United States v. Reincke

• Citation: 239 F. Supp. 887
• Decision Date: 22 March 1965
• Docket Number: Civ. No. 10712.
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES ex rel. Frank C. SMITH, Petitioner, v. Frederick G. REINCKE, Warden, Connecticut State Prison, Somers, Connecticut, Respondent.

239 F. Supp. 887

UNITED STATES ex rel. Frank C. SMITH, Petitioner, v. Frederick G. REINCKE, Warden, Connecticut State Prison, Somers, Connecticut, Respondent.

Civ. No. 10712.

United States District Court D. Connecticut.

March 22, 1965.

COPYRIGHT MATERIAL OMITTED

Paul W. Orth, Hoppin, Carey & Powell, Hartford, Conn., for petitioner.

John F. McGowan, Asst. State's Atty., Bridgeport, Conn., for respondent.

ZAMPANO, District Judge.

The petitioner, presently incarcerated in the Connecticut State Prison, has filed a petition for writ of habeas corpus, alleging violations of federal constitutional rights secured and guaranteed to him by the Fourteenth Amendment of the Constitution of the United States. Jurisdiction is founded upon 28 U.S.C. §§ 2241 and 2251. This Court granted him leave to proceed in forma pauperis and appointed Attorney Paul W. Orth of Hartford, Connecticut to represent him. Hearings on the petition were held on January 14, 1965 and January 21, 1965.

After a trial by jury the petitioner was convicted of first degree murder and, on June 7, 1950, was sentenced to punishment of death. The verdict and sentence were affirmed on appeal, State v. Smith, 138 Conn. 196, 82 A.2d 816 (1951). Thereafter two petitions for a new trial resulted in judgments for the State. Smith v. State, 139 Conn. 249, 93 A.2d 296 (1952); Smith v. State, 141 Conn. 202, 104 A.2d 761 (1954). Petitioner's sentence of death has since been commuted to life imprisonment, which term he is now serving.

From the record it appears the jury could reasonably have found the following facts: On Saturday, July 23, 1949, in the early morning hours, Grover S. Hart, night watchman at the Indian Harbor Yacht Club of Greenwich, Connecticut, was shot and killed. The bullet which caused his death was fired from a Smith and Wesson .22 caliber revolver. There were found on the premises two other bullets at least one of which was .22 caliber, and four cartridge cases marked "XR".

The following day two New York state policemen discovered a gray Cadillac automobile parked at the Hollywood Cafe in Brewster, New York. There was found in the automobile a .22 caliber Colt automatic pistol in a leather holster with a clip of shells each bearing the marking "XR". This pistol was the gun from which the four cartridge cases found at the scene of the killing had been ejected. There was also discovered in the car another leather holster, which, along with the other gun and holster, had been stolen from a home in New Canaan, Connecticut. When stolen, the second holster had contained a Smith and Wesson .22 caliber revolver.

The Cadillac also contained a hat which was the property of the manager of the Indian Harbor Yacht Club, six neckties bearing the insignia of the club, several small pieces of jewelry and two tie clasps which had been removed from the yacht club, and a memorandum made by an employee of the club. Also in the car was a white shirt bearing a laundry mark which indicated it belonged to someone named Smith, who lived in Noroton Heights, Darien, Connecticut. The defendant's parents lived there, and he often stayed there with them.

Shortly before the car was first noticed the defendant had been seen inside the Hollywood Cafe. The Cadillac had been stolen from one Frederick B. Freid of Stamford, Connecticut, and at that time it bore the registration number plates SS-404. There was testimony at the trial to the effect that Smith had been seen during the months of June and July, 1949 driving a Cadillac automobile of the same general description as the Freid car and bearing at one time the license plates SS-404 and later SL-513.

Throughout the trial, at which the defendant took the stand in his own behalf, and to the present time petitioner has denied all implication in the killing. Furthermore he denies all connection with the Cadillac automobile found in Brewster, New York.

In his petition for writ of habeas corpus the petitioner makes a wholesale attack upon the proceedings which resulted in his conviction and sentence. The petition, numbering over 260 pages, incorporates a lengthy memorandum of law in support of his claims as well as 222 "counts" in which allegations of a denial of due process and equal protection of the law are set forth. Except as hereinafter noted petitioner has exhausted available state remedies. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).

Although many of the allegations in the petition are clearly without merit, due to the seriousness of the claims, the "counts" will be considered seriatim.

