Thacker v. Cox

• Decision Date: 17 February 1970
• Docket Number: Civ. A. No. 5336.
• Citation: Thacker v. Cox, 309 F.Supp. 101 (E.D. Va. 1970)
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Junior Glaten THACKER v. J. D. COX, Superintendent of the Virginia State Penitentiary.

309 F. Supp. 101

Junior Glaten THACKER v. J. D. COX, Superintendent of the Virginia State Penitentiary.

Civ. A. No. 5336.

United States District Court, E. D. Virginia, Richmond Division.

February 17, 1970.

E. G. Allen, Jr., Richmond, Va., for petitioner.

O. P. Pollard, Richmond, Va., for respondent.

MEMORANDUM

MERHIGE, District Judge.

The petitioner herein filed a petition for a writ of habeas corpus and was granted leave to proceed in forma pauperis. The respondent answered and moved to dismiss.

This Court appointed counsel to represent petitioner and granted a plenary hearing on all issues raised by his petition.

Thacker's main contention, which developed during the plenary hearing, centered around a colloquy between the trial judge, petitioner, petitioner's counsel and the prosecuting attorney, which took place in the presence of the prospective jurors and after the veniremen's names had been called, court reporter sworn, the indictment read, and the petitioner had entered a plea of not guilty. Specifically, petitioner alleges that the substance of this colloquy so prejudiced the veniremen that the subsequently empanelled jury could not have rendered him a fair trial in conformance with applicable Due Process standards.

Subsequent to the aforementioned plenary hearing, the Court invited both parties to submit further evidence and additional argument in regard to this action. Upon review of the record, both parties declined such invitation informing the Court they felt further proceedings would not be of benefit to the Court or the parties in reaching a final decision.

The Court has considered the entire record and finds the factual matters concerning the alleged crime not to have been greatly in dispute before the Hustings Court for the City of Petersburg, wherein he was tried on a charge of murder.

The trial record shows that petitioner had been engaged to be married to one Charlotte Tate. Subsequent thereto Miss Tate allegedly informed him she was no longer in love with him and attempted to return the engagement ring which he had given her. This termination of the engagement allegedly occurred in December 1964. The record shows that in February 1965, Miss Tate secretly married one Jamsched Haq, an intern at the Petersburg Hospital where she, Miss Tate, was a student nurse.

The trial record shows that on April 2, 1965, petitioner Thacker went to the Petersburg General Hospital and after some conversation with Miss Tate, which apparently took place some time prior to 7:00 a. m., Miss Tate was seen running from the hospital cafeteria into an adjoining hall, allegedly followed by Thacker with a pistol in his hand. The record indicates that he, Thacker, shot his former fiancee at least three times, causing her death.

Thacker was indicted for murder by a Grand Jury of the Hustings Court of the City of Petersburg, Virginia, which court appointed counsel for him, and the trial took place on September 8-9, 1965. Thacker's defense was one of insanity at the time of the alleged offense. He was ultimately convicted by a jury of first degree murder and sentenced to a term of 99 years in prison.

Taken in its entire spectrum, "fair trial" necessitates trial before an impartial judge, honest jury, and an atmosphere of judicial calm. State v. Leland, 190 Or. 598, 227 P.2d 785, aff'd. 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952), reh. den. 344 U.S. 848, 73 S.Ct. 4, 97 L.Ed. 659. While the "fair trial" requirement does not necessitate trial free of all error, it does require the proceedings to be "fundamentally fair." United States v. D'Antonio, 362 F.2d 151 (7th Cir. 1966), cert. den. 385 U.S. 900, 87 S.Ct. 204, 17 L.Ed.2d 131.

Certainly a vital element of this maze is the jury, and only recently the United States Supreme Court has voiced its interpretation reiterating that the jury system is an integral part of the credo of the American legal system in its application to criminal proceedings. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968); Duncan v. Louisiana, 391 U.S. 145, 191, 88 S.Ct. 1444, 20 L.Ed.2d 491, 522 (1968); Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968). More important, perhaps, is the incorporation of the Sixth Amendment right to trial by jury into the Fourteenth Amendment's due process clause, exemplified by the Court's application of that right to state criminal proceedings. Inherent in due process is "fundamental fairness," and this abstract requirement imposes, therefore, more than simply the furnishing of a jury; it requires that the jury, once furnished, be able to render a fair and impartial decision to both the prosecution and defense. Thus, the proposition is two-fold: first, that the defendant is entitled to trial by jury where charged with a serious crime, Duncan v. Louisiana, supra; and second, that the jury be able to render a fair and impartial decision. Irvin v. Dowd, 359 U.S. 394, 79 S.Ct. 825, 3 L.Ed.2d 900 (1959).

