Jenkins v. Bordenkircher
| Decision Date | 19 December 1979 |
| Docket Number | No. 78-3594,78-3594 |
| Parties | Charles Edward JENKINS, Petitioner-Appellant, v. Donald E. BORDENKIRCHER, Superintendent, Kentucky State Penitentiary, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
J. Vincent Aprile, II, Asst. Deputy Public Advocate, Frankfort, Ky. (Court-appointed), for petitioner-appellant.
Charles Edward Jenkins, pro se.
Robert F. Stephens, Atty. Gen. of Kentucky, James L. Dickinson, Asst. Atty. Gen., Frankfort, Ky., for respondent-appellee.
Before EDWARDS, Chief Judge, and CELEBREZZE and LIVELY, Circuit Judges.
The petitioner Charles Edward Jenkins appeals from the district court's denial of his application for a writ of habeas corpus. The petitioner seeks release from the Kentucky State Penitentiary where he is serving two consecutive life sentences following his convictions of murder and armed robbery. He contends that the proceedings in the state court which resulted in the two convictions were fundamentally unfair, denying him rights guaranteed by the due process clause of the Fourteenth Amendment. We affirm the judgment of the district court.
Jenkins and Anthony Svara were indicted for the murder of William Miller whose death occurred in Henderson County, Kentucky on August 23, 1974. Both were also indicted for armed robbery of the victim and Jenkins was additionally charged under the Kentucky habitual criminal act. Prior to trial the prosecution dismissed the armed robbery charge against Svara and the habitual criminal charge against Jenkins. Jenkins and Svara were tried jointly in the Henderson County Circuit Court after their individual motions for severance were overruled. The Supreme Court of Kentucky affirmed both of Jenkins' convictions. Svara filed a notice of appeal to the Supreme Court of Kentucky, but later withdrew it and no appeal was perfected on his behalf.
The application for a writ of habeas corpus was based on the following claims:
(1) It was error for the trial court to deny petitioner's motion for a change of venue in view of widespread pretrial publicity;
(2) It was error for the trial judge to deny the petitioner's motion for the judge to recuse himself;
(3) It was error for the trial court to deny the petitioner's motion for a severance.
The district court considered each of these claims and filed a memorandum opinion in which each was found to lack merit as a basis for habeas corpus relief.
The state trial judge held a hearing on the motion for change of venue and a complete transcript of the hearing is included in the record which we have reviewed. The petitioner filed affidavits of three persons who stated that it was their opinion that Jenkins could not receive a fair trial in Henderson County, Kentucky. In addition, petitioner's attorney filed copies of a number of newspapers which contained stories related to the charges against Jenkins. In response the prosecution filed the affidavits of two Henderson County magistrates and the court heard testimony from the chief of police of the City of Henderson, the sheriff of Henderson County and the Henderson County judge. It was the opinion of these Review of the transcript discloses that the trial judge meticulously followed the requirements of the controlling statutes. See Kentucky Revised Statutes, §§ 452.210, .220. Following the hearing the trial judge gave his reasons for overruling the motion for change of venue. He stated that in passing on the motion he gave the petitioner the benefit of the doubt that a substantial number of people, including prospective jurors, may have read the newspaper accounts. The court found, nevertheless, that there was practically no discussion of the Commonwealth's evidence in the newspaper accounts and that a number of the articles highlighted the fact that the defendant had pleaded not guilty. Further, the court found that none of the articles went into the facts of the crimes with which the petitioner was charged to an extent that a prospective juror would be able to form an opinion on their basis alone. Nevertheless, the court stated that if responses from prospective jurors, at the time of impaneling a jury, indicated that people on the panel had been affected and had formed opinions or had discussed the case freely the court would consider discharging the panel and calling jurors from a different county. The court stated that it would not hesitate to do so if this condition were revealed.
affiants and the witnesses that Jenkins could receive a fair trial in Henderson County.
The attorneys were given ample opportunity to conduct voir dire when the case was called for trial. Though most of the prospective jurors had some recollection of having read or heard about the case, no more than eight out of 56 interrogated had formed or expressed an opinion. These jurors were promptly excused by the trial judge. The motion for change of venue was not renewed during or after voir dire.
