777 F.2d 272 (5th Cir. 1985), 85-3029, Kirkpatrick v. Blackburn

Docket Nº:85-3029.
Citation:777 F.2d 272
Party Name:Frederick KIRKPATRICK, etc., Petitioner-Appellant, v. Frank BLACKBURN, Warden, Louisiana State Penitentiary, et al., Respondents- Appellees.
Case Date:November 26, 1985
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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777 F.2d 272 (5th Cir. 1985)

Frederick KIRKPATRICK, etc., Petitioner-Appellant,


Frank BLACKBURN, Warden, Louisiana State Penitentiary, et

al., Respondents- Appellees.

No. 85-3029.

United States Court of Appeals, Fifth Circuit

November 26, 1985

Opinion on Denial of Rehearing and Rehearing En Banc Jan. 16, 1986.

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Patrick L. Durusau, Jena, La., Robert L. McGlasson, Atlanta, Ga., for petitioner-appellant.

Joseph E. Kopsa, Asst. Atty. Gen., Baton Rouge, La., Harry H. Howard, Asst. Atty. Gen., New Orleans, La., Margaret A. Coon, Asst. Dist. Atty., Covington, La., for respondents-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GEE, RUBIN and RANDALL, Circuit Judges.


A prisoner condemned to death for first degree murder committed in the course of a robbery and under conditions that the jury found to be especially heinous seeks habeas corpus relief. The district court, 597 F.Supp. 1562, denied the writ but issued a stay of execution and a certificate of probable cause. Having reviewed the record of the trial, the state post-conviction proceedings, and the federal evidentiary hearing with care, we conclude that, as to all issues on which the district court made findings of fact, the findings are supported by the record. Applying settled legal principles to those facts, we affirm. The district court, however, made no findings on the claim that trial counsel had been ineffective because he failed to seek suppression of evidence used at the trial, and we, therefore, remand for further consideration of this issue.


Frederick Kirkpatrick was convicted of first degree murder by a twelve-person Louisiana jury on the following evidence, as summarized by the Louisiana Supreme Court 1 and as reflected in the record. Kirkpatrick and Charles Faulkner, both of whom lived in Mississippi, came to the home of Steve Radoste in the Pearl River area of St. Tammany Parish, on the evening of January 27, 1982, perhaps by hitch-hiking a ride with Radoste. During the night, Radoste was killed, his home was robbed, and his truck was stolen. The next day, his battered, nude body was found lying on the floor with a gunshot wound in the right side of his head and a butcher knife stuck to the hilt into his chest. He had another grave knife wound to his abdomen and other wounds to his head. Two blood-stained pillows, each with a bullet hole, lay next to the right side of the victim's head. The coroner found that the gunshot wound caused death, but that the stab wounds would themselves have been fatal within a few hours as a result of slow internal bleeding.

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On the afternoon of the same day, the Meridian, Mississippi, Police Department found a burned pickup truck south of the city. Acting on information, they obtained a warrant to arrest Kirkpatrick for arson. The police went to the home of Caroline Wright, where Kirkpatrick was then living, to execute the warrant. When they entered the house to make the arrest, the officers observed two television sets, a wine rack, some leather jackets, and other items.

After being advised of his Miranda rights, Kirkpatrick made a statement in which he admitted that he and Charles Faulkner had driven the pickup truck, whose owner had not then been identified, to a remote area near Meridian and that he had watched while the truck was burned. He also stated that Faulkner had a .22 caliber Derringer.

The next day the Meridian police department received a teletype from the St. Tammany Parish, Louisiana, sheriff's office that identified the truck as Radoste's. Deputies from St. Tammany Parish went to Meridian to examine the truck. After the deputies identified the truck, the Meridian police obtained a warrant to search the house at which Kirkpatrick was living. They there found and seized the property described above, which was later identified as belonging to Radoste. Kirkpatrick was then arrested for Radoste's murder.

While the investigation was being made, Faulkner's cousin delivered to the police a .22 caliber Derringer which he said had been given to him by Faulkner. Tests showed that the bullet removed from Radoste's head had been fired from this weapon. Faulkner was later apprehended and charged.

