Stewart v. Stephens, PB-65-C-2.

Decision Date23 July 1965
Docket NumberNo. PB-65-C-2.,PB-65-C-2.
PartiesClarence STEWART, Jr., Petitioner, v. Dan D. STEPHENS, Superintendent of Arkansas State Penitentiary, Respondent.
CourtU.S. District Court — Eastern District of Arkansas

COPYRIGHT MATERIAL OMITTED

Harold B. Anderson, Little Rock, Ark., Wiley A. Branton, Pine Bluff, Ark., for petitioner.

Bruce Bennett, Atty. Gen., John P. Gill, Asst. Atty. Gen., Little Rock, Ark., for respondent.

GORDON E. YOUNG, District Judge.

This habeas corpus proceeding is brought by petitioner. Clarence Stewart, Jr., a Negro, to set aside his second conviction for murder.1 He received a death sentence. His conviction was affirmed by the Supreme Court of Arkansas in the case of Stewart v. State, 237 Ark. 748, 375 S.W.2d 804.2

The chronological facts, so far as here pertinent, show that on January 8, 1959, the employees of R. E. Caldwell's Service Station in North Little Rock, Arkansas discovered the body of William N. Caldwell lying on the floor of his auto parts store. Upon investigation the North Little Rock Police discovered that Mr. Caldwell had been stabbed to death with a hunting knife which was still protruding from his chest. To learn the identity of the owner of the knife, the North Little Rock Police caused a picture of the knife to be run in the newspapers and over television with a request that anyone having any knowledge of the knife contact the North Little Rock Police Department. About 6:00 p. m. on January 9, 1959, the police were informed by a Mr. Tull at Scott, Arkansas that he thought he had some information with respect to the identity of the owner of the knife. Lt. Cecil Hammer of the North Little Rock Police Department and Officers McDonald and Tracy with the Arkansas State Police went to Tull's Service Station at Scott, Arkansas. Upon arriving, the officers were directed to an informer,3 who told them that he thought the knife belonged to a Pete Redman. The officers drove to Redman's house, where Redman informed them that he did own a hunting knife but that he had lent it to Clarence Stewart about a week before and that Stewart had not returned the knife. The officers then made arrangements to take Pete Redman to Police Headquarters at North Little Rock to identify the knife. He directed the officers to the home of Clarence Stewart, but Stewart was not home when they arrived. Lt. Hammer remained at the home of Stewart and the other two officers prepared to take Redman to North Little Rock Police Headquarters for the purpose of identifying the knife. At the suggestion of Redman, who indicated that he thought he knew where Clarence Stewart was visiting, the officers went by the Ellis Thomas, Sr., residence and asked if Stewart was there. After Ellis Thomas, Sr., found out why the officers were looking for Stewart, he called for his son, Ellis Thomas, Jr. As a result, two individuals — Thomas, Jr., and Stewart — approached from some heavy underbrush at the rear of the Thomas home.4 Stewart and Thomas, Jr., then accompanied the officers in the State Police car, and, after going by the Stewart home to pick up Lt. Hammer, proceeded to the North Little Rock Police Headquarters, where Stewart allegedly made certain statements.5

In his petition, Stewart alleges that his constitutional rights were violated in the following particulars:

1. That he was charged by an information drawn by the prosecuting attorney instead of by an indictment of a grand jury as required by the Constitution of the United States.
2. That Negroes have been systematically excluded as jury commissioners.
3. That petitioner is now insane and was insane before the crime was committed.
4. That race was a factor in selecting the jury at his trial and that it was so drawn upon a racially proportionate basis as to discriminate against petitioner because of his race.
5. That his alleged confession was coerced.

Since it appeared that petitioner had exhausted his State remedies, this Court issued a stay of execution, and in accordance with the duties and burdens6 imposed upon the federal district courts by the decisions of the United States Supreme Court in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837; Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770; and Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L. Ed.2d 148, the petition was set down for a plenary hearing on February 25, 1965. At this hearing, the petitioner rested after the transcript of the proceedings in the State Court was made a part of the record here. The respondent called as witnesses Leo Grant, V. H. Williams, and Paul McDonald.7

CHARGE BY INFORMATION:

The petitioner's contention with respect to being charged by information filed by the prosecuting attorney instead of by a grand jury indictment is without merit. See Moore v. Henslee, 276 F.2d 876, 878 (8th Cir. 1960), where the Court said:

"* * * The Supreme Court of the United States has consistently recognized that state prosecutions initiated by the filing of an information by the Prosecuting Attorney, here authorized by Ark.Const. Amend. 21, do not violate the constitutional rights of the accused under the Fourteenth Amendment. Hurtado v. People of State of California, 110 U.S. 516, 538, 4 S.Ct. 111, 292, 28 L.Ed. 232 * * *."

