Mitchell v. Stephens, No. PB 62 C 24.

CourtUnited States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
Writing for the CourtYOUNG
Citation232 F. Supp. 497
PartiesLonnie MITCHELL, Petitioner, v. Dan D. STEPHENS, Superintendent of Arkansas State Penitentiary, Respondent.
Docket NumberNo. PB 62 C 24.
Decision Date06 August 1964

232 F. Supp. 497

Lonnie MITCHELL, Petitioner,
v.
Dan D. STEPHENS, Superintendent of Arkansas State Penitentiary, Respondent.

No. PB 62 C 24.

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

August 6, 1964.


232 F. Supp. 498

Christopher C. Mercer, Little Rock, Ark., for petitioner.

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

YOUNG, District Judge.

Petitioner, a Negro male, age 27, brings this habeas corpus proceeding, in forma pauperis, alleging the unconstitutionality of his conviction for rape in the Circuit Court of Union County, Arkansas, on April 11, 1959. Petitioner was sentenced to death and his conviction was affirmed by the Arkansas Supreme Court in Mitchell v. State, 230 Ark. 894, 327 S.W.2d 384 (1959). No application for certiorari was made to the United States Supreme Court. Petitioner's motion to vacate the state court judgment was denied. Mitchell v. State, 232 Ark. 371, 337 S.W.2d 663 (1960), as was also a petition for habeas corpus, Mitchell v. State, 233 Ark. 578, 346 S.W.2d 201 (1961), as well as a writ of coram nobis, Mitchell v. State, 234 Ark. 762, 354 S.W.2d 557 (1962). Petitioner then sought habeas corpus in this Court which was denied, Mitchell v. Henslee, 208 F.Supp. 533 (E. D.Ark.1962), rev'd per curiam 332 F.2d 16 (8th Cir. 1964). Pursuant to the mandate of the Court of Appeals, hearings on the petition were held on June 18, 1964, and July 2, 1964, in order that petitioner could present evidence in support of the contentions now urged.

At the state court trial, petitioner was represented by Mr. J. S. Thomas of El Dorado, Arkansas, a court appointed attorney who prosecuted the original appeal to the Arkansas Supreme Court. Present counsel has assisted petitioner in all subsequent actions, including this suit. The circumstances of the crime and a discussion of the evidence are set out in the several reported cases. The only issue presented by the instant case is whether petitioner's federal constitutional rights, in the particulars relied upon, were preserved in the state court action.

Petitioner alleges the following violations of his constitutional rights: (1) The conviction was based upon a confession illegally obtained; (2) Petitioner was insane at the time of the commission of the offense; (3) Petitioner did not have effective assistance of legal counsel at the state court trial; (4) Racial discrimination was practiced in the selection of the jury panel at petitioner's state court trial in that Negroes were systematically limited and excluded from jury service; and (5) There has been an unequal application of the Arkansas rape statute, Ark. Stat. § 41-3403 (1947), in that it is the "practice, policy and custom of sentencing Negro men to death for rape upon white women, while not inflicting this punishment upon any other persons." In this opinion, the Court will deal with these issues in the order mentioned.

I. CONFESSION

The robbery and rape of Mrs. O. G. Murphy, a 77 year old crippled white woman, occurred in the early hours of March 10, 1959, sometime prior to two o'clock that morning. Shortly thereafter,

232 F. Supp. 499
police officers apprehended petitioner and took him to the police station, where he was booked at 3:10 a. m. and held in the City Jail until later that morning, when he was turned over to Sheriff O. E. Bishop at 9:30 a. m. Sheriff Bishop placed petitioner in the County Jail. Petitioner was arraigned for the crime of robbery on the morning of March 11th, at which time Mr. Thomas, an El Dorado attorney, was appointed as counsel for petitioner.1

Immediately following the arraignment on the 11th, Sheriff Bishop and the jailer questioned petitioner for five or six minutes in the lobby of the County Jail. At this time, petitioner related his activities on the night of March 9th, and stated that he had cut a screen at Mrs. Murphy's house with his knife, entered her home, got her purse containing $130.00 in cash, went upstairs, got excited, ran out of the house to the nearby school grounds, transferred the money from the purse to his billfold and then threw the purse away. Sheriff Bishop had known petitioner since boyhood, and the Sheriff testified that prior to getting this story he had advised petitioner that he did not have to say anything, and if he did, it could be used against him. Petitioner then made this statement confessing to the robbery in the prosecuting attorney's office, where it was recorded.

