Vance v. State of North Carolina

• Decision Date: 05 October 1970
• Docket Number: No. 13357.,13357.
• Citation: 432 F.2d 984
• Parties: Jacob VANCE, Jr., Appellant, v. STATE OF NORTH CAROLINA, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

432 F.2d 984 (1970)

Jacob VANCE, Jr., Appellant, v. STATE OF NORTH CAROLINA, Appellee.

No. 13357.

United States Court of Appeals, Fourth Circuit.

Argued May 8, 1970.

Decided October 5, 1970.

COPYRIGHT MATERIAL OMITTED

Robert L. Harrell, Asheville, N. C. (Court-assigned) for appellant.

Prof. Ralph S. Spritzer, Philadelphia, Pa. (Prof. Paul Bender, Washington, D. C., and Prof. James A. Strazzella, Philadelphia, Pa., on brief) amici curiae.

Jacob L. Safron, Raleigh, N. C., Staff Atty. (Robert Morgan, Atty. Gen., on brief), for appellee.

Before BRYAN and CRAVEN, Circuit Judges, and RUSSELL, District Judge.

CRAVEN, Circuit Judge:

Jacob Vance appeals from an order of the district court dismissing his petition for a writ of habeas corpus. Vance contends that North Carolina violated his constitutional rights in three respects during his criminal prosecution. First, he claims that his incourt identification by a prosecution witness should not have been permitted because a previous station house confrontation with the witness was held in the absence of counsel and was unduly prejudicial. Second, he contends that North Carolina's failure to provide him an attorney at a preliminary hearing violated his sixth amendment right to the assistance of counsel. Third, he asserts that certain evidence obtained incident to his arrest under an invalid arrest warrant should have been excluded from his trial. On points one and three we affirm the district court. On point two — denial of the right to counsel — we reverse and remand for reconsideration in the light of Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970).

I.

On July 3, 1965, North Carolina paroled Jacob Vance after he had served three years of an armed robbery sentence. Several months later, on October 14, 1965, Vance absconded from parole supervision. The North Carolina Board of Paroles revoked his parole and issued a warrant for his arrest. This concededly valid warrant was still outstanding about two months later, when Vance was again arrested for armed robbery.

The facts surrounding his second arrest and conviction are as follows. On the afternoon of January 20, 1966, two men entered a general store in Mecklenburg County, drew revolvers, and demanded money from the store clerk, O. D. Ferrell. Ferrell turned over approximately $135.00 to the gunmen, and they fled through the front door. Ferrell scrutinized the pair closely during the hold up and later furnished their descriptions to the police. He noted that one of the men wore coveralls during the robbery.

A customer approaching the store saw the two men emerge and proceed afoot along the highway. He stopped a passing vehicle and requested the occupants to follow the pair. They followed at a safe distance until they observed the men enter a parked car occupied by two other persons. They noted the license number of the car and passed it on to the police.

The police ascertained the identity of the car's owner, but when they questioned him he disclaimed any part in the holdup, explaining that he lent his car to Jacob Vance on the day of the crime. After viewing the car owner, Ferrell confirmed that he was not one of the two men who robbed the store.

On the strength of the above information the police obtained an arrest warrant for Jacob Vance. The warrant was dated January 21, 1966, and was signed by a desk officer on the Mecklenburg police force. The defendant concedes there was probable cause to arrest him. The arrest warrant was, however, invalid, since North Carolina and federal law require that an application for a warrant be considered by a neutral and detached magistrate rather than by a policeman's fellow officers. See Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); State v. Matthews, 270 N.C. 35, 153 S.E.2d 791 (1967); State v. McGowan, 243 N. C. 431, 90 S.E.2d 703 (1956).

Armed with this invalid warrant, Mecklenburg and Charlotte police went to Vance's rooming house and arrested him. During the arrest the officers saw a pair of coveralls lying in plain view within an open closet. The police seized the coveralls, and Vance later wore them while Ferrell viewed him in a one on one line up. Ferrell identified Vance in the line up and at trial as one of the men who robbed him. At trial he also identified the coveralls, which the state introduced against Vance.

