Wilton Howell v. W.R. Barker Attorney General of the State of North Carolina

904 F.2d 889, 1990 U.S. App. LEXIS 8465, 1990 WL 67921

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 24, 1990
• Docket: 88-7106
• Status: Published

Opinions

KISER, District Judge:

The appellee, Wilton Howell, filed this petition for writ of habeas corpus in the United States District Court for the Eastern District of North Carolina on October 14, 1986. As a ground for relief, he asserts a due process violation arising out of a delay by the Bladen County Sheriffs Department in the service of his arrest warrant and the return of an indictment for robbery with a dangerous weapon, as a result of which he was unable to locate an alibi witness for use at his trial.¹ The petition for writ of habeas corpus was first heard by Magistrate Alexander Denson, who recommended that the petition for ha-beas relief be granted and the indictment against Howell be dismissed. The district court, on objections to the magistrate’s recommendations, affirmed the magistrate’s finding of a due process violation, but rejected the magistrate’s remedy. The district court held that the writ should issue and ordered a retrial. Howell v. Barker, 684 F.Supp. 132 (E.D.N.C.1988). The State of North Carolina appealed. We affirm.

Facts and Procedural History

On the afternoon of September 19, 1979, Ms. Ruby Carlyle, a 66-year-old woman confined to a wheelchair, was robbed of approximately $1000 at gunpoint and knife-point by two young black males at her rural gas and grocery store in Bladen County, North Carolina. The Bladen County Sheriff’s Department investigated the robbery. Ms. Carlyle told the investigating officers that the robbers were driving a black Chevrolet and that, earlier in the day, the robbers had been at the store in the car. Harold Hayes was at Ms. Carlyle’s store at the time of the robbers’ first visit. He saw a black male in the store and another at the pump by a black Chevrolet with mag wheels, one of which had a missing lug on the back wheel.

The black car driven by the robbers became a significant clue. Patrolman Cov-ington of the North Carolina highway patrol was familiar with a black Chevrolet, usually driven by appellee, Wilton Howell, which had mag wheels. Covington undertook a surveillance of Howell’s house and discovered a black Chevrolet parked at the back of the house. Covington conducted a consent search of the car in which he found cash register keys, some small change, a divider from a cash drawer, a gas cap, and a knife.² A consent search of Howell’s home was also conducted, and a .38 caliber revolver was discovered.³

On October 31, 1979, Detective Phillip Little of the Bladen County Sheriff’s Department interrogated Howell with respect to the Carlyle robbery at the Robeson County jail where Howell was being held on unrelated charges. Later that day, Howell appeared before Ms. Carlyle in a line-up.⁴ Ms. Carlyle identified Howell as a man who looked like one of the robbers. On November 1, 1979, Detective Little obtained a warrant for the arrest of Howell on a charge of robbery with a dangerous weapon. Bladen County and Robeson County are adjacent to each other, and the county seats of the two counties are less than thirty miles apart. However, Detective Little did not serve the arrest warrant on Howell because he was aware that it' was the practice of Robeson County officials to hold arrest warrants from other counties until all Robeson County proceedings were completed. This practice was followed in order to avoid the inconvenience and expense of transporting the wanted person back and forth between the two counties for hearings and trials.

Howell remained in the Robeson County jail until March 1980, when he was delivered to and placed in the custody of the North Carolina Department of Corrections. He remained in the prison system until he was paroled in April 1981. At no time during these periods of incarceration did the Bladen County authorities serve or attempt to serve the arrest warrant for the Carlyle robbery on Howell. No one in the Bladen County Sheriff’s Department knew of Howell’s whereabouts until February 2, 1982, when Howell appeared at the department to request the return of the gun that had been seized in the 1979 search. Howell was served with the November 1, 1979, arrest warrant on February 4, 1982, some 27 months after the warrant had been issued.

