Leavitt v. Howard

Citation332 F. Supp. 845
Decision Date08 October 1971
Docket NumberCiv. A. No. 4577.
PartiesBarry K. LEAVITT, Petitioner, v. Francis HOWARD, Warden, Adult Correctional Institution, Respondent.
CourtU.S. District Court — District of Rhode Island

Ira L. Schreiber, Providence, R.I., for petitioner.

Donald P. Ryan, Asst. Atty. Gen., of Rhode Island, Providence, R.I., for respondent.

OPINION

PETTINE, Chief Judge.

The petitioner's application for writ of habeas corpus presents issues under the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution raised in a State trial resulting in a conviction by a jury of first degree murder.

From the trial record and an evidentiary hearing before this Court that was limited to the constitutional issues presented by the petition, I determined the relevant facts: Michael Pono, a twelve-year old boy was brutally stabbed to death in the kitchen of his first floor home at 40 Amsterdam Street, Providence, Rhode Island on the morning of March 23, 1964. At 9:18 a. m. that same day, the petitioner, identifying himself as Barry Leavitt, phoned from 3 Samoset Avenue, his mother-in-law's home and told the Providence Police he had been cut at 40 Amsterdam Street. A policeman responded and found the petitioner at Samoset Avenue with a badly cut hand wrapped in a piece of underwear. He told the patrolman that while in his second floor tenement at Amsterdam Street that morning, he heard both the outside and inside doors on the first floor close and then heard screams. He ran to investigate. As he reached the bottom of the hallway stairs, he encountered a man coming out of the kitchen of the first floor tenement who assaulted him. The petitioner further stated that he lost his footing and fell. Though he attempted to follow his assailant, he lost him. Upon returning to the first floor tenement, he attempted to enter but found that the door was locked. He then drove to his mother-in-law's house at 3 Samoset Avenue and made the aforesaid phone call.

After being taken to the hospital by the police for treatment of his cut hand, the petitioner was brought to the police station to view photographs in an attempt to identify his alleged assailant. During this time, but before he arrived at the police station at 11:15 a. m., a white 1963 Ford with registration "BKL", lawfully parked at or near 3 Samoset Avenue, was identified as the car that had been driven there by the petitioner from Amsterdam Street. At 10:53 a. m., without any kind of warrant or consent, this car, registered and owned by the petitioner's wife, was impounded and towed to the police garage as a "matter of policy." Immediately following the 9:18 a. m. call from the petitioner, the police not only dispatched officers to Samoset Avenue but to Amsterdam Street as well. At 9:25 a. m., the police entered the Pono tenement. Michael Pono was lying dead, fully clothed on the blood-stained floor of the kitchen — death due to multiple stab wounds. The back hallway leading to the door of the Pono tenement and the stairway to the second floor were blood stained. Near the body was found an elongated washer and a wrist watch, both of which were introduced as evidence during the State court trial.

At or about 11:15 a. m., police Lt. O'Connell started questioning the petitioner. Lt. O'Connell stated that within five minutes, the petitioner became a prime suspect due to three things in combination:

1) that petitioner said he never entered the Pono apartment because the door was locked, whereas the police found it unlocked;

2) that petitioner had underwear around his cut hand that came from the Pono apartment; and

3) that petitioner said he pursued the assailant out the door and then went to Samoset Avenue, whereas there were blood stains from the Pono apartment to the petitioner's second floor apartment.

Petitioner was then told of his right to counsel and silence, that if he did talk, whatever he said could be used against him. The petitioner denies this, testifying he received no warning of rights against compulsory self-incrimination or to assistance of counsel. The police testified that after such warning was given, the watch found at the body was shown to the petitioner and that he identified it as his own but could not explain its presence in the Pono apartment. This all took place at about 11:30 a. m. About 11:40-11:45 a. m., the petitioner was told to empty his pockets and place the contents on the table before him which he did. The contents consisted of car keys, license and registration. Within five minutes thereafter, another police officer who had been in and out of the questioning room "told" the petitioner, "I would like to look at your car." The petitioner's response was, "Go ahead," whereupon he picked up the keys and threw them to the officer. The petitioner contends, and the officer denies, that he also said that if the car was going to be driven to be careful of the burned clutch. Another variance in the testimony is the police denial of the petitioner's contention that the officer reached for the keys as he made the statement.

The police, now armed with the keys, searched the vehicle and found a broken, blood-stained hunting knife in the trunk, which was received in evidence during the State trial together with the elongated washer found in the Pono apartment, which fit said knife. From the transcript, it appears that at the trial, the petitioner denied ownership of this knife, whereas the police testified that he admitted it belonged to him during the interrogation.

