McKinney v. Boles

• Decision Date: 01 June 1966
• Docket Number: Civ. A. No. 1564-W.
• Citation: 254 F. Supp. 433
• Parties: Frank J. McKINNEY, Petitioner, v. Otto C. BOLES, Warden of the West Virginia State Penitentiary, Respondent.
• Court: U.S. District Court — Northern District of West Virginia

254 F. Supp. 433

Frank J. McKINNEY, Petitioner, v. Otto C. BOLES, Warden of the West Virginia State Penitentiary, Respondent.

Civ. A. No. 1564-W.

United States District Court N. D. West Virginia.

June 1, 1966.

Arthur M. Recht, Wheeling, W. Va., for petitioner.

C. Donald Robertson, Atty. Gen., of West Virginia, Leo Catsonis, Asst. Atty. Gen., Charleston, W. Va., for respondent.

MEMORANDUM

MAXWELL, Chief Judge.

This is a habeas corpus petition instituted by Frank J. McKinney, an inmate of the West Virginia State Penitentiary. McKinney is currently serving a life sentence for first degree murder.

On September 12, 1958, a Wyoming County, West Virginia, jury found McKinney guilty of shooting and killing Forrest Haynes Sams, a local constable, who was carrying a warrant for McKinney's arrest. Two months later, the Circuit Court of Wyoming County, after first having overruled McKinney's motion to set aside the verdict and to grant a new trial, passed sentence.

Subsequently, two applications for writs of error to the Circuit Court of Wyoming County in the matter of State of West Virginia v. Frank J. McKinney, Felony No. 1141, were filed in the West Virginia Supreme Court of Appeals. The first application was refused June 9, 1959, by a majority of the court, and the second application was refused September 21, 1959, also by a majority of the court.

On August 4, 1965, McKinney filed his present petition for federal habeas corpus relief. A writ of habeas corpus was thereafter issued, returnable for plenary hearing at Wheeling, West Virginia, on November 8, 1965. The parties appeared before this Court on that date, the Petitioner being represented by his self-employed counsel, and it was then stipulated that the case be decided by this Court on the basis of the record herein, neither party desiring to present testimony.

On December 3, 1965, the Petitioner submitted a brief of authorities, and on March 31, 1966, the Respondent filed his memorandum of law. The Petitioner filed a reply memorandum on April 7, 1966.

This Court has considered not only the legal authorities cited in each memorandum, but also all the court orders, pleadings, affidavits, and other relevant documents that make up the record of this case. This Court is of the opinion that McKinney's petition should be denied.

As developed by the pleadings and supporting data, McKinney has either specified, or suggested, seven grounds for federal habeas corpus relief: (1) improper jury communications during his state court trial resulted in a prejudicial presumption which has not been overcome by the State of West Virginia; (2) he was prejudiced in his state court trial because of the failure of the trial judge to strike from the jury panel an allegedly prejudiced and biased juror, thereby forcing him to exercise one of his peremptory challenges; (3) he was denied due process of law in his failure to receive a fair trial, due to the adverse pretrial publicity in local news media; (4) the jury was improperly instructed as to the possible verdicts which could be applied to the evidence; (5) he was denied equal protection of the laws because his applications for writs of error to the West Virginia Supreme Court of Appeals were denied in an arbitrary and discriminatory fashion; (6) he was denied due process of law and equal protection of the laws, contrary to the Fourteenth Amendment, because he was sentenced by a judge who previously had been elected to the appellate court to which the subsequent appeals were taken (The foregoing is as alleged. However, the facts are that Judge Calhoun, to whom the Petitioner has reference, was nominated for the West Virginia Supreme Court of Appeals in August, 1958, and was elected in November, 1958. At the time of McKinney's trial, Judge Calhoun was Judge of the Twenty-second Judicial Circuit of West Virginia, sitting by designation, under West Virginia law, in the place of the regular Circuit Judge who disqualified himself in this state court trial); and (7) considering the totality of all the circumstances of the trial, he was not accorded the fundamentally fair trial, which due process demands.

In support of his first contention, regarding the alleged improper jury communications, this Court notes that assuming such communications did transpire, McKinney still would not necessarily be entitled to federal habeas corpus relief.

