Moore v. Oliver

• Decision Date: 13 September 1972
• Docket Number: Civ. A. No. 72-C-16-D.
• Citation: 347 F. Supp. 1313
• Court: U.S. District Court — Western District of Virginia
• Parties: Charles L. MOORE, Petitioner, v. R. M. OLIVER, Superintendent Virginia State Farm, Respondent.

347 F. Supp. 1313

Charles L. MOORE, Petitioner, v. R. M. OLIVER, Superintendent Virginia State Farm, Respondent.

Civ. A. No. 72-C-16-D.

United States District Court, W. D. Virginia, Danville Division.

September 13, 1972.

COPYRIGHT MATERIAL OMITTED

Charles L. Moore, pro se.

Burnett Miller, III, Asst. Atty. Gen., Richmond, Va., for respondent.

WIDENER, Chief Judge.

Petitioner was convicted of breaking and entering and grand larceny, on February 17, 1971, in the Corporation Court of the City of Martinsville. The jury sentenced him to five years on each count.

His petition for habeas corpus states the following grounds for relief:

(1) Illegal arrest

(2) Illegal interrogation

(3) Illegal identification

(4) Trial court erred

(5) Incompetent, inadequate and ineffective counsel

(6) Illegal search and seizure

In a statement attached to the petition, petitioner has explained his grounds to some extent, and it appears that the essence of each allegation is as follows:

(1) Illegal arrest. Petitioner explains this allegation to mean that the City police officers were outside the city limits at the time of his arrest.

(2) Illegal interrogation. Petitioner alleges here that he was interrogated without the assistance of a lawyer, that he asked for a lawyer, and was interrogated anyway.

(3) Illegal identification. Petitioner says that his constitutional rights were violated when the trial court allowed witnesses to identify him in court, when those witnesses had previously identified him at the police station when he did not have counsel. This was not a lineup identification. On the night of the arrest, several people came to the police station and viewed petitioner, and said that he was the man driving the car.

(4) Trial court erred. This is a catch-all allegation stating basically that petitioner received a sham trial. He specifically states that his rights were violated when the court allowed the indictment to be amended immediately before trial and when he was allowed to be tried in prison clothes.

(5) Incompetent, inadequate and ineffective counsel. This ground is not separately explained in detail, but it appears that petitioner thinks that his lawyer should have spent more time with him before the trial, that he should have cited more law in his motions, that he should have asked for a continuance and that he should have gotten an acquittal.

(6) Illegal search and seizure. Petitioner objects to the fact that his whiskey bottle and the keys to the vehicle were taken from him when he was picked up by the police.

The convictions in the Corporation Court for the City of Martinsville were appealed to the Supreme Court of Virginia which denied the petition for writ of error on September 1, 1971. The petition alleged that the trial court erred in allowing the indictment to be amended immediately prior to trial, in allowing admission of identification testimony when such testimony was allegedly tainted by an out of court identification in which petitioner was not represented by counsel, and in refusing to set aside the verdict as contrary to the law and evidence.

Petitioner also filed a petition for a writ of habeas corpus in the Corporation Court for the City of Martinsville, which court denied the writ on August 3, 1971. Petitioner filed another petition for writ of habeas corpus in the Supreme Court of Virginia which denied the writ on January 17, 1972. In those petitions, which were basically the same, petitioner raised the following grounds for relief: Illegal arrest; Illegal identification; Illegal interrogation; Incompetent, inadequate and ineffective counsel; and Illegal amendment of the indictment.

It can be seen from a review of the petitions filed before the Supreme Court of Virginia that that court has yet to have the opportunity to pass on two of the grounds that petitioner urges here for relief. Petitioner has not exhausted his remedies concerning his claim of illegal search and seizure and the constitutionality of being tried in prison clothes. Therefore, those grounds will not be considered here. 28 U.S.C. § 2254.