Up until the morning of March 12th, petitioner had claimed that he had discarded Mrs. Murphy's purse on the school grounds, but police officers had been unable to find it. On the morning of the 12th, Sheriff Bishop sent Sgt. Henley to ask petitioner exactly where he had put the purse. Petitioner stated that he had thrown the purse on the roof of the school building, and further, he told Sgt. Henley that he wished to make a second statement. (The police later returned to the school grounds and found the purse on the roof of the building.) It was at this time that Sheriff Bishop had one of his deputies telephone petitioner's parents. Sheriff Bishop informed the Prosecuting Attorney, Mr. William I. Prewett, that petitioner desired to make another statement, and arrangements were immediately made for the statement to be taken in the office of the Prosecuting Attorney. This statement was taken by Mr. Prewett and Mr. Mayfield, Deputy Prosecuting Attorney, in the presence of Sheriff Bishop. At the time, petitioner's parents were in the outer office.

(a) Petitioner's Waiver of the Right to Attack the Confession as Involuntary and Coerced

Petitioner now, for the first time in numerous post-conviction attacks, denies that he made any statement to Sheriff Bishop about the robbery, and further says that he was forced into making the confession given in Prewett's office which was later used against him at his trial. Petitioner testified at the hearing on this petition that Prewett and Sheriff Bishop told him what to say, threatened him and physically abused him. On the contrary, Thomas, petitioner's court appointed counsel, testified under oath that petitioner prior to the trial told him that he had been well treated at the County Jail, and further that he had reviewed the confession with petitioner "word for word" and petitioner stated that it was correct.2 Thomas further testified that he explained to petitioner that if he could "hook-up" any mistreatment with the confession, it would not be admissible at the trial.

During petitioner's trial in state court, and prior to the introduction of the confession into evidence, the court retired into chambers with counsel for both sides, as well as petitioner, in order to discuss

232 F. Supp. 500
the admissibility of the confession outside of the presence and hearing of the jury.3 The following discussion ensued
* * * * * *
"Mr. Prewett: I would like to ask counsel if there is any contention here on part of the defense on the last statement that was taken in the office of the Prosecuting Attorney, is there any contention that it was not made voluntarily or with threats or coercion?
"Mr. Thomas: No.
* * * * * *
"Mr. Thomas: The defendant has stated to me repeatedly that he has been accorded every kindness and every consideration at the hands of the County officers only.
"Mr. Prewett: With permission of the defense counsel, I would like to ask if the defendant personally made that statement?
"Mr. Thomas: (to the defendant) — Lonnie, you stated to me that you had been well treated by the officers while in the County Jail?
"The Defendant: (Lonnie B. Mitchell) Yes, sir."
* * * * * *

It appears from the evidence adduced at the hearing held by this Court, as well as from the testimony contained in the state court record, now a part of the record of this action, that it was the "considered choice" of petitioner deliberately not to raise any contention that his confession was coerced and, therefore, there was a waiver of the right to make this argument now. Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). It is the view of this Court that petitioner "* * * after consultation with competent counsel * * * understandingly and knowingly forewent the privilege * * *" of asserting the present attack on his confession. Fay v. Noia, supra at 439, 83 S.Ct. at 849.

(b) Voluntariness of the Confession

Notwithstanding the waiver by petitioner of his right now to attack the constitutionality of the confession, petitioner was permitted to introduce evidence at the hearing in this Court to attempt to prove that the confession used against him was coerced through physical mistreatment at the hands of the Sheriff, and, hence, improperly admitted at the state court trial in violation of his federally protected rights. See Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963). Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948 (1961). Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960). Crooker v. California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448 (1958).

