Pickens v. Lockhart

• Decision Date: 02 September 1992
• Docket Number: No. PB-C-91-331.,PB-C-91-331.
• Citation: 802 F. Supp. 208
• Parties: Edward Charles PICKENS, Petitioner, v. A.L. LOCKHART, Director Arkansas Department of Correction, Respondent.
• Court: U.S. District Court — Eastern District of Arkansas

802 F. Supp. 208

Edward Charles PICKENS, Petitioner, v. A.L. LOCKHART, Director Arkansas Department of Correction, Respondent.

No. PB-C-91-331.

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

September 2, 1992.

COPYRIGHT MATERIAL OMITTED

Jeffrey M. Rosenzweig, Little Rock, Ark., for petitioner.

Olan W. Reeves, Asst. Atty. Gen., Little Rock, Ark., for respondent.

MEMORANDUM OPINION

HENRY WOODS, District Judge.

HISTORY OF LITIGATION

Edward Charles Pickens has been on death row for seventeen years. The facts in his case are set forth in the appeal of his original conviction and sentence. Pickens v. State, 261 Ark. 756, 551 S.W.2d 212 (1977), cert. denied, 435 U.S. 909, 98 S.Ct. 1459, 55 L.Ed.2d 500 (1978); petition for post-conviction relief, Pickens v. State, 266 Ark. 486, 586 S.W.2d 1 (1979), cert. denied, 451 U.S. 964, 101 S.Ct. 2036, 68 L.Ed.2d 342 (1981). The facts are also set out in detail in my original federal habeas decision. Pickens v. Lockhart, 542 F.Supp. 585 (E.D.Ark.1982). In his original petition Pickens raised twenty federal constitutional issues, all of which were rejected by the district court. On appeal to the Court of Appeals, the Eighth Circuit declined to set aside the conviction but ordered a new trial on the penalty phase because counsel was ineffective in that aspect of the trial. Counsel was found to be ineffective for his failure to present evidence of mitigating circumstances and in failing to object to an erroneous instruction. Pickens v. Lockhart, 714 F.2d 1455 (8th Cir.1983). In two new penalty-phase trials, evidence was presented of mitigating circumstances and the erroneous instruction was not given. The first resentencing trial was scheduled in November, 1984 in Prairie County, where the case had been moved by the defendant in a change of venue, but a mistrial was declared because of the following developments.

"After voir dire of the jury panel had begun, one of the State's witnesses at the original trial, Harold Goacher, informed the prosecutor that what he had said petitioner Pickens had done during the crime Antonio Clark did, and what he said Clark did, petitioner had done." Pickens v. State, 284 Ark. 506, 683 S.W.2d 614, 615 (1985). After Goacher made this statement, Pickens moved for a hearing. When his motion was denied, he applied to the Supreme Court of Arkansas for writs of mandamus, certiorari, and error coram nobis. All of these writs were denied. After this interruption, a resentencing jury was impanelled September, 1985 and Pickens was again sentenced to death. Pickens v. State, 292 Ark. 362, 730 S.W.2d 230 (1987), cert. denied, 484 U.S. 917, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987). The Supreme Court of Arkansas reversed, finding that the trial court erroneously limited the proof of mitigating circumstances to a time period before the murder was committed. The trial judge should have allowed Pickens "to introduce the testimony of various witnesses regarding character, rehabilitation, adjustment to prison and good works he had undergone or performed since the murder occurred." Id. 730 S.W.2d at 232.

After the reversal, another resentencing jury was impanelled, this time in Arkansas County at the defendant's request. Pickens was sentenced to death a third time. The Supreme Court of Arkansas affirmed. Pickens v. State, 301 Ark. 244, 783 S.W.2d 341 (1990), cert. denied, 497 U.S. 1011, 110 S.Ct. 3257, 111 L.Ed.2d 766 (1990). Pickens filed a Rule 37 petition which was denied. Pickens v. State, C.R. 89-94, 1990 WL 210641 (Dec. 17, 1990).

He again filed for federal habeas corpus relief, raising the following issues:

(1) recantation of witness testimony from 1976 trial (2) coerced confession admitted at 1976 trial;

(3) denial of fair jury during 1988 resentencing because of death qualification issue;

(4) trial court at 1988 resentencing refused to give proposed mitigating circumstance instruction;

(5) Arkansas resentencing statute is unconstitutional as it violates ex post facto;

(6) denial of due process when trial court permitted improper prosecutor argument at 1988 resentencing;

(7) denial of due process when the state presented rebuttal evidence and a closing argument at 1988 resentencing;

(8) denial of due process when trial court at 1988 resentencing allowed prosecutor to refer to the killing of one of the other victims;

(9) denial of due process when trial court at 1988 resentencing allowed evidence concerning petitioner's crime committed in Michigan;

(10) denial of due process when trial court at 1988 resentencing allowed impeachment of witness; and

(11) denial of rights at 1988 resentencing because the jury did not find mitigating circumstances as presented by petitioner.

