United States v. Maroney, 14016.
| Decision Date | 25 June 1963 |
| Docket Number | No. 14016.,14016. |
| Parties | UNITED STATES of America ex rel. John Francis BUTLER, Appellant, v. James F. MARONEY, Superintendent, State Correctional Institution, Pittsburgh, Pennsylvania. |
| Court | U.S. Court of Appeals — Third Circuit |
Marjorie Hanson Matson, Pittsburgh, Pa., for appellant.
William Claney Smith, Asst. Dist. Atty., Allegheny County, Pittsburgh, Pa. (Edward C. Boyle, Dist. Atty. of Allegheny County, Samuel Strauss, Asst. Dist. Atty., Frank P. Lawley, Jr., Deputy Atty. Gen., Pittsburgh, Pa., on the brief), for appellee.
Before KALODNER, HASTIE and GANEY, Circuit Judges.
This case comes before this Court from the denial of the petition for writ of habeas corpus in the District Court for the Western District of Pennsylvania.
The appellant, John Francis Butler, was sentenced on May 5, 1958, by the Court of Oyer and Terminer of Northumberland County, to a term of from four to ten years for armed robbery which was to be served in the Eastern Penitentiary. While there interned, he made application for a writ of habeas corpus and a hearing was set for May 26, 1959, before Judge Troutman of Northumberland County. In the meantime, he had been transferred to the Western Penitentiary and was brought to Sunbury for the hearing. At the time of hearing, the appellant withdrew his application for the writ, signed it, as did his counsel, and was to be returned the following day to the Western Penitentiary at Pittsburgh. On May 27, 1959, between 10:30 and 11:00 in the morning, the appellant was brought from the county jail with a belt around him through which handcuffs were attached, the belt being loose enough so that appellant had freedom of movement of his hands. The sheriff in charge of the prisoner was one James Lauer who had been sheriff of Northumberland County for eleven years. He was 5 feet 5½ inches tall and weighed about 245 pounds. He had asked a friend of his of some years standing, one Merlin Diehl, to go with him and drive his own Chrysler Windsor model car. Enroute to the Western Penitentiary, the appellant was seated in the rear seat alone. Merlin Diehl was driving the car and the sheriff was seated in the front seat alongside the driver and between them was a .38 caliber revolver lying on the seat with a newspaper covering it. They stopped at two gasoline stations along the way and a Howard Johnson restaurant where the appellant was permitted to leave the car, have something to eat, as well as go to the men's room, and they all returned to the car without incident. The handcuffs and belt were placed upon the appellant in the same manner as when they left the jail and the arrangement of the handcuffs with the belt permitted the appellant enough freedom of movement so that he might smoke cigarettes. When they reached the Perry interchange, on the Pennsylvania Turnpike, Merlin Diehl, the driver of the car, took the wrong route, going north instead of south, and, finally, after having determined he was on the wrong route, returned to Route 19 and proceeded in a southerly direction toward the Western Penitentiary. After they had proceeded a short distance in the right direction, it began raining very hard and, finally, it became so severe that they had to slow down to 10-15 miles per hour and, while proceeding slowly downgrade, at about 5:30 p. m., the appellant lurched over the front seat, grabbed the pistol, which was lying on it, and, according to the only eyewitness, the driver of the car, Merlin Diehl, the sheriff grabbed at his arm and said, "John, don't do it.", to which the appellant replied, "Let me go, Jim, or I'll kill you." Aware of what was happening, Diehl drove the car to the side of the road, almost touching a side embankment, opened the door and came to the back of the car for the purpose of aiding the sheriff. As he opened the door, he saw the flash of a gun and heard a shot. The sheriff, at that time, was on the floor of the car, between the back portion of the front seat and the front portion of the rear seat, lying with his head facing Diehl and his face turned toward the front portion of the rear seat, partially on his right arm. He was specific as to the position of the sheriffs' body, saying definitely he was not in a half sitting position. As he opened the door, the sheriff's head came out, it apparently having been against the door.
Diehl testified that the appellant was on the opposite side of the car, in a crouched position, partially on the seat, and told him, "I'll get you." Diehl immediately ran a short distance from the scene, down over an embankment and sought safety in a nearby garage with the appellant, Butler, in pursuit part of the way, when he veered off and ran into a wooded swampy section of the countryside. He hid out until the next morning at 6:00 a. m., giving himself up to State Police who were surrounding the area.
John McCallen, a witness who was a short distance behind the car driven by Diehl, passed the automobile and he could observe a portion of the decedent's head out of the car and saw the appellant running away from the scene. He heard no shot and immediately came back and with the help of some others who had gathered at the scene, helped to extricate the body of the decedent, Sheriff Lauer. The body of the decedent was so wedged in between the back portion of the front seat and the front portion of the back seat that it was necessary to take out the back seat in order to remove the decedent.
The appellant was tried for murder and found guilty in the first degree. Under the Split Verdict Law of Pennsylvania, the jury was presented with evidence to determine the degree of punishment and they returned a verdict of death by electrocution. An appeal was taken to the Supreme Court of Pennsylvania, the conviction was sustained and a petition for certiorari to the Supreme Court of the United States was denied. The appellant then filed a petition for writ of habeas corpus in the United States District Court for the Western District of Pennsylvania, from the denial of which this appeal is taken.
The first contention of the appellant, that he was deprived of due process of law, concerns itself with the following. The Courts of Allegheny County had adopted a Rule Number 38, entitled "Records of Behavior Clinic", Sections 1 and 2 of which read as follows:
By Order of Court, dated April 25, 1960, upon the application of the District Attorney of Allegheny County, and after hearing held without notice to counsel for defendant, it was decreed
The report was handed to counsel for the defendant during the first day of trial, May 16, 1957. It is appellant's contention that, in a murder trial, since counsel must be present in every stage of the proceeding, that counsel, not having been apprised of the District Attorney's application for waiver, a fundamental right was denied him, in that Dr. Davis of the Behavior Clinic was called and testified that at the time of the shooting the appellant was sane and knew the difference between right and wrong. It is the contention of the appellant that he was denied the opportunity to contest the waiver and, had he been given such opportunity, he might have been able to prevent Dr. Davis from testifying. However, since counsel for the appellant objected to the testimony of Dr. Davis when he was called as a witness, and made explicit her objection, and the court ruled against her, we see no merit in appellant's contention, and though counsel was not present at the time of waiver, no prejudice followed the court's action since counsel's objection at the trial had the same effect as though she had notice and made objection to the waiver at the time of the ruling on the application therefor.
The next contention of the appellant was that the trial judge, both during the course of the trial and in his charge to the jury, made repeated references to the fact that the Behavior Clinic was created by the court, thus, it is alleged, giving added weight to Dr. Davis' testimony. We see no merit in this contention either, since all the trial court did was to make reference to the fact that the Behavior Clinic, who employed Dr. Davis, was the creature of the court and the references to it lent no undue sanction to his testimony.
The next contention of the appellant wherein he alleges he was denied due process of law is in the court's refusal to grant his motion for the issuance of a subpoena for Judge Troutman, before whom the application for the writ of habeas corpus was to be held. The purpose of Judge Troutman's presence was to have him testify to a collateral matter concerning the appellant's withdrawal of his petition...
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