Hickock v. Crouse, 7605

• Decision Date: 01 July 1964
• Docket Number: 7606.,No. 7605,7605
• Citation: 334 F.2d 95
• Parties: Richard Eugene HICKOCK, Petitioner, v. Sherman H. CROUSE, Warden, Kansas State Penitentiary, Respondent. Perry Edward SMITH, Petitioner, v. Sherman H. CROUSE, Warden, Kansas State Penitentiary, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

334 F.2d 95 (1964)

Richard Eugene HICKOCK, Petitioner, v. Sherman H. CROUSE, Warden, Kansas State Penitentiary, Respondent.

Perry Edward SMITH, Petitioner, v. Sherman H. CROUSE, Warden, Kansas State Penitentiary, Respondent.

Nos. 7605, 7606.

United States Court of Appeals Tenth Circuit.

July 1, 1964.

Joseph P. Jenkins, Kansas City, Kan., for petitioner Richard Eugene Hickock.

Robert H. Bingham, Kansas City, Kan., for petitioner Perry Edward Smith.

J. Richard Foth, Asst. Atty. Gen., Topeka, Kan. (William M. Ferguson, Atty. Gen., and Robert J. Lewis, Jr., Asst. Atty. Gen., Topeka, Kan., on the brief), for respondent.

Before PICKETT, LEWIS and SETH, Circuit Judges.

PICKETT, Circuit Judge.

Richard Eugene Hickock and Perry Edward Smith were convicted of murder in the first degree in the District Court of Finney County, Kansas, and sentenced to death. The conviction was affirmed by the Supreme Court of Kansas. State v. Hickock and Smith, 188 Kan. 473, 363 P.2d 541, appeal dismissed Smith v. State, 373 U.S. 544, 83 S.Ct. 1545, 10 L.Ed.2d 688. Thereafter, while a petition for rehearing was pending, the Kansas Supreme Court, apparently concerned about matters which could not be properly considered on appeal, designated an attorney to bring habeas corpus proceedings in that court to test the validity of the conviction.¹ Such a petition was filed and a writ denied after a thorough examination and full hearing. Hickock and Smith then instituted separate habeas corpus proceedings in the United States District Court for the District of Kansas. These actions were consolidated for hearing and the present appeals are from judgments denying the petitions and remanding the prisoners to the custody of the respondent warden for the execution of the sentences.

The primary questions presented here relate to the contention that the representation given the petitioners by court-appointed attorneys did not meet the standard of adequacy of representation which would result in a trial having the fundamental fairness required by the Constitution of the United States. After a review of the voluminous record, which includes transcripts of the trial and the habeas corpus cases before the Supreme Court of Kansas, we are of the opinion that the petitioners were not denied the constitutional protection of a fair and impartial trial.

A summary of the facts prior to and during the trial of the petitioners is necessary for a proper disposition of these petitions. A more detailed description may be found in the opinions of the Supreme Court of Kansas in the cases cited hereinabove. During the morning of November 15, 1959, Herbert W. Clutter, his wife, and two teen-age children were found murdered in their farm home about seven miles from Garden City, Kansas. When the bodies were found they were all bound hand and foot and some of the victims had their mouths taped. All had been killed several hours previously by blasts from a shotgun fired into their heads at close range. Hickock and Smith became suspects when investigating officers learned that an inmate of the Kansas State Penitentiary had told his cellmate, Hickock, that he was a former employee at the Clutter farm in western Kansas and that Mr. Clutter kept large sums of money in a safe at the farm home. Shortly before his release on parole Hickock also received from his cellmate information as to the location of the Clutter farm, and a detailed diagram of the interior of the house. When the suspects could not be found, their arrest was requested as parole violators.²

On December 30, 1959, after their return from a trip to Mexico City, the petitioners were arrested as parole violators by local police in Las Vegas, Nevada, and executed waivers of extradition to Kansas. Four Kansas officers arrived in Las Vegas on December 31. During the afternoon of January 2, 1960, two of these officers questioned Hickock and two questioned Smith. Hickock was asked concerning his whereabouts and activities from the time of his release from the penitentiary. At the close of a four-hour session the Clutter murder was mentioned, and he denied any knowledge of that crime. The petitioner Smith gave no information. Prior to the questioning, each petitioner was fully advised of his rights, including the right of representation by counsel, and told that any statements which they made could be used against them in court.³ On January 3 petitioners were questioned further by the Kansas officers, who again advised petitioners of their rights. Within a short time after the questioning began, Hickock told in detail all the facts relating to the robbery and murder of the Clutter family. A confession, written in longhand by one of the officers, was read by Hickock and in addition to his signature, he added, in his own handwriting, that he had read the confession and that it was correct. Smith continued to deny that he had any part in the crime, even though he had been told that Hickock had confessed and implicated him.

