Scarborough v. Kellum

• Decision Date: 09 January 1975
• Docket Number: No. EC 74-3-K.,EC 74-3-K.
• Citation: 386 F. Supp. 1360
• Parties: Charles T. SCARBOROUGH, Petitioner, v. J. C. KELLUM in his capacity as Sheriff of Oktibbeha County, Mississippi, Respondent.
• Court: U.S. District Court — Northern District of Mississippi

386 F. Supp. 1360

Charles T. SCARBOROUGH, Petitioner, v. J. C. KELLUM in his capacity as Sheriff of Oktibbeha County, Mississippi, Respondent.

No. EC 74-3-K.

United States District Court, N. D. Mississippi, E. D.

January 9, 1975.

Charles T. Scarborough, pro se.

Timmie Hancock, Asst. Atty. Gen., Jackson, Miss., for respondent.

MEMORANDUM OPINION

KEADY, Chief Judge.

'Tis known by the name of perseverance in a good cause — and obstinacy in a bad one.

— Laurence Sterne

At approximately 11:30 on the night of September 26, 1970, Virgil Luke, a Mississippi highway patrolman, arrested Charles T. Scarborough, a Starkville resident, on a charge of driving an automobile while under the influence of intoxicating liquor, as Scarborough was operating his vehicle on U. S. Highway 82, in Oktibbeha County, between Starkville and Mayhew Junction. Luke carried Scarborough to the county jail, where he remained overnight, occupying a cell adjacent to William Estes, another prisoner.

Incensed by his arrest and incarceration for this traffic offense, Scarborough, a mathematics professor at Mississippi State University and the holder of a Ph.D degree, engaged counsel but was nevertheless tried and convicted in the justice of the peace court on the drunk driving charge. From that conviction Scarborough took an appeal to the circuit court, where he was tried de novo and represented by new counsel, Honorable Billy J. Jordan of Columbus. In a jury trial, petitioner was again convicted, on substantial evidence of intoxication, fined $200 and sentenced to a jail term of 30 days, with the jail term suspended.

After two such disenchanting experiences with retained counsel, the tenacious Scarborougth chose to represent himself, without assistance of counsel, before the Supreme Court of Mississippi. In that court, Scarborough's legal position was thoroughly vindicated by a newly announced constitutional rule,¹ and he won a resounding moral victory. Unfortunately, the triumph was more Pyrrhic than real, for the state supreme court, disappointingly, applied its ruling prospectively, thus affirming Scarborough's misdemeanor conviction. Scarborough v. State, 261 So.2d 475 (Miss. 1972). His frustration now doubtless compounded, Scarborough tirelessly petitioned the Supreme Court of the United States, pro se, for a writ of certiorari. This, too, was denied. Scarborough v. Miss., 410 U.S. 946, 93 S.Ct. 1353, 35 L.Ed.2d 613 (1973). Finally, on October 8, 1973, the Supreme Court of Mississippi denied Scarborough's pro se request to file a petition for writ of error coram nobis pursuant to Miss. Code Ann. § 99-35-145 (1972).

Scarborough's available state court remedies were now utterly exhausted. His determination to right the supposed wrongs done him was not dampened, however, and he has now petitioned this court, pro se, to correct them through its power of habeas corpus.

Pursuant to recommendations made by the United States Magistrate² after review of the petition, response and state court transcript, this court on November 12, 1974, conducted an evidentiary hearing highlighted by petitioner's enthusiastic, though bizarre, courtroom performance, and received evidence from the parties on the following issues:

1. Whether petitioner was held incommunicado in the county jail and thus denied potentially exculpatory evidence;

2. Whether the prosecution purposely released William Estes from jail prior to the expiration of his sentence to prohibit Estes from giving testimony favorable to petitioner as to his state of intoxication shortly after petitioner's arrest, and thereby suppressed evidence;

3. Whether petitioner was deprived of effective assistance of counsel by reason of inadequate presentation of the foregoing issues at petitioner's trial in state court.

At our hearing, petitioner's evidence, in addition to his own testimony, consisted of the testimony of his wife and Fred Eskafi, a friend. Respondent offered as witnesses patrolman Luke, deputy sheriff and jailer James Bradberry, former sheriff William Harpole, and Billy J. Jordan. In addition to consideration of this oral testimony, the court has also reviewed the state court transcript. The court now resolves factual disputes necessary to a determination, incorporating herein findings of fact and conclusions of law as required by Rule 52, F.R.Civ.P.³

I. INCOMMUNICADO DETENTION

Immediately upon his arrest by Luke, petitioner, by his own admission a person of easily excitable nature, became highly agitated. Waving his arms about, petitioner villified the officer with a string of abusive utterances, even threatening Luke with a charge of police brutality and the loss of his job. When the patrolman persisted in making the arrest, petitioner several times demanded both before and after he was lodged at the county jail, that he be given a test — any kind of test — to determine whether he was intoxicated.

