Howell v. Barker, No. 88-7106

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtBefore ERVIN, Chief Judge, and RUSSELL; KISER; Upon the basis of these findings of fact; DONALD RUSSELL
Citation904 F.2d 889
PartiesWilton HOWELL, Petitioner-Appellee, v. W.R. BARKER; Attorney General of the State of North Carolina, Respondents-Appellants.
Docket NumberNo. 88-7106
Decision Date24 May 1990

Page 889

904 F.2d 889
Wilton HOWELL, Petitioner-Appellee,
W.R. BARKER; Attorney General of the State of North
Carolina, Respondents-Appellants.
No. 88-7106.
United States Court of Appeals,
Fourth Circuit.
Argued Oct. 31, 1988.
Decided May 24, 1990.

Barry Steven McNeill, Asst. Atty. Gen. (argued) and Lacy H. Thornburg, Atty. Gen. (on brief), North Carolina Dept. of Justice, Raleigh, N.C., for appellants.

Page 890

Geoffrey Carlyle Mangum, Winston-Salem, N.C., for appellee.

Before ERVIN, Chief Judge, and RUSSELL, Circuit Judge, and KISER, United States District Judge for the Western District of Virginia, sitting by designation.

KISER, District Judge:

The appellee, Wilton Howell, filed this petition for writ of habeas corpus in the United States District Court for the Eastern District of North Carolina on October 14, 1986. As a ground for relief, he asserts a due process violation arising out of a delay by the Bladen County Sheriff's Department in the service of his arrest warrant and the return of an indictment for robbery with a dangerous weapon, as a result of which he was unable to locate an alibi witness for use at his trial. 1 The petition for writ of habeas corpus was first heard by Magistrate Alexander Denson, who recommended that the petition for habeas relief be granted and the indictment against Howell be dismissed. The district court, on objections to the magistrate's recommendations, affirmed the magistrate's finding of a due process violation, but rejected the magistrate's remedy. The district court held that the writ should issue and ordered a retrial. Howell v. Barker, 684 F.Supp. 132 (E.D.N.C.1988). The State of North Carolina appealed. We affirm.

Facts and Procedural History

On the afternoon of September 19, 1979, Ms. Ruby Carlyle, a 66-year-old woman confined to a wheelchair, was robbed of approximately $1000 at gunpoint and knifepoint by two young black males at her rural gas and grocery store in Bladen County, North Carolina. The Bladen County Sheriff's Department investigated the robbery. Ms. Carlyle told the investigating officers that the robbers were driving a black Chevrolet and that, earlier in the day, the robbers had been at the store in the car. Harold Hayes was at Ms. Carlyle's store at the time of the robbers' first visit. He saw a black male in the store and another at the pump by a black Chevrolet with mag wheels, one of which had a missing lug on the back wheel.

The black car driven by the robbers became a significant clue. Patrolman Covington of the North Carolina highway patrol was familiar with a black Chevrolet, usually driven by appellee, Wilton Howell, which had mag wheels. Covington undertook a surveillance of Howell's house and discovered a black Chevrolet parked at the back of the house. Covington conducted a consent search of the car in which he found cash register keys, some small change, a divider from a cash drawer, a gas cap, and a knife. 2 A consent search of Howell's home was also conducted, and a .38 caliber revolver was discovered. 3

On October 31, 1979, Detective Phillip Little of the Bladen County Sheriff's Department interrogated Howell with respect to the Carlyle robbery at the Robeson County jail where Howell was being held on unrelated charges. Later that day, Howell appeared before Ms. Carlyle in a line-up. 4 Ms. Carlyle identified Howell as a man who looked like one of the robbers.

Page 891

On November 1, 1979, Detective Little obtained a warrant for the arrest of Howell on a charge of robbery with a dangerous weapon. Bladen County and Robeson County are adjacent to each other, and the county seats of the two counties are less than thirty miles apart. However, Detective Little did not serve the arrest warrant on Howell because he was aware that it was the practice of Robeson County officials to hold arrest warrants from other counties until all Robeson County proceedings were completed. This practice was followed in order to avoid the inconvenience and expense of transporting the wanted person back and forth between the two counties for hearings and trials.

Howell remained in the Robeson County jail until March 1980, when he was delivered to and placed in the custody of the North Carolina Department of Corrections. He remained in the prison system until he was paroled in April 1981. At no time during these periods of incarceration did the Bladen County authorities serve or attempt to serve the arrest warrant for the Carlyle robbery on Howell. No one in the Bladen County Sheriff's Department knew of Howell's whereabouts until February 2, 1982, when Howell appeared at the department to request the return of the gun that had been seized in the 1979 search. Howell was served with the November 1, 1979, arrest warrant on February 4, 1982, some 27 months after the warrant had been issued.

