Yowell v. Wyrick, 74 CV 546-W-1.

• Decision Date: 14 January 1975
• Docket Number: No. 74 CV 546-W-1.,74 CV 546-W-1.
• Citation: 387 F. Supp. 421
• Parties: Ray Alvin YOWELL, Petitioner, v. Donald W. WYRICK, Warden, Respondent.
• Court: U.S. District Court — Western District of Missouri

387 F. Supp. 421

Ray Alvin YOWELL, Petitioner, v. Donald W. WYRICK, Warden, Respondent.

No. 74 CV 546-W-1.

United States District Court, W. D. Missouri, W. D.

January 14, 1975.

Charles A. Powell, Jr., Macon, Mo., for petitioner.

John C. Danforth, Atty. Gen., of Mo., Philip M. Koppe, Preston Dean, Asst. Attys. Gen., Jefferson City, Mo., for respondent.

MEMORANDUM AND ORDER GRANTING HABEAS CORPUS

JOHN W. OLIVER, District Judge.

I.

This State prisoner habeas corpus case presents a Fourth Amendment search and seizure question. We find and conclude that petitioner is entitled to relief for reasons we shall state.

The parties agree that petitioner has fully exhausted available State court remedies. In the trial court the petitioner filed a pretrial motion to suppress the allegedly illegally seized evidence, which was denied after hearing. After trial, the petitioner filed a motion for new trial, relying in part upon the following ground:

The Court erred in overruling defendant's Motion to Suppress Evidence, heard before trial, and which motion is incorporated by reference herein as if fully set out, and in admitting into evidence specified articles taken by means of said unlawful search and seizure, and in further admitting testimony respecting said articles gained by peace officers as result of and by means of such search and seizure, and particularly as regards the following:

a. A piece or roll of rope, specified in said motion and taken from the trunk of defendant's automobile on March 2, 1971.

b. A specimen or specimens of hair, specified in said motion, allegedly found and taken from under the front seat of defendant's automobile on March 2, 1971.

c. Seat cover taken from the back seat of defendant's automobile on March 2, 1971. Tr. Vol. III, pp. 591-592

The Missouri Court of Appeals, Kansas City District, reviewed petitioner's conviction on direct appeal and reversed and remanded the case for new trial on the express ground that "the motion to suppress should have been sustained and the admission into evidence of the aforesaid items should have been refused." As will be noted, however, the Supreme Court of Missouri, upon the respondent's application, ordered the case transferred to that court, considered the case as an original appeal, and determined that it would not consider the federal search and seizure question presented on the merits.

Though these circumstances make it clear that there has been sufficient exhaustion of state remedies, it is also clear that under current rules of decision of the Supreme Court of Missouri, as announced in Fields v. State, (Mo. Sup.Ct.Div. 2 1971) 468 S.W.2d 31, 32, petitioner cannot later obtain a postconviction review of the federal question presented in this case. That case expressly states that "a claim of illegal search and seizure is not such a matter as may be raised in Missouri under S.Ct. Rule 27.26."¹ It is thus apparent that the Supreme Court of Missouri has refused to review the federal search and seizure question presented on direct appeal and that it would also refuse to review that question when and if presented by a Rule 27.26, V.A.M.R., postconviction motion. Under the circumstances, this Court is forced to consider and decide the question on the merits.

II.

The opening paragraph of the opinion of the Supreme Court of Missouri, En Banc, reported as State v. Yowell, (Mo. Sup.Ct. en Banc, 1974) 513 S.W.2d 397, 399 stated:

Defendant, Ray Alvin Yowell was charged with the offense of forcible rape. See Section 559.260. He was also charged with a prior felony conviction. Section 556.280. The jury found the defendant guilty and the court fixed his punishment at imprisonment for a term of 10 years. The defendant first appealed to this court but we were of the view that jurisdiction was in the Missouri Court of Appeals, Kansas City District, and the case was accordingly transferred to that court. The court of appeals adopted an opinion which reversed the judgment and remanded the case for a new trial. Upon application of respondent we ordered the case transferred to this Court. It will be determined here the same as on original appeal. We affirm.

