Nichols v. Henderson, 17650.

• Decision Date: 28 February 1968
• Docket Number: No. 17650.,17650.
• Citation: 389 F.2d 990
• Parties: Claude W. NICHOLS, Petitioner-Appellant, v. C. Murray HENDERSON, Warden, Tennessee State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

389 F.2d 990 (1968)

Claude W. NICHOLS, Petitioner-Appellant, v. C. Murray HENDERSON, Warden, Tennessee State Penitentiary, Respondent-Appellee.

No. 17650.

United States Court of Appeals Sixth Circuit.

February 28, 1968.

Vincent E. Wehby (Court Appointed), Nashville, Tenn., for appellant.

David W. McMackin, Asst. Atty. Gen., Nashville, Tenn., for appellee; Henry C. Foutch, Nashville, Tenn., on brief; George F. McCanless, Atty. Gen., and Reporter, State of Tenn., of counsel.

Before WEICK, Chief Judge, and PHILLIPS and COMBS, Circuit Judges.

PHILLIPS, Circuit Judge.

This is an appeal from the denial of a petition for writ of habeas corpus in which appellant sought to void his conviction for first degree murder for which he was sentenced to ninety-nine years in the State penitentiary.

The conviction was affirmed by the Supreme Court of Tennessee in a comprehensive opinion. Nichols v. State of Tennessee, 200 Tenn. 65, 289 S.W.2d 849. Parallel civil litigation in the State courts is reported at Anderson v. Nichols, 39 Tenn.App. 503, 286 S.W.2d 96, in which the Supreme Court of Tennessee denied certiorari. Reference is made to these reported opinions for a more complete recitation of facts. Facts will be stated here only to the extent necessary to dispose of the issues raised on this appeal.

As originally filed the petition raised two questions:

1. The jury in the State trial court was composed of only eleven qualified persons since one of the members of the jury had been convicted and rendered infamous and

2. The jury panel had been selected from the rural area of Humphreys County upon specific instructions of the State trial judge. As a result, the petitioner claims an alleged violation or infringement of his constitutional rights at the time of his trial in the State court.

District Judge William E. Miller conducted a full evidentiary hearing on these issues and made detailed findings of fact and conclusions of law.

The record discloses that one of the members of jury had been convicted of petit larceny and sentenced to imprisonment for one year. The conviction of this juror occurred approximately sixteen years prior to the Nichols trial.

Nichols personally employed four competent lawyers to represent him at the murder trial and on his appeal to the Supreme Court of Tennessee. The District Court found that before the jury retired to reach its verdict, at least one of Nichols' attorneys knew that the juror in question had been convicted of a felony. Nichols' counsel did not object to the qualifications of this juror until after the jury verdict was returned. The juror's disqualification was not presented as error on appeal to the State Supreme Court.

For purposes of determining the time at which a juror may be challenged effectively for disqualification, Tennessee courts recognize two classifications of challenges, propter defectum and propter affectum. Challenges based upon propter affectum disqualifications may be made after the verdict is returned. However, in order to challenge a juror for propter defectum disqualification, the challenge must be made before the verdict. According to the Court's discussion in Durham v. State, 182 Tenn. 577, 188 S.W.2d 555, 160 A.L.R. 746, the factor which distinguishes the two types of challenges is whether the juror has prejudged the case.

That partiality is the touchstone of the propter affectum challenge is emphasized by the following statement in Durham:

"In Monday v. State, supra 160 Tenn. 258, 23 S.W.2d 656 after reviewing our cases and applying the rule established thereby as to disqualifications of the propter defectum class, the Court added:

"`It is true that numerous cases hold that, where some particular disqualification of a juror was unknown to the defendant and his attorney at the time of the jury\'s selection, objection may properly be heard even after verdict, but examination of these cases reveals that in such instances the objection allowed to be made after the impaneling of the jury touched the objectionable juror\'s partiality and was not merely propter defectum.\' (page 265 of 160 Tenn., page 658 of 23 S.W.(2d))." 182 Tenn. at 582, 188 S.W.2d at 557.

Nichols makes no attempt to show that the inclusion of the juror who had been convicted of petit larceny resulted in a partial or prejudicial assessment of the evidence presented at his murder trial.

Based upon trial counsel's failure to make the challenge before the return of the verdict and the propter defectum nature of the disqualification under Tennessee law, the District Court was correct in concluding that in the absence of a showing of prejudice, no constitutional right of the appellant was violated by the use of the disqualified juror.

The District Court further held that appellant failed to carry the burden of proof in showing that the State trial judge restricted the summoning of jurors to the rural areas of Humphreys County. The record supports this finding of fact.

After the District Court had announced its decision, appellant supplemented his petition for writ of habeas corpus on the ground that he received an unfair trial because of widespread adverse pre-trial publicity, relying upon Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600. The District Judge conducted a second evidentiary hearing on this issue and held the facts of the present case do not bring it within the application of Sheppard.

In distinguishing the Sheppard case, the District Court noted:

"In the Sheppard case, Sheppard\'s

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