White v. Brough
| Decision Date | 27 July 1971 |
| Docket Number | Civ. A. No. 14617. |
| Citation | 332 F. Supp. 438 |
| Parties | Eddie WHITE, Sr., Petitioner, v. Franklin W. BROUGH, Warden, Maryland Penitentiary, Respondent. |
| Court | U.S. District Court — District of Maryland |
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Henry R. Lord and Russell Reno, Jr., Venable, Baetjer & Howard, Baltimore, Md., for petitioner.
Loring E. Hawes and Alfred J. O'Ferrall, III, Baltimore, Md., Francis B. Burch, Atty. Gen. of Maryland, for respondent.
The petitioner, Eddie White, Sr., was tried and convicted of first degree murder in a one-day trial on June 13, 1961, before Judge Joseph L. Carter, sitting without a jury in the Criminal Court of Baltimore City. He was sentenced to life imprisonment in the Maryland Penitentiary. No motion for a new trial was entered and no appeal was taken from this conviction and sentence. Petitioner's first state petition under the Uniform Post Conviction Procedure Act was filed July 26, 1961 and was disposed of on procedural grounds on May 2, 1962 by then Chief Judge Emory H. Niles of the Supreme Bench of Baltimore City. While counsel was appointed for petitioner, he was not permitted a hearing on his petition. Application for leave to appeal was denied by the Court of Appeals of Maryland in White v. Warden, 229 Md. 645, 184 A.2d 840 (1962). Petitioner then filed application for Writ of Habeas Corpus in the United States District Court for the District of Maryland. This petition was denied on May 27, 1963 by this Court on the ground that his state remedies had not been exhausted, in that he had not presented the issue of illegal search and seizure to the state court in a collateral proceeding. On June 19, 1963 petitioner presented the search and seizure question in his second petition under the Uniform Post Conviction Procedure Act. This issue was decided summarily on procedural grounds against the petitioner by Judge Meyer M. Cardin of the Supreme Bench of Baltimore City on November 13, 1963. Application for leave to appeal was denied by the Court of Appeals of Maryland in White v. Warden, 234 Md. 615, 197 A.2d 909 (1964).
Having thus exhausted his state remedies, petitioner filed a second petition for Writ of Habeas Corpus in the United States District Court for the District of Maryland. He set forth the following grounds of complaint:
Petitioner was not afforded a hearing on the merits of these contentions as this court ruled that petitioner's confession in open court precluded habeas corpus relief, and was the source of his conviction, rather than any evidence, even if illegal, introduced at that trial.
This ruling was reversed on November 1, 1965 by the U. S. Court of Appeals for the Fourth Circuit. White v. Pepersack, 352 F.2d 470 (4th Cir. 1965). A hearing was held on January 5 and 6, 1966.
It was agreed that the hearing should be limited to the points:
1. Illegal arrest of petitioner, and seizure of shot gun from 1213 E. Madison Street.
2. Voluntary nature of the confession at the Eastern Police Station at 8:30 a. m. on October 8, 1960.
3. Illegal arrest.
It was further agreed that if petitioner were unsuccessful on all three points, a further hearing would be had on the following:
