|
|
GARRISON v. SMITH
413 F.Supp. 747 (1976)
Dr. Norman Asa GARRISON, Jr., Petitioner,
v.
Kenneth SMITH, Sheriff, in Succession to Johnny Taylor, Respondent.
No. WC 76-33-K.
United States District Court, N. D. Mississippi, W. D.
April 30, 1976.
John B. Farese, Ashland, Miss., Kay Farese Luckett, Clarksdale, Miss., John Booth Farese, Ashland, Miss., for petitioner.
Edwin A. Snyder, Eupora, Miss., for respondent.
KEADY, Chief Judge. This is a habeas corpus proceeding brought pursuant to 28 U.S.C. § 2241 et seq., by Dr. Norman A. Garrison, Jr., petitioner, a resident of Corinth, Mississippi, in which he seeks release from custody of the Sheriff of Marshall County, Mississippi, based upon a warrant of extradition rendered December 4, 1974, by the Governor of the State of Mississippi. If executed, the warrant would return Garrison to the State of Missouri, whose governor has requested his extradition as the accused on a charge of first degree murder of Garrison's former wife, Lee Ann Garrison, at Kennett, Dunklin County, Missouri. This case had its genesis on September 8, 1974, when the body of Lee Ann Garrison was discovered in her Kennett, Missouri, home about 11:20 a. m. In addition to having sustained a brutal beating, the victim had been fatally shot in the head with a small caliber pistol. Local law enforcement officials arrived on the scene soon after discovery of the body and began their investigation. Later that afternoon or evening Charles H. Baker, prosecuting attorney of Dunklin County, filed an affidavit before Leon McAnally, judge of the Magistrate Court of Dunklin County, charging Garrison with the murder. Judge McAnally forthwith issued a warrant for petitioner's arrest. When Garrison could not be found in Missouri, and his presence in Mississippi became known, Christopher S. Bond, Governor of Missouri, on September 18 upon the petition of the Dunklin County prosecuting attorney requested Garrison's extradition from William L. Waller, Governor of Mississippi. Extradition proceedings were commenced, and on October 10 a hearing was held before Governor Waller's extradition officer to determine whether Garrison should be returned to Missouri. On December 4, Governor Waller signed the warrant of rendition, and petitioner immediately surrendered to the Marshall County sheriff. On the same day, Garrison's attorneys petitioned the Circuit Court of Marshall County for a writ of habeas corpus; the writ was promptly issued, made returnable December 18, and bail set at $25,000. At the request of the Attorney General of Mississippi, who undertook representation of both the respondent sheriff and the interests of the State of Missouri, the state court habeas corpus hearing was continued until January 6, 1975. After an exhaustive three-day evidentiary hearing in state court, the trial judge suppressed the warrant of extradition, sustained the petition for habeas corpus and discharged Garrison from custody. Respondent appealed to the Supreme Court of Mississippi, which on March 23, 1976, reversed the judgment of the trial court, quashed the writ of habeas corpus and ordered that Garrison be remanded to the sheriff of Marshall County for return to Missouri. Garrison's petition for rehearing in the state supreme court was denied on April 20 and, eschewing appeal or petition for certiorari to the Supreme Court of the United States, petitioner that same day entered this federal district court seeking habeas relief for alleged violations of his federal rights.
1. The ground of the objection was that petitioner, by failing to offer the documents in the state habeas proceeding, deliberately bypassed any state remedy relating to the sufficiency of the documents. This objection was overruled. Though it is anomalous that petitioner did not offer the extradition request and supporting documents before the state court to test their facial sufficiency, he nevertheless sought from the outset of the state court proceedings to suppress these documents on Fourth Amendment grounds, thus preserving the issue of lack of probable cause for his arrest. 2. "Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State, District or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, the executive authority of the State, District or Territory to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within thirty days from the time of arrest, the prisoner may be discharged." 3. Article 1, section 17 of the Constitution of Missouri of 1945 permits felony prosecutions to proceed either by grand jury indictment or bill of information. Thus, before petitioner may be finally brought to trial in the Missouri courts, an indictment or information must yet be filed against him. It is clear, however, that the accusatory affidavit presented to a magistrate forms a crucial first step in the prosecution, and petitioner has nonetheless been charged with crime under § 3182 even though a step remains to be taken before trial. In re Strauss,197 U.S. 324, 25 S.Ct. 535, 49 L.Ed. 774 (1905); State v. Eaton,504 S.W.2d 12 (Mo.1973). 4. See Wolf v. Colorado,338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949); Mapp v. Ohio,367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). 5. The verified affidavit, styled "Affidavit or Complaint in Felony Case," made by Charles Baker, prosecuting attorney of Dunklin County, Missouri, reads as follows:
"Charles H. Baker, being duly sworn, deposes and states that at the County of Dunklin and State of Missouri, heretofore, to-wit: On or about the 8th day of September 1974, one Norman Asa Garrison, Jr. did then and there wilfully, unlawfully, and feloniously, premeditatedly, deliberately, and of malice aforethought did make an assault upon one Lee Ann Garrison with a loaded firearm, and then and there, feloniously, wilfully, premeditatedly, deliberately, and of his malice aforethought did discharge and shoot said firearm at and upon the body of the said Lee Ann Garrison thereby feloniously inflicting a mortal wound upon the said Lee Ann Garrison, from which mortal wound the said Lee Ann Garrison did die on the 8th day of September, 1974 contrary to the form of statute in such case made and provided, and against the peace and dignity of the State of Missouri." Judge McAnally, Magistrate of Dunklin County, utilizing Missouri Supreme Court Form No. 21, then issued a Warrant for Arrest to any peace officer in the State of Missouri in the following form: "You are hereby commanded to arrest Norman Asa Garrison, Jr. who is charged with the crime of first degree murder in that on or about the 8th day of September, 1974 in Dunklin County, Missouri he did then and there wilfully, unlawfully and feloniously premeditatedly, deliberately, and of malice aforethought did make an assault upon one Lee Ann Garrison with a loaded firearm, and then and there, feloniously, wilfully, premeditatedly, deliberately, and of his malice aforethought did discharge and shoot said firearm at and upon the body of the said Lee Ann Garrison thereby feloniously inflicting a mortal wound upon the said Lee Ann Garrison, from which mortal wound the said Lee Ann Garrison did die on the 8th day of September, 1974 alleged to have been committed within the jurisdiction of this court and in violation of the laws of the State of Missouri, and to bring him forthwith before this court to be here dealt with in accordance with law; and you, the officer serving this warrant, shall forthwith make return hereof to this court." Appended to the requisition papers are two sections of the Missouri statutes, reading as follows: "V.A.M.S. § 559.010. Murder in the first degree. — Every murder which shall be committed by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, and every homicide which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or mayhem, shall be deemed murder in the first degree." "V.A.M.S. § 559.030. Trials for murder, verdict and punishment. — Upon the trial of an indictment for murder in the first degree, the jury must inquire, and by their verdict ascertain, under the instructions of the court, whether the defendant be guilty of murder in the first or second degree; and persons convicted of murder in the first degree shall suffer death, or be punished by imprisonment in the penitentiary during their natural lives; those convicted of murder in the second degree shall be punished by imprisonment in the penitentiary not less than ten years. 6. Pippin v. Leach,534 P.2d 1193 (Colo.1975); Brode v. Power, 31 Conn.Sup. 412, 332 A.2d 376 (1974) (construing state law); Sheriff v. Thompson,452 P.2d 911 (Nev.1969) (construing state law); People v. Artis, 32 App.Div.2d 554, 300 N.Y.S.2d 208 (1969). 8. Sweeney v. Woodall,344 U.S. 86, 88-90, 73 S.Ct. 139, 140, 97 L.Ed. 114, 115 (1953). 9. U. S. ex rel. Tyler v. Henderson,453 F.2d 790 (5 Cir.1971). 10. Biddinger v. Commissioner of Police,245 U.S. 128, 38 S.Ct. 41, 62 L.Ed. 193 (1917). 11. In Missouri, of course, judges of the magistrate courts are judicial officers, and there, as elsewhere, issuance of an arrest warrant is a judicial act which implies that a finding of probable cause for arrest has been made. See State v. Stevens, 316 Mo. 602, 292 S.W. 36 (1927); State v. Halbrook, 279 S.W. 395 (Mo. 1925); Missouri Supreme Court Rule 21.08. Though we express no opinion on the correctness of the magistrate's determination, that such a determination was made is not open to doubt. 12. If Fourth Amendment issues may be raised in the asylum state, it logically follows that the criminal accused ought also to be able to present all other constitutional defenses initially to asylum state courts. In the instant case, for example, petitioner may well wish to argue that certain facts mentioned in any probable cause affidavit are based on evidence illegally obtained by Missouri authorities in violation of his Fourth and Fifth Amendment rights. Should Mississippi courts then be required to conduct suppression hearings? If proceeded against by an indictment, any fugitive may wish to question whether blacks have been systematically excluded from the grand jury which indicted him. It requires scant imagination to multiply diverse claims of constitutional proportion which would intolerably burden habeas corpus courts, both state and federal, in the state of the fugitive's asylum. 13. All subsequent references relate to the state court record. 14. At the habeas hearing neither Mike Miller nor Pam Miller were offered in support of Garrison's alibi. At our habeas hearing, petitioner sought to offer an ex parte affidavit of Pam Miller which was excluded. If consideration were given to this affidavit it would be noted that Mrs. Miller stated that she went to the bathroom while on the boat, and in the darkened hallway she noticed "an object of some kind on the top bunk" but that she did not realize it was Garrison or indeed a human being. 15. Petitioner's counsel vigorously attacks both the authenticity and credibility of the footprint, but it will serve no useful purpose to detail further conflicts as to the probative value of the footprint pointing to Garrison's presence at the residence at the time of the alleged homicide. Physical demonstrations by Dr. Garrison in removing his right shoe and sock at the Mississippi Governor's extradition hearing and in the state court habeas hearing lead to conflicting conclusions (See R. 573-82, 597-610, 690-730).
|
|