Irwin v. Wolff
| Decision Date | 17 February 1976 |
| Docket Number | No. 74--1934,74--1934 |
| Citation | 529 F.2d 1119 |
| Parties | Harold James Leroy IRWIN, Appellant, v. Charles L. WOLFF, Jr., Warden Nebraska Penal Complex, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Gene C. Foote, II, Hastings, Neb., for appellant.
Ralph H. Gillan, Asst. Atty. Gen., Lincoln, Neb., for appellee. Ralph H. Gillan, Asst. Atty. Gen., and Paul L. Douglas, Atty. Gen., Lincoln, Neb., filed brief for appellee.
Before VAN OOSTERHOUT, Senior Circuit Judge, BRIGHT, Circuit Judge, and TALBOT SMITH, * Senior District Judge.
This case comes to us upon appeal from the denial, in the District Court for the District of Nebraska, 1 of appellant's petition for writ of habeas corpus. We affirm.
The petitioner was convicted in the District Court of Adams County, Nebraska, of one count of robbery 2 and six counts of rape. 3 He was sentenced to a term of twenty to twenty-five years for the robbery conviction but was not sentenced for the rape convictions. Shortly thereafter, and in compliance with the state Sexual Sociopath Act 4 (hereafter the Act) he was, after hearing, found to be a sexual sociopath 5 who could not benefit from treatment. 6 Consequent thereto he was committed for an indefinite period to the Nebraska Penal and Correctional Complex, such commitment being subject to review at yearly intervals either on motion of the defendant or on the court's own motion. 7
Petitioner's conviction, sentence under the robbery count and commitment were affirmed by the Nebraska Supreme Court in State v. Irwin, 191 Neb. 169, 214 N.W.2d 575 (1974). Thereafter petitioner filed a petition for writ of habeas corpus, 28 U.S.C. § 2254 (1966). The petition was submitted to the District Court on the basis of the state court transcripts, the briefs submitted to the Supreme Court of Nebraska, and testimony of the petitioner himself, adduced at an evidentiary hearing held on August 28, 1974.
The grounds alleged in the petition were essentially those presented to the Supreme Court of Nebraska, namely, that the petitioner's arrest was in violation of the Fourth Amendment to the Constitution of the United States, that certain evidence should have been suppressed as a result thereof, and that Nebraska's Sexual Sociopath Act was unconstitutional, in addition to other charges.
It was the holding of the District Court, after an evidentiary hearing, that the evidence presented 'did not add to the evidence presented to the Nebraska courts,' that 'the State's factual determinations are fairly supported by the record, and the applicable law has been correctly applied.' It further held that the Act, as interpreted by the Nebraska Supreme Court, was constitutional.
We find it necessary to discuss fully only the issues concerning petitioner's arrest and the constitutionality of his commitment under Nebraska's Act. The principal argument directed to us on this appeal relates to the arrest of the petitioner, asserted to be without probable cause, and the failure of the trial court to suppress certain evidence, alleged to be the 'fruit of the poisonous tree.' The issues before us were characterized by petitioner's counsel as involving 'mainly the arrest of the defendant.' 8
Starting in the early part of 1969 a series of burglaries, robberies, and rapes took place in or near Hastings, Nebraska. These crimes had followed a pattern which need not be detailed here. Certain of these had occurred in the neighborhood where petitioner was ultimately apprehended. A prowler, or prowlers, had also been reported in this residential area a few nights before petitioner's apprehension.
The petitioner had a record of sexual offenses and had at one time been committed to the Hastings State Hospital. The car he drove was a 1970 Pontiac LeMans, gold finish, similar to the car that was involved in a former rape and robbery. During the months of August and September 1971 a number of burglaries occurred in the vicinity of the home of Mr. Elliott, a retired businessman in Hastings. He reported to the police that a car (found to be registered to petitioner) was regularly parked near his residence at an unlighted spot. This car, and petitioner, had previously been observed by Gary Hansel, a criminal investigator for the Nebraska State Patrol, near the scene of two earlier robberies. The Elliott report continued that the driver, after parking in a dark area, would leave the car for a substantial period of time, returning around 10:30 or 11:00 p.m. Around October first the police received a 'prowler call' from the Elliott area and about this same time Mr. Elliott reported that he saw this man running back to his car and taking off, as he put it, at a fast pace. Also, Mr. Elliott had observed that the ferns underneath one of his windows had been trampled down as if someone had been looking in his windows. The police asked Mr. Elliott to call the next time the car showed up.
