Salem v. State of North Carolina
| Decision Date | 08 April 1974 |
| Docket Number | No. C-C-73-283.,C-C-73-283. |
| Citation | 374 F. Supp. 1281 |
| Court | U.S. District Court — Western District of North Carolina |
| Parties | Richard Dean SALEM, Petitioner, v. STATE OF NORTH CAROLINA and Donald Stahl, Sheriff of Mecklenburg County, Respondents. |
Richard N. League, Asst. Atty. Gen., North Carolina Dept. of Justice, Raleigh, N. C., for respondents.
Richard Dean Salem, petitioner, was convicted by a Mecklenburg County jury in April, 1972, of the crimes of possession of marijuana and assault by pointing a gun. He was sentenced to two consecutive six-month prison terms, and the convictions were upheld on appeal, 17 N.C.App. 269, 193 S.E.2d 755 (1973), cert. denied, 283 N.C. 259, 195 S.E.2d 692 (1973).
Salem seeks habeas corpus, alleging fundamental unfairness and lack of due process in the trial. These allegations include error in the court's legal instructions to the jury; error in admission of evidence; and prejudicial conduct of the trial generally, including allowance of prejudicial efforts to associate defendant with Howard Mack Miller, who was currently the defendant (later acquitted on second trial) in a spectacular police homicide trial of about the same vintage and arising out of a very similar plain clothes raid. The primary claim and the only one which will be discussed in any detail in this order is the alleged unfair exclusion of testimony which, if admitted, would have directly contradicted the testimony of the key eyewitness for the state.
The prosecution arose out of a "raid" by the Charlotte Police vice squad on a four-bedroom apartment at 1601 Eastcrest Drive at 1:50 a. m. on the morning of October 21, 1971, in Charlotte. The apartment was leased to Johnnie Kirkpatrick and Fred Mauney. Salem was living part of the time in the apartment in the bedroom referred to as bedroom "C" under an arrangement with the lessees. On the night in question he and his girl friend, Nancy, and her little daughter were spending the night there.
Salem testified that about 1:30 in the morning he and Nancy were asleep in bedroom "C." Salem had been asleep a couple of hours. He heard noises in the hall; he rolled over and picked up his 38 caliber pistol off the floor; the door was "busted open"; some men in plain clothes entered the room; Salem pointed his gun at them. He says that he soon recognized one of them as Lt. Stroud of the vice squad and lowered his gun when he realized the invaders were police instead of a "bunch of drunks."
The officers had a valid warrant to search the apartment of Kirkpatrick and Mauney for violations of the laws respecting marijuana; they found marijuana in the apartment and charged Kirkpatrick and Mauney as well as Salem with marijuana law violations. Salem's marijuana conviction is not involved in this proceeding.
Officer Ensminger, who was in charge of the raid, testified that he and fellow officers went to the apartment for the search; that the front door ws unlocked when they arrived; that they announced their presence as officers to search the apartment; that they tried the door of bedroom "C" and found it locked and then, in a minute or so, kicked the door in and entered the bedroom; that Salem picked up the pistol and pointed it at the officer, who drew his own gun, announced himself as a police officer, and had to tell Salem two or three times to drop the gun. He further said that Salem did not really drop the gun but that Officer Howell had to take it away from Salem. Howell testified that he took Salem's gun from him.
There was thus a conflict between Salem on the one hand and Officer Ensminger and Officer Howell on the other hand about how long Salem held the gun on Ensminger, and whether Salem put the gun down as soon as he knew or should have known that the invaders were police instead of drunks or burglars.
John G. Walker and Frank Walker were ...
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