PRE-TRIAL PROCEEDINGS

a) Search and Seizure

In count 211 of the petition there is alleged a denial of due process of law on grounds that the use at trial of evidence found in the Freid Cadillac stemmed from an illegal search of the car by New York police. It is conceded the search was not made pursuant to a warrant and was not incident to a lawful arrest nor with the petitioner's consent. However, the search took place prior to the ruling of the Supreme Court of the United States in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

Although petitioner contends otherwise, we feel it is unnecessary to reach the unsettled question regarding the retroactive application of the Mapp doctrine.¹ Even assuming arguendo the Mapp doctrine applies retroactively, petitioner, having disclaimed all proprietary interest in the Freid Cadillac, may not now claim a personal protection against an unreasonable search of that car. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); United States v. Serrano, 317 F.2d 356 (2 Cir. 1963); Eberhart v. United States, 262 F.2d 421 (9 Cir. 1958); Shurman v. United States, 219 F.2d 282 (5 Cir. 1955), cert. denied 349 U.S. 921, 75 S.Ct. 661, 99 L.Ed. 1253 (1955).

Petitioner's reliance on Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed. 2d 233 (1960), is misplaced. There the Court held the government could not take the position that a defendant did not have sufficient possessory interest in seized property to claim Fourth Amendment protection against the seizure and at the same time seek to convict the defendant for possession of that property. In the present case it is the petitioner who consistently maintains a lack of possessory or any other interest in the Freid Cadillac. He cannot simultaneously with that position claim a constitutional protection to which he might otherwise have been entitled. The right to protection against an unreasonable search and seizure is personal, and a defendant in a criminal case who claims no proprietary or possessory interest in the seized property has no standing to object to the method of seizure. Williams v. United States, 323 F.2d 90, 94 (10 Cir. 1963); United States v. Serrano, supra, Shurman v. United States, supra. Accordingly, petitioner has no standing to object to the search of the Freid car and the subsequent use of articles found therein as evidence against him at his trial.

b) Speedy Trial

In counts 77 and 78 petitioner alleges he was denied due process and equal protection of the law on grounds he was denied the right to a speedy trial. In support of this claim petitioner points to the fact that he was arrested on July 23, 1949 and was not brought to trial until May 16, 1950. Petitioner further points out that his co-defendant, George Lowden, and two other persons, who were charged with murders committed after the murder for which Smith was accused, were tried before he was.

At the time of the petitioner's trial in 1950 there was only one judge available to handle criminal trials in Fairfield County. The Criminal Term of the Superior Court opened on September 20, 1949. On September 30, 1949, a grand jury was convened to consider the Hart murder and on October 4, 1949, both Smith and Lowden were indicted for murder in the first degree. Both men were arraigned on October 6, 1949. The Lowden trial commenced on October 19, 1949 and after a partial trial, he entered a plea of guilty to murder in the second degree on November 4, 1949. Two other murder cases were tried to the jury and 139 other criminal cases were disposed of before the petitioner's trial started on May 16, 1950.

Under these circumstances, the nine-month delay in bringing petitioner to trial is understandable. In any event the petitioner makes no showing of non-acquiescence in the delay and the record discloses he raised no objection to the delay during the period of his incarceration prior to trial. He, therefore, cannot complain now. State v. Doucette, 147 Conn. 95, 157 A.2d 487 (1959); State v. Holloway, 147 Conn. 22, 156 A.2d 466 (1959); Fowler v. Hunter, 164 F.2d 668 (10 Cir. 1947); and cases collected at 57 A.L.R.2d 326. Furthermore, at his trial petitioner objected to the summoning of talesmen to sit as jurors² and, if he had prevailed, his trial would have been delayed for at least another four months. See, State v. Smith, 138 Conn. 196 at 203, 82 A.2d 816.

c) Insufficiency of the Indictment

Several counts³ of the petition challenge the sufficiency of the indictment upon which petitioner was charged. Specifically, he claims he was convicted of a crime other than that charged in the indictment⁴ and, further, the vagueness of the indictment prevented full apprehension of the charges against him.

These claims have not been presented to any state court for adjudication, and consequently petitioner has not exhausted available state remedies in conformance with 28 U.S.C. § 2254. Even if this were not the case, federal courts, as a general rule, do not consider attacks upon the sufficiency of an indictment on petition for writ of habeas corpus. See, Knewel v. Egan, 268 U.S. 442, 45 S.Ct. 522, 69 L.Ed. 1036 (1925); Kimbro v. Bomar, 333 F.2d 755 (6 Cir. 1964); United States ex rel. Scott v. Walker, 218 F. Supp. 866 (E.D.La.1963). Parenthetically it is noted, however, that petitioner's attack on the indictment is without...