On March 22, 1982, a Bladen County grand jury returned a true bill against Howell on a charge of robbery with a dangerous weapon in violation of N.C.Gen. Stat. § 14-87 (Cum.Supp.1979). Howell filed a motion to dismiss the indictment in the Superior Court of Bladen County on the grounds that he had been denied due process because of the delay in serving the arrest warrant which resulted in the unavailability of his alibi witness, Ray Hunt. Judge Edwin Preston granted an evidentia-ry hearing, which was held on May 10, 1982. On May 12, 1982, Judge Preston entered an order denying the motion to dismiss. Judge Preston made the following findings of fact:

12. That on or about September 19, 1979, the defendant was employed by the City of Lumberton and Hunt’s Body Shop in Lumberton, North Carolina;

13. That the defendant contends that he was working with Roy [sic] Hunt at the time of said robbery alleged to have occurred on September 19, 1979; and defendant contends that Roy [sic] Hunt is unavailable to testify for the defendant; that defendant has offered no evidence of any efforts which he has made to locate Roy [sic] Hunt.

Upon the basis of these findings of fact, Judge Preston concluded as a matter of law:

[T]he delay between the issuance of the arrest warrant on November 1, 1979 and the service of the warrant on the defendant on February 4, 1982 was not prejudicial to the defendant in the conduct of his defense; nor was said delay unreasonable, unjustified, and engaged in by the prosecution deliberately and unnecessarily in order to gain tactical advantage over the defendant such as to violate due process.

The case proceeded to trial and Howell was convicted of armed robbery on October 12, 1982. Howell appealed the conviction, claiming that the preindictment delay of approximately two years and four months was unreasonable and denied him due process of law and the right to a speedy trial. The North Carolina Court of Appeals rejected both of Howell’s arguments and affirmed the judgment of conviction.⁵ State v. Howell, 67 N.C.App. 763, 314 S.E.2d 147 (1984). In connection with Howell’s claim that the preindictment delay constituted actual and substantial prejudice because of the resultant unavailability of Howell’s alibi witness, the court stated:

Defendant has failed to show any tactical disadvantage because he could not locate Roy [sic] Hunt, an alibi witness; what he did to locate him, or that he is [sic] lost due to the preindictment delay; or that the witness would have significantly aided his defense. Defendant at most has demonstrated only potential prejudice, not actual prejudice.

On October 11, 1984, Howell filed a motion for appropriate relief in which he again alleged that the 27-month delay in serving his arrest warrant prejudiced him in that his alibi witness, Ray Hunt, who was unavailable in November 1979, could not be located at the time of trial in October 1982. A plenary hearing on Howell’s motion for relief was held before Judge Craig Ellis on February 18, 1985. Judge Ellis dismissed the motion based on these express findings:

(3) That at the plenary hearing on February 18, 1985, the petitioner, Wilton Howell, testified that he asked in 1982 after the warrant was served on him in February, of 1982, to have Mr. Hunt located; and that his brother looked for Mr. Hunt, but could not find Mr. Hunt; that Mr. Hunt had moved to Florida.

(4) That Stacy Howell, brother of petitioner, testified that he and Mr. Jack E. Carter tried to locate Ray Hunt after his brother was arrested in 1982; and that Stacy Howell talked with Charlie Mata-moros, a relative of Mr. Hunt; that Mr. Hunt was supposed to have moved to Florida and he did not know where.

(5) That George Ray Hunt testified that in September, of 1979, he was operating Ray’s Body Shop on West Fifth Street in Lumberton, North Carolina; that he knew the petitioner; that the petitioner was working with him at that time; that on September 19, 1979, the petitioner was working for him and came to work early that day from his job with the City of Lumberton; that George Ray Hunt paid Wilton Howell for his work that week in an amount larger than he usually paid him; that the petitioner was at work that day until 5:00- or 6:00 o’clock p.m.; and that Mr. Howell did not leave the body shop that day.

(6) That Mr. Hunt testified that he has six sisters; that none of them live in Lumberton, but one did live in Lumber-ton in 1982; and that the sister should have known what his address was in Florida.

(7) That Mr. Hunt is now residing in Robeson County. That there is no evidence that Mr. Howell or anyone acting in his behalf attempted to locate Mr. Hunt’s sisters or mother to determine the location of Mr. Hunt in the State of Florida.

(8) That the name of Mr. Hunt was given to Mr. Phillip Little of the Bladen County Sheriff’s Department; and that Mr. Little asked the Robeson County Sheriff’s Department to try to locate him, but received no answer back.

(10) That the testimony of Mr. Hunt would tend to corroborate the testimony of Wilton Howell as to his employment on the date of the alleged robbery, but that it does not amount to new evidence or additional evidence.

(11) That Mr. Howell has not established that with due diligence he attempted to locate Mr. Hunt, and the Court finds that with due diligence Mr. Hunt could probably have been located in the State of Florida.

