Atwell v. State of Arkansas, 19921.
| Decision Date | 21 May 1970 |
| Docket Number | No. 19921.,19921. |
| Citation | 426 F.2d 912 |
| Court | U.S. Court of Appeals — Eighth Circuit |
| Parties | Raymond Henry ATWELL, Appellant, v. STATE OF ARKANSAS, Appellee. |
Paul L. Giuffre, of Warner, Warner, Ragon & Smith, Fort Smith, Ark., for appellant.
Joe Purcell, Atty. Gen. of Arkansas, Little Rock, Ark., and Don Langston, Deputy Atty. Gen., for appellee.
Before VAN OOSTERHOUT, Chief Judge, and MATTHES and GIBSON, Circuit Judges.
Petitioner is a state prisoner serving a 10-year sentence for sodomy imposed after conviction by a jury in the Arkansas Circuit Court. The judgment of conviction was affirmed upon appeal. 244 Ark. 739, 427 S.W.2d 1 (1968). Petitioner filed a premature petition for habeas corpus in the United States District Court for the Western District of Arkansas but later exhausted his state remedies so as to qualify for a collateral review of his claims in the federal district court.
An evidentiary hearing was held by Judge Paul X. Williams with the petitioner represented by appointed counsel. The District Court denied relief and refused a certificate of probable cause but an administrative panel of our Court granted a certificate and appointed counsel.
The allegations of error raised here are the same as several of those presented to the Arkansas court. They are: (1) illegal arrest, the arrest being without warrant or probable cause; (2) illegal interrogation at the police station, where petitioner asserts he was questioned without being advised of his constitutional rights and refused assistance of counsel upon request (an admission of guilt was obtained during this interrogation, which petitioner claims should not have been received in evidence); (3) state trial court error in admitting into evidence the fact that petitioner had received a prior sentence for forcible rape; petitioner argues the admission of evidence showing that he had received a life sentence for forcible rape was highly prejudicial and its admission deprived him of a fair trial.
In a pretrial motion in the state court petitioner raised the issue of the legality of his arrest and sought to suppress his confession. The facts of the arrest and confession were as follows: on August 27, 1967, the prosecuting witness, who was a former son-in-law of the petitioner, ran down a street, flagged down a police officer and told the officer that the petitioner had just forced him to commit sodomy. The officer, accompanied by the victim, went immediately to the petitioner's trailer and confronted him with the accusation. Petitioner denied it but agreed to go to the police station to get the matter straightened out.
The trial court found probable cause for the arrest which finding was affirmed on appeal by the Arkansas Supreme Court and also approved by an independent finding by the federal district court in this proceeding. We agree that there was probable cause for the arrest.
While the petitioner contends otherwise, the record contains substantial evidence showing that the petitioner was given the Miranda warnings, that petitioner stated he did not want counsel and that he voluntarily confessed after a relatively short interrogation of some 20 to 30 minutes. One of the police officers present was petitioner's brother. The state trial court found that petitioner's constitutional rights were not violated with respect to the confession and denied the motion to suppress. This finding was also affirmed on appeal by the Arkansas Supreme Court. The District Court made an independent finding that petitioner was afforded a full and fair hearing in the state court, that the merits of the factual dispute were properly resolved and properly considered on review by the Arkansas Supreme Court, and further found the factual findings of the state court were fairly supported by the transcript of the state proceedings and that petitioner was represented by competent counsel in those proceedings. The state court findings are supported by the District Court's independent findings, including those that current constitutional principles were considered and observed, that there was no denial of petitioner's constitutional rights in regard to the Miranda warnings, that petitioner did not request but refused counsel and that his confession was voluntary. We think these findings are supported by substantial evidence and are not clearly erroneous.
Prior to the incident here charged petitioner had served time in the Arkansas State Penitentiary on a life sentence for forcible rape. He was on parole at the time of the incident in question. Petitioner's counsel in the trial court told the jurors on voir dire and in his opening statement that petitioner had been in the penitentiary and then as a trial tactic claimed that the victim because of in-law difficulty with petitioner wanted to send petitioner back to the penitentiary. At the trial during the re-direct examination of the victim the prosecuting attorney sought to show that the victim was afraid of petitioner and asked whether the victim knew what the petitioner had been in the penitentiary for and if the victim knew what the petitioner's life sentence was for. On objection the trial court permitted this line of questioning "To let the State show whether or not the witness had any grounds for apprehension from" petitioner, and cautioned the jury this evidence was to be considered solely for that purpose. The victim testified he knew petitioner had received a life sentence for forcible rape and further that petitioner had forced him to commit oral sodomy, threatening to kill him if he did not and that he was afraid the petitioner would kill him if he did not do it.
The Arkansas Supreme Court held the testimony was competent as it tended to show that the prosecuting witness participated in the crime from fear and, therefore, was not an accomplice. This finding was made despite the fact the issue was not properly raised on appeal since no exceptions were noted at the trial.1
The District Court found the petitioner's trial counsel had mentioned the prior conviction as a part of his trial tactics and held, "There was no violation of petitioner's constitutional rights by permitting evidence to be introduced concerning a prior rape conviction when the same had been injected into evidence by petitioner's own attorney and the State Trial Court gave a proper precautionary instruction."
Despite petitioner's contention that the crime charged did not involve an element of fear or threat of violence we think the evidence did have admissibility to show that the victim was not an accomplice.2
The general rule is that evidence of past crimes...
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