Trotter v. Stephens

• Decision Date: 30 April 1965
• Docket Number: No. PB-64-C-62,PB-64-C-63.,PB-64-C-62
• Citation: 241 F. Supp. 33
• Parties: Orion TROTTER and Albert Harris, Petitioners, v. Dan D. STEPHENS, Respondent.
• Court: U.S. District Court — Eastern District of Arkansas

241 F. Supp. 33

Orion TROTTER and Albert Harris, Petitioners, v. Dan D. STEPHENS, Respondent.

Nos. PB-64-C-62, PB-64-C-63.

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

April 30, 1965.

COPYRIGHT MATERIAL OMITTED

George Howard, Jr., Pine Bluff, Ark., Thomas L. Cashion, Eudora, Ark., for petitioners.

Jack L. Lessenberry, Little Rock, Ark., for respondent.

GORDON E. YOUNG, District Judge.

This habeas corpus proceeding is brought by petitioners, who were tried together and convicted for the crime of rape in the Circuit Court of Drew County, Arkansas, on April 11, 1963, and sentenced to death. The convictions were affirmed by the Arkansas Supreme Court in the case of Trotter and Harris v. State, 237 Ark. 820, 377 S.W.2d 14 (1964), cert. denied 379 U.S. 890, 85 S.Ct. 163, 13 L.Ed.2d 94 (1964). By order of this Court executions were stayed and a hearing held on the consolidated petitions consistent with the principles laid down by the United States Supreme Court in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), and Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953).

Petitioners allege that their convictions were obtained in violation of their constitutional rights, which they allege, in substance, as follows: (1) Petitioners were tried in an atmosphere so hostile and adverse that they could not receive a fair trial; (2) Petitioners were not accorded separate counsel;¹ (3) There has been an unequal application of the Arkansas rape statute, Ark.Stat.Ann. § 41-3403 (Repl. 1964), in that there has been a disparity in the sentence of Negro defendants charged with rape of white women and white defendants charged with rape; (4) The imposition of the death sentence for the charge of rape is so erratic as to deny due process of law and conflicts with the mores and basic concepts of fairness of civilized societies; (5) The arrests without a warrant and without being carried before a magistrate and given a preliminary hearing, as well as the search of petitioner Trotter's home and car and petitioner Harris' apartment were unlawful; (6) Racial discrimination was practiced in the selection of the jury which tried petitioners; and (7) The two admissions made by Harris were improperly admitted into evidence.

By agreement of the parties, the state court record was made a part of the record here, and both parties were permitted to offer additional evidence. The parties have primarily relied upon the state court record and, accordingly, have designated the relevant portions in support of their respective arguments.

At the hearing held on the consolidated petitions, petitioners only offered evidence in support of their contentions that Harris was illegally arrested and his apartment unlawfully searched,² as well as evidence as to the number of lawyers in Drew County at the time of petitioners' trial,³ the number of the state prosecutions for rape in Drew County for the past ten years,⁴ and the statistics as to electrocutions for the crime of rape in Arkansas.⁵ Respondent offered testimony as to the details of the arrest,⁶ the selection of the jury which tried petitioners,⁷ the prosecuting attorney's recollection of the prosecution of the case, including the arraignment and subsequent consolidation of the two cases for trial and the reputation of the defense counsel,⁸ and finally the testimony of the defense counsel as to the conduct and preparation of petitioners' state court trial.⁹

The contention that petitioners did not receive a fair trial because of adverse atmosphere and the contention that they should have been accorded separate counsel were fully and adequately discussed by the Arkansas Supreme Court and rejected in a well considered opinion by Chief Justice Carleton Harris. Trotter and Harris v. State, supra, 237 Ark. at 829-831, 841-844, 377 S.W.2d 20 and 21, 27-29. Any further discussion, particularly in view of the fact that no additional evidence has been offered, would serve no useful purpose and is unnecessary. Townsend v. Sain, supra, 372 U.S. at 313, 83 S.Ct. 745. Suffice it to say that after a thorough examination of the state court record this Court is convinced that no federal right was violated in either of these particulars. Compare Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543 (1923) (adverse atmosphere); Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1941) (separate counsel).