Howell petitioned for certiorari review of Judge Ellis’ decision, but the Supreme Court of North Carolina denied the writ.

After exhausting his state remedies, Howell filed this petition for writ of habeas corpus on October 14, 1986. Howell alleges that his constitutional rights have been violated because (1) he was denied a speedy trial, (2) he was not served with the arrest warrant until 27 months after the warrant’s issuance, (3) his due process rights were violated by the mishandling of the testimony of a state witness, and (4) his motion to suppress the prosecuting witness’ identification of him was denied. The case was referred to United States Magistrate Alexander Denson who disposed of the matter on the record of the evidentiary proceedings in the state court.

In his report and recommendation, the magistrate recognized that a party seeking due process relief under the fifth amendment because of the unavailability of a material witness at trial has the burden of establishing that he was prejudiced. In order to make a showing of prejudice, Howell was required to (1) identify “the lost witness,” (2) “demonstrate the content of the witness’ testimony,” and (3) “show that efforts were made to locate” the witness. The magistrate found that Howell had satisfied requirements (1) and (2). In connection with requirement (3), the magistrate reviewed the evidentiary hearings in the state court proceedings and found “that petitioner [Howell] did make a reasonable and diligent effort to locate Hunt prior to his trial.”

The magistrate based this finding on the testimony of Wilton Howell’s brother, Stacy Howell, who testified that Wilton’s lawyer had asked him to find George Ray Hunt. Stacy testified that he asked Hunt’s brother-in-law, Charlie Matamoros, for 'Hunt’s address. Matamoros told Stacy that Hunt lived in Florida but he did not have his address. The State of North Carolina contended that Howell failed to demonstrate that he made an effort to locate Hunt because he did not ask Hunt’s mother or sister for Hunt’s address. The magistrate rejected the state’s position because it failed to establish that Howell or his brother knew Hunt’s mother or sister.

After finding that Howell had established prejudice, the magistrate balanced the prejudice to Howell with the State of North Carolina’s reasons for the delay. The magistrate concluded that:

[The] delay both in serving the arrest warrant and in indicting Petitioner [Howell] was the result of a conscious decision by Bladen County authorities. The only reason for the delay in serving the arrest warrant (an act which certainly would have started Petitioner’s speedy trial clock), was an interest in conveni-encing the Robeson County authorities. Convenience to prison and law enforcement officials cannot override a defendant’s constitutional right to due process and a fair trial regardless of the fact that such a defendant is imprisoned on another matter.

The record ... establishes that by November 1, 1979, the prosecuting authorities had completed their investigation into the Carlyle robbery. By the first of November, all physical evidence had been obtained, and witnesses to the robbery had been interviewed, the prosecuting witness had identified Petitioner from a lineup, and Petitioner’s location had been determined.... There is no satisfactory excuse offered for the lack of diligence in serving Petitioner with the arrest warrant.

Thus, the magistrate recommended that Howell’s petition for habeas relief be granted and the indictment be dismissed.

On March 29, 1988, the United States District Court for the Eastern District of North Carolina adopted the magistrate’s report, but determined that the remedy was “inappropriate.” The district court granted the writ for habeas corpus conditionally and ordered that Howell be released if the State of North Carolina had not commenced a retrial prior to May 28, 1988.

On April 20, 1988, the State of North Carolina filed its notice of appeal. On April 29, 1988, North Carolina filed a motion for stay of execution of the writ issued by the district court which this Court granted. North Carolina argues on appeal that the district court erred in failing “to require Howell to show that the state intentionally delayed serving the warrant to gain some tactical advantage, or that the state displayed even a reckless disregard of circumstances suggesting an appreciable risk that delay would impair the defense.”

Discussion

We first note that, in its brief on appeal, North Carolina failed to address the issue of actual prejudice. Instead, North Carolina chose to devote its entire discussion to the alleged requirement that a defendant, in order to establish a due process violation for preindictment delay, must prove improper prosecutorial motive in addition to actual prejudice.⁶ We further note that in reviewing the tape of oral argument before this Court, all colloquies between the Court and counsel for the State of North Carolina assumed that the 27-month preindictment delay actually prejudiced the defendant, and focused instead on the alleged requirement of improper prosecutorial motive. Therefore, given this Court’s assumption, and counsel for the State of North Carolina’s both affirmative and tacit concession that the 27-month preindictment delay actually prejudiced the defendant, the issue of actual prejudice need not be addressed.⁷ Thus, the remaining issue, after proving actual prejudice, is whether a defendant seeking due process relief from preindictment delay must further prove improper prosecutorial motive as the cause for the delay.

