Mills v. Shepherd

• Decision Date: 14 February 1978
• Docket Number: No. C-C-77-49.,C-C-77-49.
• Parties: David L. MILLS, Petitioner, v. H. B. SHEPHERD et al., Respondents.
• Court: U.S. District Court — Western District of North Carolina

445 F. Supp. 1231

David L. MILLS, Petitioner, v. H. B. SHEPHERD et al., Respondents.

No. C-C-77-49.

United States District Court, W. D. North Carolina, Charlotte Division.

February 14, 1978.

Allan W. Singer, Weinstein, Sturges, Odom, Bigger & Jonas, P.A., Charlotte, N.C., for petitioner.

Richard N. League, Asst. Atty. Gen., North Carolina Dept. of Justice, Raleigh, N.C., for respondents.

JUDGMENT

McMILLAN, District Judge.

David L. Mills, a prisoner of the State of North Carolina, was tried for second degree murder, was convicted of voluntary manslaughter, and was sentenced to twenty years in prison at the March 13, 1975, session of the Mecklenburg County Superior Court. He petitions for a writ of habeas corpus on the grounds that (1) he was denied the right to a speedy trial; (2) his trial counsel failed to demand a speedy trial and was thus inadequate in representing him; (3) his motion at trial for nonsuit was improperly overruled; (4) the trial judge failed to charge on the issue of self-defense; (5) the trial judge wrongly charged on the issue of malice; and (6) he was denied counsel and the right to a hearing on his post-conviction petition.

Respondents have answered and moved to dismiss and have submitted the record, including a trial transcript, of the state criminal proceedings. The petitioner's claims raised several substantial questions and counsel was appointed to represent him. On January 4, 1977, the motion to dismiss was considered at a hearing in which both parties were represented by counsel. At that time the court indicated that the petition would probably be dismissed, and petitioner's attorneys orally requested a certificate of probable cause to appeal.

Petitioner, then aged seventeen or eighteen years, was arrested on July 18, 1973, in connection with the apparent homicide of Billy Francis Brinkley on the night of July 13, 1973. Mr. John J. Plumides appeared as counsel for petitioner as early as July 24, 1973; upon petitioner's affidavit of indigency filed October 3, 1973, Plumides was appointed by the court to represent him. Petitioner was indicted for murder on December 3, 1973. On March 19, 1974, someone in the Mecklenburg County Sheriff's office informed the District Attorney that petitioner had been transferred from the Mecklenburg County Jail to the Department of Correction to begin serving consecutive sentences of two years and four to five years imposed on previous convictions, and suggested that a detainer be filed with the Department of Correction.

Petitioner was brought to trial on a charge of second degree murder, on March 10, 1975, twenty months after his arrest and twelve months after he began serving time on his previous sentences. The only explanation for the state's delay is found in respondents' answer: "It is a matter of record that petitioner was serving another sentence in state prison during the time of the delay. Accordingly, the inference arises by virtue of the delay that he hoped to lay low and not be tried at all, and that the state was similarly in no hurry by virtue of the fact that he was already incarcerated." For his part, petitioner says that it was his trial counsel's responsibility to demand a speedy trial. Petitioner contends he was prejudiced by the delay because of the detainer's effect on his custody level and his parole chances, the lost opportunity for concurrent sentencing, and the fact that he lived for twenty months with the thought of facing public charges which caused him to "associate with hardened criminals and among other things, to participate in unpopular causes such as his escape."

Petitioner did not testify in his own defense and did not offer nor elicit any evidence except by cross-examination.

The physical and background evidence for the prosecution showed that on July 14, 1973, around mid-day, the body of Billy Francis Brinkley, deceased, was found in a few feet of water at Paw Creek Cove in Mecklenburg County. Brinkley was about forty-three years of age, was five feet six inches or so in height, weighed between 130 and 150 pounds, was a hair dresser and cosmetic salesman, and was not married. He owned a Mustang automobile. His death was the result of head injuries and a massive crushing injury to his chest caused by blunt forced trauma and consistent with his having been kicked. No weapon was found. Human hair was found on the boots that petitioner wore and blood was found on the blue jeans that petitioner wore on the night of July 13, 1973. On cross-examination a state's witness testified that the head injuries required a blow of great force and were consistent with a fall upon rocks such as were situated in the area where the body was found, and that drowning could have been a contributing cause of death. The cove is an arm of a lake on the Catawba River and the level of the lake rises and falls several feet from time to time due to the operation of the dam at a nearby power plant. Brinkley's Mustang automobile and some jewelry which petitioner admitted taking from Brinkley were in the possession of petitioner a few hours following the apparent time of Brinkley's death.

