Henry v. Williams, DC 6831.

• Decision Date: 05 May 1969
• Docket Number: No. DC 6831.,DC 6831.
• Citation: 299 F. Supp. 36
• Parties: Aaron E. HENRY, Petitioner, v. L. B. WILLIAMS, Sheriff of Bolivar County, Mississippi, and Thomas S. Hopkins, Sheriff of Coahoma County, Mississippi, Respondents.
• Court: U.S. District Court — Northern District of Mississippi

299 F. Supp. 36

Aaron E. HENRY, Petitioner, v. L. B. WILLIAMS, Sheriff of Bolivar County, Mississippi, and Thomas S. Hopkins, Sheriff of Coahoma County, Mississippi, Respondents.

No. DC 6831.

United States District Court N. D. Mississippi, Delta Division.

May 5, 1969.

COPYRIGHT MATERIAL OMITTED

Jack H. Young, Jackson, Miss., for petitioner.

G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, Miss., for respondents.

OPINION OF THE COURT

KEADY, Chief Judge.

Petitioner, convicted in the Mississippi state courts of disturbing the peace of Sterling Lee Eilert,¹ has sought to vindicate his state and federal constitutional rights against unlawful search and seizure in the Mississippi Supreme Court, see Henry v. Mississippi, 253 Miss. 263, 154 So.2d 289 (1963),² and in the United States Supreme Court, see Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1964), reh. den. 380 U.S. 926, 85 S.Ct. 878, 13 L.Ed.2d 813 (1965); Henry v. Mississippi, cert. denied without prejudice to the bringing of a proceeding for relief in federal habeas corpus, 392 U.S. 931, 88 S.Ct. 2276, 20 L. Ed.2d 1389 (June 17, 1968). The matter is now before this court upon petition for writ of habeas corpus and, upon our examination of the records and briefs in previous proceedings in this case, the further evidence developed before this court at an evidentiary hearing held February 21, 1969, and briefs of counsel, we hold that the relief requested must be granted.

We shall endeavor to set this matter in proper perspective by briefly recounting the history of this extended, and in many respects bizarre, litigation, beginning with a series of events which occurred on the afternoon and evening of March 3, 1962.

Around noon on that day, Sterling Lee Eilert, an eighteen year old white male, began a "hitchhiking" trip from his home in Memphis, Tennessee, to Cleveland, Mississippi, where he had formerly resided. After obtaining rides with three different parties, he arrived at the northwest corner of the intersection of State Highways 61 and 49 in Clarksdale, Mississippi. He crossed the street, and after fifteen or twenty minutes, at approximately 5:30 p. m. he caught a ride in a late model four-door black "Star Chief" automobile³ driven by a Negro man unknown to him at that time, but whom he was later to identify as the petitioner, Aaron Henry. The car upholstery was red with black or brown. According to Eilert's testimony, the two began driving southward on Highway 61, proceeding toward Cleveland, and the conversation turned to relations between the white and Negro races.

Eilert requested permission to smoke, and, being without matches or personal cigarette lighter, he pushed in the cigarette lighter on the right hand side of the dashboard, but found that it did not function. Also, he noticed the dashboard ashtray on the passenger side, when pulled out, was filled with red Dentyne chewing gum wrappers.

According to Eilert, the driver initiated a conversation concerning matters of a sexual nature, and, as they approached Shelby, Mississippi, he made suggestive comment and reached across the seat and touched Eilert's privates, thereby committing the offense with which Henry was to be charged. Eilert demanded that the driver stop the automobile, got his luggage from the rear seat, and, as the car drove away, observed the license tag number "1769". He was unable to ascertain the prefix to the left of those numbers, identifying the size, weight, and county of registration, as it was obscured by a red reflector disk. While attempting to phone the police, he again saw the automobile headed north on the highway toward Clarksdale. He walked approximately one block to the Shelby police station, and, finding no officer on duty, he prepared to make a telephone call to Cleveland from a nearby booth. At that moment, a Bolivar County Deputy Sheriff, Manuel Nasser, and a visiting Clarksdale policeman, Charles Reynolds, drove up. Eilert reported the earlier events and gave them so much of the description of the Negro man, and of the automobile and its interior and tag number as he had observed. The three, along with a companion of Reynolds', entered the Shelby police station where Reynolds radioed Clarksdale Police Department for a "28", or identification of the tag number. Although the prefix might have been found on tag numbers in any or all of the state's eighty-two counties, he tried Coahoma County first, because, as he later testified, he suspected from Eilert's account that the car belonged to Aaron Henry, whom he knew to be a resident of Coahoma County. His suspicions were immediately confirmed and at 6:04 p. m. notice was given to patrol cars by radio from the Clarksdale police station, notifying them to be on the lookout for petitioner.

