Wessling v. Bennett
| Decision Date | 03 September 1968 |
| Docket Number | Civ. No. 68-C-2017-C. |
| Citation | 290 F. Supp. 511 |
| Parties | Albert Charles WESSLING, Petitioner, v. John E. BENNETT, Warden, Respondent. |
| Court | U.S. District Court — Northern District of Iowa |
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William D. Guthrie, Webster City, Iowa, for petitioner.
Richard C. Turner, Atty. Gen. of Iowa, and William A. Claerhout, Asst. Atty. Gen., Des Moines, Iowa, for respondent.
This ruling is predicated upon a petition for a writ of habeas corpus.
The Court will not exhaustively relate the record facts at this time but will summarize the proceedings to date. On May 12, 1965, the petitioner was arrested for the attempted breaking and entering of a bowling alley in Webster City, Iowa. A county attorney's information was filed in district court on October 4, 1965, charging the petitioner with breaking and entering the Moose Club which is immediately adjacent to the bowling alley. On October 8, 1965, the petitioner appeared in district court with his attorney and was granted time in which to plead to the offense charged. A written plea of not guilty was filed October 14, 1965. Two new informations were filed on December 9, 1965. One charged breaking and entering. The other charged the defendant with breaking and entering and with being an habitual felon. On December 17, 1965, the petitioner was rearraigned. There is a dispute as to whether the defendant was arraigned on the habitual criminal charge. On December 22, the defendant was convicted of breaking and entering. Certain post conviction motions and exceptions were heard on December 29 at which time the Court stated that the defendant had the opportunity to affirm or deny that he was the same person previously convicted. After a recess, the petitioner's attorney asked to withdraw from the case as "the defendant in this case has raised a question that I have not sufficiently and adequately advised him in connection with the habitual information filed herein." The hearing was continued until January 8, 1966. On that date the defendant appeared with new counsel and refused to submit to the jurisdiction of the court. The court entered a plea of not guilty to the habitual allegations of the information for the defendant. On February 7, 1966, a petition for a writ of certiorari was denied by the Supreme Court of Iowa. On March 8, 1966, the jury determined petitioner to be the same person who had twice been previously convicted of felonies. Petitioner was sentenced to thirty years in the penitentiary under increased penalty provision for recidivists. The petitioner appealed from the imposition of judgment and sentence and on May 2, 1967, the Supreme Court of Iowa affirmed petitioner's conviction in State v. Wessling, 150 N.W.2d 301 (1967).
Petitioner filed an application for a writ of habeas corpus with this Court on April 17, 1968. The Court issued a Show Cause Order and a plenary evidentiary hearing was held on May 14, 1968. Oral arguments were heard on June 6, 1968.
The issues which have been framed for resolution by the Court are: (1) Whether it was lawful under the Fifth and Fourteenth Amendments to the Constitution to hold petitioner to answer for an infamous crime without indictment by grand jury; (2) whether the Iowa recidivist statute contravenes the equal protection clause of the Fourteenth Amendment and imposes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments; (3) whether the petitioner was sufficiently charged with, arraigned on, and notified of the habitual criminal portion of the information pursuant to the Fourth and Fourteenth Amendments; (4) whether the petitioner was deprived of a fair trial and due process of law under the Fifth and Fourteenth Amendments in that the state court failed to charge the jury that the state's case was comprised of wholly insufficient circumstantial evidence and because the court did not instruct the jury that the prosecution's case was completely circumstantial; and, (5) whether an unfair impression of a tacit admission was created by a question asked by the prosecutor in transgression of the Fifth and Fourteenth Amendments to the Constitution.