This court has examined the newspaper accounts of the homicide and of the various police and court activities which followed the homicide in which the name of the petitioner appeared. The news stories which concerned Jenkins appeared from August 28 through December 6, 1974. Trial began on January 23, 1975. We conclude that the trial judge properly characterized the news accounts. They did not reveal the evidence against Jenkins and primarily dealt with the various steps which were routinely taken in bringing his case to trial. Several of the news accounts stated that Jenkins had been charged with other crimes and asserted that he was linked in some way with a criminal ring. However, the stories were written as factual presentations without sensationalism. Though the charges against Jenkins were mentioned frequently in the period before the trial began, the petitioner has produced no evidence that the community was saturated with hostile and inflammatory media reports which made it impossible for him to receive a fair trial in Henderson County, Kentucky. We believe the facts disclosed by this record bring the present case within the holding of Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975), rather than Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961).
Under Kentucky law a motion for a change of venue is addressed to the sound discretion of the trial court. Hurley v. Commonwealth, 451 S.W.2d 838 (Ky.1970). The record shows a careful consideration of the motion for change of venue and the materials filed in support of it and a sound exercise of discretion by the trial court. Although there is no claim that the jury was infected by publicity during the trial, it is noteworthy that the trial judge sequestered the jury throughout the trial and gave full and specific admonitions to the jury against reading or listening to any accounts of the trial.
The Jenkins and Svara cases were tried before the regular judge of the Henderson Circuit Court, Honorable Carl D. Melton. Prior to assuming the position of circuit judge, Judge Melton had served first as county attorney of Henderson County, Kentucky and later as commonwealth's attorney of the district which included Henderson We have found no habeas corpus case which holds that it is a denial of due process for a judge to preside over a jury trial in a criminal case where the judge, as a prosecutor, had previously been involved in proceedings against the defendant in entirely unrelated cases. Though this circuit does not appear to have considered the question, the Fifth Circuit has denied habeas corpus in at least two cases where it was contended that a constitutional violation occurred because a judge who had been involved previously in the prosecution of a defendant for unrelated matters presided at that defendant's subsequent trial. Murphy v. Beto, 416 F.2d 98 (5th Cir. 1969); Goodspeed v. Beto, 341 F.2d 908 (5th Cir. 1965), Cert. denied, 386 U.S. 926, 87 S.Ct. 867, 17 L.Ed.2d 798 (1967).
County. In these two positions he had had prior contacts with the petitioner Jenkins. In July 1961 County Attorney Melton prosecuted Jenkins as a juvenile on a charge of storehouse breaking. In September 1968 County Attorney Melton prosecuted Jenkins on the misdemeanor charge of drawing and flourishing a deadly weapon. Jenkins entered a guilty plea and received a 10-day jail sentence. In January 1970 Commonwealth's Attorney Melton prosecuted Jenkins on a charge of grand larceny. There was a hung jury. In March 1970 there was a retrial of the grand larceny charge and Jenkins was convicted. He received a three-year prison term. In February 1970 Jenkins was convicted on a charge of dwelling house breaking in Union County Circuit Court. Though Melton did not prosecute that case, as commonwealth's attorney he had presented the case to a grand jury which returned an indictment. The petitioner did not contend that Judge Melton had had any prior involvement in the case which was to be tried in January 1975 in which Jenkins was charged with murder and armed robbery.
In federal prosecutions, 28 U.S.C. § 455 requires the disqualification of a judge who has been "of counsel" or has a "substantial interest" in a case brought before him. Though the duty to vacate the bench is absolute in a situation where the judge was a United States attorney at the time when the case before him began, United States v. Amerine, 411 F.2d 1130 (6th Cir. 1969), 1 this rule applies only when the case before him is the same as or is related to the case which was within his jurisdiction as prosecuting attorney. It has been specifically held that a judge who as United States Attorney was "of counsel" when a defendant was tried and convicted of one charge is not disqualified from presiding at the prosecution of the same defendant for a totally unrelated offense. Gravenmier v. United States, 469 F.2d 66 (9th Cir. 1972).
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