On January 4 the Kansas officers left Las Vegas by automobile to return the prisoners to Kansas. Smith was riding in one automobile with two officers and Hickock was traveling in the other automobile with two officers. During the trip Smith admitted his part in the robbery and murders and gave a full account of how the crimes had been accomplished. There is no indication in the record of the state court proceedings that the confessions were other than voluntary.⁴ Before arrival in Garden City, the officers, at the direction of Smith and Hickock, proceeded to a point near Scott City, Kansas, where they were told that shotgun shells, rope and tape had been buried by petitioners after the commission of the crimes. The petitioners were taken to the county jail in Garden City, arriving there on the evening of January 6. Later, four empty shotgun shells, along with a quantity of rope and tape similar to that used to bind and gag the victims, were found at the designated location. The newspapers and other news media had carried accounts of the arrests in Las Vegas, the subsequent confessions of the petitioners, and the date the officers were expected to arrive in Garden City with the prisoners. Upon arrival at the court-house a crowd estimated by different witnesses to be from 150 to 500 persons, had gathered, including reporters and representatives of radio and television. There were no demonstrations or threats of violence against the petitioners. The crowd was described as orderly and curious. On January 7 petitioners were taken before the county judge for a hearing on the complaint filed against them. They were advised by the judge that they were entitled to a preliminary hearing and to be represented by an attorney. In a previous conversation with the county attorney, they had been told that there was little to be gained from a preliminary hearing, and when questioned by the judge, such hearing was waived.⁵ On January 8 petitioners appeared before a district court for arraignment, where they requested that counsel be appointed for them. Harrison Smith, an attorney of 24 years' experience, was appointed to represent Hickock, and A. M. Fleming, an attorney who had been in the general practice of law in western Kansas for about 40 years, was appointed to represent Smith.⁶

On February 9, 1960 the petitioners were arraigned on an information charging them jointly, in four counts, with murder in the first degree. When asked for a plea of guilty or not guilty to each count, the defendants each stated: "I wish to stand mute." The court then entered pleas of not guilty on behalf of each defendant. The case was set for trial on March 22, 1960.

During the first day of the trial a jury was selected and impaneled. No request was made of the court reporter to record these proceedings, and as was customary in the absence of a request, no record was made of the jury paneling proceedings, including the voir dire examination of the prospective jurors. During the course of the trial the confessions of the petitioners were introduced in evidence without objection. This was also true of the introduction of the shotgun and a hunting knife alleged to have been used in the murders, which were obtained at the home of Hickock's parents. Other evidence of the prosecution included that of expert witnesses who testified that four empty shotgun shells found at the location designated by the petitioners had been fired from the Hickock shotgun; that there was human blood on the boots of one of the petitioners; that the boot had characteristics similar to those of a bloody foot print found at the scene; and that blood on the hunting knife was of the same type as one of the murdered persons. Some of this evidence was admitted without objection. There was also introduced sordid photographs of the murdered persons, to which objection was made, but overruled. The defendants did not testify and their defense was limited to a report of a psychiatrist who had examined them, and who stated that Hickock knew right from wrong, but he had no opinion as to Smith. No objections were made to the court's instructions to the jury. A verdict of guilty on each count was returned by the jury, fixing the punishment at death.

After the petitioners had exhausted their remedies in the state court, they wrote the Chief Judge of the United States District Court for the District of Kansas, indicating that they had not received a fair trial, whereupon the court appointed two active practitioners to represent the petitioners in habeas corpus proceedings in the federal court. The attorneys filed and have prosecuted such petitions with commendable vigor. It is quite obvious from the untiring effort expended in support of the petitions and in preparing and presenting this appeal. the present attorneys are convinced that due to local prejudice and pressure the appointed attorneys representing the petitioners prior to and during the trial did little or...