On March 17, 1966, a jury convicted Vance of armed robbery, and the trial judge sentenced him to serve 28 to 30 years. Thereafter he applied for post-conviction relief in the Superior Court of Mecklenburg County, but that court denied his petition. His subsequent applications to the North Carolina Court of Appeals for writs of mandamus and certiorari were also unsuccessful. His last effort in the state courts was a petition for a writ of habeas corpus, which was denied on May 24, 1968. Having exhausted his state remedies, Vance applied to the United States District Court for relief.

II.

Vance first asserts that the one on one line up violated his sixth and fourteenth amendment rights because it was conducted in the absence of counsel and was so unduly suggestive as to taint Ferrell's subsequent courtroom identification. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), which established the right to counsel at line ups, does not apply to confrontations before June 12, 1967. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Since the confrontation of which Vance complains took place in 1966, he is not entitled to relief unless, on the totality of the circumstances, the line up was so unnecessarily suggestive and conducive to irreparable mistaken identification that it deprived him of due process. Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L. Ed.2d 1199 (1967).

At trial Ferrell testified that he observed both Vance and the other gunman closely while they were in the store. He also stated that he stood only three and a half feet from Vance during the robbery. When the state introduced the coveralls seized incident to Vance's arrest, Ferrell said that he could not be certain they were the ones he had observed during the holdup, although he testified that they were a "similar pair." Defense counsel pressed this point on cross examination, and Ferrell responded that he had not paid a great deal of attention to the robber's garments because he was staring down the muzzles of two guns. Later on cross examination he stated: "I will tell you, if you look down a gun barrel like I did * * *, you don't forget the faces." When defense counsel specifically inquired whether Vance was wearing blue coveralls at the line up, Ferrell replied: "I believe he was, yes, sir." Throughout his testimony Ferrell was unwavering in his recognition of both defendants' faces.

We think the trial judge could reasonably infer that Ferrell's courtroom identification was based on his observation of Vance's facial characteristics during the robbery, and not upon his memory of Vance wearing the seized coveralls at the line up. Ferrell's testimony was somewhat vague about how the gunmen were attired, but he was emphatic in identifying the two men as the robbers from his recognition of their visages. Compare United States v. Levi, 405 F.2d 380 (4th Cir. 1968); United States v. Quarles, 387 F.2d 551 (4th Cir. 1967). Because the record supports the conclusion that Ferrell's courtroom identification of Vance was based on the events of the robbery rather than those of the subsequent line up, we affirm the district court's dismissal of the petition on this point.

III.

Vance next argues that the state's failure to appoint an attorney to assist him at his preliminary hearing was a violation of his sixth amendment right to counsel. In several memorandum decisions we have rejected similar contentions arising in habeas cases. It has been thought well settled that the type of preliminary hearing permitted by the laws of North Carolina was not a "critical stage" in the criminal prosecution and that an accused is not entitled by the sixth amendment to have counsel appointed for him for the purpose of appearing at a preliminary hearing. Rambo v. Peyton, 380 F.2d 363 (4th Cir. 1967); Vess v. Peyton, 352 F.2d 325 (4th Cir. 1965); DeToro v. Pepersack, 332 F.2d 341 (4th Cir. 1964); Carroll v. Turner, 262 F.Supp. 486 (E.D.N.C. 1966); Gasque v. State, 271 N.C. 323, 156 S.E.2d 740 (1967), cert. denied, 390 U.S. 1030, 88 S.Ct. 1423, 20 L.Ed.2d 288 (1968); State v. Pulley, 5 N.C.App. 285, 168 S.E.2d 62 (1969); Chapman v. State, 4 N.C.App. 438, 166 S.E.2d 873 365, 161 S.E.2d 650 (1968).

But for Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), decided on June 22, 1970, we would have dismissed this contention as being without merit. In Coleman for the first time the sixth amendment right to counsel has been unequivocally extended to a preliminary hearing. Cf. Hamilton v. Alabama, 368 U.S. 52, 54, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961). Although the sole purposes of the preliminary hearing in Alabama, as declared by its highest court, are to determine (a) whether there is sufficient evidence against the accused to warrant presenting his case to the the grand jury and (b) to fix bail if the offense is bailable, the Supreme Court has noticed that other important results may flow from the conduct of the hearing. This is so even though Alabama law prohibits the state's use at trial of anything occurring at the preliminary hearing in the absence of defense counsel.

The determination whether the hearing is a "critical stage" requiring the provision of counsel depends * * * upon an analysis "whether potential substantial prejudice to defendant\'s rights inheres in the * *

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