Harris v. Stephens

• Decision Date: 16 June 1966
• Docket Number: 18063.,No. 18062,18062
• Citation: 361 F.2d 888
• Parties: Albert HARRIS, Appellant, v. Dan D. STEPHENS, Superintendent of Arkansas State Penitentiary, Appellee. Orion TROTTER, Appellant, v. Dan D. STEPHENS, Superintendent of Arkansas State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

361 F.2d 888 (1966)

Albert HARRIS, Appellant, v. Dan D. STEPHENS, Superintendent of Arkansas State Penitentiary, Appellee.

Orion TROTTER, Appellant, v. Dan D. STEPHENS, Superintendent of Arkansas State Penitentiary, Appellee.

Nos. 18062, 18063.

United States Court of Appeals Eighth Circuit.

June 16, 1966.

George Howard, Jr., Pine Bluff, Ark., for appellants. Thomas Cashion, Eudora, Ark., was with him on the briefs.

Jack L. Lessenberry, Little Rock, Ark., for appellee. Bruce Bennett, Atty. Gen., Little Rock, Ark., was with him on the brief.

Before VAN OOSTERHOUT and MEHAFFY, Circuit Judges, and VAN PELT, District Judge.

MEHAFFY, Circuit Judge.

Orion Trotter and Albert Harris were convicted in the Circuit Court of Drew County, Arkansas for the crime of rape and sentenced to death. The convictions were affirmed by the Arkansas Supreme Court. Trotter v. State, 237 Ark. 820, 377 S.W.2d 14 (1964), and certiorari denied by the United States Supreme Court, Harris v. Arkansas, 379 U.S. 890, 85 S. Ct. 163, 13 L.Ed.2d 94 (1964). Habeas corpus proceedings brought in the United States District Court for the Eastern District of Arkansas were also denied. Following the teachings of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), the District Court did find that Harris was entitled to an evidentiary hearing by the state court to determine the voluntariness of certain admissions, or, in the alternative, to a new trial. Trotter v. Stephens, 241 F.Supp. 33 (1965). The legal questions presented are neither complex nor without respected precedents. The real significance of this appeal is that it involves death sentences for interracial rape. Chief Justice Harris of the Arkansas Supreme Court and District Judge Young wrote exhaustive opinions treating the salient issues and elaborately detailing the facts. Suffice it to say that the victim was a twenty-three year old virgin who was shot, raped four times by a Negro syphilitic and his confederate, and left naked on a sparsely inhabited country road in near freezing weather. During the assaults, her life was repeatedly threatened. These crimes have been characterized as perhaps the most brutal and vicious in recent Arkansas history.

This is another in the series of Arkansas death cases receiving close scrutiny by this court. Following guidelines laid down by the United States Supreme Court, this court has jealously guarded the rights of criminal defendants, no matter how evident their guilt nor how heinous or depraved their criminal acts.¹

The Legal Issues

Petitioners assign as error their trial in a hostile atmosphere; the existence of racial discrimination in the selection of the jury panel from which the jury was selected that tried and convicted petitioners; illegality of their arrests; use at trial of evidence resulting from an unlawful search and seizure; that petitioners should have been accorded separate counsel; that the death penalty upon convictions of rape has been applied with an uneven hand against Negroes; and that the imposition of the death penalty on conviction of rape where life was not taken denies due process of law.

We will treat each of the assignments of error in seriatim.

Change of Venue

Petitioners first argue that denial of their motion for change of venue deprived them of due process of law as hostile community sentiment was such that they could not and did not receive a fair and impartial trial guaranteed by the Sixth and Fourteenth Amendments.

The basis of this position is predicated upon the court order transferring petitioners to the Arkansas State Penitentiary;² the newspaper account of the arrest;³ defense counsel's lack of time to investigate community sentiment; and the clearing of the courtroom during the victim's testimony.⁴

The transfer order was obtained shortly after the arrests and before news of the crime could have been widespread. The transfer had nothing to do with the community sentiment. Three recent escapes from the Drew County jail necessitated the transfer for security purposes.

The newspaper account of the arrest merely noted that petitioners were arrested after a five hour manhunt and transferred to the State Penitentiary for security reasons. The only other local news account noted the appointment of counsel and transfer of the prisoners to the State Hospital for observation. Petitioners' cited cases of Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543 (1923), and Rideau v. State of Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963), are clearly distinguishable from the instant case. We have neither the screaming mob as in Moore nor a televised confession seen by the county populace as in Rideau.

