Oliphant v. Koehler

• Decision Date: 16 May 1978
• Docket Number: No. M 77-52 CA 2.,M 77-52 CA 2.
• Citation: 451 F. Supp. 1305
• Parties: Charles Edward OLIPHANT, Jr., Petitioner, v. Theodore KOEHLER, Warden, Marquette Branch Prison, Respondent.
• Court: U.S. District Court — Western District of Michigan

451 F. Supp. 1305

Charles Edward OLIPHANT, Jr., Petitioner, v. Theodore KOEHLER, Warden, Marquette Branch Prison, Respondent.

No. M 77-52 CA 2.

United States District Court, W. D. Michigan, N. D.

May 16, 1978.

Terence Flanagan, State Appellate Defender, Detroit, Mich., for petitioner.

William Molner, Lansing, Mich., for respondent.

OPINION AND ORDER

MILES, District Judge.

Petitioner, Charles Edward Oliphant, Jr., has filed an application for a writ of habeas corpus pursuant to the provisions of 28 U.S.C. § 2241 et seq. He contends that prejudicial error was committed in the conduct of his state court trial. Respondent has moved for dismissal or, in the alternative, for summary judgment in accordance with Rules 12(b)(6) and 56(b) of the Federal Rules of Civil Procedure. Pursuant to petitioner's motion for oral argument, counsel were heard on these matters on February 6, 1978. The Court has also carefully considered the pre- and post-hearing memoranda submitted by each party, the trial transcripts, and the state and federal cases relevant to the questions presented.

A. FACTUAL BACKGROUND

The offenses for which petitioner was convicted occurred on the evening of June 1, 1971. At that time, complainant, an eighteen year old Michigan State University student, was returning to her dormitory from dinner when approached by petitioner, who requested her help with a problem. Although she did not then know him, she agreed to accompany him to a bar, where they conversed for approximately one-half hour. It is undisputed that they then proceeded to search without success for a bar with a band. The subsequent events, however, are the subject of divergent testimony.

Complainant testified that at this time she asked to be returned to her dormitory. Instead, petitioner drove her to a wooded area in the city of Lansing, where, by means of threats, he forced her to engage in intercourse and other sexual acts. She further testified that the inside door handle on the passenger side of petitioner's car was missing, which prevented her from escaping. Thereafter, petitioner returned complainant to her dormitory, instructing her not to prosecute him but to get the license plate number of his car. Complainant then summoned police and reported to the student health center, where an examination revealed evidence of recent sexual intercourse.

According to the testimony of the petitioner, complainant consented to the intercourse and other activities. He denied using threats or force, but testified that on the way back to the dormitory, he informed complainant that she had an unpleasant body odor, to which she took offense. After returning her to the dormitory, petitioner drove to the East Lansing Police Department and expressed concern that complainant might file a complaint against him. While he was there, the report was received.

Petitioner was twice tried on these charges before a jury in the Ingham County Circuit Court. The first trial was declared a mistrial on January 14, 1972 when the jury was unable to agree upon a verdict. The second trial resulted in a conviction for forcible rape and gross indecency. On June 2, 1972, petitioner was sentenced to terms of 20 to 30 years imprisonment on the first charge and 4 to 5 years imprisonment on the second.

The conviction was affirmed in all respects by the Michigan Court of Appeals in an Opinion dated March 26, 1974. People v. Oliphant, 52 Mich.App. 242, 217 N.W.2d 141 (1974). It was affirmed by the Michigan Supreme Court in an Opinion dated December 31, 1976. People v. Oliphant, 399 Mich. 472, 250 N.W.2d 443 (1976). Mr. Oliphant filed his petition with this Court on April 6, 1977.

B. ASSIGNMENTS OF ERROR

Petitioner has submitted seven purported assignments of error. They will be considered in the order in which they appear in petitioner's pleadings.

I.

Petitioner's first assignment of error alleges that the trial court failed to conduct a formal pre-trial competency hearing as required under Michigan law. M.C.L.A. § 767.27a, M.S.A. § 28.966(11).

Prior to petitioner's first trial, he was adjudged competent by the Center for Forensic Psychiatry, whereupon his counsel prepared an Order for the Court's signature declaring Mr. Oliphant to be competent. That determination was not challenged until after petitioner's conviction, at which time the Michigan Court of Appeals remanded the case for a competency hearing. Upon conducting such a hearing, the trial court determined that petitioner had at all times been competent to stand trial.

In considering this objection, the Michigan Supreme Court and Court of Appeals determined that the nunc pro tunc competency hearing afforded to the petitioner in this case neither violated the statute nor denied him his constitutional rights. People v. Oliphant, supra, 399 Mich. at 500, 250 N.W.2d at 455; People v. Oliphant, supra, 52 Mich.App. at 245-47, 217 N.W.2d at 143-44. See People v. Lucas, 393 Mich. 522, 227 N.W.2d 763 (1975).

