Nelson v. Hancock

• Decision Date: 01 March 1965
• Docket Number: Civ. A. No. 2514.
• Parties: Russell NELSON and Fred J. Martineau v. Parker L. HANCOCK, as he is the Warden of the State Prison, Concord, New Hampshire.
• Court: U.S. District Court — District of New Hampshire

239 F. Supp. 857

Russell NELSON and Fred J. Martineau v. Parker L. HANCOCK, as he is the Warden of the State Prison, Concord, New Hampshire.

Civ. A. No. 2514.

United States District Court D. New Hampshire.

March 1, 1965.

COPYRIGHT MATERIAL OMITTED

Leo Patrick McGowan and John P. Bourcier, Providence, R. I., for petitioner Nelson.

Julius Soble, Boston, Mass., and Richard W. Leonard, Nashua, N. H., for petitioner Martineau.

Alexander J. Kalinski, Asst. Atty. Gen., for State of New Hampshire, Concord, N. H., for defendant.

CONNOR, District Judge.

This is a petition for habeas corpus under 28 U.S.C. § 2241(c) (3). Petitioners are under sentence of capital punishment stemming from their conviction in the New Hampshire court on two indictments: the first charged petitioner Martineau with the deliberate and premeditated homicide of one Maurice Gagnon and charged petitioner Nelson with aiding and abetting the homicide; the second indictment charged both petitioners jointly with murder in the first degree while perpetrating the crime of kidnapping. Petitioners, by their counsel, have submitted briefs and have presented oral argument.

As a preliminary matter, the Court finds that petitioners have satisfied the requirements of 28 U.S.C. § 2254 with respect to their claims of unreasonable search and seizure and deprivation of the assistance of counsel. These claims were raised before the Supreme Court of New Hampshire and were rejected by that court in an opinion, State v. Nelson, which appears at 105 N.H. 184, 196 A.2d 52. However, petitioners' claim that the State knowingly used perjured testimony at their trial does not seem to have been so raised. It is true that petitioners challenged the testimony of one Crooker in their motion for a new trial, but nowhere in their briefs to the State Supreme Court (which are collected in Vol. 596 of New Hampshire Briefs & Cases) or in the opinion of the State Supreme Court does it appear that the allegation of knowing use of perjured testimony by the State was advanced. And it is knowing use of such testimony which creates a Constitutional issue. Napue v. People of State of Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). The Court concludes, therefore, that this Constitutional claim has not been presented to the State Supreme Court. It does not appear that petitioners are without a remedy by which they could raise this claim in the State Court at this time. Since, in the Court's view, petitioners have not exhausted their State remedies as to their claim of knowing use by the prosecution of perjured testimony, the Court will not consider this claim further at this time. 28 U.S.C. § 2254; Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953); Irvin v. Dowd, 359 U.S. 394, 79 S.Ct. 825, 3 L.Ed.2d 900 (1959); Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).

FINDINGS OF FACT

The parties have agreed on the following, and the Court finds them to be fact:

As to petitioner Nelson:

1. The circumstances leading to the apprehension of Russell Nelson are as follows: Police officers in Nashua, at 12:51 A.M., Monday, February 9, 1959, observed a 1959 light colored Chevrolet automobile with one occupant, Robert Almonte, proceeding north on Main Street. As the car passed through the intersection of Hollis Street it slowed down and veered to the right. The operator looked toward the Yankee Flyer Restaurant and then pulled into the center lane and continued in a northerly direction. The police officers in question walked north on the westerly side of Main Street to the Central Variety Store from which point they observed a man, Russell Nelson, on the opposite side of the street walking south and saw him turn into a driveway next to the Yankee Flyer. At about the same time, Almonte reappeared in the 1959 Chevrolet proceeding south on Main Street. The automobile turned into the same driveway and shortly thereafter returned to Main Street with Almonte still driving and Nelson in the front passenger seat. The officers stepped into the street and stopped the vehicle. Almonte could not produce a driver's license and both he and Nelson were taken to the police station and booked for questioning.

Shortly after being taken to the police station, Nelson and Almonte were questioned by Sgt. Tafe. Records at the police department disclosed that the registration plates on the Chevrolet corresponded with those of a vehicle listed as being stolen on October 3, 1958. Sgt. Tafe telephoned to Providence and was advised of the criminal records of Nelson and Almonte. There was an exchange of teletype messages; at 4:44 A.M. the Providence police teletyped that the stolen car listing was cancelled on October 5, 1958. Sgt. Tafe and Officer Lavoie searched the entire area for evidence of a stolen car, burglary or other crime. It was in the course of this search that Martineau was apprehended.

