Thomas v. Leeke

• Decision Date: 17 February 1975
• Docket Number: Civ. A. No. 73-1284.
• Citation: 393 F. Supp. 282
• Parties: Robert Tobias THOMAS, Petitioner, v. William D. LEEKE, Director, South Carolina Department of Corrections, and Daniel R. McLeod, Attorney General of the State of South Carolina, Respondents.
• Court: U.S. District Court — District of South Carolina

393 F. Supp. 282

Robert Tobias THOMAS, Petitioner, v. William D. LEEKE, Director, South Carolina Department of Corrections, and Daniel R. McLeod, Attorney General of the State of South Carolina, Respondents.

Civ. A. No. 73-1284.

United States District Court, D. South Carolina, Columbia Division.

February 17, 1975.

Daniel A. Speights, Columbia, S. C., (Court-appointed), for petitioner.

Emmet H. Clair, Asst. Atty. Gen., Columbia, S. C., for respondents.

ORDER

SIMONS, District Judge.

This matter is now before the court on petitioner's motion to amend or alter this court's order entered on July 12, 1974, denying the petitioner habeas corpus relief. Pursuant to the filing of this motion, the court, by order dated November 19, 1974, ordered an evidentiary hearing "to take evidence relating to the in-court visual identification of the petitioner by the witness Kiker, and the voice identification of the petitioner by the witness Walters at the jail house." At the hearing on December 2, 1974, petitioner's court-appointed counsel advised the court that with regard to the voice identification of the petitioner by the witness Walters, the petitioner would rely on the record. Thereafter, testimony was taken from the witness Kiker concerning her in-court identification. Counsel for the respondents then called the petitioner to the stand and questioned him concerning the jailhouse voice identification by the witness Walters. The facts of the case and the history of petitioner's various appeals and petitions to the state and federal courts are thoroughly reviewed in this court's order of March 6, 1974, in which the court accepted jurisdiction over the merits of petitioner's application, and need not be further reviewed here.

At the completion of all testimony at the evidentiary hearing, the respondents asserted for the first time that the petitioner had waived his right to challenge the constitutionality of the subject identifications by not objecting to the same at the time of trial. In response to this assertion, counsel for the petitioner contended that the respondents had waived the right to raise the question of waiver, and further that if the respondents could inject such an issue into the proceedings, petitioner should be allowed to refute such claims by challenging the competency of his retained counsel.

By order dated February 24, 1973, the Honorable Robert W. Hayes, Resident Judge of South Carolina's Sixteenth Judicial Circuit, denied the petitioner's application for post-conviction relief on the grounds that there was "no evidence to support the applicant's contention that her (Mrs. Kiker's) identification was tainted by a pretrial confrontation", and because he could find no support for the allegation that "the in-court identification by Walters was in any way influenced by his pretrial meeting with the applicant." There is no indication in Judge Hayes' order that he relied upon the failure of the petitioner's counsel to object to this testimony as a basis for denying him relief.

This court concludes that, in such a case, the district court may properly consider the constitutional questions raised by the petitioner on the merits. Hayden v. Warden, Maryland Penitentiary, 363 F.2d 647 (4th Cir. 1966), reversed on other grounds, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782; Anders v. Turner, 379 F.2d 46 (4th Cir. 1967).

The court does not feel that respondents at this late date should be permitted to raise the new issue that petitioner has waived his constitutional objections to the subject identifications. It has now been over three years since petitioner first attempted to raise constitutional questions concerning the identifications, during which time the respondents have relied solely on the position that the petitioner's constitutional rights were not violated. Prior to the evidentiary hearing held pursuant to order of this court, the respondents had never suggested that the petitioner waived his right to challenge the subject identifications by not objecting to them at trial. Indeed, in response to petitioner's motion to alter or amend, respondents advised the court by letter dated August 14, 1974, that "the relevant facts in our opinion were pointed out in our return and the court cited the controlling authority in disposing of the matter." Thus, the respondents adopted the previous order of this court as their position, which order, just as Judge Hayes' previous order, treated the petitioner's claims on the merits.

