Clarke v. Henderson, 17850.
| Decision Date | 27 November 1968 |
| Docket Number | No. 17850.,17850. |
| Citation | 403 F.2d 687 |
| Parties | John Randolph CLARKE, Petitioner-Appellant, v. C. Murray HENDERSON, Warden, Tennessee State Penitentiary, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
James Bateman, and Charles Galbreath, Nashville, Tenn., for appellant argued by and on brief.
David W. McMackin, Nashville, Tenn., (David W. McMackin, Asst. Atty. Gen. State of Tennessee, Nashville, Tenn., George F. McCanless, Attorney General, of Tenn., on the brief), for appellee.
Before EDWARDS, PECK and McCREE, Circuit Judges.
This is an appeal from denial of a petition for a writ of habeas corpus under 28 U.S.C. § 2254 (Supp. II, 1965-66).
Appellant Clarke has been convicted of first degree murder and sentenced to 30 years in the Tennessee penitentiary for the murder of an 18-year-old girl. The conviction was affirmed by the Supreme Court of Tennessee. Clarke v. State, 218 Tenn. 259, 402 S.W.2d 863, cert. denied, 385 U.S. 942, 87 S.Ct. 303, 17 L. Ed.2d 222 (1966). Judge William E. Miller considered the petition without evidentiary hearing, but on the state court record, and denied the writ.
Appellant contends that there were no facts to justify the jury finding of premeditation required for a first degree murder conviction. This is rebutted by the trial record. The bruises on the girl's face and jaw were such as to allow the inference that she had been severely beaten. The physical facts at the murder scene indicated that two shots were fired through her skirt, which had been pulled up over her shoulders. The path of the bullet through the clothing, through the shoulder blades, through the chest, and into the floor was such as to suggest that she was lying on the floor when she was shot to death. Powder burns were found on her garments, indicating close proximity of the weapon. These facts allowed the jury reasonably to infer that her assailant, having knocked her unconscious, deliberately sought by killing her to escape the consequences of his assault.
Appellant also contends that there was error in the trial judge's handling of the "dermal nitrate" test evidence. If there was error, in view of the trial judge's strong admonition, we do not believe that it was of federal constitutional magnitude, and we believe on this state trial record (all of which we have read) that if there was error, it was harmless error beyond reasonable doubt within the meaning of Rule 52(a) of the Federal Rules of Criminal Procedure. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
The only other meritorious appellate issue is appellant's contention that a suit of clothes which he had left at a cleaner two days after the murder had been taken by the police without a search warrant, in violation of his Fourth Amendment rights.
The Nashville police in questioning Clarke about the murder had learned about a suit which he had taken to the cleaners. They immediately called the cleaner. The cleaner testified at trial that he had opened his plant at 10 p.m. at police request and had voluntarily found and turned over the suit.
Subsequently, the police sent the suit to the FBI for examination. An FBI expert testified at trial that fibers found on the suit matched the skirt and sweater of the dead girl.
The trial judge found the search and seizure reasonable and admitted the evidence.
As we have noted, however, the constitutionality of this search and seizure was not tested by evidentiary hearing and findings of fact in the federal court. The state trial court record, to the extent it deals with this issue, appears to us to be inadequate in several respects.
Moreover, this case was decided by the District Court before the United States Supreme Court decided Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967)....
To continue reading
Request your trial
-
Taylor v. State of Arizona, 71-1361.
...been applied, without discussion of retroactivity, to convictions which were final before the announcement of Hayden. Clarke v. Henderson (6 Cir.1968) 403 F.2d 687, 688-89, aff'd after remand sub nom. Clarke v. Neil (1970) 427 F.2d 1322, 1324, cert. denied, 401 U.S. 941, 91 S.Ct. 943, 28 L.......
-
Clarke v. Neil
...and remanded in part the District Court's denial without an evidentiary hearing of appellant's petition for the writ (Clarke v. Henderson, 403 F.2d 687 (6th Cir. 1968)). Most of the facts reported in the prior opinion in this case need not be repeated here, but in the interest of clarity so......
-
United States ex rel. LaMolinare v. Duggan, 17420.
...inferences from the factual matrix of the case are possible so as to justify a hearing on the legality of the search. Clarke v. Henderson, 403 F.2d 687 (6th Cir.1968). For example, it is unclear precisely what information the police had when they first reached the automobile. It was after t......
-
State v. Howe
...State, 218 Tenn. 259, 402 S.W.2d 863 (1966), cert. denied 385 U.S. 942, 87 S.Ct. 303, 17 L.Ed.2d 222 (1966), cited as Clarke v. Henderson, 403 F.2d 687 (6th Cir. 1968). Clarke was convicted of first-degree murder and, during the trial, he objected to the admission of testimony by an expert ......