Garrett v. Bounds

W.D. North Carolina

Garrett v. Bounds

328 F. Supp. 1175, 1971 U.S. Dist. LEXIS 12809

CourtDistrict Court, W.D. North Carolina

DecidedJune 18, 1971

DocketCiv. A. No. 2636

StatusPublished

This text of 328 F. Supp. 1175 (Garrett v. Bounds) is published on Counsel Stack Legal Research, covering District Court, W.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Garrett v. Bounds, 328 F. Supp. 1175, 1971 U.S. Dist. LEXIS 12809 (W.D.N.C. 1971).

Pincite

Opinion

MEMORANDUM OF DECISION AND ORDER

McMILLAN, District Judge.

Petitioners, Gene Wayne Garrett and Charles Leonard Brank, are presently detained in North Carolina Central Prison in Raleigh serving sentences of twenty-five (25) to thirty (30) years for armed robbery imposed at the February 3, 1969, Schedule “D” Criminal Session of the Superior Court of Mecklenburg County upon their convictions by a jury. Petitioners duly appealed their convictions to the North Carolina Court of Appeals where their convictions were affirmed, State v. Garrett and Brank, 5 N.C.App. 367, 168 S.E.2d 479 (1969). Petitioners thereupon petitioned the North Carolina Supreme Court for a writ of certiorari which was denied, State v. Garrett and Brank, 276 N.C. 85 (1970). On January 20, 1970, petitioners filed a petition for post-conviction hearing in Mecklenburg County Superior Court pursuant to N.C.G.S., §§ 15-217 to 15-222. This request for a post-conviction hearing was denied. Thereupon, the petitioners presented a petition for a writ of certiorari to the North Carolina Court of Appeals which was denied on February 24, 1970. Garrett and Brank now petition this court for a writ of habeas corpus, alleging the following as grounds for relief:

(1) That certain pretrial identification of the petitioner Garrett was improper ;

[1177]*1177(2) That a key witness for the prosecution, Jimmie Rogers, was intimidated at petitioners’ trial when a bench warrant for perjury was served on him during testimony;

(3) That the petitioners were denied representation of counsel at a “critical stage” of the prosecution against them;

(4) That the examination by the trial judge of certain documents at petitioners’ trial in the presence of the jury and his subsequent conduct violated due process of law; and

(5) That petitioners were denied a fair trial by certain publicity during the trial.

On November 30, 1970, a hearing was conducted in the United States District Court in Charlotte to consider petitioners’ claims. Upon consideration of the evidence presented at that hearing and the applicable law, the court’s findings of fact and conclusions of law follow.

ALLEGATION ONE: Petitioner Garrett claims that he was subjected to an illegal pretrial identification. The facts are that on July 24, 1968, two men armed with firearms held up and robbed several participants and spectators at a poker game at the Moose Lodge in Charlotte, North Carolina. James Van Lewis was apparently a victim of the robbery. He was interviewed several times by telephone by Charlotte Detective Sergeant G. L. Painter. Painter visited him before, at, and after a line-up of various suspects on September 13, 1968. There is no indication that Lewis identified anyone from photographs before the line-up. At the line-up on September 13, 1968, he said “I think” one of the robbers was No. 2 man in the line-up (Garrett was the No. 2 man). The witness William McMillan failed to identify anyone at the line-up, but several days later upon viewing photographs of Garrett and of the line-up identified Garrett as one of the robbers.

No one appears to have identified the petitioner Brank before, during or after the line-up except the witness Rogers, whose testimony appears later, and the witness A. C. Warren, whose identification was based on his having “glanced” at Brank for a few seconds during the robbery.

At the line-up and at the trial, Attorney James H. Morton represented the defendant Gene Wayne Garrett. At the line-up Attorney Reginald Hamel represented the defendant Brank and at the trial Mr. Brank was represented by Attorney Arthur Goodman.

The demonstration of the photographs to the various witnesses before and after the line-up was done without any counsel present.

The court is squarely faced with the question whether the right to counsel in a post-indictment line-up, guaranteed to an accused in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), applies equally to post-arrest photographic identifications. In United States v. Marson, 408 F.2d 644 (4th Cir., 1968), and United States v. Collins, 416 F.2d 696 (4th Cir., 1969), the Fourth Circuit, addressing itself to the essential question, concluded that Wade does not extend to post-arrest photographic identification. Judge Winter dissented in both Marson and Collins, reasoning that the “myriad forms of suggestion” possible in a line-up were equally likely (if not more likely) to occur in post-arrest photographic identification. Marson, supra, 408 F.2d at 653-654. See also, United States v. Zeiler, 427 F.2d 1305 (3rd Cir., 1970), in which the Third Circuit Court of Appeals held that the Wade rationale did apply to pre-trial photographic identification of an accused in custody.

If this question were one of initial instance, this court would be inclined to follow the dissenting views of Judge Winter in Collins and Marson. [1178]*1178However, the Fourth Circuit has twice spoken clearly on this issue (four different Circuit Judges were in the majority in the two cases: Judges Boreman and Butzner in Marson and Judges Bryan and Haynsworth in Collins), and, as an inferior court, this court is constrained to follow the Court of Appeals’ position as set out in Marson and Collins.

ALLEGATIONS TWO, THREE, FOUR AND FIVE: The court’s findings based upon evidence at the November 30, 1970 hearing with respect to petitioners’ other contentions follow.

FACTS

Jimmie Rogers, of Greer, South Carolina, was the key prosecution witness.

Police Detective Painter interviewed Rogers at Greer, South Carolina, on or before September 19, 1968, in the office of Rogers’ attorney, John Rollins.

No written statement was obtained from Rogers, and no statement was signed by him then or later.

Rogers was not asked to write nor to sign a statement.

Upon returning from the interview, Painter prepared a typed memorandum of the contents of his interview with Rogers. This memorandum was Plaintiff’s Exhibit 16. The memorandum quotes Rogers as saying that he and one Marlowe DeYoung and one David Rowland (alias “Hog”) had been in company with Garrett and Brank early on the night of the robbery, July 23, 1968. They got together in the neighborhood of Greer or Greenville, South Carolina. Brank proposed that they go rob the Moose Lodge in Charlotte. Garrett agreed to go. Garrett and Brank drove to Charlotte in Brank’s car and Rogers, Marlowe and “Hog” drove in “Hog’s” car. When they reached the Moose Lodge parking lot Rogers, Marlowe and “Hog,” seeing Brank was serious, left the scene and drove away leaving Brank and Garrett in Charlotte. The memorandum also quoted Rogers as saying that Brank told him a few days later that they had robbed the Moose Lodge.

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