Kirkpatrick was thereafter tried for first degree murder in Louisiana. During the trial, Kirkpatrick took the stand in his own defense and testified that, to the extent he was involved at all in the assault on Radoste, he was acting in self-defense to fend off Radoste's homosexual advances. He testified that Radoste held Faulkner and him at gunpoint, and that he got into a struggle with Radoste to protect his friend and himself. He said he hit Radoste over the head with a glass dish cover, then stabbed the victim twice with a knife that the victim had earlier used in serving his two guests a meal. "When the man fell, the pistol went off," he said. Other witnesses testified that Kirkpatrick had given varying accounts of the events of the night, including telling them at various times that Faulkner had shot Radoste and that Kirkpatrick had "killed" Radoste (without specifying how).

At 7:30 p.m. on Thursday night, following a four-day trial, the jury returned a verdict finding Kirkpatrick guilty of first degree murder. The state judge then proposed to start the sentencing phase of the trial immediately. Just before that proceeding began, Kirkpatrick's lawyer, Thomas Ford, moved for an overnight recess because, he said, five of the six witnesses he wished to call were not present. Ford named the absent persons as Kirkpatrick's foster parents, Annabelle and Arthur Jones; two children of his common-law wife, Billy and Robert Kirkpatrick; and his brother, Eddie Kirkpatrick. All six had been subpoenaed to be present at the start of the trial on Monday. None had arrived.

The court said, "If these witnesses didn't show up for Monday morning at nine-thirty o'clock, a.m., this was the time for us to deal with this particular problem, not at seven forty-five on Thursday evening." Kirkpatrick's lawyer explained that he had not required the witnesses to be present at the beginning of the trial because neither he nor Kirkpatrick could pay their expenses for travel, lodging, and food. "Kirkpatrick talked to them last night and was given all verbal assurances that they would, in fact, be here today. And at this point, they are not here." He stated that he could not assure the court that they would be present the next day if the trial were recessed, saying, "I cannot assure the court of anything. I can merely try." The state trial judge denied a recess and the sentencing phase of the trial began.

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The one witness called to testify for Kirkpatrick was Caroline Wright. Ms. Wright said that she and Kirkpatrick had lived together two years and that he had treated her and her children "very good." She testified at some length about his devotion to her children and their love for him. The jury retired to deliberate and, at 10:30 p.m., returned with a recommendation that Kirkpatrick be sentenced to death. The jury found, as the Louisiana statute requires, 2 two aggravating circumstances: the offender was engaged in the commission of an armed or simple robbery at the time of the murder and the offense was committed in an especially heinous, atrocious, or cruel manner. 3

Kirkpatrick appealed his conviction and it was affirmed. 4 He then sought a writ of habeas corpus in state court, which held an evidentiary hearing on some of the issues. When relief was denied, Kirkpatrick applied for a writ to the federal district court, which, likewise, denied relief. Although the state did not respond and filed no pleadings, the federal district court conscientiously reviewed each of the twenty-four contentions raised by Kirkpatrick's counsel and rendered a 48-page opinion.

Kirkpatrick raises several issues on this appeal. First, Kirkpatrick contends that the trial court's refusal to grant a recess before the sentencing phase of the trial deprived him of a fair trial and reliable sentencing determination, rights granted him by the fourteenth and eighth amendments. Second, Kirkpatrick alleges that the prosecutor's repeated use of "highly prejudicial, irrelevant, arbitrary and non-record assertions" denied Kirkpatrick due process of law because it made the trial fundamentally unfair. Third, Kirkpatrick argues that his trial counsel was ineffective, denying him the fourteenth amendment-sixth amendment right to effective assistance of counsel. Last, Kirkpatrick submits that the trial court's jury instruction denied him due process of law because it did not require the jury to find before imposing a death sentence that Kirkpatrick killed, intended to kill, or attempted to kill the victim without legal justification as is required in capital cases. We discuss these issues in turn.


Because the state court record was inadequate for determining whether the trial court's refusal to grant a continuance was an abuse of discretion and a denial of due process, the federal district judge held an evidentiary hearing on this issue. The only evidence presented was the testimony of Kirkpatrick's foster parents, Anabelle and Arthur Jones, and the state court postconviction testimony of his aunt and his twin brother. Ms. Jones testified that Kirkpatrick's trial counsel had communicated with her and her husband and told them to be ready to come to the trial when he telephoned them. If someone had telephoned them and had told them when to come, they would have come to testify with only one day's notice for they lived in Mississippi, only four hours drive from Covington...

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