The requirement of a preliminary hearing is procedural only. Smith v. Peyton, 280 F.Supp. 669 (W.D.Va.1968). The failure to conduct a preliminary hearing prior to conviction does not constitute the denial of a federal constitutional right. Ardister v. Hopper, 500 F.2d 229 (5th Cir. 1974); Pine v. Estelle, 470 F.2d 721 (9th Cir. 1972); Collins v. Swenson, 443 F.2d 329 (8th Cir. 1971). This assignment of error raises only matters of state law and procedure and involves no federal question of fundamental fairness or constitutional protection. Consequently, it cannot form the basis for federal habeas corpus relief. Gemmel v. Buchkoe, 358 F.2d 338 (6th Cir. 1965), cert. denied 385 U.S. 962, 87 S.Ct. 402, 17 L.Ed.2d 306 (1966).

II.

Petitioner next objects to the prosecutor's line of questioning and the trial court's instructions on the issue of force. Specifically, he contends that the introduction of evidence as to the laceration of complainant's hymen was irrelevant to the issue of his guilt or innocence and blurred the distinction between physical force and threats.

Since petitioner did not raise this issue in his state appellate proceedings, there is an initial problem of failure to exhaust state remedies. 28 U.S.C. § 2254(b), (c). In Pitchess v. Davis, 421 U.S. 482, 487, 95 S.Ct. 1748, 1752, 44 L.Ed.2d 317 (1975), the Supreme Court declared that "exhaustion of state remedies is required as a prerequisite to consideration of each claim sought to be presented in federal habeas." Petitioner in this case has not exhausted his state remedies with respect to his second assignment of error.

Moreover, the Court has reviewed the challenged testimony and instructions and concludes that they do not involve constitutional issues and are not so prejudicial as to render the trial fundamentally unfair. Nor does petitioner's allegation that the testimony on the issue of force was irrelevant raise due process issues of constitutional magnitude or entitle him to habeas corpus relief. Nelson v. Moriarty, 484 F.2d 1034 (1st Cir. 1973). Accordingly, this assignment of error does not provide a basis for federal habeas corpus relief. Bassett v. Smith, 464 F.2d 347 (5th Cir. 1972), cert. denied 410 U.S. 991, 93 S.Ct. 1509, 36 L.Ed.2d 190, reh. denied 411 U.S. 978, 93 S.Ct. 2154, 36 L.Ed.2d 700 (1973); Pleas v. Wainwright, 441 F.2d 56 (5th Cir. 1971); Gemmel v. Buchkoe, supra.

III.

Petitioner's third assignment of error asserts that the prosecutor failed to use reasonable efforts to produce a res gestae witness, introducing instead that witness' testimony at the prior trial.

It appears from the trial transcript that on the first day of trial the prosecution moved to strike Officer John Kelly from the information on the ground that he was then in Europe and out of the reach of the court's process. Since petitioner objected to striking Officer Kelly from the list, the Court resolved the matter by having his previous testimony read into the record.

Not having been asserted before the Michigan appellate courts, this objection suffers the same exhaustion infirmity discussed in part II, supra. Moreover, this situation appears to fall within the traditional exception to the confrontation requirement which permits the introduction of a transcript of testimony of an unavailable witness which was given at a previous judicial proceeding involving the same defendant and at which the witness was subject to cross-examination by that defendant. Barber v. Page, 390 U.S. 719, 722, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); Brodkowicz v. Swenson, 357 F.Supp. 178 (W.D.Mo. 1973).

IV.

Petitioner next contends that he was subjected to double jeopardy by being retried after the first jury was unable to agree upon a verdict. It is his position that the fifth amendment compelled the trial court to dismiss the charges against him after the first jury was discharged.

As observed by the Michigan Supreme Court, "This objection was not raised in the trial court, the Court of Appeals, or in the application for leave to appeal." People v. Oliphant, supra, 399 Mich. at 501, 250 N.W.2d at 455. Accordingly, the doctrine of exhaustion of remedies applies, and this issue is not properly before this Court.

Furthermore, the objection is frivolous. It is an established principle of American jurisprudence that the discharge of a jury because of its inability to agree upon a verdict is not a bar to a future trial for the same offense. Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963); United States v. Perez, 9 Wheat. 579, 22 U.S. 579, 6 L.Ed. 165 (1824).

V.

In his fifth assignment of error, petitioner alleges that he was deprived of his right to an impartial jury representative of a fair cross-section of the community in that 18 to 21 year olds were purportedly excluded from the list of veniremen. He contends that such exclusion constitutes a deprivation of his rights as secured by the sixth amendment.

The Age of Majority Act, which...