In re Tucker, 875.

• Decision Date: 18 February 1963
• Docket Number: No. 875.,875.
• Citation: 214 F. Supp. 202
• Parties: In the Matter of Sammy Aire TUCKER.
• Court: U.S. District Court — Western District of Missouri

214 F. Supp. 202

In the Matter of Sammy Aire TUCKER.

No. 875.

United States District Court W. D. Missouri, Central Division.

February 18, 1963.

Leonard Bornschein and Charles Shaw, Clayton, Mo., for petitioner.

Thomas Eagleton, St. Louis, Mo., and Howard L. McFadden, for respondent.

GIBSON, Chief Judge.

Petitioner files for writ of habeas corpus directed against E. V. Nash, Warden of Missouri State Penitentiary at Jefferson City, Missouri. Petitioner was convicted in the Circuit Court of Cape Girardeau County of murder in the first degree in a trial charging said offense and under the Habitual Criminal Act of Missouri, § 556.280 RSMo 1959, V.A. M.S. Upon a finding of guilty by the jury, the judge, acting under the provisions of the Habitual Criminal Act, sentenced petitioner to death. His conviction was appealed by petitioner to the Supreme Court of Missouri which Court en banc affirmed the judgment and sentence of the Circuit Court on November 14, 1962. State v. Tucker, 362 S.W.2d 509. Petition for rehearing was filed and overruled on December 11, 1962. The date of execution was originally set for January 9, 1963. A stay was issued by the Governor of Missouri until February 6, 1963. This petition for writ of habeas corpus was filed February 4, 1963 and this Court issued a stay of execution pending the disposition of the petitioner's application by this Court.

This Court issued a show cause order. A full and complete hearing was held on the issues raised by the petitioner at a hearing in the Central Division of this Court at Jefferson City on February 11, 1963.

The petitioner had not exhausted his legal remedies in the state courts nor had he applied for certiorari to the United States Supreme Court from the decision rendered by the Supreme Court of Missouri. Neither had petitioner availed himself of the post conviction remedies afforded by Rule 27.26 of the Missouri Supreme Court Rules, V.A.M.R., which in effect and substance carries the same phraseology and remedies as set forth in § 2255, Title 28 United States Code. However, in view of the fact that petitioner was under an immediate death sentence, this Court assumed jurisdiction of the petition as petitioner then did not have sufficient time remaining to pursue his available remedies. United States ex rel. Devita v. McCorkle, 216 F.2d 743 (3d Cir., 1954). Thomas v. Teets, 205 F.2d 236 (9th Cir., 1953).

The points and contentions raised by the petitioner are as follows:

1. That petitioner was taken to the courtroom for trial in the presence of the entire jury panel handcuffed and shackled in chains;

2. That the sheriff and other police officers were present inside the bar of the courtroom with exposed weapons during the entire trial;

3. That 36 of the 56 jurors summoned on voir dire were residents of the city of Cape Girardeau, the site of the alleged crime, that the jury was handpicked and not summoned in accordance with law;

4. That § 556.280 V.A.M.S. (Amended Laws 1959), referred to as the Habitual Criminal Act is unconstitutional, since that without a declaration and proof of compliance such as discharge, pardon, parole, commutation of sentence, or release there is not a final adjudication of an alleged prior conviction;

5. That said information did not allege that the prior conviction of petitioner was not appealed from nor affirmed or appeal dismissed as required by aforesaid § 556.280 and that the trial court was without jurisdiction to impose sentence.

Petitioner alleges all of the above acts and allegations to be violative of the Fifth and Fourteenth Amendments to the Constitution of the United States as denying him due process of law and a right to a fair and impartial trial.

The response to the show cause order filed by the state of Missouri raises the issue of whether petitioner is entitled to pursue this present application for writ of habeas corpus, as he has not exhausted his state remedies nor applied for and been denied certiorari by the United States Supreme Court. This contention was ruled upon adversely to the State on the basis of the exigencies of petitioner's death sentence which was set for February 6, 1963. The other parts of the State's response traverse the specific allegations contained in petitioner's application for the writ.

After the hearing on the petition for writ of habeas corpus, the Court found that the allegations contained in the petition were not sustained by the evidence or that the allegations raised questions of law that were solely within the jurisdiction of an appeal proceeding through the state courts and were not reviewable by this Court. The allegations contained in the petition are considered in detail in the same order as they are listed in the petition. Before discussing the petitioner's allegations, the factual situation should be briefly summarized. The petitioner, Sammy Aire Tucker, was by amended information charged with murder in the first degree, which information also alleged that Tucker had previously been convicted of robbery in the first degree. The trial by jury in the Circuit Court of Cape Girardeau, Missouri, resulted in a verdict of guilty as charged. The trial court heard evidence on the question of a previous conviction and found that petitioner had been so convicted in the state of California in January 1961. The Court fixed Tucker's punishment at death. The information filed alleged an offense of murder of a police officer in the city of Cape Girardeau, Missouri, on March 10, 1961. The opinion of the Supreme Court of Missouri in this case ably summarizes the evidence, and, in the interest of brevity, will not be repeated here. Suffice it to say, that the petitioner was driving a car North on Highway 61. The police, after a short chase, stopped the car, and Crittendon, one of the police officers, got out of his car, walked up to the petitioner's car in which petitioner and one, Thompson, were riding. Another police car had stopped on the opposite side of the Highway. Crittendon asked petitioner for his driver's license and then asked petitioner to get out of the car. Crittendon had not threatened petitioner nor had he pulled out his gun. As the petitioner was in the act of getting out, Crittendon was shot by one of the occupants of the car. The petitioner and Thompson then left in their car amid other shots. Crittendon subsequently died on March 21, 1961 as a result of the gunshot wound. The petitioner in testifying admitted the police officers were in uniform, that he knew they were police officers, and petitioner made no claim that the police officers drew guns or in any way made demonstrations to harm him or Thompson prior to the time Crittendon was shot. Petitioner contended that he did not shoot Crittendon but that as he was getting out of the car Thompson reached over and shot Crittendon and then threw the gun to him. There was direct evidence that petitioner was the one who shot Crittendon and on the physical facts it would be difficult to visualize that Thompson rather than petitioner shot...