Petitioner claims that his arrest was illegal because city police arrested him outside the city limits. The power of a policeman to make an arrest by virtue of his office is subject to well recognized territorial limits in Virginia. He can act only within his city or within one mile of its corporate limits. Alexandria v. McClary, 167 Va. 199, 188 S.E. 158 (1936); Banks v. Bradley, 192 Va. 598, 66 S.E.2d 526 (1951); Va.Code § 15.1-141 (1964 Repl.Vol.). If he acts outside the one mile area from the city limits, his status is that of any other private citizen. Alexandria v. McClary, 167 Va. 199, 203, 188 S.E. 158 (1936). It is not clear from the record exactly when petitioner was arrested. Petitioner was approached by city policemen and told that he fit the description of the man who was driving the vehicle which was stolen and asked to come up town "to straighten this out." Petitioner agreed to go. The police testified that petitioner was placed under arrest at the police station. Petitioner says that they arrested him when he was picked up. He was therefore arrested at some point between the J. C. Wooldridge parking lot, where he was picked up, and the police station. The court takes judicial notice of the fact that the parking lot where the defendant was picked up is, as shown by a map supplied by the Department of Highways of the State of Virginia, within one mile of the city limits of Martinsville.

The question of where petitioner was arrested is of little significance because, even if the officers were more than one mile outside the city limits when they arrested petitioner, they had the authority that any other private citizen would have had. It is well recognized at common law that a private person may arrest without a warrant in a felony case if the felony has actually been committed and he has reasonable grounds for believing that the person arrested was the one who committed it. Commonwealth ex rel. Garrison v. Burke, 378 Pa. 344, 106 A.2d 587 (1954); 133 A.L.R. 608, 613. Here, the felony had been committed and probable cause was clearly present. Petitioner was seen by the police near the spot where the stolen vehicle had slid off the road; he was seen there shortly after the vehicle had been reported stolen; the interior of the car had blood on it, and petitioner had a fresh cut on his finger. There is no merit to petitioner's claim of illegal arrest.

Petitioner claims that his constitutional rights were violated when the trial court allowed two witnesses to identify him at the trial when those witnesses had previously identified him at the police station at a time when petitioner was not represented by counsel. It appears from the transcript that a couple of hours after petitioner's arrest, one Billy Turner was asked to come to the police station to identify petitioner. Turner lives near the place where the car which petitioner was driving slid off the road. Turner was on the way to church when he observed the accident. He stopped his vehicle and went up to petitioner and asked if he was hurt. He spoke with petitioner briefly and, upon ascertaining that the accident was not serious, went on to church. Later that night, the police came to Turner's house and they all went back to the police station, where Turner observed petitioner and identified him as the man who was driving the vehicle. Mr. Turner describes the events as follows:

"Q. What did they tell you before you went in to see Mr. Moore?

"A. They come to my house and knocked on my door and I asked them to come on in, and I went back in the bedroom and put my clothes on and all and I come on up here, with them, and they said they think that had the man from where had stole the car from Piedmont Dodge.

"Q. They just didn't ask you to identify the man they told you they thought they had the man—

"A. They thought they had the man—

"Q. Did that have any influence on your identification?

"Q. None whatsoever, no matter where you'd seen this man?

"A. Yeah, I could identify him."

Petitioner was also identified that night by David Cressel, who also identified him in court. Cressel is employed at a food store which is located near the place where the car which petitioner was driving slid off the road. Petitioner walked into the store and asked Cressel to call a wrecker for him. Cressel did not do so but instead referred petitioner to a nearby gas station. The exact details of the identification by Cressel at the police station are not in the record, although it is clear that both identifications, Turner's and Cressel's, were one on one, that is, petitioner was alone when each identified him (there was no lineup) and petitioner had not yet been indicted. Also, it should be noted that about thirty minutes prior to the identification a warrant was issued against petitioner. In Virginia, if a person is arrested without a warrant, the arresting officers take the person to one authorized to issue arrest warrants and such warrant is then issued. The warrant lists the charges for which the person is arrested. Formerly, there were two modes of instituting prosecutions for felonies in Virginia, one by a warrant emanating from a justice, the other by indictment, presentment or information. Chahoon v. Commonwealth, 20 Gratt. (61 Va.) 733. Now, however, prosecution for a felony must be instituted by indictment or presentment, except that the accused may waive this requirement by a writing signed by him. Va.Code § 19.1-162 (1960 repl. vol.); 5 Michie's Jurisprudence 12.

The Sixth Amendment right to counsel has been the source of a great deal of recent litigation, including several landmark decisions by the Supreme Court. While the leading cases are recent ones, the principle is by no means new. In Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), the Supreme Court held that a person accused of a crime requires the...