Orricer v. Erickson, Civ. 71-10S.

• Decision Date: 05 August 1971
• Docket Number: No. Civ. 71-10S.,Civ. 71-10S.
• Citation: 329 F. Supp. 360
• Parties: Charles R. ORRICER, Plaintiff, v. Donald R. ERICKSON, Warden of the South Dakota State Penitentiary, Defendant.
• Court: U.S. District Court — District of South Dakota

329 F. Supp. 360

Charles R. ORRICER, Plaintiff, v. Donald R. ERICKSON, Warden of the South Dakota State Penitentiary, Defendant.

No. Civ. 71-10S.

United States District Court, D. South Dakota, S. D.

August 5, 1971.

Martin Weeks, of Bogue & Weeks, Vermillion, S. D., for plaintiff.

Roger A. Schiager, Special Asst. Atty. Gen., Sioux Falls, S. D., for defendant.

MEMORANDUM DECISION

NICHOL, Chief Judge.

Petitioner has filed a petition in this court seeking federal habeas corpus relief from a state court conviction of second degree burglary. Petitioner has exhausted his state court remedies in accordance with the requirements of 28 U.S.C.A. § 2254. See, State v. Orricer, 80 S.D. 126, 120 N.W.2d 528 (1963) (direct appeal from conviction); Orricer v. State, S.D., 181 N.W.2d 461 (1970) (appeal from denial of post conviction relief).

Petitioner sets forth the following grounds for the relief requested: (1) that evidence obtained as a result of an illegal search and seizure was admitted against him at trial; (2) that he was denied effective assistance of counsel; (3) that the county sheriff who testified against petitioner at trial took part in the selection of the jury panel for that particular term of court; (4) that a deputy county sheriff who was a witness at trial also served as bailiff; (5) that the trial court lacked jurisdiction; (6) that petitioner was denied the right to be present at a hearing at which his transfer to the State Penitentiary for security purposes was ordered; (7) that perjured testimony was given by a state witness; (8) that the evidence against him was insufficient to support a verdict of guilty.

SEARCH AND SEIZURE

At about 3:45 a. m. on the morning of November 13, 1960, two police officers discovered evidence that a burglary had taken place at a supermarket located in Vermillion, South Dakota. During the immediate investigation two men were observed in an alley near the store. Upon being requested to stop the two men fled on foot. An attempt to overtake the two men was unsuccessful. Less than an hour later two policemen who had received word of the burglary observed a man who later was identified as petitioner driving a 1954 Buick bearing out of county license plates on a street in Vermillion. The officers stopped the car and questioned petitioner. The vehicle was registered to Lawrence Geelan. Shortly after the 1954 Buick was stopped other law enforcement personnel arrived on the scene. Upon looking in the window of the 1954 Buick, the Sheriff of Clay County observed a pair of gloves lying on the front seat. The vehicle was then taken to the police station and locked. The following morning at about 8:30 a. m. the car was searched without a warrant and the gloves were removed. The gloves proved to have a substance on the fingertips which connected them with the burglary which had taken place.

On the basis of the above facts the petitioner contends that the gloves were the product of an illegal search and seizure. This court does not agree. "It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced into evidence." Harris v. United States, 390 U.S. 234, 236, 88 S. Ct. 992, 993, 19 L.Ed.2d 1067 (1968). In this instance the law enforcement personnel were constitutionally in a position to observe the gloves which were in plain view on the front seat of the vehicle. Carpenter v. Sigler, 419 F.2d 169 (8th Cir. 1969). The fact that the gloves were not taken into custody by the sheriff at the time he first examined them and that they were instead replaced in their original position and not removed until approximately four hours later does not serve to remove their seizure from the intent of the plain view doctrine. Carpenter v. Sigler, 419 F.2d 169 (8th Cir. 1969); Leffler v. United States, 409 F.2d 44 (8th Cir. 1969).

EFFECTIVE ASSISTANCE OF COUNSEL

Petitioner was arrested on November 13, 1960. On November 14, 1960, he was brought before a magistrate and the charges against him were read. Attorney Norman Jacquith, who was present at the time of the preliminary arraignment, was engaged to represent petitioner and continued to do so until after the imposition of sentence on March 29, 1961. At trial petitioner was also represented by attorney John MacArthur.

On November 19, 1960, petitioner waived a preliminary hearing. Prior to this waiver a preliminary hearing was held involving Lawrence Geelan who was alleged to be petitioner's accomplice in the burglary. Petitioner contends that the waiver of the preliminary hearing was against his wishes. Jacquith, petitioner's attorney, testified during the postconviction hearing held on April 16, 1969, that due to the previous preliminary hearing involving the same criminal acts, it was his opinion that it was not necessary to have a further preliminary hearing. Jacquith testified that petitioner agreed to the waiver.

On November 21, 1960, the sheriff and state's attorney of Clay County presented an ex parte motion to the circuit court for a transfer of petitioner from the Clay County Jail to the State Penitentiary at Sioux Falls, South Dakota, for security reasons. Pursuant to an Order of the Circuit Court, based on the ex parte application, petitioner was transferred to the state penitentiary. On February 27, 1961, petitioner was returned to Clay County following his successful application for habeas corpus relief. It is conceded by the state that no statutory authorization for the transfer of petitioner to the state penitentiary while awaiting trial existed. Petitioner contends that due to the security restrictions at the state penitentiary and the failure of Jacquith to properly keep in touch with him and to properly prepare...