Mitchell v. Stephens

• Decision Date: 24 November 1965
• Docket Number: No. 17835.,17835.
• Citation: 353 F.2d 129
• Parties: Lonnie MITCHELL, Appellant, v. Dan D. STEPHENS, Superintendent of Arkansas State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

353 F.2d 129 (1965)

Lonnie MITCHELL, Appellant, v. Dan D. STEPHENS, Superintendent of Arkansas State Penitentiary, Appellee.

No. 17835.

United States Court of Appeals Eighth Circuit.

November 24, 1965.

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Christopher Mercer, Sidney S. McMath and John P. Sizemore, Little Rock, Ark., for appellant.

Bruce Bennett, Atty. Gen., of Arkansas, and Jack L. Lessenberry, Chief Asst. Atty. Gen., for appellee.

Before VAN OOSTERHOUT, BLACKMUN and MEHAFFY, Circuit Judges.

BLACKMUN, Circuit Judge.

Again we are confronted with a habeas corpus attack on an Arkansas state court conviction and death sentence for interracial rape. The case presents issues which, in this day, are sensitive. Some of them are similar to those we have considered recently in Bailey v. Henslee, 287 F.2d 936 (8 Cir. 1961), cert. denied 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78; Henslee v. Stewart, 311 F.2d 691 (8 Cir. 1963), cert. denied 373 U.S. 902, 83 S.Ct. 1289, 10 L.Ed.2d 198; and Maxwell v. Stephens, 348 F.2d 325 (8 Cir. 1965), cert. denied 86 S.Ct. 387.

Lonnie Mitchell, Jr., a Negro with a sixth grade education and, apparently, no prior criminal record, was convicted by a jury in the Circuit Court of Union County, Arkansas, of the crime of rape as defined by § 41-3401, Ark.Stat. (1947). The offense was committed in El Dorado on or about March 10, 1959. Mitchell at the time was 23 years of age. The victim was a white woman, a widow, 77 years of age and crippled by arthritis. She was a witness at the trial but since then has died of natural causes. The jury, upon finding the defendant guilty, did not exercise the right it possessed under §§ 41-3403 and 43-2153 to render a verdict of life imprisonment at hard labor. As a consequence, under Arkansas law, the death sentence was imposed.¹ The conviction was appealed to the Supreme Court of Arkansas and there affirmed. Mitchell v. Arkansas, 230 Ark. 894, 327 S.W.2d 384 (1959). Through this point Mitchell was represented by court-appointed counsel in the person of J. S. Thomas of the El Dorado bar.

Since this initial appeal Mitchell has been represented by retained counsel. He first moved to vacate the judgment on a number of grounds. This motion was denied by the trial court. On appeal the denial was affirmed. Mitchell v. State, 232 Ark. 371, 337 S.W.2d 663 (1960). Mitchell then filed a petition for a writ of habeas corpus in the Jefferson County Circuit Court (where the state penitentiary is located). He there alleged many of the same points which had been asserted in the prior motion to vacate. The trial court dismissed this application. The State Supreme Court granted an appeal but affirmed the trial court's action. Mitchell v. State ex rel. Henslee, 233 Ark. 578, 346 S.W.2d 201 (1961). Mitchell then filed an original application with the Supreme Court of Arkansas for permission to file a petition for a writ of error coram nobis in the trial court relative to his sanity at the time of trial. This application was denied. Mitchell v. State, 234 Ark. 762, 354 S.W. 2d 557 (1962).

With this lack of success in the state courts, Mitchell instituted a habeas corpus proceeding in forma pauperis in the United States District Court for the Eastern District of Arkansas. This petition was denied primarily on grounds of waiver and failure to exhaust available state remedies. Mitchell v. Henslee, 208 F.Supp. 533 (E.D.Ark.1962). We reversed, 332 F.2d 16 (8 Cir. 1964), in the light of the intervening decision in Fay v. Noia, 372 U.S. 391, 438-439, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). On the remand Judge Young, after a full hearing at which Mitchell himself testified and in which the state trial record was introduced, denied the petition once more and filed a lengthy and thoughtful opinion in support of his conclusions. Mitchell v. Stephens, 232 F.Supp. 497 (E.D. Ark.1964). Mitchell again appeals.

When this case was on the calendar of an earlier term and no brief had appeared for Mitchell, we appointed counsel to act for him on the appeal. By the time of the rescheduled oral argument we were favored with briefs from both retained counsel and court-appointed counsel.

Here, too, as in the other cases of this type, the defendant's guilt or innocence of the rape charge is not now before us. We have, however, carefully read and are familiar with both the transcript of the state court trial and the transcripts of the federal habeas corpus proceeding.

