Mills v. Wainwright

• Decision Date: 10 September 1969
• Docket Number: No. 27017.,27017.
• Citation: 415 F.2d 787
• Parties: Ralph Nathaniel MILLS, Plaintiff-Appellant, v. Louie WAINWRIGHT, Director, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

415 F.2d 787 (1969)

Ralph Nathaniel MILLS, Plaintiff-Appellant, v. Louie WAINWRIGHT, Director, Defendant-Appellee.

No. 27017.

United States Court of Appeals Fifth Circuit.

September 10, 1969.

Robert L. Koeppel, Public Defender Eleventh Judicial Circuit, and Robert L. Parks, Special Asst. Public Defender, Miami, Fla., for appellant.

Earl Faircloth, Atty. Gen. of Florida, Tallahassee, Fla., Arden Siegendorf, Harold Mendelow, Asst. Atty. Gen., Miami, Fla., for appellee.

Before WISDOM and MORGAN, Circuit Judges, and DAVIS,^* Judge of the U. S. Court of Claims.

LEWIS R. MORGAN, Circuit Judge:

This is an appeal from a denial of a writ of habeas corpus filed in the United States District Court for the Southern District of Florida. The petitioner was convicted of the crime of robbery and the crime of breaking and entering a dwelling without a dangerous weapon with intent to commit robbery and sentenced by the State Court, sitting without a jury, to a term of fifteen years imprisonment. After exhaustion of state remedies, this action was entered in the United States District Court, that Court ruling in favor of the respondent Wainwright in an extensive oral determination which was incorporated by reference in the Findings of Fact and Conclusions of Law.

The principal facts under consideration are acquiesced in by both parties and involve two separate crimes which transpired approximately 20 days apart in the same locality. On the morning of February 1, 1964, Mary Davis, the State's complaining witness, was awakened from her sleep by a loud thumping on the bedroom door of her home. The beating on her door was accompanied by a voice demanding that she give up her money or be killed. Miss Davis got out of bed, went to the bedroom door, and after apparently some brief conversation, during which the door was open only some four inches, slipped her change purse, containing nine dollars, through the cracked door to an unseen robber. Next, the robber ordered Miss Davis to put a cloth over her face and to return to the bed, at which time he raped her. The witness never saw her assailant's face. It was not until February 24th or 25th that Miss Davis, in a police line-up, identified the voice of the petitioner, Ralph N. Mills, as being the same which she had heard at her bedroom door. The same night as the commission of the crime a routine investigation was conducted. Certain fingerprints were found and it was later determined that this compared with a palm print of Mills taken while he was being detained for vagrancy.

The second offense occurred early in the morning of February 22, 1964. Dorina Davis, the mother of the complaining witness, who lived across the street from her, was awakened by someone standing over her bed, instructing her to remain silent. Mrs. Davis testified that she awoke her husband and turned on the lights, whereupon the individual walked from the room. However, Mrs. Davis could make no positive identification of the face of this individual, and could only describe to the police the type of clothing worn by him and the shape of the man. Mrs. Davis further testified that when the petitioner was returned to her home later that morning by the arresting officer, her only means of identification was the similarity of physical size and clothing which he wore.

The petitioner Mills testified that he arrived at the Blue Canyon Drive-In on the evening of February 21st, shortly before midnight, and remained there until his arrest in the early hours of February 22nd. A conflict exists between the testimony of the arresting officer and Mills as to when Mills was arrested for vagrancy. The officer testified that the arrest occurred at the drive-in restaurant, after certain questioning of petitioner as to where he was that night and where he worked. Appellant Mills testified that the officer did not tell him that he was under arrest for vagrancy until subsequent to his return to the scene of the breaking and entering. However, there is no dispute that Mills was arrested for vagrancy under Florida Statutes § 856.02, F.S.A. Upon arrival at the scene of the breaking and entering, no positive identification was made by Mrs. Davis nor by her daughter, Mary Davis, and Mills was taken to jail and booked by the officer for vagrancy. At the jail, after a questioning by police officers, Mills was fingerprinted. Later that same morning Mills was informed that he was being held for the crimes committed against Mary Davis on February 1, 1964, based upon a comparison of fingerprints. The state trial judge allowed this comparison to be made at the trial, after denying the petitioner's motion to suppress this evidence.¹

Appellant Mills outlines several grounds upon which he levies a constitutional attack. The first concerns the constitutionality of the Florida vagrancy statute, i. e., Florida Statutes § 856.02, F.S.A.² However, this point is not essentially before the Court in that it is admitted that the charge of vagrancy upon which Mills was initially arrested and "booked" was not a valid charge and not the statute under which he was convicted. Therefore, a determination of this question is not necessitated. Fernandez v. Klinger, 346 F.2d 210 (9 Cir., 1965). It would be more appropriate to analyze this statute in light of the United States Constitution in a case which directly involved it. Additionally, the question of probable cause as to the vagrancy arrest is moot by the admission by both parties and acceptance by the lower court that no probable cause was existent at the time of Mills' arrest as a vagrant.³

Accordingly, the issues are narrowed to one upon which this Court agrees that some discussion would be valuable, and in determining this question, we will be in effect controlling the outcome of this appeal. Mills urges that his arrest on vagrancy charges was a sham and fraud that was executed in hopes of discovering evidence that would incriminate him as to the crime of breaking and entering. Appellee Wainwright defends that, although probable cause was lacking for a vagrancy arrest, there existed at the time of the arrest probable cause sufficient to involve Mills in the breaking and entering of Dorina Davis' home....