Maxwell v. Stephens, No. PB 64 C 4.

• Court: United States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
• Writing for the Court: YOUNG
• Citation: 229 F. Supp. 205
• Decision Date: 06 May 1964
• Docket Number: No. PB 64 C 4.
• Parties: William L. MAXWELL, Petitioner, v. Dan D. STEPHENS, Superintendent of Arkansas State Penitentiary, Respondent.

229 F. Supp. 205

William L. MAXWELL, Petitioner,
v.
Dan D. STEPHENS, Superintendent of Arkansas State Penitentiary, Respondent.

No. PB 64 C 4.

United States District Court E. D. Arkansas, Pine Bluff Division.

May 6, 1964.

229 F. Supp. 206

George Howard, Jr., Pine Bluff, Ark., Harold B. Anderson, Little Rock, Ark., for petitioner.

Jack L. Lessenberry, Little Rock, Ark., for respondent.

YOUNG, District Judge.

This habeas corpus proceeding is brought by William L. Maxwell, a Negro male, age 24, who was convicted for the crime of rape in the Circuit Court of Garland County, Arkansas, on March 21, 1962, and sentenced to death. The conviction was affirmed by the Arkansas Supreme Court in the case of Maxwell v. State, 236 Ark. 694, 370 S.W.2d 113 (1963), and following a denial of petition for rehearing the date of execution was scheduled for January 24, 1964. No application for certiorari was made to the United States Supreme Court. The instant action was filed on January 20, 1964, alleging that the state court conviction was obtained in violation of petitioner's constitutional rights guaranteed by the Fourteenth Amendment to the United States Constitution. Petitioner was permitted to amend his petition twice and a hearing was held on the petition, as amended, on February 12, 1964, as well as on February 27, 1964, at which time the testimony was concluded. Petitioner and respondent have submitted briefs in support of their respective contentions.

Throughout the state court proceedings, petitioner was represented by Mr. Christopher C. Mercer, Jr., a capable attorney

229 F. Supp. 207

experienced in this type of litigation.¹ Subsequent to the state court proceedings, and prior to this action, petitioner obtained the services of his present counsel who now represent petitioner in this habeas corpus proceeding. The question of Maxwell's guilt is not now before this court. Cf. Henslee v. Stewart, 311 F.2d 691 (8th Cir. 1963); Bailey v. Henslee, 287 F.2d 936, 939 (8th Cir. 1961). The circumstances of the crime and the evidence against Maxwell are fully discussed by the Arkansas Supreme Court in Maxwell v. State, supra, 236 Ark. 696-700, 370 S.W.2d 114-116. The only issue which now confronts this court is whether Maxwell's federal constitutional rights, in the particulars relied upon, were preserved in the state court action

The alleged violations of petitioner's constitutional rights, in substance, are that: (1) Petitioner was illegally arrested and there was an unlawful search and seizure of his home and person; (2) Petitioner was tried in a hostile atmosphere; (3) Racial discrimination was practiced in the selection of the jury which tried petitioner; (4) There has been an unconstitutional application and enforcement of Ark.Stat. § 41-3403 (1947) against petitioner, and the death penalty upon conviction for rape provided by this statute is a "cruel and unusual" punishment contrary to the basic concepts of a civilized society. In this opinion, the Court will deal with these issues in the order mentioned.

I. THE ARREST AND SEARCH

The offense with which petitioner was charged occurred about three o'clock in the morning of November 3, 1961. Approximately one hour later, petitioner was taken into custody by police officers at his parents' home where he lived. This was done on the basis of information and descriptions given by the victim to a Negro police officer, O. D. Pettis, now deceased. Sometime around five o'clock that morning police officers Captain Crain and Officer Timms made a trip back to petitioner's home in order to obtain some clothing belonging to petitioner allegedly worn during the commission of the offense; and another trip was made by Officer Timms later that same morning in order to obtain a change of clothing for petitioner since arrangements had been made for the clothes allegedly worn by petitioner during the rape, and which petitioner put on when taken into custody, to be sent to the laboratory of the Federal Bureau of Investigation in Washington, D. C.

When petitioner was taken into custody he was viewed by the victim at a local hospital and subsequently identified as the assailant. Thereupon, petitioner was incarcerated in the City Jail and held until later during the afternoon or evening of November 3rd, when he was taken to the County Jail in nearby Malvern, where petitioner remained until November 6th. Petitioner signed a written confession while at the County Jail in Malvern and made another confession later in Hot Springs. Petitioner was then returned to the city of Hot Springs, where on November 7, he was formally charged by information with the crime of rape under Ark.Stat. § 41-3401 (1947).