The Supreme Court of Missouri reliably found that:

Prior to trial defendant filed a motion to suppress three items taken by the deputy sheriff from his car, i. e., (1) the back seat cover (2) the strand of hair found under the front seat and (3) the piece of rope found in the trunk. Evidence was heard and the motion overruled. The evidence indicated that the officers had a warrant for defendant's arrest but not a search warrant; that they observed defendant's car on the afternoon of February 25 and saw the blood on the back seat cover; that when defendant was arrested he asked Deputy Sheriff Cox to move his car and did not request a return of the key so it was retained by Cox; that later that night Cox moved the car to the highway patrol grounds; that later that day (the 26th) he searched the car for a gun defendant had told Jackie he had in the car and saw the strand of hair and the rope; that two days later he removed the three items from the car and delivered them to Sergeant Burnett. Cox further testified that the car was kept locked during the time it was impounded 513 S.W.2d 402.²

The Supreme Court of Missouri then noted that the petitioner's first point on appeal was that "the trial court erred in overruling the motion to suppress and subsequently admitting the said items in evidence during the trial." The Supreme Court of Missouri, however, refused to reach the federal question presented for the following stated reason:

We have concluded that we need not determine the validity of the search in question because the alleged error in admitting the said items in evidence has not been preserved for review. . . . Defendant raised the point of unreasonable search and seizure in his motion to suppress and complained of the ruling in his motion for new trial but failed to object to any of the items when they were offered at the trial. Id.³

The fact that the Missouri Court of Appeals, Kansas City District, rejected respondent's procedural argument and the fact that the Supreme Court of Missouri accepted that argument does not affect this Court's duty to consider the federal question presented. For "the question of when and how defaults in compliance with state procedural rules can preclude our consideration of a federal question is itself a federal question." Henry v. Mississippi, 379 U. S. 443, 447, 85 S.Ct. 564, 567, 13 L.Ed.2d 408 (1965). Consistent with principles stated in that case, by issuance of a separate order, we have ascertained that the respondent has no evidence which it wishes to adduce in any effort to support a finding that the petitioner "after consultation with competent counsel or otherwise, understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts, whether for strategic, tactical, or any other reasons that can fairly be described as the deliberate by-passing of state procedures . . ." Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 849, 9 L.Ed.2d 837.⁴ On the basis of the State court record, we accordingly find and conclude that petitioner has not waived his right to have the federal question considered on the merits.

We must therefore consider the merits of petitioner's federal claim. Cf. Smith v. Wolff, (8th Cir. 1974), 506 F.2d 556, and cases cited therein. In light of the apparent reluctance of the Supreme Court of Missouri to permit state appellate review of federal search and seizure claims either on direct appeal or on postconviction motion, we believe that it is appropriate that attention be directed to the following from Henry v. Mississippi:

The Court is not blind to the fact that the federal habeas corpus jurisdiction has been a source of irritation between the federal and state judiciaries. It has been suggested that this friction might be ameliorated if the States would look upon our decisions in Fay v. Noia, supra, and Townsend v. Sain, supra, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 as affording them an opportunity to provide state procedures, direct or collateral, for a full airing of federal claims. 379 U.S. at 453, 85 S.Ct. at 570.

III.

The excellent opinion of the Missouri Court of Appeals, Kansas City District, makes disposition of the merits of this case an easy task. That opinion properly concluded that "we believe there was an illegal search and seizure here, under the authority of In re J. R. M., 487 S.W.2d 502 (Mo.Banc 1972) and Coolidge v. New Hampshire (1971) 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564."⁵ It was further concluded that Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) was "clearly distinguishable" (p. 8 of opinion). That opinion noted that Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), had been handed down after argument in the Missouri Court of Appeals, Kansas City District, but, for reasons properly stated in detail, that:

. . . . Dombrowski is distinguishable. In the instant case there was no evidence or claim that the search was for custodial or caretaker purposes. Furthermore, there was not shown any necessity for the sheriff to take custody of the car. Dombrowski did not overrule Coolidge v. New Hampshire, cited supra, and Coolidge and In re J. R. M., cited supra, are still deemed controlling in the instant case. Id, p. 11

The Missouri Court of Appeals, Kansas City District, reliably found that "the State has not made the contention that the defendant consented to the search and seizure." It properly concluded in the alternative that "However, it is clear in any event, that the defendant did not give such consent as constitutionally required. See State v. Witherspoon, 460 S.W.2d 281, 287 (Mo. 1970)."

We further find and conclude that the Missouri Court of Appeals, Kansas City District, reliably found the facts and properly...