Mundy v. Henderson, 18678.

• Citation: 416 F.2d 432
• Decision Date: 09 October 1969
• Docket Number: No. 18678.,18678.
• Parties: Thomas Neil MUNDY and Delma Ray Perry, Petitioners-Appellants, v. C. Murray HENDERSON, Warden, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

416 F.2d 432 (1969)

Thomas Neil MUNDY and Delma Ray Perry, Petitioners-Appellants, v. C. Murray HENDERSON, Warden, Respondent-Appellee.

No. 18678.

United States Court of Appeals Sixth Circuit.

October 9, 1969.

Robert W. Maxwell, II, Cincinnati, Ohio (Taft, Stettinius & Hollister, Cincinnati, Ohio, on the brief), for appellants.

Elmer D. Davies, Nashville, Tenn. (James C. Dale, III, Special Counsel, State of Tennessee, Nashville, Tenn., on the brief), for appellee; George F. McCanless, Atty. Gen. and Reporter of Tennessee, of counsel.

Before WEICK, Chief Judge, and O'SULLIVAN and EDWARDS, Circuit Judges.

PER CURIAM.

We consider an appeal from an order of the United States District Court for the Middle District of Tennessee which dismissed appellants' petition for habeas corpus relief. Following an evidentiary hearing, the District Court made findings of fact and conclusions of law, and ordered dismissal of the petition for writ of habeas corpus.

On April 15, 1966, the People's Oil Company station in Davidson County, Tennessee was robbed. Thereafter, appellants Mundy and Perry were indicted for the offense and, on trial in a Tennessee state court, were convicted of armed robbery. There was ample testimony to sustain the jury's verdict. Mundy and Perry were each sentenced to twenty-five years imprisonment for armed robbery and not less than one nor more than five years for receiving and concealing stolen property.

On appeal, the Supreme Court of Tennessee set aside the conviction for receiving stolen property, but affirmed the armed robbery conviction. The Tennessee court found that error had been committed by the trial judge in refusing to require a state witness, officer Nickens, to permit counsel for defendants access to notes that such witness had used to refresh his memory. The Supreme Court of Tennessee, however, refused to reverse the conviction, holding that,

"From the entire record, we do not think the error was harmful or prejudicial to the defendant. Defense Counsel cross examined the witness in detail. His testimony both direct and cross examination is cumulative of that of the other officers and the two women."

Appellants then sought a writ of habeas corpus in the District Court. The question before us is whether trial court's refusal to permit defense counsel to inspect the notes used by the prosecution witness to refresh his memory amounts to a federal constitutional error of such magnitude as to require the issuance of the writ of habeas corpus. No question is raised as...