Admittedly, if petitioner's will was overborne, or if his confession was not the product of a "rational intellect and a free will," his confession was coerced and thus not admissible. Townsend v. Sain, 372 U.S. 293, 307, 83 S.Ct. 745, 754, 9 L.Ed.2d 770 (1962). This Court has reviewed all of the testimony taken at the hearing on this petition, as well as the testimony contained in the record of the state court trial, and the evidence is overwhelming that petitioner voluntarily and freely confessed to the rape of Mrs. Murphy on March 10, 1959, without any coercion whatsoever. The Court so finds, and petitioner's argument to the contrary is wholly without merit.

According to the testimony of Prewett, he explained in detail to petitioner his rights with regard to making the confession in his offce, telling petitioner then that the charge for rape was being investigated and would be filed,...

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9 practice notes
  • Trotter v. Stephens, No. PB-64-C-62
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
    • April 30, 1965
    ...considered by this Court and rejected in Maxwell v. Stephens, 229 F.Supp. 205, 216 and 217 (E.D.Ark.1964), and Mitchell v. Stephens, 232 F.Supp. 497, 507-509 (E.D.Ark.1964) (Discussing the Fourteenth Amendment argument). See also Maxwell v. State, 236 Ark. 694, 370 S.W. 2d 113 (1963). Now, ......
  • Mitchell v. Stephens, No. 17835.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • November 24, 1965
    ...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 When this case was on the calendar of an earlier term and no brief had appeared for Mitchell, we appointed counsel to......
  • United States v. State of New Jersey, No. 14833
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • May 20, 1965
    ...Townsend v. Ogilvie, 334 F.2d 837 (7 Cir. 1964), cert. denied, 379 U.S. 984, 85 S.Ct. 683, 13 L.Ed.2d 574 (1965); Mitchell v. Stephens, 232 F.Supp. 497 (E.D.Ark. 1964). In Lee v. United States, 322 F.2d 770 (5 Cir. 1963), decided prior to the Supreme Court decisions in Massiah and Escobedo,......
  • Com. v. Negri
    • United States
    • United States State Supreme Court of Pennsylvania
    • September 29, 1965
    ...v. Ogilvie, 334 F.2d 837 (7th Cir. 1964), cert. denied, 379 U.S. 984, 85 S.Ct. 683, 13 L.Ed.2d 574 (1965); and, Mitchell v. Stephens, 232 F.Supp. 497 (D.C.E.D.Ark.1964). However, other state and federal jurisdictions interpreted Escobedo differently, and reached another result. [419 Pa. 121......
  • Request a trial to view additional results
9 cases
  • Trotter v. Stephens, No. PB-64-C-62
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
    • April 30, 1965
    ...considered by this Court and rejected in Maxwell v. Stephens, 229 F.Supp. 205, 216 and 217 (E.D.Ark.1964), and Mitchell v. Stephens, 232 F.Supp. 497, 507-509 (E.D.Ark.1964) (Discussing the Fourteenth Amendment argument). See also Maxwell v. State, 236 Ark. 694, 370 S.W. 2d 113 (1963). Now, ......
  • Mitchell v. Stephens, No. 17835.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • November 24, 1965
    ...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 When this case was on the calendar of an earlier term and no brief had appeared for Mitchell, we appointed counsel to......
  • United States v. State of New Jersey, No. 14833
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • May 20, 1965
    ...Townsend v. Ogilvie, 334 F.2d 837 (7 Cir. 1964), cert. denied, 379 U.S. 984, 85 S.Ct. 683, 13 L.Ed.2d 574 (1965); Mitchell v. Stephens, 232 F.Supp. 497 (E.D.Ark. 1964). In Lee v. United States, 322 F.2d 770 (5 Cir. 1963), decided prior to the Supreme Court decisions in Massiah and Escobedo,......
  • Com. v. Negri
    • United States
    • United States State Supreme Court of Pennsylvania
    • September 29, 1965
    ...v. Ogilvie, 334 F.2d 837 (7th Cir. 1964), cert. denied, 379 U.S. 984, 85 S.Ct. 683, 13 L.Ed.2d 574 (1965); and, Mitchell v. Stephens, 232 F.Supp. 497 (D.C.E.D.Ark.1964). However, other state and federal jurisdictions interpreted Escobedo differently, and reached another result. [419 Pa. 121......
  • Request a trial to view additional results

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