The State of North Carolina argues that a defendant must show both actual prejudice and improper prosecutorial motive to gain due process relief for preindictment delay. As support, North Carolina cites decisions from a number of circuits, as well as the Supreme Court’s decision in United States v. Gouveia, 467 U.S. 180, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984). Though we agree that other circuits have reached conclusions similar to the position advanced by North Carolina, we disagree that Gouveia is clear precedent. Granted, in Gouveia, the Supreme Court stated that the fifth amendment requires dismissal of an indictment if a defendant proves actual prejudice and intentional delay by the prosecutor to gain an advantage over the defendant. Gouveia, 467 U.S. at 192, 104 S.Ct. at 2299. The Court, however, was merely restating in dicta the established outer contour of unconstitutional preindictment delay.⁸

The Supreme Court addressed the due process ramifications of preindictment delay in United States v. Lovasco, 431 U.S. 783, 797, 97 S.Ct. 2044, 2052, 52 L.Ed.2d 752 (1977), and United States v. Marion, 404 U.S. 307, 325, 92 S.Ct. 455, 466, 30 L.Ed.2d 468 (1971). In both of these cases, the Supreme Court concluded that based on the particular facts of each case, the prein-dictment delay involved did not violate the defendant’s due process rights. In Marion, the Court agreed with the government’s concession that intentional delay by the government to gain tactical advantage over the defendant, in addition to substantial prejudice to the defendant, would violate due process. Marion, 404 U.S. at 324-25, 92 S.Ct. at 465-66. The Court cautioned, however, that:

[W]e need not, and could not now determine when and in what circumstances actual prejudice resulting from preaccu-sation delays requires dismissal of the prosecution. Actual prejudice to the defense of a criminal case may result from the shortest and most necessary delay; and no one suggests that every delay-caused detriment to a defendant’s case should abort a criminal prosecution. To accommodate the sound administration of justice to the rights of a defendant to a fair trial will necessarily involve a delicate judgment based on the circumstances of each case.

Id. (emphasis added).

In Lovasco, the Court held that investigative delay, as opposed to intentional delay undertaken to gain tactical advantage, would not violate due process. Lovasco, 431 U.S. at 795-96, 97 S.Ct. at 2051-52.⁹ The Lovasco Court also noted that there is little guidance to be given lower courts who are left with the task of applying the principles of due process “to the particular circumstances of individual cases” to determine whether a defendant has been prejudiced by preaccusation delay. Id. at 796-97, 97 S.Ct. at 2051-52.

Therefore, in both Lovasco and Marion, the Supreme Court made it clear that the administration of justice, vis-a-vis a defendant’s right to a fair trial, necessitated a case-by-case inquiry based on the circumstances of each ease. Rather than establishing a black-letter test for determining unconstitutional preindictment delay, the Court examined the facts in conjunction with the basic due process inquiry: “whether the action complained of ... violates those ‘fundamental conceptions of justice which lie at the base of our civil and political institutions’ ... and which define ‘the community’s sense of fair play and decency.’ ” Lovasco, 431 U.S. at 790, 97 S.Ct. at 2048 (citations omitted); see United States v. Automated Medical Laboratories, 770 F.2d 399, 404 (4th Cir.1985).

Applying these principles of due process to the case at hand, we cannot agree with the position taken by the State of North Carolina and those other circuits which have held that a defendant, in addition to establishing prejudice, must also prove improper prosecutorial motive before securing a due process violation. Taking this position to its logical conclusion would mean that no matter how egregious the prejudice to a defendant, and no matter how long the preindictment delay, if a defendant cannot prove improper prosecutorial motive, then no due process violation has occurred. This conclusion, on its face, would violate fundamental conceptions of justice, as well as the community’s sense of fair play. Moreover, this conclusion does not contemplate the difficulty defendants either have encountered or will encounter in attempting to prove improper prosecuto-rial motive.

