Perry v. Norris, PB-C-83-275.

• Decision Date: 03 March 1995
• Docket Number: No. PB-C-83-275.,PB-C-83-275.
• Citation: 879 F. Supp. 1503
• Parties: Eugene Wallace PERRY, Petitioner, v. Larry NORRIS, Director, Arkansas Department of Correction, Respondent.
• Court: U.S. District Court — Eastern District of Arkansas

879 F. Supp. 1503

Eugene Wallace PERRY, Petitioner, v. Larry NORRIS, Director, Arkansas Department of Correction, Respondent.

No. PB-C-83-275.

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

March 3, 1995.

Eugene Wallace Perry, Tucker, AR, pro se.

John Wesley Hall, Jr., Walter Craig Lambert, Little Rock, AR, Charles Daniels, Albuquerque, NM, Sam T. Heuer, Little Rock, AR, for Eugene Wallace Perry.

Jack Ward Gillean, Office of Governor, State of Ark., Little Rock, AR, for A.L. Lockhart.

Thomas Jeffrey Vining, Pamela Rumpz, Atty. General's Office, Jack Ward Gillean, Office of Governor, State of Ark., Little Rock, AR, for Roger Endell.

Rosalie B. Shields, New York City, Thomas M. Lahiff, Jr., New York City, Peter Drake Mann, Little Rock, AR, for Marion Albert Pruett.

MEMORANDUM OPINION

EISELE, District Judge.

On January 17, 1990, Mr. Eugene Wallace Perry filed a "Supplemental Petition for Writ of Habeas Corpus" on the ground that he was "awaiting execution, pursuant to a conviction obtained in violation of the 14th Amendment to the U.S. Constitution." He raises two claims for relief:

A. Newly discovered evidence that Marion Pruett, and not petitioner, committed the crime, entitles petitioner to a new trial as a matter of due process.

B. The trial court's refusal to permit the issuance of subpoenas to compel the attendance of four out-of-state alibi witnesses violated Perry's 6th Amendment right to compulsory process.

The latter issue was one of many that was dealt with by the Court as a result of petitioner's first habeas corpus petition which was denied by the Court in 1986.

The original state court trial occurred in July of 1981. This Court on July 11, 1986, reviewed from the bench the evidence adduced during the state trial. It will be repeated here as background for a discussion of the issues raised in the 1990 Supplemental Petition. That review commences at page 159 of Volume II of the transcript of the habeas proceeding (which transcript was filed October 17, 1986) and concludes at page 170, as follows:

Sometime in the late afternoon of September 10, 1980, someone robbed the Staton Jewelry Store in Van Buren, Arkansas, of an estimated $100,000 worth of rings, watches and other jewelry, and shot to death the owner of the store, Kenneth Staton, and his daughter, Suzanne Ware, who also worked in the store. A clerk at a neighboring store in the same Cloverleaf shopping Center in Van Buren discovered two bound and gagged bodies in the rear part of the store at around 6:00 p.m. Autopsies revealed that both Ware and her father had been shot twice in the head from close range.

Key witnesses for the state placed the petitioner, Eugene Wallace Perry, in and around the Staton Jewelry Store on several occasions preceding the robbery and murders. At least seven persons identified the petitioner as a man that they had seen in the Van Buren area during a period surrounding the 10th of September, 1980. In addition, various pieces of physical evidence connect the petitioner to the jewelry store and the September 10, 1980, crime. The Court believes it is important to set forth all of this evidence in some detail.

Ruth Staton, the wife and mother of the victims, testified that she saw the petitioner in the Staton Jewelry Store on September 3, 1980, one week before the robbery. She stated the man she believed to be the petitioner remained in the store looking at the display cases for over 30 minutes, affording her an opportunity to observe him. Mrs. Staton testified that the man was there with a woman and that this man conspicuously kept his hands tucked under his arms or in his pockets.

Two other local merchants testified that the petitioner had been in their places of business on September 9, 1980, one day before the crime. Arthur Parr said that the petitioner resembled one of the two men who entered his jewelry store in Fort Smith, Arkansas on September 9, 1980. According to Parr, both men carried motorcycle helmets and they looked at the store's merchandise for about 15 minutes. Another witness, Walter Carson, told of a similar episode involving two men, traveling on a motorcycle, who came into Paul's Pawn Shop on September 9, 1980. Carson stated that the two men told him that they were gold buyers. He identified the petitioner as one of these men. He believed that this man's name was "Anderson" because he had produced a Kansas driver's license bearing that name. State's Exhibit 22 represents a pawn ticket issued by Carson to Anderson on September 10, 1980, when the latter pawned a ring for $45.00.