As to petitioner Martineau:

2. The circumstances leading to the apprehension of Fred Martineau were as follows: Later that same morning at 3:50 A.M. Martineau was seen at the parking lot located at the intersection of Spring and East Pearl Streets. Officer Lavoie in a patrol car proceeding north on Spring Street approaching the parking lot observed him walking toward Spring Street. As Martineau approached the officer opened the door of his vehicle and snapped on the dome light. Martineau, who was about six feet from the police car, looked at the officer and then proceeded to run south on Spring Street toward the Junior High School. The officer gave chase and Martineau disappeared around the southeast corner of the school building where he was apprehended some fifteen hundred feet from the point where Gagnon's body was later found. He was taken to the police station by the officer and was booked for questioning.

Martineau was also questioned by Sgt. Tafe and there was an exchange of teletype messages between Nashua and Pawtucket concerning Martineau.

As to both Petitioners:

3. Nelson and Martineau were originally booked for questioning.¹ These entries were subsequently changed from "Questioning" to "S.P. of Felony." The records do not indicate the time when these changes were made.²

4. At 11:55 A.M. on February 9, 1959, the Nashua police received a call that a body was found in a parked car off Church Street in Nashua. Upon investigation, one Maurice Gagnon was found in his automobile, the apparent victim of murder.

5. At 2:00 P.M. on February 9, 1959, some thirteen hours after his apprehension, Russell Nelson was questioned by the Inspector's Division. On request, Nelson removed and handed to the police the following items of clothing: leather jacket, trousers, belt, shirt, stockings and shoes. At 4:00 P.M. on February 9, 1959, some twelve hours after his original detention, Fred Martineau was questioned by members of the Nashua and Rhode Island Police Departments. On request, Martineau removed and handed to the police the following items of clothing: his trousers, topcoat and suede jacket. On the following day, the remainder of his clothing was obtained in the same manner: sportshirt, shoes, stockings and T-shirt. Specimens of dirt were also removed from Martineau's fingernails and a benzidine test, for the detection of blood, was performed on his hands at or about that time.

6. On the evening of February 9, 1959, Justice Antoine Guertin of the Nashua Municipal Court granted petitions for additional detention of the prisoners.³

7. Both respondents were detained at the Nashua Police Station, without being formally charged with a crime, until 9:00 P.M. on February 11, 1959, when complaints were drawn charging them with first degree murder. Sometime around noontime on February 11, 1959, more than fifty-six hours after their original detention, they were allowed to contact legal counsel. Counsel were permitted to see the respondents in the late afternoon of February 11, 1959.

8. When questioned by the police on the afternoon of February 9, 1959, and at subsequent times of questioning, both respondents demanded to see their lawyers; their requests were denied by Nashua police.

9. At 9:00 A.M. on February 12, 1959, both respondents were arraigned before the Nashua Municipal Court and charged with first degree murder; both pleaded not guilty.

10. At about 9:00 A.M. on February 13, hair specimens were procured from both Martineau and Nelson. In each case, police handed the individual a clean comb and allowed him to comb his hair. Specimens adhering to the comb were preserved. According to the State's expert, hair samples found in the victim's car could have come from the victim and could have come from the respondent Martineau. There were not sufficient specimens of Nelson's hair to justify an opinion by the State's expert.

11. All items of clothing, hair and other specimens of the respondents which had been taken from them as set forth in paragraphs 5 and 6 hereof were subjected to extensive scientific tests by Professor Harold C. Harrison of the Rhode Island State Police Crime Laboratory and Lt. Carroll Durfee of the New Hampshire State Police.

12. Items of clothing taken from the respondents were received in evidence against the respondents as follows:

A. Nelson's clothing. All of Nelson's clothing was taken at 2:00 P.M. Monday, February 9:

(1) Nelson's jacket. Blood was found on this item. It could not be determined whether the blood was human.

(2) Nelson's trousers. Small plastic particles found on Nelson's trousers corresponded to similar particles found in the victim's automobile and to plastic materials used in the victim's factory, Magco Plastics. It was the opinion of the State's expert witness that the contamination on Nelson's trousers probably originated from the interior of the victim's automobile.

(3) Nelson's shoes. An area of blood was found in the stitching of Nelson's right shoe. Fiber particles removed from Nelson's shoes were compared with fibers of the

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