On March 22, 1982, a Bladen County grand jury returned a true bill against Howell on a charge of robbery with a dangerous weapon in violation of N.C.Gen.Stat. Sec. 14-87 (Cum.Supp.1979). Howell filed a motion to dismiss the indictment in the Superior Court of Bladen County on the grounds that he had been denied due process because of the delay in serving the arrest warrant which resulted in the unavailability of his alibi witness, Ray Hunt. Judge Edwin Preston granted an evidentiary hearing, which was held on May 10, 1982. On May 12, 1982, Judge Preston entered an order denying the motion to dismiss. Judge Preston made the following findings of fact:

12. That on or about September 19, 1979, the defendant was employed by the City of Lumberton and Hunt's Body Shop in Lumberton, North Carolina;

13. That the defendant contends that he was working with Roy [sic] Hunt at the time of said robbery alleged to have occurred on September 19, 1979; and defendant contends that Roy [sic] Hunt is unavailable to testify for the defendant; that defendant has offered no evidence of any efforts which he has made to locate Roy [sic] Hunt.

Upon the basis of these findings of fact, Judge Preston concluded as a matter of law:

[T]he delay between the issuance of the arrest warrant on November 1, 1979 and the service of the warrant on the defendant on February 4, 1982 was not prejudicial to the defendant in the conduct of his defense; nor was said delay unreasonable, unjustified, and engaged in by the prosecution deliberately and unnecessarily in order to gain tactical advantage over the defendant such as to violate due process.

The case proceeded to trial and Howell was convicted of armed robbery on October 12, 1982. Howell appealed the conviction, claiming that the preindictment delay of approximately two years and four months was unreasonable and denied him due process of law and the right to a speedy trial. The North Carolina Court of Appeals rejected both of Howell's arguments and affirmed the judgment of conviction. 5 State v. Howell, 67 N.C.App. 763, 314 S.E.2d 147 (1984). In connection with Howell's claim that the preindictment delay constituted actual and substantial prejudice because of the resultant unavailability of Howell's alibi witness, the court stated:

Defendant has failed to show any tactical disadvantage because he could not locate

Page 892

Roy [sic] Hunt, an alibi witness; what he did to locate him, or that he is [sic] lost due to the preindictment delay; or that the witness would have significantly aided his defense. Defendant at most has demonstrated only potential prejudice, not actual prejudice.

On October 11, 1984, Howell filed a motion for appropriate relief in which he again alleged that the 27-month delay in serving his arrest warrant prejudiced him in that his alibi witness, Ray Hunt, who was unavailable in November 1979, could not be located at the time of trial in October 1982. A plenary hearing on Howell's motion for relief was held before Judge Craig Ellis on February 18, 1985. Judge Ellis dismissed the motion based on these express findings:

(3) That at the plenary hearing on February 18, 1985, the petitioner, Wilton Howell, testified that he asked in 1982 after the warrant was served on him in February, of 1982, to have Mr. Hunt located; and that his brother looked for Mr. Hunt, but could not find Mr. Hunt; that Mr. Hunt had moved to Florida.

(4) That Stacy Howell, brother of petitioner, testified that he and Mr. Jack E. Carter tried to locate Ray Hunt after his brother was arrested in 1982; and that Stacy Howell talked with Charlie Matamoros, a relative of Mr. Hunt; that Mr. Hunt was supposed to have moved to Florida and he did not know where.

(5) That George Ray Hunt testified that in September, of 1979, he was operating Ray's Body Shop on West Fifth Street in Lumberton, North Carolina; that he knew the petitioner; that the petitioner was working with him at that time; that on September 19, 1979, the petitioner was working for him and came to work early that day from his job with the City of Lumberton; that George Ray Hunt paid Wilton Howell for his work that week in an amount larger than he usually paid him; that the petitioner was at work that day until 5:00- or 6:00 o'clock p.m.; and that Mr. Howell did not leave the body shop that day.

(6) That Mr. Hunt testified that he has six sisters; that none of them live in Lumberton, but one did live in Lumberton in 1982; and that the sister should have known what his address was in Florida.

(7) That Mr. Hunt is now residing in Robeson County. That there is no evidence that Mr. Howell or anyone acting in his behalf attempted to locate Mr. Hunt's sisters or mother to determine the location of Mr. Hunt in the State of Florida.

(8) That the name of Mr. Hunt was given to Mr. Phillip Little of the Bladen County Sheriff's Department; and that Mr. Little asked the Robeson County Sheriff's Department to try to locate him, but received no answer back.

(10) That the testimony of Mr. Hunt would tend to corroborate the testimony of Wilton Howell as to his employment on the date of the alleged...

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    ...appears to ask that we instead apply a balancing test similar to that adopted by some federal circuit courts.See, e.g., Howell v. Barker, 904 F.2d 889, 894–95 (4th Cir.1990) ; United States v. Moran, 759 F.2d 777, 782 (9th Cir.1985). But we are “bound by decisions of the Arizona Supreme Cou......
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