Powell v. Wiman
| Decision Date | 29 March 1961 |
| Docket Number | No. 18368.,18368. |
| Citation | 287 F.2d 275 |
| Parties | William K. POWELL, Appellant, v. Martin J. WIMAN, Warden of Kilby Prison Montgomery, Alabama, et al., Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
R. Clifford Fulford, Birmingham, Ala., for appellant.
James W. Webb, Asst. Atty. Gen., MacDonald Gallion, Atty. Gen., State of Ala., for appellees.
Before RIVES, BROWN and WISDOM, Circuit Judges.
The Supreme Court vacated the judgment of this Court on former appeal,1 and remanded this case to the district court "for a full hearing."2 The district court at first construed the order of the Supreme Court to direct a full hearing on Powell's motion for leave to appeal from the earlier judgment of the district court, but later granted Powell's motion for a full hearing on his application for habeas corpus.
Powell is imprisoned under a ten-year sentence imposed upon his conviction in the Circuit Court of Jefferson County, Alabama, of the offense of robbery, a capital crime under the laws of Alabama.3 Powell appealed pro se from that conviction, but no transcript of the evidence was filed and the judgment of conviction was affirmed by the Court of Appeals of Alabama in an unpublished per curiam decision.4 The Supreme Court of the United States denied Powell's motion for leave to file a petition for writ of habeas corpus.5 The Alabama Court of Appeals denied his petition for writ of error coram nobis.6 The Supreme Court denied certiorari.7 Powell's application for habeas corpus was denied without a hearing by the Circuit Court of Montgomery County, Alabama, and two earlier applications were similarly denied by the federal district court. Thus, the fact accords with the implication of the Supreme Court's order, that is, Powell has sufficiently exhausted the remedies available in the State courts.8
Following the Supreme Court's order of remand, the district court, after a full and adequate hearing, entered a memorandum opinion finding adversely to Powell on each of his many contentions, and denied his petition for habeas corpus. From that judgment the present appeal is prosecuted. Of the many contentions presented on this appeal, it is necessary to consider only two:
As to the first contention, the district court found that Powell was arraigned upon the indictment and entered a plea of not guilty; that he was not then represented by counsel; that on the same day and during the same court appearance and shortly after Powell entered a formal plea of not guilty, the court appointed two attorneys to represent Powell; that, thereafter, the prosecuting attorney agreed that the arraignment be set aside if Powell's court-appointed attorneys so requested; that Powell and his attorneys decided against such action, and elected instead to conduct his trial on the plea of not guilty without pleading "not guilty by reason of insanity." After carefully reading and studying the record and exhibits, we agree with those fact findings of the district court.
While the present appeal has been pending, the Supreme Court of Alabama has ruled upon another capital case presenting much the same question of law that is posed by those facts.9 In that case the defendant was not represented by counsel at his arraignment and for three days thereafter. Upon trial, he was convicted and sentenced to death. The Supreme Court of Alabama, upon a finding that the defendant was not prejudiced by the late appointment of counsel, denied him leave to file in the trial court an application for writ of error coram nobis. On the 9th day of January 1961, the Supreme Court of the United States granted certiorari to review that decision. Hamilton v. Alabama, 1961, 364 U.S. 931, 81 S.Ct. 388, 5 L.Ed.2d 364. We do not await the decision of the Supreme Court in that case, and refrain from expressing any view on the question of law, because the present case can and should be decided upon Powell's other contention to the effect that the State suppressed vital evidence upon his trial. Consideration of that issue requires a detailed examination of the facts, as disclosed both by the transcript of the evidence upon Powell's trial for robbery, now made available to an appellate court for the first time, and by the full hearing on Powell's petition for habeas corpus conducted by the district court.
