Westberry v. Mullaney

• Decision Date: 07 January 1976
• Docket Number: Civ. No. 74-74 SD.
• Parties: Robert E. WESTBERRY, Petitioner, v. Garrell S. MULLANEY, Warden Maine State Prison and State of Maine, Respondents.
• Court: U.S. District Court — District of Maine

406 F. Supp. 407

Robert E. WESTBERRY, Petitioner, v. Garrell S. MULLANEY, Warden Maine State Prison and State of Maine, Respondents.

Civ. No. 74-74 SD.

United States District Court, D. Maine, S. D.

January 7, 1976.

Gerald M. Amero, Portland, Me., for petitioner.

Charles K. Leadbetter, Asst. Atty. Gen., Augusta, Me., for respondents.

OPINION AND ORDER OF THE COURT

GIGNOUX, District Judge.

Robert E. Westberry, a prisoner in the Maine State Prison at Thomaston, filed with this Court on June 20, 1974 a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 et seq. The petition was accompanied by a motion for leave to proceed in forma pauperis and a request for the appointment of counsel. By order dated June 20, 1974 the Court directed that respondents make return to the petition by July 12 and permitted petitioner to file a traverse to the return by July 22. In the same order the Court granted petitioner leave to proceed in forma pauperis and appointed counsel to represent him. On July 12 respondents filed a return to the petition. Petitioner has not filed a traverse to the return.

Filed with respondents' return were:

(1) The complete record of the proceedings at the April 1969 and June 1969 Terms of the Cumberland County, Maine, Superior Court leading to petitioner's conviction and sentencing for the crime of murder in violation of 17 Me.Rev.Stat.Ann. § 2651; and

(2) The complete record of petitioner's post-conviction habeas corpus proceedings in the Cumberland County Superior Court, including the transcript of the evidentiary hearing held before Chief Justice Armand A. Dufresne, Jr., of the Supreme Judicial Court of Maine, sitting as a single justice, on August 23, 1972, the exhibits received in evidence at said hearing, Chief Justice Dufresne's "Memorandum of Facts, Law and Decision Thereon," dated June 7, 1973, denying relief insofar as petitioner sought to challenge the validity of his conviction, and the order of the Supreme Judicial Court of Maine dated December 11, 1973, denying petitioner's request for a certificate of probable cause to appeal from Chief Justice Dufresne's decision.

By agreement of the parties, further proceedings in the action were stayed pending the decision of the United States Supreme Court in Mullaney v. Wilbur, cert. granted, 419 U.S. 823, 95 S.Ct. 39, 42 L.Ed.2d 47 (1974). That decision was rendered June 9, 1975. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). The case is now before the Court on the basis of the foregoing record, briefs and oral argument.

It appears from the record that petitioner is confined in respondents' custody in the Maine State Prison at Thomaston serving a life sentence pursuant to a judgment of conviction, following a trial by jury, at the June 1969 Term of the Cumberland County Superior Court, of the crime of murder in violation of 17 Me.Rev.Stat.Ann. § 2651. Petitioner did not appeal his conviction, but on February 24, 1970 filed in the Cumberland County Superior Court a petition for post-conviction habeas corpus relief under the provisions of 14 Me.Rev.Stat. Ann. § 5502 et seq. This petition was dismissed without prejudice on March 11, 1970 for failure to comply with the requirements of 14 Me.Rev.Stat.Ann. § 5504. Petitioner filed a second habeas corpus petition on May 1, 1970 and an amended petition on May 16, 1972. After a full hearing on August 23, 1972, at which petitioner was represented by court-appointed counsel, Chief Justice Armand A. Dufresne, Jr., of the Supreme Judicial Court of Maine, sitting as a single justice, on June 7, 1973, filed a comprehensive opinion and order denying post-conviction relief.¹ On December 11, 1973 the Supreme Judicial Court denied petitioner's request for a certificate of probable cause to appeal from the denial.

In his present petition, petitioner contends that his June 1969 murder conviction was obtained in violation of his federal constitutional rights on two grounds: (1) that there was received in evidence a confession which was allegedly the product of an unreasonable search and seizure in violation of his Fourth and Fourteenth Amendment rights; and (2) that the trial justice's charge to the jury based on the felony-murder doctrine relieved the State of its burden of proving beyond a reasonable doubt an essential element of the crime charged and therefore denied petitioner due process of law under the rule of In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and Mullaney v. Wilbur, supra. It is conceded that petitioner has exhausted his available state remedies as required by 28 U.S.C. § 2254(b).