I THE RECANTATION ISSUE

Harold Goacher, one of the victims, testified at trial that the two dark men (Pickens and Clark) did all the shooting. One of them came into the room where seven victims were on the floor and shot them. Subsequently one of them came back again and shot the two Lockridge men, Jimmy Scherm, and Wes Noble. The latter pair died from their wounds. Pickens was tried for the murder of Wes Noble. Goacher, however, testified that he could not make a positive identification of Noble's actual murderer.

When this case was remanded for a new trial by the Court of Appeals on the sentencing phase only, as noted supra, Goacher informed the prosecutor that what he had said Pickens had done, Clark had actually done, and what he said Clark had done, Pickens had actually done. With reference to this change in Goacher's testimony, we agree with the statement of the Supreme Court of Arkansas:

Furthermore, even if the petition for writ of error coram nobis were timely, the record does not indicate that there would be any difference in the outcome of the guilt phase. Mr. Goacher testified that both of the men he described as dark-skinned men (Clark and Pickens) did the shooting, although he did not separate their specific actions. Since Clark was also found guilty and received the death penalty, it cannot be said that the result of the guilt phase would have been different. If Goacher's testimony would go to mitigation, it may be heard in the sentencing proceeding now in progress.

Pickens v. State, 683 S.W.2d at 616.

Goacher made a more serious charge, claiming that he was told by special prosecutor Jack Lassiter and Gary Isbell to commit perjury in testifying that Clark did not shoot Wes Noble. Lassiter and Isbell were Assistant Attorneys General at the time and were highly respected members of the Arkansas Bar. Lassiter denied this charge at the first resentencing hearing in 1984. On the basis of these events, Pickens now asks that his original conviction be set aside. There are several fallacies in this argument. First, the guilt of Pickens was established in the first trial and the subsequent habeas proceedings from which there was no appeal from the Eighth Circuit to the Supreme Court of the United States. The present habeas proceeding is only involved with the last sentencing hearing which was unanimously affirmed by the Supreme Court of Arkansas. Pickens v. State, 783 S.W.2d 341. Neither Goacher nor Lassiter testified at the hearing which is now under review in this proceeding. Pickens' guilt was simply not at issue, as his attorney conceded when the jury during their deliberations sent the following note: "Has Mr. Pickens exhausted all his appeals on his murder conviction?" (TR 1704). Petitioner's attorney responded: "O.K. I don't have any problem with the Court putting the answer—the language all appeals as to guilt or innocence of the murder conviction have been exhausted, or all appeals as to guilt, yeah, all appeals as to guilt of the murder conviction.... Ah, guilt of the murder conviction have been exhausted." (TR 1704-705).

At any rate, there was abundant evidence of petitioner's guilt adduced in the hearing now under review. Jerry Lockridge, a member of the army special services force, home on leave, was one of those wounded during the robbery. He testified as follows:

Q What happened after that?

A Ah, probably within two to three seconds after the time that, ah, you heard the door, ah, close, ah, one of the black gentlemen walked back in. He walked over to—

Q Which black gentleman.

A Mr. Pickens walked back in.

Q The gentleman seated here at counsel table?

A Yes, sir. Yes, sir.

Q Is there any doubt in your mind this is who you saw?

A No doubt in my mind whatsoever, sir.

Q How—was he armed—still armed at that time?

A Still armed at that time with the pistol in his hand, sir.

Q O.K.

A He came in and made the statement that, ah, we're not here to kill anyone especially any blacks and less than a second later he pointed the gun point blank range at Mr. Noble's head and pulled the trigger.

Q Did the gun fire?

A Yes, sir.

Q Did the bullet strike Mr. Noble?

A Ah, yes, sir.

(TR 1274-75).

If there was any need to relitigate petitioner's guilt, the above testimony establishes it beyond all question. As the Supreme Court of Arkansas said:

At the sentencing hearing, one of the victims, Jerry Lockridge, testified that Pickens fired first, shooting Wes Noble at point blank range. Other shots, fired by Pickens or the others, then followed in rapid succession until the gun was emptied. The gun was then reloaded and at least one more shot was fired. Lockridge said, "during the entire time I was there, ... Mr. Pickens was the individual doing the talking ... he's the one that told me to lay down on the floor ... he was the one that did the talking to Mr. Goacher when they found the money." Lockridge said he perceived Pickens as the one in control of the situation. Another victim, James Weatherly, said Pickens was not acting on the instructions of anyone. From this evidence, the jury could reasonably have concluded that the mitigating circumstance of youth and domination by another person did not exist.

Pickens v. State, 783 S.W.2d at 345. This is a fair...