Pinkard v. Neil

• Decision Date: 15 April 1970
• Docket Number: Civ. No. 5698.
• Citation: 311 F. Supp. 711
• Court: U.S. District Court — Middle District of Tennessee
• Parties: Isaiah PINKARD, Petitioner, v. William S. NEIL, Warden, Tennessee State Prison, Nashville, Tennessee, Respondent.

311 F. Supp. 711

Isaiah PINKARD, Petitioner, v. William S. NEIL, Warden, Tennessee State Prison, Nashville, Tennessee, Respondent.

Civ. No. 5698.

United States District Court, M. D. Tennessee, Nashville Division.

April 15, 1970.

H. Fred Ford of Howser, Thomas, Summers & Binkley, Nashville, Tenn., for petitioner.

Robert H. Dedman, Special Counsel, State of Tennessee, Nashville, Tenn., for respondent.

MEMORANDUM

WILLIAM E. MILLER, Chief Judge.

This matter came on before the Court for a hearing on April 7, 1970. Petitioner filed his petition on April 1, 1970, alleging denial of due process and equal protection of the law, in violation of the Fourteenth Amendment to the United States Constitution.

Petitioner is presently incarcerated in the Tennessee State Penitentiary, Nashville, Tennessee, serving a 99-year sentence imposed by the Maury County Circuit Court for violation of T.C.A. § 39-606, carnally knowing a female under the age of twelve (12) years).

Petitioner has exhausted all available state remedies on the questions which he brings before the Court. His petition under the Tennessee post-conviction procedure act was denied by the Court of Criminal Appeals, 2-1, and the State Supreme Court denied certiorari, without opinion.

Petitioner was first convicted in Maury County Circuit Court on April 6, 1948, and sentenced to a term of 20 years in the state penitentiary. On April 24, 1948, the Circuit Court granted petitioner a new trial. On July 30, 1948, petitioner was again convicted in Maury County Circuit Court of violation of T.C.A. § 39-606 under the same indictment. He was then sentenced to a term of 99 years in the penitentiary.

In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the Supreme Court stated:

Whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made a part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal. Supra, at 726, 89 S.Ct. at 2081.

Petitioner's case appears to fall squarely within the ambit of the Supreme Court's holding in Pearce.

No record of either state court trial is presently available, apparently having been lost or misplaced, but the unrefuted testimony of petitioner is that he was incarcerated during the interval between trials, that he was guilty of no misconduct during that period, and that no evidence was presented at his second trial bearing upon his conduct during such time period.

Counsel for respondent contends that the "record" of which the Supreme Court speaks in Pearce refers to the record in the post-conviction proceedings, not the record of the state court trial resulting in the greater sentence. However, the Pearce opinion states that the "factual data upon which the increased sentence is based" must be made a part of the record so that the increased sentence may be fully tested upon appeal, indicating that the sentencing judge must specify upon the record of the trial before him any evidence of supervening conduct causing him to impose an increased sentence. It would be slight protection for petitioner's rights if such evidence needed only to be introduced at post-conviction proceedings after his original trial.

Respondent refers to alleged testimony of a physician at the second trial, not presented at the first trial, which he claims had the effect of aggravating the offense and justifying the imposition of a more severe sentence. There are at least two reasons why this contention must fail. First, the so-called evidence appears to have been conclusory in nature and probably inadmissible, the physician having undertaken to state positively that the petitioner committed the offense although admittedly he was not an eye witness. Second, such evidence would not meet the test of the Pearce case because it bears no relationship to conduct occurring after the first trial. The Supreme Court was emphatic in Pearce that any increased sentence imposed upon a retrial must come "in the light of events subsequent to the first trial that may have thrown new light upon the defendant's `life, health, habits, conduct, and mental and moral propensities.'" Supra, at 723, 89 S.Ct. at 2079, citation omitted, emphasis added.

Respondent also contends that Pearce should not be applied because in Tennessee the jury and not the judge fixes the punishment to be meted out to a defendant. T.C.A. § 40-2707. Respondent's theory is that if a jury on a second trial imposes a greater sentence upon a defendant than he received at his first trial, the judge is powerless to change the sentence, or to probe the minds of the jurors to determine their reasons for the greater sentence.

In such cases, however, it would appear not incompatible with Tennessee practice for the judge to charge the jury, as a matter of law, that any sentence imposed upon a particular defendant could not be greater than that imposed upon him at an earlier trial for the same offense, whatever that term may have been, if no evidence of supervening conduct were offered at the second trial. If such evidence were offered, the judge could charge the jury that it must be sufficient to justify any greater sentence and that the jury must so state in returning its verdict. Such procedure would not invade the province of the jury. Once the Supreme Court has stated that, as a matter of law, a defendant cannot be given an increased sentence upon retrial unless there is affirmative evidence of conduct subsequent to the first trial, then it becomes the duty of the judge to follow that decision either in imposing sentence himself in states following the federal practice which charges the judge with this responsibility, or in properly charging the jury in states following the Tennessee practice.

There remains for decision the question of whether or not the Pearce doctrine is to be retroactively applied, thus making it applicable to the instant case. The Court concludes that the Pearce decision should, indeed, be given retroactive effect. In reaching this conclusion, ...