At the Providence Police Station, four attorneys, secured by the petitioner's wife at his request, had been denied access to the petitioner from before 1:30 p. m., the time of arrival of the first attorney, until 9:30 p. m., when one was finally permitted to see him. In the hearing before me, the petitioner testified that his requests to talk with his lawyer were denied and this is hardly disputed by the respondents.

On January 16, 1968, the Supreme Court of Rhode Island overruled the petitioner's Bill of Exceptions, State v. Leavitt, 103 R.I. 273, 237 A.2d 309. On October 14, 1968, the United States Supreme Court denied the petitioner's application for writ of certiorari. Thereafter, on two occasions, the petitioner sought habeas relief in this court and each time it was denied without prejudice in order to complete exhaustion of State remedies. On March 24, 1971, the Rhode Island Supreme Court denied a petition for a habeas writ (Leavitt v. Howard, 1358 MP) and on April 13, 1971 the instant application was filed.

The March 24, 1971 petition to the Rhode Island Supreme Court raises all the issues presented here. However, the respondent again urges this Court to relegate this matter to the State courts because the petitioner's argument that after his arrest his attorneys were prevented from seeing him over an eight-hour period was not put to the Rhode Island courts in the same light as presented here. Frazier v. Langlois, 412 F. 2d 766 (1st Cir. 1969).

The exhaustion of State remedies doctrine is a matter of comity and though the 28 U.S.C. § 2254 exhaustion limitation is part of the statutory language, decisional evolvement has fashioned exceptions — it does not operate to limit this Court's jurisdiction to entertain petitions for habeas corpus. Ex Parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572 (1944); Bowen v. Johnson, 306 U.S. 19, 27, 59 S.Ct. 442, 83 L.Ed. 455 (1939); Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed. 837 (1963).

In deference to federalism, the Rhode Island State courts have had ample opportunity to resolve the substance of the petitioner's contention that his constitutionally protected right against an unreasonable search and seizure had been violated.

The Fourth and Fourteenth Amendment Claims

The petitioner contends that the towing away and impounding by members of the Providence Police Department of "his" vehicle this automobile was actually owned by and registered to the petitioner's wife. It will be referred to as "his" vehicle constituted an illegal seizure under the United States Constitution and that any articles subsequently obtained by them from it were tainted as such under the "poisoned fruits" doctrine of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) and that the State has not sustained its burden of proving that he intelligently gave consent to search "his" automobile. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). A State prisoner may raise a claim on federal habeas corpus that evidence that was used against him was obtained by illegal search and seizure. Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968).

In the exercise of my discretion, I deemed it necessary to hold an evidentiary hearing upon the applicant's constitutional claims. The Rhode Island Supreme Court applied the "clearly erroneous" standard and upheld the findings of the trial court that the petitioner consented to the search of his vehicle. I am not so restricted, for I do not sit in appellate review of the State court proceedings. This Court is empowered and has a duty, given the facts adduced at the State level, to make its own factual determination where a disputed factual issue is not fairly supported by the record as a whole. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L. Ed.2d 770 (1963).

"* * * Where the fundamental liberties of the person are claimed to have been infringed, we carefully scrutinize the state-court record citations omitted. The duty of the Federal District Court on habeas is no less exacting."

Townsend v. Sain, supra, at 316, 83 S.Ct. at 759.

At page 312, 83 S.Ct. at page 756, we find the following language:

"It is the typical, not the rare, case in which constitutional claims turn upon the resolution of contested factual issues. * * * the power of inquiry on federal habeas corpus is plenary. * * * the federal court to which the application is made has
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    ...The federal harmless and plain error rule (Fed.R.Cr.P. Rule 52) is applicable in habeas corpus proceedings. Leavitt v. Howard, 332 F.Supp. 845 (D.R.I.1971), rev'd on other grounds 462 F.2d 992 (1st Cir. 1972), cert. den. 409 U.S. 884, 93 S.Ct. 175, 34 L.Ed.2d 140 (1972). Rule 52(b) provides......
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    ...his room for contraband which is certain to be discovered." Higgins v. United States, 209 F.2d 819, 820 (D.C.Cir.1954)1; see Leavitt v. Howard, 332 F.Supp. 845, 855 (D.Rhode Is.1971); Porter v. Ashmore, 298 F.Supp. 951, 956-57 (D.So.Car.1969); State v. Williams, W.Va.Ct.App., 249 S.E.2d 758......
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