For the reasons which follow, the Court is persuaded that petitioner's claims are without merit.

I

Petitioner's challenge to the admission of his confession derives from the circumstances of his arrest. In February 1969 petitioner was a parolee from the Maine State Prison. He was residing in South Portland and had been placed under the supervision of Parole and Probation Officer James T. Farr. On Monday, February 24, Officer Farr requested the State Director of Probation and Parole to issue an arrest and detention warrant for petitioner's return to prison as a parole violator. On the same day Officer Farr left a detainer for petitioner at the South Portland police headquarters. This detainer came to the attention of Captain Donald Messer, Chief of Detectives of the South Portland police. Captain Messer was investigating the death of Samuel Hider, who had been found shot in his variety store in South Portland the previous Monday, February 17. Within two or three days after the shooting Captain Messer had received information implicating petitioner in Hider's death. Captain Messer left word at police headquarters that he was to be informed when Officer Farr returned to replace the detainer with a parole violator's arrest warrant.

The next morning, Tuesday, February 25, Officer Farr received the warrant in the mail and went to the South Portland police headquarters to file it. Captain Messer was informed by radio of Officer Farr's arrival and requested that the parole officer wait for him. Captain Messer returned to the police station and told Officer Farr that petitioner was a suspect in the Hider case and was reported to be visiting a friend in South Portland. Captain Messer suggested that police officers accompany the parole officer, who was not armed, to apprehend petitioner. The officers went to the address of petitioner's friend in separate cars, and the police waited outside in their vehicle while Officer Farr entered. Petitioner was there and submitted without resistance to the arrest. The arrest was made at about two o'clock in the afternoon. Officer Farr took petitioner to South Portland police headquarters and left him there while he went to get lunch at his home in South Portland. As petitioner was being placed in the lockup at the South Portland police station, Captain Messer and two other police officers who were involved in the investigation of the Hider case searched him and removed his belt and wallet. In the wallet Captain Messer discovered a ten-dollar bill and a five-dollar bill which appeared to him to be bloodstained. Over petitioner's objections he removed these bills from the wallet, replacing them with a different ten and five ones. The South Portland police did not attempt to question petitioner that afternoon. At about five o'clock Officer Farr returned and transported petitioner to the Cumberland County jail in Portland, where he was to spend the night before being taken to the State Prison at Thomaston.

The next morning, Wednesday, February 26, Captain Messer called Officer Farr and requested an opportunity to interview petitioner before he was taken to Thomaston. Officer Farr granted this request subject to petitioner's being agreeable. The interview took place and resulted in the confession which was admitted at petitioner's trial.² The bills seized were not placed in evidence at that trial.

Petitioner challenges the admission of this confession on the grounds that although the parole violator's warrant was concededly valid, it was used to justify a search of petitioner's person by police officers having a collateral purpose. Petitioner argues that normally the warrant would have been executed by transporting petitioner directly to the Cumberland County jail in Portland and thence to the State Prison. His detention in South Portland was, petitioner asserts, an extraordinary measure taken by design to place petitioner under the control of the police officers investigating the death of Samuel Hider. On this basis, petitioner contends that the search of his wallet and the seizure of the bills was carried out in violation of his Fourth and Fourteenth Amendment rights. This claim must be rejected, both on the facts and on the law.³

First, Chief Justice Dufresne in dismissing petitioner's state habeas petition found that collateral motives played no part in the search of petitioner's effects conducted by Captain Messer. The Chief Justice found, after a fair and adequate hearing, that petitioner's detention at the South Portland police station arose not as part of a deliberate scheme to place him temporarily in the custody of the officers investigating the Hider case but for reasons having nothing to do with that investigation. He stated:

Parole Officer Farr had a legitimate interest in lodging his prisoner in the South Portland police lockup in view of his need for a late dinner, the raging snow storm at the time, and the fact that he could not transport his prisoner to the State Prison prior to the closing time set for admission.⁴

The Chief Justice further concluded that in searching petitioner's wallet Captain Messer was engaged in an ordinary inventory search of the prisoner's personal effects and was not motivated by the prospect of furthering the Hider investigation.⁵ Review of the record in the State court...