On Sunday night, September 25, 1955, Mr. L. O. Brown closed his ice cream store in Birmingham, Alabama, at a late hour. He and his wife, with about $25.00 in currency from the day's receipts, arrived home after 11:00 P.M. As their automobile stopped at their garage and Mrs. Brown started to get out, a man with a pistol approached the driver's side and ordered Brown to have his wife get back in the car; Mrs. Brown, of course, complied. Brown later identified that man as one James Hatt, and it is now established without dispute that the robber was James Hatt. Brown offered Hatt the money which was in a cloth sack on the seat beside him, but Hatt at that time declined and ordered him instead to drive out of town. Hatt got in the back seat and held the pistol on Brown, directing him where to drive, first 16 or 17 miles down the Highway toward Montgomery, then turning off on a road that led from the Montgomery Highway to the Atlanta Highway, then turning off down a little-traveled dirt road for about a hundred yards, where Hatt ordered Brown to stop and turn off his lights. Hatt took the sack of money and searched the automobile for more, but without success. He then took the automobile keys, made Brown let the air out of the tires, ordered him to get back in the car and shut the door, and, according to Brown's testimony on Powell's criminal trial:
The Browns stayed in their automobile for a "good while," but neither saw nor heard a car stop on the nearby highway. Finally, they got out, walked to the highway, found a telephone, and reported the robbery. The Browns did not see Powell at the scene of the crime.
The next scene is at a tourist home in Leeds, Alabama, on the night of September 30, 1955, five days after the robbery. There B. M. Dinkin, a Deputy Sheriff of Jefferson County, and John Pledger, Chief of Police of Leeds, arrested Hatt. In the room with Hatt was the appellant, William K. Powell. Under the mattress of the bed the officers found a pistol with a shoulder holster, some cartridges, a "slapjack," a pair of rubber gloves, and a mask. Upon Powell's criminal trial, Hatt admitted that these articles belonged to him.
Powell and Hatt were taken to police headquarters in Leeds, where they were questioned jointly by Officers Pledger and Dinkin and by the Mayor of Leeds. Hatt admitted having committed the armed robbery, but Powell has made no confession either then or at any subsequent time. Upon their arrival in Birmingham, Hatt was taken to the office of the prosecuting attorney, where he gave a detailed written statement. In due course, Hatt and Powell were separately indicted for the offense of the armed robbery of L. O. Brown.
Powell was tried on January 25 and 26, 1956 on his plea of not guilty, and, as has been stated, was convicted and sentenced to ten years imprisonment. Hatt pleaded guilty on December 14, 1956 to the lesser offense of larceny from the person, and, on the recommendation of the prosecuting attorney, was sentenced to five years imprisonment.10
An Alabama statute provides that:
11
Corroborative evidence to the testimony of Hatt "tending to connect the defendant with the commission of the offense" consisted of testimony of Powell's association with Hatt both before and after the robbery and Mr. Brown's testimony that Powell had been employed by him for about six weeks during the Summer of 1955. Clearly, Powell could not have been convicted without Hatt's testimony. Powell's conviction or acquittal really turned upon whether Hatt was a credible witness.
In Alabama, "when a party places a witness on the stand, he thereby vouches for his credibility."12 The State called Hatt as a witness against Powell after Hatt had pleaded not guilty by reason of insanity. Powell's court-appointed attorneys, conscientious, able and diligent, but very inexperienced — this was their first jury trial — attempted repeatedly to bring out Hatt's mental condition on cross-examination. To this, the prosecution vigorously objected.
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...to make disclosure of evidence or for use of false evidence relating only to credibility are numerous. For example, in Powell v. Wiman, 287 F.2d 275 (5th Cir. 1961), the prosecution successfully objected to the introduction of any evidence of its key witness' mental condition, although it k......
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U.S. v. Crockett, 74-3923
...9 Cir., 1972, 463 F.2d 455 (nondisclosure of evidence refuting uncorroborated testimony of key accomplice-witness); Powell v. Wiman, 5 Cir., 1961, 287 F.2d 275 (nondisclosure of psychological background of key witness); cf. Evans v. Janing, 8 Cir., 1973, 489 F.2d 470 (reversal not required ......
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United States v. Fay
...allegation of misconduct on the part of the prosecution may very well raise a federal constitutional objection. See Powell v. Wiman, 287 F.2d 275, 278-279 (5 Cir. 1961), on appeal from remand, 293 F. 2d 605 (1961) (knowing use of testimony of insane witness); cf. Brady v. Maryland, 373 U.S.......
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Calley v. Callaway
...9 Cir., 1972, 463 F.2d 455 (nondisclosure of evidence refuting uncorroborated testimony of key accomplice-witness); Powell v. Wiman, 5 Cir., 1961, 287 F.2d 275 (nondisclosure of psychological background of key witness); cf. Evans v. Janing, 8 Cir., 1973, 489 F.2d 470 (reversal not required ......