The state record discloses that on March 6, 1959, the victim employed Mitchell to rake leaves in her yard and that on the evening of March 9 he had been drinking. Late that night someone entered the victim's home by cutting a screen, attacked her with a knife, assaulted her, and made off with her purse and currency. She reported the incident to the El Dorado police at approximately two a. m. on the morning of March 10.

Mitchell was arrested about an hour after the crime was reported and was booked at 3:10 a. m. The arrest took place at his mother's home where he was living. An information was filed that day charging him with the crime of robbery. About 9:30 a. m. he was transferred by the city police to the custody of the sheriff and confined in the county jail. He was arraigned on the robbery charge on the morning of March 11 and Mr. Thomas was then appointed to represent him. He was arraigned on a charge of rape on March 16 and Mr. Thomas was then appointed to represent him on that charge. Trial ensued two weeks later.

Both counsel for the defense raise here a number of constitutional issues. They are:

1. Because of the methods employed in the selection of his jury, Mitchell was denied the equal protection of the laws.

2. Because of the discriminatory application of the death penalty for rape in Arkansas, Mitchell was denied equal protection and the privilege against cruel and unusual punishments.

3. Because of the admission of his rape confession in evidence, Mitchell was denied due process and the privilege against self-incrimination.

4. Because of ineffective representation by his court-appointed trial counsel, Mitchell was denied due process and the right to have the assistance of counsel for his defense.

Retained counsel also raises, as a fifth point, the issue of Mitchell's sanity at the time of the offense and at the time of the trial.

No attack is made here upon the legality of Mitchell's arrest. No search or seizure issue is presented. There were two confessions offered and received in evidence. The first related only to the robbery; the second related to the rape. The admission of the robbery confession is not contested. We take up, in turn, the five asserted issues:

The selection of the petit jury

This court has not been insensitive to constitutional claims based upon race. See, for example, Aaron v. Cooper, 257 F.2d 33 (8 Cir. 1958), aff'd 358 U.S. 1, 78 S.Ct. 1399, 3 L.Ed.2d 3; Bailey v. Henslee, supra, 287 F.2d 936; Henslee v. Stewart, supra, 311 F.2d 691; and Mitchell v. Henslee, supra, 332 F.2d 16. "But purposeful discrimination may not be assumed or merely asserted. * * * It must be proven." And the burden is on the one who asserts discrimination. Swain v. State of Alabama, 380 U.S. 202, 205, 209, 85 S.Ct. 824, 827, 13 L.Ed. 2d 759 (1965); Tarrance v. State of Florida, 188 U.S. 519, 520, 23 S.Ct. 402, 47 L.Ed. 572 (1903).

The parties recognize, of course, that in the present case a motion to quash the first panel, on the grounds of discriminatory selection, was granted without opposition by the State; that the court instructed the jury commissioners to select a new panel without racial discrimination; that the resulting regular and alternate panels contained Negro names; and that the jury finally selected included two Negroes. No objection was made as to the new panel. The defense, however, now stresses the facts that the new panel was selected by the same jury commissioners and that it contained some persons who were on the first panel. It asserts a lack of acquaintanceship by the jury commissioners with potential jurors in the Negro community and argues that the commissioners acknowledged that, although they had contact with Negroes, they did not know very many and that they made no positive effort to acquaint themselves with Negro citizens. In Bailey v. Henslee, supra, pp. 943 and 947 of 287 F.2d, we observed that "In avoiding racial discrimination in the selection of jurors it is not enough for the jury commissioners or any other selecting agency to be content with persons of their personal acquaintance", citing Smith v. State of Texas, 311 U.S. 128, 132, 61 S.Ct. 164, 85 L.Ed. 84 (1940); Hill v. State of Texas, 316 U.S. 400, 404, 62 S.Ct. 1159, 86 L.Ed. 1559 (1942); and Cassell v. State of Texas, 339 U.S. 282, 289, 70 S.Ct. 629, 94 L.Ed. 839 (1950), and that the testimony of the jury commissioners there as to their efforts to ascertain the names of qualified Negroes "leaves much to be desired". We in effect said the same thing in Henslee v. Stewart, supra, p. 694 of 311 F.2d. We regarded a deficiency in jury commissioners' methods as one of the factors which, in the aggregate, led us to the conclusion, in each of those cases, that a petition for a writ of habeas corpus was to be conditionally granted. The testimony of the commissioners in Bailey and Stewart, set out in the footnotes on p. 947 of 287 F.2d and p. 694 of 311 F.2d, is self-condemning and discloses lack of diligence and an emphasis on obtaining proportionate representation.

The defense case here, too, rests on the testimony of the commissioners who selected the list from which Mitchell's jury was chosen. We have read that testimony. Judge Young's summary of it at pp. 505-506 of 232 F.Supp. is accurate. We feel that it reveals sufficient knowledge of Negroes on the part of the three commissioners (the first an employee of a chemical plant and an officer of a union having Negro members; the second a hotel manager who hired Negro employees; the...