Crucial testimony was offered by Chantina Ginn. She testified that sometime after the first of September 1980, she and a man named Rick Anderson traveled from Kansas to Arkansas on a blue Harley-Davidson motorcycle, which she identified as the one photographed in State's Exhibits 13, 14, and 15. Ginn stated that they went to the Horseshoe Bend camping area on Beaver Lake near Rogers, Arkansas. There, according to Ginn, she and Anderson met a man named Damon Peterson and his apparent wife, Lorili Peterson, who were camped at an adjacent campsite. Ginn testified that the Petersons had a white camper trailer, which they were pulling behind a light blue Cadillac, and that they invited Rick Anderson and her to stay with them in the camper. She further noted that this camper had a cardboard license plate with the words "Lost Tag" handwritten on it. Ginn identified State's Exhibits 27 and 28 as photographs of the Petersons' camper and State's Exhibits 44-46 as photographs of the Cadillac that pulled the camper.

Ginn stated that on or about the third day after the two couples had met, which would have been either the 8th or 9th of September, Rick and Damon left on the motorcycle, taking with them a briefcase with a gun inside it, a change of clothes, some rope, and a woman's brown wig. She testified that when the two men returned several nights later, they had two orange duffle bags of jewelry which they spread out on the floor of the camper and proceeded to divide among the four individuals. Ginn further stated that after the jewelry had been divided, Damon acted like he was talking to someone and said "Get down on the floor, dog." That's from transcript 2588.

The following day September 11, Anderson and Peterson traded the blue Cadillac for another car, according to Ginn's testimony. She said that the four later burned their trash at the campsite, including some jewelry tags and watch boxes that had been left on the floor of the camper the night before. The four then left the Horseshoe Bend camping area and went to a storage facility in Fayetteville, Arkansas. Ginn stated that they placed the motorcycle and the camper in a self-storage room before leaving the state enroute to Atlanta. Finally, Ginn identified the petitioner as the man whom she had known as Damon Peterson and with whom she and Rick had camped at Beaver Lake.

Pat Etier also testified that an individual known to her as Damon Peterson was one and the same person as the petitioner, Eugene Perry. Etier stated that she saw Peterson and another man, who was introduced to her as "Rick," on the afternoon of September 9, 1980 at the Wal-Mart parking lot in Van Buren. She said the two men were riding a Harley-Davidson motorcycle when she saw them. She identified State's Exhibits 13 and 14 as photographs of that motorcycle, the same photographs which Ginn had identified as being the motorcycle that Anderson and Peterson were riding when they left Beaver Lake.

Etier said that she and the two men left the parking lot to get a drink together. She testified that when the man named Peterson climbed into her truck and took off his motorcycle helmet, she noticed that a wig he was wearing came off inside the helmet. She said that this wig was a light brown woman's wig.

After the three had drunk some beer at Peterson's and Anderson's room in the Terry Motel in Fort Smith, Arkansas, Etier left. But, according to her testimony, she later returned to pick up Peterson and took him to her house where they spent the night of September 9, 1980, together. The following morning, September 10, Etier drove Peterson back to the motel. This occurred around 8:00 a.m. The cities of Fort Smith and Van Buren are immediately adjacent to each other, simply across the river, one from the other.

Linda Godwin, another important witness, told the jury that she had seen two men walking briskly across the Cloverleaf Shopping Center parking lot in Van Buren shortly before 6:00 p.m. on September 10, 1980. Godwin testified that as she was leaving her office she met two men who appeared to be in a hurry. She identified the petitioner as one of these two men.

A Mr. Billy Miller testified he saw two men driving a Jeep a few minutes after the robbery. The Jeep apparently belonged to one of the victims.

Grant Cummins supported Chantina Ginn's testimony which placed the petitioner at the Horseshoe Bend campground. Cummins said that he was camping on Beaver Lake in early September and that he had talked for several hours with two couples. He identified one of the group as the petitioner.

Michael Jeffcoat told the jury that he had sold a used car to a man on September 11, 1980 in Rogers, Arkansas. Jeffcoat identified the petitioner as the man who had traded a blue Cadillac for the car Jeffcoat sold him. Jeffcoat testified that he soon sold the Cadillac to a salvage yard. Police located a blue Cadillac at an auto salvage yard, the same car that was pictured in one of the exhibits that Chantina Ginn identified as the vehicle Peterson drove to Beaver Lake.

The search of the car led to the discovery of a single page of the Van Buren telephone book with Kenneth Staton's phone number on it, along with a copy of the September 11, 1980 edition of the Northwest Arkansas Morning Times headlining the Staton robbery and murders.

The owner of a Fayetteville self-storage facility, Gifford Heckathorn,

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