While still at the Shelby police station, Eilert signed an affidavit as complainant, which Deputy Nasser took before Justice of the Peace Rowe at Shelby.⁴ Rowe, an eighty-four year old man at the time and physically unable to manually sign his name, affixed his signature to an arrest warrant by rubber stamp. Nasser then directed officer Reynolds to take Eilert and the warrant to Clarksdale Chief of Police B. C. Collins.

Officer Henry Petty of the Clarksdale police force located petitioner's automobile parked at his home ten or twelve minutes before 7 o'clock, p. m., and so notified Chief Collins, who at once went to the Henry residence and arrested petitioner several minutes later. An operator of a Clarksdale drug store and leader in Negro causes, Henry was a well known local figure. He was taken to the police station, identified by Eilert, interrogated by the County Attorney, and then delivered into the custody of Bolivar County officers who transported him first to the Shelby City Hall and then to the Bolivar County jail in Cleveland. About 9:30 p. m., Chief Collins, without a search warrant, returned to Henry's residence and, seeing petitioner's Pontiac automobile parked in the carport, he requested and obtained the car keys from petitioner's wife, unlocked the automobile, and examined its interior. His warrantless search revealed that the cigarette lighter was defective and the ashtray was filled with gum wrappers. Collins later testified to this and also: "I asked Aaron Henry's wife and the people there, `Can you tell me what's in the ashtray?'" Aaron Henry's little girl 11 year old Rebecca spoke up and said, "Yes, sir, them is dentyne chewing gum wrappers. I put them in there about three days ago"; and that following this conversation Collins "got out of the car, locked it back up, handed his petitioner's wife the keys and left."

On March 14, 1962, petitioner, represented by two attorneys, Robert J. Carter of New York and R. Jess Brown of Vicksburg, was tried and convicted of the offense charged in the Justice of the Peace court. Eilert and Collins were the only two prosecution witnesses; Collins did not then testify as to the search he had made of the automobile.

On appeal to the County Court, the case was set for trial de novo on March 21, 1962. At approximately 7 o'clock, p. m., on the evening before trial, attorneys Brown and Carter, accompanied by attorney Jawn A. Sandifer of New York, arrived at Henry's home to discuss the defense of the case. Carter was to be the chief counsel and Brown the "leg man". Henry did not participate in the plotting of defense strategy, but did inform his counsel that there was a witness, Willie Singletary, Jr., who could testify that a cigarette lighter in petitioner's automobile had been repaired at that witness' garage earlier that year. The attorneys also talked to petitioner's wife about the automobile search and knew that she had not been served with a search warrant.

It is necessary to briefly describe the arrangement of the county courtroom on the day of the trial in order to present the factual setting for the issues before the court. Petitioner sat at the far right of the defense counsel table which was located on the right-hand side of the courtroom with, from right to left, Brown, Sandifer and Carter. The state's table was placed at right angles to that of the defense so that opposing counsel were almost face to face. The weather was extremely warm that day and, although pitchers of ice water and cups were placed on the judge's bench and on the state's table, none was provided for the defense. Defense counsel were told, however, that they might use a "for colored only" fountain located outside the courtroom.

The first witness, Eilert, gave the same account of the events of March 3 as previously detailed. His testimony was corroborated by testimony of Chief Collins, who described the interior appearance of petitioner's automobile as revealed by his search. The District Attorney knew that Collins' testimony as to what he found without search warrant in the car during Henry's absence was "probably inadmissible" on Fourth Amendment grounds and had so forewarned the witness and the County Attorney, who was to question Collins. To the prosecution's surprise, when answers respecting the search were elicited, there was no immediate defense objection. Indeed, a motion to exclude the evidence, in those words, was not made at any time during the trial. But there were motions for directed verdict of acquittal at the close of the state's case, and again when all the evidence was in, on the ground, inter alia, of unreasonable search and seizure. Both motions were overruled. The District Attorney was later to recall, and so testified on the federal habeas corpus hearing, that when Collins was asked what he found in the car, attorney Sandifer began to rise as if to object, but was pulled down by the coattails by Carter, and that a "whispered conversation" ensued, indicating to him that they might have agreed, as a matter of trial strategy, that objection should not be made at that time. Sandifer and Carter denied that they thus conferred to waive...