.

Petitioner, pro se, then filed on June 2, 1971, a "Motion to Vacate and Set Aside Judgment and Sentence" in the Livingston County Circuit Court, supported by a brief that unartfully but sufficiently raised the claims he asserts here. A hearing was held on this motion before the trial judge's successor at which petitioner appeared without counsel. The motion was denied. Petitioner applied to the Michigan Court of Appeals for leave to appeal this decision. This relief was denied without opinion on September 23, 1971. Application to the Michigan Supreme Court for leave to appeal was denied without opinion on December 14, 1971.

I. EXISTENCE OF PREJUDICIAL PRETRIAL PUBLICITY

The first two claims of petitioner both relate to pretrial publicity and are inextricably interwoven. The nature and extent of this publicity was largely stipulated. The following is a brief chronology of that publicity:

                     Date               Event &/or Proceeding          Publicity
                     Jan. 7, 1967       Crime committed
                     Jan. 10 —                                          Reports of the murder in
                     Feb. 26, 1967                                     local and Detroit newspapers
                                                                       general factual
                                                                       accounts
                     Early Aug.         Petitioner arrested in
                     1967               Southfield robbery
                     Aug. 15, 1967      Petitioner identified as
                                        one of the killers
                     Aug. 17-26,                                       Reports of petitioner's
                     1967                                              arrest and identification
                                                                       including mention of his
                                                                       participation in Southfield
                                                                       robbery and his brother's
                                                                       death in a gunfight with
                                                                       police
                     Sep. 26, 1967      Co-defendant Coleman
                                        arrested
                     Nov. 28, 1967      Preliminary examination
                     Mar. 19, 1968      Trial set for April 8
                     Apr. 3, 1967                                      Brighton Argus article
                     Apr. (before       Court grants two-month
                     the 10th),         adjournment because of
                     1968               April 3 article and
                                        radio newscasts
                     Apr. 10, 1968                                     Local newspapers report
                                                                       adjournment
                     May, 1968                                         True Detective article
                                                                       published
                    Jun. 3, 1968        Trial begins; resumes
                                        June 6; continues through
                                        June 13
                     Jun. 5, 12,                                       Local newspapers report
                     1968                                              on trial
                

In addition to objecting to the totality of the publicity petitioner charges that certain items were particularly prejudicial. These fall into three categories:

1. Reports of inadmissible or non-existent evidence:

a. Reports of petitioner's participation in a Southfield, Michigan armed robbery and his brother's death in that incident;

These reports appeared in August 1967 (nine months before trial) at the time petitioner was identified by the murder victim's son. They also appeared in the May 1968 True Detective magazine article and the June 12, 1968 issues of local newspapers reporting on the progress of the trial;

b. The Detroit News' "Secret Witness" reported on August 26, 1967, such items as that petitioner was seen in Livingston County on the night of the murder and was heard discussing a getaway car. These items were also reprinted in the True Detective article. No evidence of any of these "facts" was presented at the trial;

c. Mention in True Detective magazine of a second eyewitness who could identify Mr. Hayton as one of the men who entered the drug store shortly before the murder;

2. Frequent accounts of the crime describing how the murder victim's son saw the crime;

Apparently, petitioner's argument is that these accounts strengthened this witness's credibility when he testified at trial as to what happened;

3. Information alleged to have generated localized prejudice toward the defendant;

Generally, this argument relates to such things as the crime having been attributed (at and shortly after the killing) to big-city criminals "invading" the rural community.

Petitioner refers to only four articles published within six months of the trial. Two of these are clearly innocuous. The third, the April 3, 1968 Brighton Argus article, is alleged to have been prejudicial because of the photograph of the prosecutor, State Police detective Vincent Demsky (the officer in charge of the case), and the district judge who had acted as magistrate at the preliminary examination — a hearing provided under Michigan law at which the State must establish probable cause to bind a defendant over for trial. This photograph and the article, it is argued, suggested that the Court was aligned with the prosecution and that the evidence has been "doubly scrutinized" (because two examinations — one for each defendant — were conducted). The testimony taken at the evidentiary hearing before this Court established that the trial judge adjourned the trial for two months at the request of counsel for petitioner's co-defendant, because of possible prejudice to defendants from this article and, particularly, the photograph. The fourth article, that published by True Detective magazine, does contain prejudicial statements. There were, however, only a very limited number of these magazines distributed in Livingston County. Sergeant Demsky testified that after hearing about the publication of the article from petitioner's attorney on May 8, 1968, he went to one of the stores in Howell where True Detective was sold; there he learned the name and address of the distributor, Southern Michigan News and Stouffler News, located in Ann Arbor, Michigan. From the distributor he learned that there were seven outlets in Livingston County to which the magazine was distributed and that 24 copies of the magazine had been thus distributed. Sergeant Demsky went to each of the outlets and was able to buy up five of the copies. The Prosecuting Attorney and the attorney for co-defendant Coleman each had one. He was also able to secure two others, accounting for nine of the 24. Although other copies of the magazine could, of course, be bought elsewhere than in Livingston County, the fact that there were still copies on the newsstands when Sergeant Demsky bought them, despite the fact that the distribution was so...