McAllister v. Allgood, Misc. No. 834.

• Decision Date: 24 January 1966
• Docket Number: Misc. No. 834.
• Citation: 249 F. Supp. 408
• Parties: Bobby Milton McALLISTER v. J. Wayne ALLGOOD, Warden.
• Court: U.S. District Court — Eastern District of Louisiana

249 F. Supp. 408

Bobby Milton McALLISTER v. J. Wayne ALLGOOD, Warden.

Misc. No. 834.

United States District Court E. D. Louisiana, Baton Rouge Division.

January 24, 1966.

Edward B. Dufreche, Ponchatoula, La., for petitioner.

Teddy W. Airhart, Jr., Asst. Atty. Gen. of Louisiana, Baton Rouge, La., for respondent.

WEST, District Judge:

On July 26, 1960, a cold-blooded murder was committed in the Parish of Tangipahoa, State of Louisiana, taking the life of one John O'Brien, a filling station attendant. After the killing, two cash registers at the filling station were robbed. On the following day, July 27, 1960, petitioner, Bobby Milton McAllister, and an alleged accomplice, Calvin Newman Carney, were apprehended and charged with murder. Petitioner, at that time, signed a confession setting forth in detail the facts in connection with the prior planning and the actual commission of the murder. He was tried by a jury, found guilty as charged, and sentenced to death by electrocution, pursuant to Louisiana law. An appeal was taken in his behalf, and the Supreme Court of Louisiana affirmed the conviction and sentence. State of Louisiana v. McAllister, 244 La. 42, 150 So.2d 557 (1963). Petitioner then appealed to the United States Supreme Court, and that Court dismissed the appeal for want of jurisdiction, but then, treating the appeal papers as a petition for a writ of certiorari, denied certiorari. McAllister v. State of Louisiana, 375 U.S. 260, 84 S.Ct. 362, 11 L.Ed. 2d 311 (1963).

Petitioner is presently incarcerated in Louisiana State Penitentiary awaiting execution of the death sentence imposed. He applies to this Court for the issuance of a writ of habeas corpus, contending that the circumstances attending his trial were such as to deprive him of the rights secured by the Fourteenth Amendment to the United States Constitution. As grounds for this contention, he complains that during the course of his trial, four of the deputy sheriffs who testified against him were allowed by the Court to have constant access to the jury and were, in fact, placed in charge of the jury, both day and night, during the entire course of the trial. Thus he contends that while he was accorded the constitutionally guaranteed right of trial by jury, he was not accorded the necessary safeguards to assure him of a fair trial by a panel of indifferent, impartial jurors, and that this failure to assure him of a fair hearing before an untampered-with jury violates even the minimal standards of due process. In support of his position, petitioner relies entirely on the holding of the United States Supreme Court in the case of Turner v. State of Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965).

In answer to petitioner's contentions, the State merely argues first that the Turner case is distinguishable from the present case, and secondly, in effect, that the dissent of Mr. Justice Clark in the Turner case should be applied here as the applicable law. This Court cannot agree with either of respondent's contentions.

It is, of course, well settled that when a Federal Court hears an application for the issuance of a writ of habeas corpus the question of the guilt or innocence of the petitioner is not before the Court. The habeas court must concern itself only with the question of whether or not, during the proceedings had against the petitioner, all of the rights guaranteed him by the Constitution and Laws of the United States have been adequately protected. Johnson v. Walker, 199 F.Supp. 86 (E.D.La.1961), affirmed 317 F.2d 418 (CA5 1963); Shaver v. Ellis, 255 F.2d 509 (CA5 1958); Widener v. Harris, 60 F.2d 956 (4 Cir. 1932); United States ex rel. Helwig v. Maroney, 271 F.2d 329 (3 Cir. 1959).

Thus, said the Court in Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961):

"A fair trial in a fair tribunal is a basic requirement of due process. * * * This is true, regardless of the heinouness of the crime charged, the apparent guilt of the offender or the station in life which he occupies. * * *"

Turning now to the question of whether or not petitioner's constitutionally guaranteed rights were adequately protected during his trial, and disregarding entirely the question of his guilt or innocence, we come face to face with the holding of the United States Supreme Court in the Turner case, supra, decided on January 18, 1965. That case arose in the same Tangipahoa Parish as did the present case, and it involved a man convicted of murder and sentenced to die by electrocution. It involved the identical issue as is here presented, i. e., whether or not the defendant's rights had been violated when the Court placed two deputy sheriffs who had testified on behalf of the State against the petitioner in charge of the jury during Turner's trial. The United States Supreme Court, in reversing Turner's conviction, said:

"In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the `evidence developed' against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant's right of confrontation, of cross-examination, and of counsel. What happened in this case operated to subvert these basic guarantees of trial by jury. It is to be emphasized that the testimony of Vincent Rispone and Hulon Simmons was not confined to some uncontroverted or merely formal aspect of the case for the prosecution. On the contrary, the credibility which the jury attached to the testimony of these two key witnesses must inevitably have determined whether Wayne Turner was to be sent to his death. To be sure, their credibility was assailed by Turner's counsel through cross-examination

...