620 F.2d 683 (8th Cir. 1980), 79-1796, Walker v. Lockhart

Docket Nº:79-1796.
Citation:620 F.2d 683
Party Name:Lyndale WALKER, Appellant, v. A. L. LOCKHART, Director, Arkansas Department of Correction, Appellee.
Case Date:May 08, 1980
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 683

620 F.2d 683 (8th Cir. 1980)

Lyndale WALKER, Appellant,


A. L. LOCKHART, Director, Arkansas Department of Correction, Appellee.

No. 79-1796.

United States Court of Appeals, Eighth Circuit

May 8, 1980

Submitted March 14, 1980.

Rehearing and Rehearing En Banc Denied June 12, 1980.

Page 684

James E. Davis, Texarkana, Ark., for appellant.

Ray E. Hartenstein, Asst. Atty. Gen., Little Rock, Ark., (argued), and Steve Clark, Atty. Gen., Little Rock, Ark., on brief, for appellee.

Before HENLEY and McMILLIAN, Circuit Judges, and HARPER, District Judge. [*]

HENLEY, Circuit Judge.

This is a habeas corpus proceeding brought by an inmate of the Cummins Unit of the Arkansas Department of Correction. Lyndale Walker, hereinafter called petitioner, complains that in connection with his 1977 felony convictions in the Circuit Court of Nevada County, Arkansas he was subjected to double jeopardy in violation of the fifth amendment to the Constitution of the United States.

Petitioner commenced this action under the provisions of 28 U.S.C. § 2254 in the United States District Court for the Western District of Arkansas. 1 The district court held a full evidentiary hearing and filed a memorandum opinion denying relief. This appeal followed.

In early 1976 petitioner and another individual identified as Jackie Cooper were arrested by Nevada County authorities and charged with the burglary of and felony theft of property from a business establishment in the small town or community of Bluff City in Nevada County.

In addition, petitioner, individually, was charged under the pertinent Arkansas statute with being an habitual criminal; if convicted upon the latter charge as well as on the substantive charges petitioner would be subject to substantially enhanced punishment.

Petitioner was unable to furnish bail and was held pending trial in the county jail of Nevada County in Prescott, Arkansas. He remained there until he was tried in October, 1976. In the meantime, Jackie Cooper had given a statement to investigating officers that implicated petitioner in the burglary and theft.

When the case came on for trial originally, petitioner was represented by appointed counsel, Glen Vasser of Prescott, and Cooper was represented by another attorney, Charles L. Honey of Prescott. The trial was to a jury, with Circuit Judge John Goodson of Texarkana, Arkansas, presiding.

The trial having begun, Cooper was called as a witness by the State. In his testimony Cooper repudiated his statement implicating petitioner in the crime.

Page 685

Immediately after the repudiation and before the case could go further, Judge Goodson was called to the telephone. He left the bench with Cooper still in the witness box, with the jurors present, and with petitioner, the prosecuting attorney, and both defense lawyers also present.

Before Judge Goodson returned to the courtroom, Mr. Honey approached his client, Jackie Cooper, and told him in a "low voice" to cease lying. This remark was overheard by counsel, and it is inconceivable that it was not overheard by at least one or more of the jurors since, according to the evidence, there was little more than an arm's length distance between the witness box and the jury box.

Mr. Vasser feared that the remark had in fact been overheard by the jury, and that it was highly prejudicial to his client. Accordingly, when the trial judge returned to the bench Mr. Vasser indicated that he desired to move for a mistrial.

The circuit judge then excused the jury for lunch, and he and counsel for both sides and the petitioner repaired to chambers at which time Mr. Vasser formally moved for a mistrial. The prosecuting attorney indicated that he had no objection to the granting of the motion, and it was formally granted.

At this point the judge and the lawyers went to lunch and petitioner was carried back to jail for his noon meal.

During the noon hour petitioner decided that he did not want the case mistried because if a mistrial were declared he would have to remain confined in the local jail for a period of time about equal to that during which he had already been confined. 2

Before court reconvened after lunch petitioner and his lawyer had a brief conference in the course of which petitioner stated that he did not want the case mistried. Counsel told petitioner that he thought that the case should be mistried. Petitioner, however, adhered to his position and requested counsel to advise Judge Goodson of his attitude. Counsel agreed to do so, and the question of whether he did or not is a crucial one in this case.

After the noon hour Judge Goodson reconvened court, told the jury that a mistrial had been declared and excused the jury from further consideration of the case. He then heard Mr. Vasser on behalf of his client formally object to the mistrial and also permitted petitioner to make a statement on his own behalf. As of that time it was too late for the circuit judge to have done anything about the mistrial order if he had been inclined to do so.

By that time affairs had reached the stage at which it was clear that a serious difference had arisen between petitioner and Mr. Vasser. The latter was relieved of his duties, and in due course petitioner's present counsel, Mr. James E. Davis of Texarkana, was appointed to represent him.

After the mistrial had been declared in the fall of 1976 petitioner was returned to the county jail where he remained until the second trial of the case in the spring of 1977.

In the interim between the two trials petitioner moved pro se and by new counsel to dismiss the information against petitioner on the grounds that he had been denied his sixth amendment right to a speedy trial, and that a second trial would subject petitioner to double jeopardy prohibited by the fifth amendment as carried forward into the fourteenth amendment.

A second jury trial was presided over by Judge Hugh Lookadoo of Arkadelphia. The petitioner was found guilty and was sentenced to imprisonment for one term of ten years and another term of five years. Judge Lookadoo imposed sentence but directed that petitioner be given...

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