The principal oral testimony connecting petitioner with the crime came from two men with whom petitioner was rooming at the time. These roommates were Edward Black and James E. Pate. Pate was at home on the night of July 13, 1973, when petitioner returned an hour or two after midnight. At that time petitioner had Brinkley's automobile in his possession and he displayed Brinkley's ring and a watch and a bracelet (which were produced at the trial), and told Pate that he had "rolled a queer." Petitioner, according to Pate, said that he had met Brinkley in a bar, that Brinkley had offered him money (twenty dollars) to commit a homosexual act; that they drove out to Paw Creek Cove in Brinkley's automobile; that Brinkley grabbed his privates and made a "pass" at him; that Brinkley did not have as much money as he had promised; that petitioner fought him off, and that Brinkley persisted; that petitioner then became "scared," pushed Brinkley out of the car, chased him a short distance, knocked him down, kicked him, pulled his clothes down to hinder pursuit, took the jewelry from him, left him lying near the water, and drove home in Brinkley's Mustang automobile. Petitioner complained of a swollen or sprained foot.

The evidence of the roommate Black was the same in substance, though it varied slightly in detail, as to what petitioner recited to Black about mid-afternoon on the same day, July 14, 1973.

There was evidence that petitioner, who had freely admitted to his friends that he had robbed and assaulted Brinkley, was shocked and surprised when told of Brinkley's death, that his then impulse was to go to the police, and that he cooperated with the police in finding the boots and blue jeans at his home.

Petitioner's motion for a nonsuit at the close of the evidence was denied. The court heard arguments on petitioner's request for a self-defense instruction, but did not charge the jury on that issue. The judge's instructions concerning the burden of proving malice reads as follows:

"And I charge you for you to find the defendant guilty of second degree murder, the State must prove two things beyond a reasonable doubt; first, that the defendant intentionally and with malice killed the said Billy Brinkley with a blunt object, his boot.

"If the State proves beyond a reasonable doubt that the defendant intentionally killed Billy Brinkley with a deadly weapon, or intentionally inflicted a wound upon Billy Brinkley with a deadly weapon that proximately caused his death, the law raises two presumptions:

"First, that the killing was unlawful; second, that it was done with malice. Then, nothing else appearing, the defendant would be guilty of second degree murder.

"In order, members of the jury, to reduce this crime to manslaughter, the defendant must prove not beyond a reasonable doubt, but simply to your satisfaction, that there was no malice on his part.

"To negate malice, and thereby reduce the crime to manslaughter, the defendant must satisfy you of three things; first, that he, David Mills, in kicking and beating the deceased, Billy Brinkley, that he did this in the heat of passion. . . .

"Second, that this passion was produced by acts of the deceased, Billy Brinkley, which the law regards as adequate provocation. . . .

"And, third, that the beating and kicking of the deceased, Billy Brinkley, took place so soon after provocation, passion of a person of average mind and disposition would not have cooled. . . ."

Petitioner did not object to the malice instruction.

Petitioner was convicted of voluntary manslaughter and was sentenced to twenty years in prison, to be served at the expiration of his previous sentences.

Petitioner appealed his conviction to the North Carolina Court of Appeals, asserting errors by the trial judge in overruling the motion for nonsuit and in failing to charge on self-defense. The court found no error, in an opinion reported at 28 N.C.App. 219, 220 S.E.2d 209 (1975), which reads in full as follows:

"Defendant's record on appeal was docketed on the 109th day after entry of judgment, and the 28 April 1975 order extending time does not validly extend the time for docketing. The record fails to present documents or events in chronological order. The record contains no exceptions, nor does either of the two assignments of error refer to an exception. The appeal, therefore, can present only the face of the record for review. Because of defendant's indigency, rather than dismiss the appeal, we have considered this appeal as an exception to the judgment, presenting the face of the record for review. We have reviewed the record and find that defendant received a fair trial free from prejudicial error.

"No error."

Petitioner did not seek a writ of certiorari from the North Carolina Supreme Court.

On July 1, 1976, petitioner filed a ...