Smith v. Atkins

• Decision Date: 02 June 1983
• Docket Number: No. 80-3125.,80-3125.
• Citation: 565 F. Supp. 721
• Parties: Jerry Wayne SMITH, Petitioner, v. Robert ATKINS, Director, Kansas State Penitentiary, et al., Respondents.
• Court: U.S. District Court — District of Kansas

565 F. Supp. 721

Jerry Wayne SMITH, Petitioner, v. Robert ATKINS, Director, Kansas State Penitentiary, et al., Respondents.

No. 80-3125.

United States District Court, D. Kansas.

June 2, 1983.

COPYRIGHT MATERIAL OMITTED

Jerry Wayne Smith, pro se.

Joseph M. Fast, Asst. Atty. Gen., Topeka, Kan., for respondents.

MEMORANDUM AND ORDER

SAFFELS, District Judge.

Petitioner, an inmate of the Kansas State Penitentiary, Lansing, Kansas, having been granted leave to proceed in forma pauperis, has filed with the clerk of the court this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his conviction in the state of Kansas of three counts of kidnapping, one count of aggravated kidnapping, and one count of aggravated robbery. The direct appeal of his conviction to the Kansas Supreme Court State v. Smith & Miller is published at 224 Kan. 662, 585 P.2d 1006 (1978); modified 225 Kan. 199, 585 P.2d 953 (1979); cert. denied 441 U.S. 964, 99 S.Ct. 2411, 60 L.Ed.2d 1069; rehearing denied 444 U.S. 889, 100 S.Ct. 191, 62 L.Ed.2d 124 (1979). The court has found that state remedies have been exhausted after reversal and remand by the United States Court of Appeals for the Tenth Circuit on the exhaustion issue.

Petitioner has moved the court to be provided with a copy of the voluminous state court records at government expense. The court denies this motion for the reason that the record discloses that transcripts were provided to petitioner by the State prior to his direct appeal and that he has repeatedly formulated and presented the issues raised herein to various tribunals. No particularized need for another copy of the record is shown. Furthermore, a line-by-line review of the record has been undertaken by this court in its determination of this petition.

The Tenth Circuit found, and this court concurs, that the claims raised by this petition are:

1-3. that a warrant issued for the search of petitioner's automobile was obtained under circumstances which violated Fourth Amendment principles, including those enunciated in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978);

4. that double jeopardy principles precluded the state prosecution in light of a prior federal prosecution for acts arising out of the same transaction;

5. that petitioner was denied a speedy trial;

6. that the evidence was insufficient to support the verdict;

7. that a transcript of the suppression hearing held in the federal action was improperly admitted in the state action;

8. that the trial court improperly denied petitioner's request for severance;

9. that the trial court improperly refused to give petitioner's tendered instruction defining the crime of aggravated kidnapping;

10. that petitioner was denied a fair trial due to adverse pretrial publicity; and

11. that the trial court erred in denying petitioner's request for a mistrial based on alleged improper prosecutorial comment.

The court shall consider each of these claims in turn.

FACTS

The facts underlying the petition are found to be as follows. A robbery occurred at a branch bank of the Fourth National Bank and Trust Company in Wichita, Kansas, on the 6th day of January, 1975, which was reported to the police dispatcher at approximately 7:00 a.m. The persons who committed the offense were described to police by the victims as being two black males. Physical and clothing descriptions were obtained and were broadcast by the Wichita Police Department dispatcher. Soon thereafter additional descriptions were broadcast supplementing the original information. In the first report by the victims, a wide-brimmed, black hat was mentioned as having been worn by one of the robbers.

