Howard v. Allgood

• Decision Date: 15 August 1967
• Docket Number: Misc. No. 882.
• Citation: 272 F. Supp. 381
• Parties: George D. HOWARD v. J. Wayne ALLGOOD, Warden.
• Court: U.S. District Court — Eastern District of Louisiana

272 F. Supp. 381

George D. HOWARD v. J. Wayne ALLGOOD, Warden.

Misc. No. 882.

United States District Court E. D. Louisiana, Baton Rouge Division.

August 15, 1967.

Ben R. Miller, Jr., Sanders, Miller, Downing & Kean, Baton Rouge, La., for petitioner.

Jack P. F. Gremillion, Atty. Gen., for State of Louisiana, Teddy W. Airhart, Jr., Asst. Atty. Gen., for State of Louisiana, Baton Rouge, La., for respondent.

WEST, District Judge:

Petitioner, George D. Howard, after having exhausted all available State Court remedies, applies to this Court for the issuance of a writ of habeas corpus. He is presently serving a thirty year sentence at Louisiana State Penitentiary after having been convicted by a jury on November 29, 1961 of the crime of armed robbery. He attacks his conviction and sentence on five grounds, i. e., (1) that he was arrested without a warrant and without probable cause; (2) that he was the victim of an illegal search and seizure; (3) that he was required to violate his constitutional right to remain silent and was forced to incriminate himself by being forced to re-enact the alleged crime and to speak certain words; (4) that the Trial Court suppressed certain evidence vital to his defense when it refused to make the defendant name an alleged informer; and (5) that he was denied a complete transcript of the State Court proceedings had against him.

An attorney, Ben R. Miller, Jr., Esq., was appointed by this Court to represent petitioner, and an evidentiary hearing was held. Since the hearing Mr. Miller has diligently and exhaustively researched the law and has furnished this Court with six briefs on behalf of petitioner. However, after a careful review of the facts of this case, and the law applicable thereto, it is the opinion of this Court that petitioner's application for habeas corpus must be denied.

On September 15, 1961, at about 10:00 o'clock p. m., a service station owned and operated by Mr. Thomas A. James was robbed when an unmasked man with a gun took Mr. James' money while he was clearing his cash register preparatory to closing for the night. After picking up the money, the robber left through the back door of the station, got into what Mr. James believed to be an old Ford automobile, and "took off." An employee of Mr. James, Wardell Camper, was hosing down the front of the station at the time of the robbery. Mr. James immediately reported the robbery to the police and both he and Camper described, as best they could, the person who had committed the robbery. The following day Mr. James and Mr. Camper went to the police station to look at some "mug shots" in an attempt to identify the robber but after seeing them, while being able to tentatively identify the robber, they were unable to make a positive identification. A few days later, on September 20, 1961, Mr. James' station was again robbed by a man with a gun. This time there were three other witnesses, but the robber wore a mask. Mr. James was, however, certain that it was the same man who had robbed him on September 15, 1961. One of the witnesses, Henry Burkett, who had driven into the station and saw the holdup, told the police that he knew the last name of the robber to be "Howard." Wardell Camper also informed the police that he knew Howard's brother. After the second holdup James and Camper were again shown ten or eleven photographs and this time they positively identified petitioner as the man who had twice held up the service station. After checking records in the Bureau of Identification, the police officers went to the home of petitioner on September 24, 1961. Not wanting to show their hand if petitioner was not at home, they had a friend of petitioner's named Edward Davis go to the door first and merely inquire as to whether or not petitioner was at home. At that time Davis knew nothing about the robberies and indeed did not know that petitioner was wanted by the police as a suspect in a criminal investigation. He, Davis, went to the door of petitioner's home and when petitioner's father came to the door, Davis told him that he had a date for petitioner for that evening if he, petitioner, was interested. The father delivered the message and petitioner, who had been sleeping, said that he had to work the next day and that he could not go out that evening. Davis then left the house. That was his entire participation in the police investigation. Thereafter the police entered the house and informed petitioner that both he and his brother were suspects in the two robberies. Petitioner denies this and contends, on the contrary, that he and his brother were informed that they were wanted for a traffic violation. The Court simply cannot believe this version of the story in light of the other unrefutable evidence pertaining to the activities of the officers in searching the house for a gun, and for the clothes that they suspected petitioner was wearing during the robberies. There is no dispute about the fact that petitioner and his brother then voluntarily, without threat or coercion, did accompany the officers to Mr. James' service station. But prior to leaving the house the officers seized and took with them a dark brown shirt and an old cap, which they found in the house, and an oily rag which they found in petitioner's automobile and which they suspected petitioner might have used as a mask during the holdup. They had no warrant to search either the house or the automobile.

When they arrived at the service station in the police car Mr. James came out of the station and before petitioner got out of the car positively identified him as the man who had twice robbed his station. At that time neither the shirt nor the cap were being worn by petitioner, nor were these items, or the oily rag, shown to Mr. James prior to this positive identification. Immediately after this positive identification, petitioner was placed under arrest and later formally charged with armed robbery. After this identification was made, petitioner was made to re-enact the crime in the service station wearing the dark shirt and the cap previously referred to. But the positive identification of petitioner as the person who had committed the robberies was made by James before the re-enactment took place and while petitioner was still inside the police car. This identification merely confirmed the prior positive identification made by both James and Camper from the "mug shots" after the second robbery. It was James' emphatic testimony that neither the re-enactment of the crime nor...