Pickens v. Lockhart, PB-C-81-141.

Citation542 F. Supp. 585
Decision Date10 June 1982
Docket NumberNo. PB-C-81-141.,PB-C-81-141.
PartiesEdward Charles PICKENS, Petitioner, v. A. L. LOCKHART, Director Arkansas Department of Corrections, Respondent.
CourtUnited States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas

COPYRIGHT MATERIAL OMITTED

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Ray Hartenstein, Little Rock, Ark., for petitioner.

Randy McNair, Victoria Fuel, Asst. Attys. Gen., State of Ark., Little Rock, Ark., for respondent.

MEMORANDUM OPINION

WOODS, District Judge.

FACTS

Petitioner, a 21-year-old black male, was a participant in one of the most heinous crimes in the history of this State. As frankly described by one of petitioner's witnesses, "If there was ever a case that was made for the death penalty, this was one of those cases." (Isbell Dep. 27.) After murdering one victim and stealing his car, petitioner and his two companions went to a rural grocery store at Casscoe in Arkansas County at 1:30 p. m. on October 20, 1975. Entering with drawn weapons consisting of a sawed-off shotgun and a .22 pistol, they robbed the owner and seven customers in the store, and two of them raped the clerk, a 62-year-old grandmother. They then made the victims lie face down on the floor and in execution style shot them in the back of the head with a .22 pistol. Their victims were black and white, young and old, male and female. Several of the victims were shot a second time after the pistol was reloaded. Although charged with two other capital felony murders, petitioner was tried for the murder of Wes Nobles, a 76-year-old black man. Nobles was one of those shot a second time. The store owner implicated Antonio Clark and petitioner in the shootings, since they were dark complexioned. He absolved the light complexioned man (Gooch) from any of the firing.1

Q Was anything said by these men that were doing the firing?
A There wasn't anything said when they started in. They just come in and went to shooting. I was shot in the shoulder.
Q Did the light complexioned man do any of the firing?
A No sir.
Q Was there ever a pause in the firing?
A They went back into the store, emptied the shells out and I heard them say that big man is going to have to be shot again.
Q Who were they talking about?
A I don't know who. Wes Nobles was laying right there. He just barely raised his head up. He said you mother fucker you have got to go and he shot him right there and then he turned around and started shooting. He shot Jimmy Scherm again. He shot Mr. Lockridge again, Floyd Lockridge, Jerry Lockridge and Sherm.
. . . . .
Q Is it still your testimony that two men did the firing?
A Yes sir.
Q Did the gun change hands?
A It did.
Q Yesterday I believe you stated that it was the two dark ones.
A That is correct. (Tr. T. 151, 222.)

According to the arresting officers and Mr. Baine, the Prosecuting Attorney, Mr. Gooch was a very light-skinned, Spanish-appearing person (Ha. T. 301; Tr. T. 182, 197). Petitioner's defense at the trial was that he did not do any of the shooting. It should be noted that Antonio Clark relied on the same defense at his trial where he also received the death penalty. See Clark v. State, 264 Ark. 630, 573 S.W.2d 622, 625 (1978). Clark at his trial admitted that he had raped the clerk. The other rapist is not definitely identified, but when captured, the petitioner was wearing the clerk's wedding ring. She testified that at one time Pickens had the .22 pistol, but she did not know if he fired the shots. In his written statement given to the arresting officer in Memphis, petitioner admitted that he had the .22 pistol when they first entered the store and Clark had the shotgun, but that he gave the pistol to Clark and Clark gave the shotgun to Gooch. This conflicts with the testimony of one of the surviving victims who entered the store while the robbery was in progress. This witness placed the shotgun in possession of Pickens. Near the scene where Gooch and Pickens were apprehended in Memphis, a passerby found the .22 pistol which ballistic tests identified as the source of the shots that killed Wes Noble. There is considerable other testimony connecting Pickens with this pistol at various times during the episode. We have already set out the testimony of the store owner. The female clerk placed the pistol in Pickens' possession at one time. He admitted in his signed statement that when they entered the store he had the pistol in his possession. His role in the robbery was to herd the customers into a back room as they came into the store. He testified as follows:

Q They had them all in the backroom. Is that right? Were they all in the backroom laying down on the floor?
A After we pulled out the guns and took them into the back room.
Q From that point on what were you doing?
A I was getting the people as they came in. Several started coming in. One was sitting in his car. I went and got him out of his car.
Q You went and got him. Did you have a gun?
A Yes sir, I did. (Tr. T. 211.)