The better position, and the one previously taken by this Circuit in United States v. Automated Medical Laboratories, supra, is to put the burden on the defendant to prove actual prejudice. Assuming the defendant can establish actual prejudice, then the court must balance the defendant’s prejudice against the government’s justification for delay. Automated Medical Laboratories, 770 F.2d at 403-04. “The basic inquiry then becomes whether the government’s action in prosecuting after substantial delay violates ‘fundamental conceptions of justice’ or ‘the community’s sense of fair play and decency.’ ” Id. at 404 (citations omitted).

In the case at bar, actual prejudice is assumed and conceded; thus, the defendant’s due process claim is ripe for adjudication. See Lovasco, 431 U.S. at 789, 97 S.Ct. at 2048 (“proof of actual prejudice makes a due process claim concrete and ripe for adjudication_”). Under Automated Medical Laboratories, we next must balance the defendant’s prejudice against North Carolina’s justification for delay. At oral argument, counsel for the State of North Carolina unequivocally and candidly stated that North Carolina’s justification for the preindictment delay was mere convenience, and that North Carolina was “negligent” in not prosecuting the defendant earlier. North Carolina makes no assertion that the defendant’s case was particularly complicated, or that the state was engaged in preindictment investigation. On balance, therefore, there is no valid justification in this case for the prein-dictment delay that prejudiced the defendant.

Accordingly, the district court’s decision granting the defendant’s petition for a writ of habeas corpus because of the unconstitutional preindictment delay is affirmed. At oral argument, counsel for the defendant and counsel for the State of North Carolina expressed their belief that the defendant could get a fair retrial. Thus, the district court’s order that the execution of the writ be conditioned upon the failure of North Carolina to retry the defendant by a certain date is also affirmed. This case is hereby remanded to the district court to set a date by which the defendant’s retrial must be commenced.

AFFIRMED AND REMANDED.

1 . There was no contention of any unnecessary delay after the arrest and indictment of appel-lee. Such delay as there was after indictment resulted from the motions of the appellee and need for evidentiary hearings on such motions. Except for the delay caused by the appellee himself, there was no unnecessary delay in processing the appellee’s prosecution after his indictment. The appellee raised claims of other alleged errors in his trial, but he has limited his appeal to the alleged error in prosecutorial delay.

2 . Ms. Carlyle testified that the knife looked like the knife the robber used to threaten Ms. Wilkins.

3 .At trial, Ms. Carlyle identified both the gun and the knife as the weapons used during the robbery. At trial, Harold Hayes was shown photographs of the car found at Howell's residence by Patrolman Covington. Hayes identified the black Chevrolet as the car with the missing lug that he had seen on the morning of September 19 at Ms. Carlyle’s store.

4 . Howell was represented by retained counsel at the line-up. The fairness of the line-up has never been questioned.

5 . The Court of Appeals found that the sixth amendment right to a speedy trial had no application to the defendant because the right was not triggered until the defendant was formally accused by indictment, information, or arrest.

6 . North Carolina stated the issue as follows: Whether the district court erred in granting appellant Wilton Howell a writ of habeas corpus based on his claim that he was denied his rights to due process of law and a fair trial because of a 27-month delay by the state in serving him with the warrant for his arrest, where there is no showing that the delay was for the purpose of causing Howell to lose his alibi witness or to gain other deliberate tactical advantage.

7 . Judge Russell disagrees with the majority’s position on this issue and finds error in the district court’s adoption of the magistrate’s recommendation because it gave no deference to the finding of no actual prejudice by the state court. The majority's position is that deference to the state court findings of fact is not necessary because North Carolina conceded the fact of actual prejudice in its brief and at oral argument. See Fowler v. Rhode Island, 345 U.S. 67, 69, 73 S.Ct. 526, 527, 97 L.Ed. 828 (1952) (concession made at oral argument by the State of Rhode Island was fatal to the state’s case).

8 .The issue the Court addressed in Gouveia was the parameters of the sixth amendment right to an attorney as it applied to inmates being held in administrative detention pending indictment for crimes committed while in prison. Gouveia, 467 U.S. at 182, 104 S.Ct. at 2294.

9 . The Lovasco Court noted, however, that a due process violation could be made out "upon a showing of prosecutorial delay incurred in reckless disregard of circumstances, known to the prosecution, suggesting that there existed an appreciable risk that delay would impair the ability to mount an effective defense.” Lovasco, 431 U.S. at 795 n. 17, 97 S.Ct. at 2051 n. 17.