McKinney has submitted to this Court two affidavits, labeled Exhibits 5 and 6 in the court file. In the one, the owner and operator of the hotel in which the McKinney jury was sequestered for two nights has sworn that several jurors placed telephone calls to unidentified persons outside the hotel, either from room phones or from the hotel office phone, and that at least one of the jurors, L. C. Clark, made one or two calls from a phone booth, outside the hearing of any third parties present.

It has not been ascertained what was said during these telephone conversations. Neither is there any indication that McKinney has attempted to discover whether he was the subject of any of these conversations.

In the other affidavit, a resident of Wyoming County has sworn that during a court recess in the jury selection, and after the Court had instructed the prospective jurors not to discuss the case with anyone, the same L. C. Clark, who was a prospective juror at the time, talked with a group of men outside the Pineville, West Virginia, Courthouse, and that the name "McKinney" was uttered, from voices in the group, loud enough for the affiant to hear.

In support of the allegations associated with these affidavits, the Petitioner has cited Chapter 62, Article 3, Section 6 (Michie's 6195) of the 1955 West Virginia Code, applicable at the time of McKinney's state trial, which provided that after a jury had been impaneled in a case which could carry the death penalty, no sheriff or other officer should converse with, or permit anyone else to converse with, a juror unless by leave of the court.¹

The Petitioner has also cited syllabus point 5 of State v. Stevenson, 147 W.Va. 211, 127 S.E.2d 638 (1962). This syllabus point is a quote from State v. Clark, 51 W.Va. 457, 472, 41 S.E. 204, 210-211 (1902), wherein it was stated that outside communications by the jurors raise a presumption in favor of the prisoner, which the state must overcome by evidence beyond a reasonable doubt.

This proposition which is reflected in Stevenson and Clark may accurately state West Virginia standards for the granting of a new trial, but it is by federal due process standards, and not by such state criteria, that this Court must be guided in federal habeas corpus cases.

It is this Court's opinion that judged by federal standards McKinney's first contention must be denied. The Court specifically relies upon two reasons which have led it to this conclusion.

First, there is no case law which automatically raises an "improper communication by or with a state trial juror" to Constitutional proportions. To the contrary, there is good cause, at least in McKinney's case, for excluding such a communication from the realm of federal due process.

There is no doubt that the United States Supreme Court or a United States Circuit Court of Appeals may remand a federal case to a United States district trial court, with directions that a hearing be held to determine if improper jury communications were also prejudicial, if no such determination has been made by the trial court. Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954); Washington Gas Light Co. v. Connolly, 94 U.S.App.D.C. 156, 214 F.2d 254 (1954); Wheaton v. United States, 133 F.2d 522 (8th Cir. 1943). It is also certain that a United States Circuit Court of Appeals may remand a federal case to the United States district trial court for a new trial, when it is clear that the district court has abused its discretion by not granting a new trial in cases where it cannot be said that a jury communication was harmless. Holmes v. United States, 284 F.2d 716 (4th Cir. 1960) (where obviously prejudicial communications by a federal court official to members of the federal jury were involved); Texas and New Orleans Railroad v. Underhill, 234 F.2d 620, 64 A.L.R.2d 152 (5th Cir. 1956); Paramount Film Distributing Corp. v. Applebaum, 217 F.2d 101 (5th Cir. 1954); cf. Ogden v. United States, 112 F. 523 (3rd Cir. 1902).² And, finally, there is no doubt that a United States district trial court has the power to grant a motion for a new trial where it is apparent that the communications were not harmless. United States v. Rakes et al., 74 F. Supp. 645 (E.D.Va.1947).³

It is apparent, however, that the above stated principles of law, insofar as the federal appellate courts are concerned, are in the nature of appellate review of federal trial practice, which the United States Supreme Court and the Circuit Courts of Appeals exercise, and it is noteworthy to observe that in none of the above cases has the appellate court action been specifically premised on Constitutional standards of due process. In fact, Constitutional standards were not mentioned in any of the above cases. It is also apparent that in various ways the above cases are factually distinguishable from the present case.

Since federal due process grounds have not yet been asserted regarding improper jury communications in federal trials, it would be incongruous for this Court, based on the facts here present, to find such a Constitutional deprivation in this state criminal trial.

Most assuredly, there could be factual situations where due process would be violated, but this case is not one of those instances. The second reason for denying McKinney's first contention, therefore, is that the facts of this case do not merit this Court's finding a Constitutional deprivation.

The record in McKinney's case is not disputed. While sequestered, several of the jurors made improper telephone calls to unidentified persons....