Once admitting, therefore, that the object in securing a jury is to select jurors whose minds are unclouded by prejudice or bias, see Michie's Jurisprudence, Vol. II, Jury § 37, if such object is not met, the subsequent proceedings are tainted by "unfairness" of constitutional dimensions. Irvin v. Dowd, supra; Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543 (1923); Harris v. North Carolina, No. 13,853, Mem. dec. (4th Cir., Aug. 27, 1969). While the courts are not naive to the fact that in every case it is not possible to empanel a jury with completely sterile minds concerning the proceedings at hand, they have sought to protect this vital ingredient of a fair trial with utmost vigilance. See Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963). While society, therefore, has a legitimate interest in convicting the guilty, it also has a duty to insure the accused is tried fairly. Gilbert v. United States, 366 F.2d 923 (9th Cir. 1966), cert. den. 388 U.S. 922, 87 S.Ct. 2123, 18 L.Ed.2d 1370. So adamant, in fact, is the Court's determination to insure the accuracy of the guilt determining process, that it has used this standard in making determinations pertaining to retroactivity. Compare Linkletter v. Walker, 381 U.S. 618, 629, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965).

Against this background, it now becomes incumbent upon this Court to determine whether or not the remarks made during the colloquy, having been heard by the veniremen, prejudiced the defendant's case in such manner as to render the subsequent proceedings vitiated by constitutional strictures; and, did the defendant, in his collateral attack, have the burden of affirmatively showing that such prejudice actually prohibited the proceedings from being constitutionally sound.

Basically, the allegations of prejudice were prompted by the trial court's inquiry to the defendant as to whether he, the defendant, had had an opportunity to talk to his court-appointed counsel. The defendant's reply was to the effect that he was not satisfied with counsel, whereby counsel gratuitously responded that the defendant had been uncooperative, that he wished to be dismissed from the assignment because of these difficulties, and finally that following a court appearance, prior to trial,

he went to jail and told the police officer that he would kill me (emphasis supplied). I went over to the jail as soon as I got the word. He denied it. He also, at that time, refused to see me. Trial Transcript, p. 12

In considering the issue of prejudice to the defendant's cause flowing from the aforementioned statement on appeal, the Supreme Court of Appeals of Virginia considered the due process violation, if any, to have flowed from the local jury becoming incensed over the alleged threat made by Thacker toward his well known, capable, criminal trial attorney, thereby prejudicing them toward the defendant personally from the outset. See Thacker v. Com. of Virginia, 207 Va. 962, 154 S.E.2d 130, 132 (1967). In this contention the Court found no substance. The Court of Appeals of Virginia held further that there had been no showing that Thacker had been prejudiced.

While this Court is bound by the interpretation of Virginia law of the Supreme Court of Appeals of Virginia, the Court does not feel that the issue was presented to the Virginia Supreme Court of Appeals in such a manner as to require it to consider the matter in depth. In any event, this Court, regardless of the high regard it holds for the learned opinions of Virginia's highest court, is duty bound not to ascribe to what it considers to be a misapplication of federal law in reaching a decision in a given case. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

The Court first draws its attention to the defense counsel's remark concerning the threat on his life alleged to have been made by Thacker.

Crucial to answering the initial inquiry is the fact that the defendant inserted the affirmative defense of insanity to the charge leveled against him by the state. Furthermore, it was the function of the jury to determine factually, within the framework of legal principles supplied them by the Court, if the defense was successfully carried forth. See Christian v. Commonwealth, 202 Va. 311, 117 S.E.2d 72 (1960); Thompson v. Commonwealth, 193 Va. 704, 70 S.E.2d 284 (1952). Indeed, if the jury determined that the defendant had factually shouldered his burden, then he would have been exculpated of the crime with which he had been charged.

The obvious danger of counsel's statement, therefore, is that it may have prejudiced the jury in their consideration of the tendered defense. It is certainly reasonable to conclude that the jury, in deciphering counsel's statement, found him not to be a one-time insane killer, but a cold,...