Later he gave the following testimony:

Q Did you use a weapon in that store?
A When I first came in I did have a weapon.
Q You don't claim ownership to it, do you?
A No sir.
Q You used it, didn't you?
A I handled it.
Q Did you ever handle the pistol?
A Yes sir.
Q You are sure now?
A Yes sir.
Q Mr. Goacher said the two dark ones did the shooting. Is that correct?
A Yes sir, just one did the shooting.
Q About this shooting, is this the gun that was used? Does it look like the gun?
A Yes sir, it does.
Q Do you know how many shots it holds?
A I think six.
Q Tell me something. Was it fully loaded when you walked in the store?
A Yes sir, it was.
Q There was nine people in there. Right?
A I don't know the exact number.
Q Was there more than six?
A Yes sir.
Q The gun was fired six times, wasn't it?
A Yes sir.
Q Then what happened?
A It was reloaded. We reloaded it.
Q It was reloaded and shot again?
A Yes sir. (Tr. T. 214-15.)

The proof of petitioner's guilt is overwhelming and uncontroverted. He was identified as one of the robbers by three of the survivors (Tr. T. 155, 203, 222, 224). The stolen vehicle occupied by petitioner was stopped in Memphis after a chase by police. Petitioner and Gooch were apprehended after they fled on foot. In the car was a bank bag and a stereo set taken in the robbery (Trial Tr. 166). As stated above, petitioner was wearing the rape victim's wedding ring and there is significant testimony connecting him with the pistol from which the fatal shots were fired. As a matter of fact, the petitioner admitted both in a signed statement (Tr. T. 248) and in testimony from the stand that he was guilty of all the factual allegations charged by the State, except for firing the fatal shots. A review of the trial record discloses that there is substantial evidence in the record from which the jury could have inferred that petitioner participated in the shooting and also in the rape of the clerk, although he was not indicted or tried for the latter crime.

LEGAL PROCEEDINGS

Petitioner was charged by information with murder in the first degree, a capital felony (Ark.Stat.Ann. § 41-2205) on November 10, 1975 in Arkansas County in that he "did unlawfully and feloniously murder Wesley Noble during the perpetration of a robbery." On December 20, 1975 the Prosecuting Attorney was permitted to amend the information to charge "the crime of Capital Felony Murder (Ark.Stat.Ann. § 41-4702) ... that the said defendant ... did unlawfully and feloniously murder Wesley Noble during the perpetration of a robbery. ..." No objection was made to this amendment. The attorney for Sherwood Vincent Gooch moved for a change of venue. Willis Plant, petitioner's appointed counsel, adopted this motion and the trial judge granted both defendants a change of venue out of Arkansas County — Gooch to the Northern District of Prairie County and Pickens to the Southern District of Prairie County. On February 3, 1976 the petitioner was afforded a Denno hearing (Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948 (1954)) in which the voluntary nature of his statement was explored, as well as the propriety of the police lineup where he was identified. In conformity with Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) and subsequent Supreme Court death penalty cases, petitioner was afforded a bifurcated trial—the first phase dealing with guilt and the second phase with penalty. These proceedings were conducted on February 4 and 5, 1976. The jury found petitioner guilty and fixed his punishment at death by electrocution. Judgment was pronounced in accordance with the jury verdict. A motion for a new trial was filed and denied in the trial court, and petitioner's appointed counsel then filed an appeal to the Supreme Court of Arkansas. The conviction and sentence were affirmed. Pickens v. State, 261 Ark. 756, 551 S.W.2d 212 (1977). The Supreme Court denied petition for certiorari, Pickens v. Arkansas, 435 U.S. 909, 98 S.Ct. 1459, 55 L.Ed.2d 500 (1978). Petitioner filed a pro se petition for a copy of the trial transcript which was denied because it was not attached to a petition for post conviction relief, but "petitioner may reapply ... upon the filing of a petition for post conviction relief. See Chavez v. Sigler, 438 F.2d 890 (8th Cir. 1971)." Pickens v. State, 266 Ark. 486, 586 S.W.2d 1 (1979). On September 2, 1980 petitioner filed a petition for permission to proceed under Arkansas Criminal Procedure Rule 37 for post conviction relief. Rule 37 affords relief when a sentence is imposed in violation of the Constitution or laws of the United States or this State or "is otherwise subject to collateral attack." This petition which raised many of the same issues now raised in the instant habeas petition was denied in a per curiam opinion on November 3, 1981. The habeas corpus petition in the U. S. District Court was filed on May 14, 1981. Counsel was appointed for petitioner, and his execution was stayed for ninety days on May 20, 1981....

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