The court is as bewildered by the state's failure to raise the question of waiver at an earlier time, as it is by the failure of petitioner's retained counsel to challenge the subject identifications at trial; however, it is not the duty of this court to look behind the reasons for these omissions, be they for tactical reasons or by mere inadvertence. Just as the petitioner is precluded from presenting issues before this court which he did not raise in the state court proceedings, the court will not allow the respondents to come in on a motion to alter or amend and urge a new defense to petitioner's action.

Having disposed of the new issues raised by the respondents, the court now undertakes to look once again at the two identifications challenged by the petitioner.

The testimony of Mrs. Kiker at the evidentiary hearing reinforces this court's previous ruling that her in-court visual identification of Thomas was not violative of due process. She stated that she had not seen the petitioner at any time between the robbery and the trial, that she had not discussed her testimony with anyone prior to trial, and that she had been subpoenaed the night prior to her testimony. She further stated that her only discussion of the case prior to trial occurred when she ran into the investigating police lieutenant while paying a traffic ticket some time after the robbery. At that time she told the lieutenant that she would recognize one of the robbers anywhere, even though his facial features were distorted by a stocking, because she had stood shoulder to shoulder with him and had taken a good look at him twice during the robbery.

She stated that at the original trial she sat in the courtroom and recognized the petitioner when he came through the door leading to the judge's chambers. She stated he was well dressed in a sport coat and tie, was not handcuffed, and accompanied by several other men similarly attired.

Neither the trial record, nor the testimony given at the evidentiary hearing held by this court lend any support to petitioner's contention that Mrs. Kiker's identification was the product of an illegal confrontation. She was positive in her identification, stating that when she saw petitioner enter the courtroom "I knew he was the man who stood next to me", and that she was ". . . as sure as a human being can be". The court again concludes that the petitioner was not denied due process of law when the jury credited her testimony.

The second point which the court has agreed to reconsider is petitioner's assertion that the pretrial voice identification of him by the witness Walters denied him his constitutional right to effective assistance of counsel and due process of law. The court now concludes that there is merit to this contention of petitioner.

This court stated earlier that Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), "limited the proscription of uncounseled identification and testimony related thereto, under the Wade-Gilbert rule,¹ to pretrial identifications had after adversary judicial proceedings had been initiated against the defendant." While this is undoubtedly the law, the court feels it must be viewed, in this case, in light of a unanimous Supreme Court decision which defines the "criminal prosecution" requirement of the Sixth Amendment. In United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), the court ruled that the Sixth Amendment right of a fugitive defendant to a speedy trial becomes applicable when in some way he becomes an accused. As stated by the Court:

(I)t is readily understandable that it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engaged the particular protections of the speedy trial provision of the Sixth Amendment.

Invocation of the speedy trial provision thus need not await indictment, information, or other formal charge. 404 U.S. 307, at 320-321, 92 S.Ct. 455, at 463, 30 L.Ed.2d 468.

It could hardly be argued that the term "criminal prosecution" in the Sixth Amendment means one thing for the right to a speedy trial and another thing for the right to the assistance of counsel. The Kirby decision does not require such a distinction. It only recognizes that there is a limit in the criminal process where the Constitution requires the assistance of counsel, and that it would be unrealistic to direct law enforcement officials to furnish counsel at every point in their investigations. When for all intents and purposes the suspect becomes an accused, the language of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), is still applicable:

It would exalt form over substance to make the right to counsel, under these circumstances, depend on whether at the time of the interrogation, the authorities had secured a formal indictment. Petitioner had, for all practical purposes, already been charged with murder. 378 U.S. 478 at 486, 84 S.Ct. 1758, at 1762, 12 L.Ed.2d 977.

A review of the trial record reveals that Lieutenant Burrell testified that on the day of petitioner's arrest he received a telephone call from Atlas Key, who told him that he and the petitioner had robbed the Handy Pantry. Thereafter, he and the petitioner were arrested under a warrant charging them with another robbery. After the petitioner had been placed in his cell, Walters was summoned to the jail for the purpose of identifying ...