Turning to the first issue presented, the petitioner concedes, as he must, that the Supreme Court of the United States has not yet held that an indictment by grand jury is an integral component of due process. In fact, the Supreme Court has positively held that proceeding by way of grand jury is not required of the States by due process of law. Hurtado v. People of State of California, 110 U.S. 516, 4 S.Ct. 111, 292, 28 L.Ed. 232 (1884). The petitioner appears to be contending that because there has been a great deal of vicissitude in the area of criminal law, indictment by grand jury will automatically be absorbed as a Fourteenth Amendment guarantee. The Hurtado rule remains viable in spite of changing concepts of fundamental fairness and its wisdom has been reaffirmed time and time again. See, e. g., Rivera v. Gov't of Virgin Islands, 375 F.2d 988 (3 Cir.); Hampton v. State of Oklahoma, 368 F.2d 9 (10 Cir.); Moore v. Henslee, 276 F.2d 876 (8 Cir.); Stewart v. Stephens, 244 F.Supp. 982 (D.Ark.). This Court must also confess that it adheres to the doctrine of stare decises and that it could not with propriety overrule a Supreme Court decision of long standing even if it were incongruous with present societal mores.
The petitioner cites Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed. 2d 252 (1960) as a case which highlights the critical importance of indictment by grand jury. That case involved the application of the Fifth Amendment to a prosecution by the United States. The Fifth Amendment is, of course, binding on the United States, and as the Supreme Court said, "The right to have the grand jury make the charge on its own judgment is a substantial right which cannot be taken away with or without court amendment." Id. at 218-219, 80 S.Ct. at 274. However, it does not necessarily follow that the protection thus secured against invasion by the federal government rises to lofty due process heights.
The petitioner next urges that the Iowa recidivist statute is incompatible with the equal protection clause in several respects. He first argues that a criminal act is the gravamen of a criminal offense, not the proclivity to commit the offense and that the same criminal act is unequally penalized by the imposition of increased habitual criminal penalties under the habitual criminal statute. Here again, the petitioner seems to view recent trends in criminal law as alone sufficient to dictate abrogation of the time honored rule permitting legislative bodies to promulgate recidivist statutes based on the propensity to commit crime. Recidivist statutes are a perfectly legitimate domain of legislative regulation. Spencer v. State of Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). And "the constitutionality of the practice of inflicting severer criminal penalties upon habitual offenders is no longer open to serious challenge * * *." Oyler v. Boles, 368 U.S. 448, 451, 82 S.Ct. 501, 503, 7 L.Ed. 2d 446 (1962). See Moore v. State of Missouri, 159 U.S. 673, 16 S.Ct. 179, 40 L.Ed. 301 (1895).
The petitioner further asserts that the Iowa recidivist statute violates the equal protection clause in that the enhanced penalty is invoked only for "larceny connected" crimes. Legislative bodies are to be given a wide latitude in the determination of whether to attack some, rather than all, of the manifestations of evil sought to be eliminated and that determination is "given the benefit of every conceivable circumstance which might suffice to characterize the classification as reasonable rather than arbitrary and invidious." McLaughlin v. State of Florida, 379 U.S. 184, 191, 85 S.Ct. 283, 288, 13 L.Ed.2d 222 (1964). The Equal Protection Clause does not bar a state from recognizing "degrees of evil." Truax v. Raich, 239 U.S. 33, 43, 36 S.Ct. 7, 60 L.Ed. 131 (1915). See also Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955). The state may validly call its experience into play and isolate a class of offenders or a family of offenses for different treatment, Skinner v. State of Oklahoma, 316 U.S. 535, 540, 62 S.Ct. 1110, 86 L.Ed. 1655 (1941), and can confine legislation to those classes of cases "where the need is deemed the clearest." Miller v. Wilson, 236 U.S. 373, 384, 35 S.Ct. 342, 344, 59 L.Ed. 628 (1915). And see Patsone v. Commonwealth of Pennsylvania, 232 U.S. 138, 34 S.Ct. 281, 58 L.Ed. 539 (1914).
However, even though great deference is accorded legislative wisdom, a "classification `must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without any such basis.'" McLaughlin v. State of Florida, supra, 379 U.S. at p. 190, 85 S.Ct. at p. 287.
In Moore v. State of Missouri, supra, 159 U.S. at p. 678, 16 S.Ct. at p. 181, the Supreme Court considered the interplay between equal protection and recidivist statutes:
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