RACIAL DISCRIMINATION IN SELECTION OF JURY COMMISSIONERS:

The petitioner's contention that his constitutional rights have been violated because Negroes have been systematically excluded as jury commissioners is without merit. The identical argument here made by petitioner was considered in Moore v. Henslee, 276 F.2d 876, 879 (8th Cir. 1960), and there determined adversely to petitioner's present contention. That decision is binding upon this Court until overruled by that court or the Supreme Court of the United States.

INSANITY ISSUE:

Petitioner offered no testimony on the issue of insanity in this Court other than the transcript of his trial in the State Court,8 and has not argued the issue in the briefs submitted herein. However, notwithstanding this apparent abandonment of the issue, this Court has carefully reviewed the transcript of the proceedings in the State Court9 and finds that the issue of insanity was fairly submitted to the jury.

Dr. Fletcher testified that petitioner's I.Q. was low (63) and that she felt he was definitely mentally affected and his judgment impaired. On the other hand, she said that he was competent and not psychotic on the days that she examined him.

Dr. Crow, a specialist in psychiatry on the staff of the Arkansas State Hospital, testified about three reports made by the staff of the hospital, in all of which he participated. He said that three different tests on Stewart's I.Q. were taken and they varied — that I.Q. is just one link in the chain that determines whether or not he is competent or responsible. In Dr. Crow's opinion petitioner knows right from wrong and was not suffering from any disease of the mind. He has a mind capable of logical reasoning, capable of adjusting to his environment without supervision or control.

Actually, petitioner's alleged insanity at the time of commission of the offense, which was one of the issues of his trial, cannot be raised in this proceeding. The same standards govern habeas corpus proceedings as those involving a motion by a federal prisoner under 28 U.S.C.A. § 2255, Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). The judgment of conviction embraced a determination of that question adverse to the defendant and it is well settled that the issue is not one which can be raised or considered by such a proceeding as this one. Bradley v. United States, 347 F.2d 121 (8th Cir. 1965).

However, the Court has gone into the testimony in regard to this issue because petitioner claims mental incapacity in connection with his assertion that his confession or admissions were coerced.

The evidence in the record preponderates in favor of the respondent's position that petitioner was legally responsible for his acts and conduct,10 and this Court so finds.

SELECTION OF JURY:

Petitioner alleges that his constitutional rights were violated in the selection of the jury (1) because race was a factor in the selection of the jury panels by the jury commissioners (i. e., the jury was selected on a racially proportionate basis), and (2) because the total number of Negroes placed on the jury was less than the peremptory challenges given the State,11 the State could (as it usually did) exercise its challenges so as to prevent any Negroes from serving on the jury.

In accordance with Arkansas law,12 the State Court at the beginning of each biannual term of court appoints three jury commissioners to select the regular, alternate and special jury panels for the use of the court. In this instance the First Division of the Circuit Court of Pulaski County, Arkansas selected Mr. Roy Beard, a retired City Collector for the City of Little Rock, Arkansas; Mr. Leo Grant, manager of a tire distributorship; and Mr. V. H. Williams, president and business manager of a local union.

The record is ambiguous with respect to how many colored jurors were summoned to serve on the regular and special panels used in making up the petit jury which convicted the petitioner. The petitioner says in his brief there were six or seven on the regular panel and three on the special panel — the Arkansas Supreme Court arrived at a total of eleven.13 The record does show that there were 29 petit jurors on the regular panel, but there is no showing of how many jurors were on the special panel.14 Some of the Negro jurymen were excused by the court because they did not believe in capital punishment. Of the remainder, the petitioner used a peremptory challenge to excuse one,15 and the Prosecuting Attorney peremptorily challenged those remaining — at least one of whom was a personal acquaintance of counsel for petitioner.16

Mr. Roy Beard and Mr. Leo Grant were called to...

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12 cases
  • Mitchell v. Stephens
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • November 24, 1965
    ...v. Stephens, 241 F.Supp. 33, 47 (E.D.Ark.1965), now on appeal to this court. He spoke again to the same effect in Stewart v. Stephens, 244 F.Supp. 982, 992-994 (E.D.Ark.1965). Arkansas has now provided for a determination by the court of the voluntariness of a confession. Acts 1965, No. 489......
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    ...375 F.2d 988 (3 Cir.); Hampton v. State of Oklahoma, 368 F.2d 9 (10 Cir.); Moore v. Henslee, 276 F.2d 876 (8 Cir.); Stewart v. Stephens, 244 F.Supp. 982 (D.Ark.). This Court must also confess that it adheres to the doctrine of stare decises and that it could not with propriety overrule a Su......
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    ...a motion to reconsider on July 13, 1965. On July 23, 1965, the trial court filed a memorandum opinion (Stewart v. Stephens, reported at 244 F.Supp. 982) which reflects that the court gave careful consideration to all issues raised. The memorandum opinion reflects the view that all issues, e......
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    • U.S. District Court — Western District of Oklahoma
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