4. Knowing use by the State of perjured testimony.
5. Incompetency of counsel.1
On June 3, 1966 argument was heard on the first three points, and substantial time was allowed for briefing, which was delayed by counsel on each side changing employment. The court did not feel satisfied to decide the case in petitioner's favor on the first three points. Moreover, as the result of several conferences between the court and counsel, it appeared that the "incompetency" of trial counsel had assumed an aspect different from what either the court or counsel had initially envisioned. A further hearing was had on November 14, 1969, and substantial time was allowed, and taken, for briefing.2
Sgt. Hirsch, of the Eastern District Police Station, testified that he arrived "between 4:00 and 4:05 A.M." at 1216 East Madison Street on October 8, 1960 to investigate a shooting. He first went into the "middle room first floor" where he found a male "apparently dead". He could not recall which witnesses he spoke with but suggests that "possibly" he spoke with Miss Williams, Mary Louise Whitby and Dorothy Gray. He did not recall speaking with Leon Camphor or William Smith (also known as Buckwheat). He did recall that Buckwheat was shot in the leg and was removed by ambulance some time later to Johns Hopkins Hospital. One of the reasons cited for not questioning Buckwheat was that he "had numerous other witnesses who witnessed the actual shooting itself, so I wouldn't be too concerned about questioning Buckwheat at that time". He said that he probably spoke to two or three witnesses. From them he elicited the information that Eddie White, who lived at 1213 East Madison Street, had entered 1216 East Madison Street, had shot Peter Rabbit (later found to be James Perry Noble) with a shotgun and had returned across the street to 1213 East Madison Street where he entered the house with the shotgun, and was not seen to have left (H.C. 28).4 Dorothy Gray was a previous informant and was well known to Hirsch. He did not know White personally or by reputation. He testified that the viewing of the body and the interviewing of witnesses took "two or three minutes." Hirsch did not attempt to find out what kind of an interest White had in the premises at 1213 and did not recall, although he knew at the time, that Dorothy Gray lived at 1213. Three officers, or more, in addition to Hirsch, went to the front door of 1213 and covered for each other. Hirsch attempted to gain voluntary entrance by knocking and there was no response. After kicking open the front door he and another officer entered, covered by the pistols of their two companions, who then entered covered by Hirsch and the first entrant. A room-by-room search was conducted. Hirsch did not recall breaking two bedrooms on the second floor but stated that quite possibly this was done in the course of the search which was directed only to places in which a person could hide. No search was made in drawers or other small places. In the course of the search the officers looked behind a door in the middle room of the first floor where a person might hide. They found no men, but did discover a shotgun. This shotgun was taken from the premises by Hirsch because "it was evident to me that it was the weapon that was used in the homicide and I figured it was my duty to seize it as evidence." The search took between five and ten minutes.
Upon returning to 1216, Hirsch stated that "I believe I placed it on the chair" (referring to the shotgun). The chair on which the shotgun resided was immediately to the left of the front door upon entrance to 1216.
After Hirsch had returned to 1216, a call was received from the radio dispatcher saying that a colored male had telephoned in that he had just shot a man at 1216 E. Madison Street, and was returning to the scene to give himself up. "A short period of time" after the call was received, White returned. Hirsch could not estimate how long after the call was received White returned. Hirsch's report indicated, however, that it was at "approximately 4:30". White returned by taxi cab which stopped "somewhere convenient to 1216" but Hirsch did not recall actually seeing the cab, as he was inside and did not actually participate in the arrest. While he did recall the taking of the picture showing White and the shotgun, he did not remember whether he asked White to point to the shotgun. According to Hirsch, White, on the scene, admitted shooting Noble and Buckwheat, that the shotgun was his, and that it was the one he had used. His statement at the scene was substantially similar to the typed statement (H.C. 221). Hirsch did not recall the sequence in which these statements were made but testified that White said he had shot Peter Rabbit and Buckwheat before Hirsch pointed to the gun (H.C. 53). An additional fact, recalled when he took the stand a second time, was that White was shown the dead body of Noble and identified it. White was on the premises "just long enough for us to get a cruising patrol there for transportation".
Hirsch stated that later that morning he took a detailed statement from White, which was reduced to writing. He recalled that White agreed to give the statement but could not sign it unless his request to call his boss "and have him come down and read it to me" was granted; "I will tell you the story, but I will not sign it until I see my attorney" (H.C. 51). Hirsch recalls no requests for phone calls and stated that if such requests had been made to him, he would have honored them.
Harry A. Raker testified that White had been working for him on a regular basis for four or five years, at the time of the incident, as a presser at his cleaning establishment (Charles Cleaners). He also testified that he was a member of the bar and had been a part-time practicing lawyer since 1953 but "not criminal work" (H.C. 63). He recalled that he had represented White in a domestic matter in Northwestern Police Station and that he was considered by White to be his lawyer as well as his boss. He received no phone call from White on the morning the statement was taken and in fact never received a call from White in this matter.
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