There is likewise no evidence that petitioners' counsel had insufficient time to make an investigation to support the motion for change of venue. Several days intervened from his appointment to the hearing on his motion, and it was not lack of time but the actual absence of supporting facts that would justify venue change that created counsel's stumbling block.

The argument concerning the closing of the courtroom to spectators during the testimony of the victim is equally spurious. This is a frequent and accepted practice when the lurid details of such a crime must be related by a young lady. See United States v. Geise, 262 F.2d 151 (9th Cir. 1958), cert. denied, 361 U.S. 842, 80 S.Ct. 94, 4 L.Ed.2d 80 (1959); Hogan v. State, 191 Ark. 437, 86 S.W.2d 931 (1935).

After having reviewed the record evidence,⁵ we agree with Chief Justice Harris of the Arkansas Supreme Court, who stated:

"Here, there is not one line of evidence in the record which indicates that appellant could not receive a fair trial in Drew County, and we certainly cannot say that the court abused its discretion in refusing to grant the motion." Trotter v. State, supra, 237 Ark. at 831, 377 S.W.2d at 21.

Jury Selection

Petitioners' contention that Negroes have been systematically excluded from jury lists has been rejected repeatedly.⁶

Of the seventy petit jurors, eight were Negroes. Of the five Negroes examined on voir dire at trial, two were excused by the court for cause and the three accepted by the prosecution were excused by petitioners' counsel. The defense exercised only eight of their peremptory challenges. Thus, an acceptable jury was selected despite the fact that three more Negroes remained on the panel and that petitioners had not exhausted their peremptory challenges. It is clear that the petitioners might have had a biracial jury had they chosen to exercise their peremptory challenges in a different fashion.

Petitioners introduced into evidence statistics in support of an asserted prima facie showing of racial discrimination for the past ten years. The statistics reveal that varying percentages of Negroes have been selected as petit jurors in the Drew County Circuit Court and that some Negroes had served on juries where the defendants were Negroes. However, the statistics are inaccurate as some were supplied from memory of the county clerk who could not be expected to remember how many Negro jurors were on each of the lists from twenty-one terms covering a period of ten years. In addition, systematic inclusion of Negroes to attain a proportional biracial jury is forbidden. Cassell v. State of Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839 (1950). In any event, a former jury unconstitutionally selected will not invalidate the instant jury properly selected. Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953); Bailey v. Henslee, 287 F.2d 936, 943 (8th Cir. 1961), cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961).

The Supreme Court held in Cassell that "the Constitution requires only a fair jury selected without regard to race." Supra at 286, 70 S.Ct. at 631. Mr. Justice Clark in his concurring opinion stated: "The burden of showing facts which permit an inference of purposeful limitation is on the defendant. Martin v. Texas, 200 U.S. 316 26 S.Ct. 338, 50 L.Ed. 497 (1906)." Supra at 297, 70 S.Ct. at 637. Petitioners have failed to meet this burden as the record evidence does not show any purposeful racial discrimination, but, in fact, shows that identical standards were used by the commissioners in the selection of both Negroes and whites.

It appears that petitioners' principal objection to the method of selecting the jury is identical to one considered by Judge Blackmun in Maxwell v. Stephens, 348 F.2d 325 (8th Cir. 1965), cert. denied, 382 U.S. 944, 86 S.Ct. 387, 15 L.Ed.2d 353 (1965), and Mitchell v. Stephens, 353 F.2d 129 (8th Cir. 1965). In Mitchell, Judge Blackmun wrote:

"The defense next refers to the racial designations employed on the county poll tax book, as compelled by § 3-118, Ark.Stat. (1947), and the use of that book by the jury commissioners. The testimony is that the commissioners did not consult the poll tax book until after a prospective juror\'s name had been tentatively selected. This ultimate reference was necessary so that the commissioners could be sure that the persons on their list were electors, § 39-208, who in turn were persons who had paid the poll tax. Ark.Const., Art. 3, § 1; Ark.Stat., § 3-104.2. The poll tax requirement and, consequently, its color references have since been eliminated by Amendment 51 to the Arkansas Constitution, effective January 1, 1965.

"This constitutional issue was presented and was decided adversely to the defense in Maxwell v. Stephens, supra, 348 F.2d 325. We noted there, pp. 333-334, the disturbing aspect of the use of race identification marks in the poll tax list and the possible unconstitutionality of the Arkansas statute requiring that identification. But present there, as here, was the pertinent fact that the initial selection of jurors was made apart from and independently of the poll tax list and that the latter was used only as a check to assure compliance with the elector requirement of the statute.

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