Finally, on the night of October 1, 1971, Mr. Elliott reported the presence of the unoccupied car. Officers Henry and Hansel responded, parking their car near petitioner's. When he returned to his car they followed and stopped him. Henry approached the driver's side, showed his badge, and, since it was raining heavily at the time, asked the petitioner if he would go to the Sheriff's office with them. Petitioner reportedly responded that he would. Officer Hansel, at the right door, asked if he could ride with him and petitioner agreed. At this time, had petitioner Irwin refused, Officer Henry testified, he could have gone his own way.
When they reached the Sheriff's office the petitioner attempted to discard a paratrooper's knife as they were leaving the car. The effort was observed, the knife retrieved, and petitioner, after being informed of his constitutional rights, was questioned by Officer Hansel. The knife, meantime, was identified as one previously reported stolen. At that point, Hansel testified, petitioner would not have been free to leave and he was told, somewhat later, that he would be booked on a burglary charge.
It is pertinent to observe at this point that under the statute, 28 U.S.C. § 2254(d) (1966), 9 it is provided that the state court determination of a factual issue 'shall be presumed to be correct' unless the petitioner establishes one of the enumerated, (1) to (8), exceptions which proves the unreliability of the state proceeding. 10
The initial stop, accurately characterized by the Nebraska court as investigatory, was clearly warranted upon the facts found. 11 Such stop did not constitute an arrest, 12 nor did the ride with the officer to the station for questioning, in view of its voluntary nature. 13 It is equally clear upon the record that the arrest, which occurred after the paratrooper's knife was discovered and identified, rested upon ample probable cause. 14
The petitioner also urges to us that '(t)he commitment (to the State Penal and Correctional Complex for an indefinite period of time) is a violation of the Defendant's constitutional rights.' No further specification is made as to just where the Act fails, constitutionally, but apparently the petitioner's theory is that he is subjected to cruel and unusual punishment 'in that Appellant is left in a state of limbo not knowing when, if ever, he may be released, sentenced by the Trial Court, or rehabilitated.'
We will construe the charge liberally and examine both procedural and substantive due process under the Act. Procedurally,
Due process, * * *, requires that he be present with counsel, have an opportunity to be heard, be confronted with witnesses against him, have the right to cross-examine, and to offer evidence of his own. And there must be findings adequate to make meaningful any appeal that is allowed. 15
The Nebraska Act requires that before a defendant may be committed thereunder he must be afforded a trial by jury, 16 at which the burden of proof is on the State to prove the elements involved beyond a reasonable doubt. 17 We are cited to, and find no procedural infirmity in the initial commitment under the Act. 18
With respect to the commitment under the Act and its duration, the period of commitment is not, per se, an indication of cruel and unusual punishment. As was held in Jackson v. Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845, 1858, 32 L.Ed.2d 435 (1972):
At the least, due process requires that the nature and duration of the commitment bear some reasonable relation to the purpose for which the individual is committed.
Under the terms of the Nebraska Act a 'sexual sociopath' is a person who has been convicted of a sexual offense and who (under the prescribed procedures) is 'determined to be disposed to repeated commission of sexual offenses which are likely to cause substantial injury to the health of others.' 19
The Nebraska Act received comprehensive analysis by the highest court of the State on direct appeal of the case before us. 20 It was there held in part as follows:
The Nebraska Act provides, as we have noted, that if the defendant is determined to be a sexual sociopath and further determined that he cannot be benefited by treatment, he shall be committed to the Nebraska Penal and Correctional Complex for an indefinite period. § 29--2903(3), R.S.Supp., 1972. The question of whether he remains a sexual sociopath is subject to review at yearly intervals either on motion of the defendant or on the court's own motion. § 29--2906(2), R.S.Supp., 1972. This review under the provisions of the Act is subject to the same due process safeguards which pertain to the initial commitment. §§ 29---2906(2) and 29--2902(2) to (7), R.S.Supp., 1972. * * * Continuing commitment under the Act depends upon a finding that the defendant is still a sexual sociopath, i.e., 'disposed to repeated commission of sexual offenses which are likely to cause substantial injury to the health of others.' §§ 29--2901 and 29--2906(2),...
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