Although we conclude that petitioner never specifically requested that a Blood Alcoholic Content (BAC) test be administered, since he simply had in mind any available sobriety test, it is clear that such specificity is not constitutionally required. Petitioner's repeated insistence for some objective test of his intoxication placed on the detaining officials the constitutional obligation to provide an avenue, consistent with jailhouse security requirements, by which petitioner could communicate with the outside world and thus make arrangements for the administration of a potentially exculpatory test.⁴ It is a commonly known biological fact that the amount of alcohol in the bloodstream — which is determinant of intoxication and hence of an arrestee's guilt or innocence on any drunkenness charge — is soon dissipated by the body's natural processes. Thus, an objective test of sobriety, to be probative, must be administered as quickly as possible after the initial arrest. Although the Due Process Clause has not yet been read to require the state to administer such a test to an arrestee on demand, it is settled that the state must, at the least, not interfere unreasonably with the arrestee's ability to take steps on his own to preserve this evanescent proof. Capler v. City of Greenville, 298 F.Supp. 295 (N. D.Miss.1969), aff'd. 422 F.2d 299 (5 Cir. 1970).⁵ Our inquiry must thus focus on whether an avenue of communication was provided to petitioner.

After he was placed in jail about midnight, petitioner demanded to be allowed to make a phone call. Instead, Luke offered to make a phone call for petitioner and to convey whatever instructions he might have, either to petitioner's wife or anyone else petitioner might direct him to call.⁶ Luke's actions were in keeping with the established practice at the jail not to allow persons charged with DWI to make personal phone calls; earlier permissiveness had resulted in telephones being jerked from the wall by some arrestees, while others had abused the privilege by carrying on long, pointless, and annoying conversations.

Petitioner refused Luke's offer, saying that if he could not make his own call, "no son of a bitch could call for him." Hence, neither petitioner's wife nor anyone else was notified of his incarceration until the next morning, when, at approximately 8 a. m., Mrs. Scarborough appeared and posted bail for petitioner. It is evident, of course, that if petitioner had availed himself of Luke's offer to call on his behalf, petitioner would have had full opportunity to notify his wife for aid, or to determine the availability of a physician for a blood test.

Just as in Capler, supra, where the unsuccessful habeas petitioner failed to demand, soon after arrest, that he be given a blood test or allowed the use of the telephone, so here did petitioner fail to avail himself of the opportunity for a timely telephone call in his behalf.

We believe that the policy of making telephone calls for DWI arrestees and relaying whatever reasonable message the arrestee might have, including instructions to secure a sobriety test, is a substantial compliance with the arrestee's constitutional rights. We thus hold that petitioner, by refusing the arresting officer's offer to make a call on his behalf, effectively waived his right to attempt to secure an objective scientific evaluation of his sobriety. Petitioner is, then, himself responsible for the loss of any potentially exculpatory evidence; under such circumstances the state cannot be charged with fault to taint the validity of his conviction.

II. THE RELEASE OF ESTES

Petitioner's second contention is that the prosecution purposely released William Estes from jail prior to the expiration of his sentence to preclude Estes from being available for testimony favorable to petitioner concerning his sobriety on the night of arrest, and that such action constitutes suppression of evidence. We find that this contention rests purely upon petitioner's assumptions, which are flatly contradicted by practically undisputed evidence. Estes, an inmate in the jail on the night of petitioner's incarceration, was being detained on a charge of false pretenses. He had been in jail for about two months previously, and remained so confined until his conviction. On October 21, Estes entered a plea of guilty and received a sentence of four months, with credit for time served. Since Estes had already spent three months in jail and was routinely allowed good time credit of one-fourth of the sentence, this resulted in his release from jail the day following sentence. This action was authorized by Sheriff Harpole, without an order from the court or board of supervisors. Harpole explained he permitted the early release because of an outstanding detainer against Estes by the State of Arkansas on another criminal charge, and Estes was released to the Arkansas authorities upon waiver of extradition.

Prior to Estes' release, however, petitioner, several days after his own arrest, had interviewed and obtained a favorable...