No warrant for petitioner's arrest was issued prior to November 7th when petitioner was formally charged, and a warrant to search petitioner's home was never procured. On November 3rd, while petitioner was held at the Hot Springs City Jail, police officers combed petitioner's hair and obtained a nylon thread from his hair, as well as a specimen of his hair. The police officers obtained clothing from petitioner's person, as well as his home. Petitioner was not permitted to see his parents or a lawyer, and according to petitioner, he was mistreated and coerced into signing a confession.

229 F. Supp. 208

Petitioner now argues that the arrest, and the search of his person and home were illegal and constitute a violation of his constitutional rights

(a) Petitioner's Arrest Without A Warrant

The lawfulness of petitioner's arrest without a warrant must be determined by the law of Arkansas, subject to the test of reasonableness under the Fourth and Fourteenth Amendments to the United States Constitution. Ker v. California, 374 U.S. 23, 40, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1962). In Arkansas, it is provided by statute that an arrest without a warrant is authorized where the arresting officer has reasonable grounds for believing that the person arrested has committed a felony. See Ark.Stat. § 43-403 (1947). The Arkansas Supreme Court has held that where a felony has in fact been committed, an arrest without a warrant may be made where the officer has reasonable grounds to suspect the particular person arrested. Carr v. State, 43 Ark. 99 (1884). Knight v. State, 171 Ark. 882, 286 S.W. 1013 (1926). Lane v. State, 217 Ark. 114, 229 S.W.2d 43 (1950). Trotter and Harris v. State, 237 Ark. 820, 377 S.W.2d 14 (1964).

At the time of petitioner's arrest, the fact that a felony had been committed was clearly established. Miss Stella Spoon had been brutally raped and her 90 year old father with whom she resided had been mercilessly struck and left bleeding when he attempted to aid her. Miss Spoon had given a description of her assailant to Officer Pettis, the Negro city policeman, and had further told him that her assailant had said that his name was "Willie C. Washington".² The first suspects brought to the hospital for Miss Spoon to identify were Willie C. Washington, Sr., Willie C. Washington, Jr., and another Negro. Miss Spoon told Officer Pettis that none of these individuals was her assailant, but she gave Pettis some additional descriptions which she was better able to do by comparison of her attacker with Willie C. Washington, Jr. Officer Pettis then indicated to Miss Spoon and the other policemen in her room that he knew the identity of her assailant. Petitioner was then taken into custody and was the next person brought to Miss Spoon's hospital room for her to identify. When petitioner was brought into Miss Spoon's hospital room, according to the testimony of Officer Timms at the state court trial, Miss Spoon "* * * started shaking and drawing herself up and shaking real bad,"³ but she did not then identify petitioner as her attacker. When asked by petitioner's counsel in the state court trial why she did not immediately in her room identify petitioner as her assailant, Miss Spoon responded: "Because I had been threatened, my father had been threatened. I don't know legal procedure, I didn't know whether they could hold him or not, and if he happened to break and get loose or something, he would do like he said he would, just get a gun and come back and kill us. I didn't know how long I was going to stay in that hospital."⁴ On direct examination, Miss Spoon testified that there was not any possible doubt in her mind that petitioner was her attacker.⁵

The conclusion is compelling that petitioner was arrested with reasonable cause and that therefore the arrest without a warrant was lawful under the circumstances. The police were benefited by a description given by Miss Spoon as to the size, complexion and clothes of her assailant. Officer Pettis was undoubtedly familiar with the Negro community. He had seen petitioner that night on the

229 F. Supp. 209

avenue and his description matched the one given by Miss Spoon. Petitioner, known to the police as "Plunk", had previously experienced difficulties with the police, and petitioner personally knew Officer Pettis. His home was near the place of attack, as well as the victim's home

(b) The Search of Petitioner's Person

It is settled law that a search of the person or premises incident to a lawful arrest is permissible. Preston v. United States, 84 S.Ct. 881 (1964). Ker v. California, supra. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1948). United States v. Iacullo, 226 F.2d 788 (7th Cir. 1955). See also Commonwealth v. Holmes, 344 Mass. 524, 183 N.E.2d 279 (1962), and cases collected in Annot., 89 A.L.R.2d 715, 780-801 (1963). Since the arrest without a warrant was lawful under the circumstances, it follows that the evidence obtained from the clothes removed from petitioner's body and the thread and hair taken from petitioner's head were not illegally obtained. See United States v. Iacullo, supra, 226 F.2d at 792, discussing United States v. Di Re, 332 U. S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948); and Draper v. United...