Williamson v. Erickson, Civ. 72-4112.

• Decision Date: 26 February 1973
• Docket Number: No. Civ. 72-4112.,Civ. 72-4112.
• Citation: 354 F. Supp. 1130
• Parties: Roy WILLIAMSON, Petitioner, v. Donald R. ERICKSON, as the duly appointed, qualified and acting Warden of the South Dakota State Penitentiary, Respondent.
• Court: U.S. District Court — District of South Dakota

354 F. Supp. 1130

Roy WILLIAMSON, Petitioner, v. Donald R. ERICKSON, as the duly appointed, qualified and acting Warden of the South Dakota State Penitentiary, Respondent.

No. Civ. 72-4112.

United States District Court, D. South Dakota, S. D.

February 26, 1973.

Michael Lyons, Sioux Falls, S. D., for petitioner.

Walter W. Andre, Asst. Atty. Gen., Pierre, S. D., for respondent.

MEMORANDUM DECISION

NICHOL, Chief Judge.

On May 22, 1968, a jury found petitioner, Roy Williamson, guilty of grand larceny and third degree burglary in the Circuit Court of Miner County, State of South Dakota. Post-conviction relief was denied. This adverse decision, combined with his conviction, was appealed to the South Dakota Supreme Court, which affirmed the lower court's holdings. State v. Williamson, 198 N.W.2d 518 (S.D.1972). Williamson, having exhausted his state court remedies, petitions this court citing 28 U.S.C. Sec. 2242 as authority for an application for a writ of habeas corpus contending his federal constitutional rights have been violated. For jurisdictional purposes the petition will be treated as though made under 28 U.S.C. Sec. 2254. The case was submitted to this court only on the state court records and briefs before the South Dakota Supreme Court.

Petitioner sets forth five of the eight issues raised before the State Supreme Court as a basis for his claimed relief. I have considered each of these five issues separately and conclude that petitioner's constitutional rights have not been violated and his petition for a writ of habeas corpus must be denied. Under the circumstances, the burden was upon the applicant to establish by convincing evidence that the factual determination by the state court was erroneous. In re Parker, 423 F.2d 1021, 1024 (8th Cir. 1970). This burden was not satisfied.

Petitioner contends that he has been denied due process of law and equal protection of the laws of the State of South Dakota in violation of the Fourteenth Amendment to the United States Constitution, and denied his right to an impartial jury in violation of the Sixth Amendment to the constitution because the state trial court denied his motion for a change of venue¹ which was supported by his attorney's sworn affidavit. In addition, he faults the State of South Dakota for failing to provide an affidavit showing that he could receive a fair trial.

Petitioner has failed to show an abuse of discretion in the trial judge's ruling which reaches constitutional proportions. The South Dakota Supreme Court found the attorney's affidavit in support of the change of venue motion "contained conclusions and unsupported assertions of counsel and no facts sufficient to require a change of venue." State v. Williamson, 198 N.W.2d 518, 519 (S.D.1972). The trial judge was not persuaded by counsel's claim and in accordance with the statutory power granted him, SDCL 1967, Sec. 23-28-7, denied the motion.

Ordinarily, the affidavit of the movant's attorney is not a sufficient basis for the change. See Ex Parte Lancaster, 206 Ala. 60, 89 So. 721, 18 A.L.R. 706 (1921); McCollum v. Florida, 74 So.2d 74, 47 A.L.R.2d 1218 (Fla. 1954). "Generally, the law presumes that a defendant can get a fair and impartial trial in the county in which the offense was committed." 21 Am.Jur.2d Criminal Law, Sec. 424 (1965). The petitioner, as the moving party, failed to overcome this presumption and it was, therefore, unnecessary for the State to submit any affidavits. See Annot., 33 A.L.R.3d 17, 41 (1970).

Williamson's reliance upon Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963), and Groppi v. State of Wisconsin, 400 U.S. 505, 91 S. Ct. 490, 27 L.Ed.2d 571 (1971), is not well founded. In Rideau the community from which the jury was drawn had been exposed repeatedly to the spectacle of the defendant personally confessing in detail to the crimes with which he was later charged. A motion picture film, with sound, made of defendant's interview with the Sheriff was broadcast over local television. Williamson has wholly failed to show such a case of gross prejudice as existed in Rideau. Nor are we faced with the problem raised in Groppi v. Wisconsin, supra. The Supreme Court in Groppi was confronted with the constitutionality of a state law that categorically denied a change of venue for a criminal jury trial, regardless of the extent of local prejudice against the defendant, on the sole ground that the charge against him was labeled a misdemeanor, 400 U.S. at 507-508, 91 S.Ct. 490. Williamson has had the opportunity to obtain a change of venue; the trial court justifiably found that his evidence in support of such a request was inadequate.

The trial court denied the change of venue and the ruling was affirmed by the State Supreme Court. This court has before it the same records upon which that determination was made; thus, absent additional evidence of a constitutional deprivation the trial court was in a better position to know the local sentiment and to rule on the motion. Mayo v. Blackburn, 250 F.2d 645, (5th Cir. 1957).

Petitioner's second assertion is that the foregoing claimed denial of due process and equal protection of the law was compounded by seating juror Gehring, in violation of SDCL 1967, Sec. 15-14-6(2),² a nephew of the Deputy Sheriff of Miner County. It is the petitioner's theory that the Sheriff is a "party" to this action, as designated in SDCL 1967, Sec. 15-14-6, because he represents the State in this matter, and because he signed the complaint. The petitioner further reasons that because the deputy, by definition, is the Sheriff's substitute, he also is a "party".

The South Dakota Supreme Court found that "(t)he statute did not disqualify the juror." 198 N.W.2d at 519. The Deputy Sheriff in question was a 76-year-old part time employee who received phone calls when the Sheriff was absent. The record shows that the Deputy lacked any first-hand knowledge of this case.

Petitioner's theory is somewhat strained in view of the fact that challenges to individual jurors in a criminal proceeding are provided, generally, at SDCL 1967, Secs. 23-43-25 to 23-43-35. Because of these separate provisions petitioner's reliance on SDCL 1967, Sec. 15-14-6, applicable in civil proceedings, is statutorily unauthorized. In addition, his contention is without merit in this federal habeas corpus action because he has failed to identify any bias of this juror due to this consanguine relationship. See United States v. Gerhart, 275 F.Supp. 443, 466 (S.D.W.Va.1967).

Thirdly, the seating of juror Miller has not been shown to have been prejudicial to petitioner. Though her lack of frankness with the court, feigning an auditory problem in an effort to be excused from jury duty, is not to be condoned, it...