Sometime between 7:18 a.m., when a description of one of the suspects was broadcast by the Kansas Highway Patrol, and 7:33 a.m., Trooper David McGlasson of the Kansas Highway Patrol, who was assigned to the turnpike, stopped to assist a parked Cadillac automobile which had a flat tire. He requested identification from the two persons attending the vehicle, who gave identification indicating that they were Jerry Wayne Smith and Carroll James Miller. The trooper testified that prior to approaching the vehicle he had received a report that a pick-up truck which had been reported as the possible get-away vehicle had been found abandoned. In the course of his conversation with the two men, the trooper asked where they had entered the Kansas Turnpike. They told him they had entered in Kansas City. The trooper also testified that he asked them if they had been in Wichita the night before, and they said, "no, we came from Kansas City." After leaving the parked vehicle, he realized that the back glass was covered with frost and formed an opinion that had the vehicle entered in Kansas City the back glass would be clear. Thus, he became suspicious that the occupants had not been truthful with him, so at 7:33 a.m. he requested the toll booth operator at the next exit to advise him as to where the vehicle had entered the turnpike. At 7:47 a.m., Trooper McGlasson was advised that the vehicle had passed through the toll booth and that it indeed had entered at the South Wichita Interchange of the Kansas Turnpike. Trooper McGlasson then had a conversation with the Wichita Police Department dispatcher. Information with respect to Trooper McGlasson's encounter with the two men on the turnpike and the information from the toll booth operator were put together with the information from the scene of the robbery and additional dispatches were made. At this point, the trail of the dispatch becomes impossible to precisely trace. During the stop, Trooper McGlasson did observe, among other similarities, a black hat which fit the general description of the hat seen by the victims.

Roger Sixkiller of the Oklahoma Highway Patrol and Gary Sinclair of the Kay County Oklahoma Sheriff's Office learned by means of regular communications channels of the description of the automobile sought in connection with the robbery after the encounter by Trooper McGlasson and other details concerning the occupants of the vehicle, as well as details relating to the description of the robbers obtained from the victims at the scene, including a description of a black hat. They stopped the vehicle in the state of Oklahoma, spotted the black hat on the front seat and noted similarities between the occupants and descriptions of the suspects. The occupants were taken to the city jail in Tonkawa, Oklahoma, and there were held in custody. Officer Sinclair proceeded to further investigate the matter by having a telephone conversation with Sergeant Williams of the Wichita Police Department, who, along with other officers, was investigating the robbery. In that conversation, Officer Sinclair learned further details concerning the descriptions given by the robbery victims and employees of the Fourth National Bank in Wichita. While the descriptions were incomplete and did not describe all the clothing worn by the robbers, those descriptions given of clothing and the general physical characteristics of the robbers were consistent with that of the persons who had been taken into custody in Oklahoma. Officer Sinclair then traveled to the county seat to attempt to obtain a warrant to search the vehicle. In support of the application for warrant of search and seizure, Officer Sinclair made the following affidavit:

"I, Gary Sinclair, of lawful age and after being first duly sworn upon oath, depose and state that the following property constitutes evidence of the commission of a crime, to-wit: Undetermined amount of money and 38 Smith & Wesson Revolver. And that the above mentioned property is now located in Kay County, State of Oklahoma, at the specific locality within said County and State as follows, to-wit: A 1969 Cadillac brownish gold in color with a black vinil (sic) top, bearing 1973 Oklahoma license No. YJ8016 and 1974 Tab No. 203977. All of which is known to your affiant and based upon the following facts, to-wit: That at approximately 7:50 a.m. on January 6, 1975 the Affiant received a radio dispatch that an armed robbery had occured (sic) in Wichita, Kansas. The dispatch included a description of the vehicle as follows: 1968 to 1970 Cadillac, black over tan bearing 1973 Oklahoma license no. YJ8016, being occupied by 2 male negros (sic). That the dispatcher also indicated that these persons were involved in a commission of a crime of robbery with firearms in Wichita, Kansas at about 7:00 A.M. on January 6, 1975. The dispatcher also reported that the car was last seen at the turnpike gate traveling South on I-35.

"Affiant then proceeded to I-35 and set up a road block in the South bound lane on I-35. A vehicle matching the description received from the dispatcher was stopped approximately 3/4 miles (sic) North of U.S. 60 heading South on I-35. The vehicle had the same license tag no. YJ8016 and was occupied by 2 negro males. The subjects were placed under arrest by the Affiant.

"Prior to stopping the subjects it was reported to the Affiant by the dispatch there was an undermined (sic) amount of cash was (sic) taken and that a firearm had been used in the robbery in Wichita, Kansas.

"Further the Affiant Sayeth Not."

Officer Sinclair also gave to the judge who issued the search warrant testimony which was not recorded regarding descriptions of the persons they had taken into custody and their clothing, as well as his viewing of a black, wide-brimmed hat on the front seat of the vehicle.

FOURTH AMENDMENT CLAIMS

Petitioner asserts that his right under the Fourth Amendment to be secure against an unreasonable search and seizure has been violated in that there was not sufficient probable cause for his initial arrest and the affidavit upon which a search warrant was obtained was insufficient on its face and contained material misstatements of fact. He further asserts that as a consequence there was no valid warrant or...