The arguments attacking the constitutionality of the Arkansas rape statute, Ark.Stat.Ann. § 41-3403, supra, on the grounds of violating the equal protection clause and the due process clause of the Fourteenth Amendment, as well as the argument that the penalty of death for rape is violative of the Eighth Amendment's prohibition against "cruel and unusual" punishment as applied to the states through the Fourteenth Amendment¹⁰ have previously been considered by this Court and rejected in Maxwell v. Stephens, 229 F.Supp. 205, 216 and 217 (E.D.Ark.1964), and Mitchell v. Stephens, 232 F.Supp. 497, 507-509 (E.D.Ark.1964) (Discussing the Fourteenth Amendment argument). See also Maxwell v. State, 236 Ark. 694, 370 S.W. 2d 113 (1963). Now, by statistics reflecting somewhat incompletely the disposition of the rape charges filed in Drew County, Arkansas, for the past ten years, petitioners seek to invalidate the Arkansas rape statute. Assuming these arguments have not already been waived under Fay v. Noia, supra, discussed in Henry v. State of Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965), and Cobb v. Balkcom, 339 F.2d 95 (5th Cir. 1964), it is the view of this Court that these arguments attacking the constitutionality of the statute are wholly without merit.

The remaining contentions to which the following discussion is limited are listed as follows: (1) The Arrest and Search; (2) Selection of the Jury; and (3) Admissions by Harris.

I. THE ARREST AND SEARCH

The commission of the crime by two young Negro men on a white woman was conclusively established by the evidence. Its details are sufficiently described in the opinion affirming petitioners' convictions. Trotter and Harris v. State, supra. The crime was committed sometime after the hour of one o'clock Sunday morning, February 17, 1963.

The victim was taken to the hospital around four o'clock the morning of the rape, where she was examined by the doctor and questioned by the police. By the time the victim was brought to the hospital her male escort, who had been with her at the time she was abducted by the two Negro men, had furnished the police with a general description of the two attackers as well as a description of their automobile which was described as' a 1953 or 1954 model Plymouth automobile. At the hospital, in addition to talking to the victim, Sheriff Towler questioned a young Negro man who happened to be in the hospital and was well known to the Sheriff. The Sheriff described the automobile and the location where the crime had occurred and asked if he knew anyone "white or colored" in that area who owned such an automobile. The young man stated that Orion Trotter owned such an automobile and the Sheriff, remembering that he had arrested Trotter on a previous occasion for the crime of robbery of a woman, proceeded to Trotter's home, accompanied by the victim's escort, her brother-in-law, and State Police Captain Griffin. They reached Trotter's home around 5:00 a. m.

Upon arrival, the Sheriff noticed an automobile fitting the description given to him earlier parked in the driveway. The Sheriff directed his flashlight through the window at the rear seat.¹¹ Captain Griffin felt of the warm hood.¹² Both of the men opened one of the car doors and noticed stains on the seats, but the Sheriff suggested seeing Trotter before looking further,¹³ and the two men proceeded to the front door of the house, leaving the victim's escort and brother-in-law at the car.¹⁴ The Sheriff and Griffin knocked on the front door "three or four times."¹⁵ Petitioner Trotter came to the door clad in a pair of shorts and the Sheriff pushed the door open and walked in. Trotter walked to his bed and sat down. The Sheriff, noticing a stain on the front of Trotter's shorts, began questioning Trotter about his whereabouts the night before. Trotter, who was married but was living with his mother, related that he had been out that night with his girl friend and two other friends. The Sheriff warned Trotter that he did not have to say anything and then began questioning him about the details of what he had done that night. Trotter could not explain the stain on his shorts, which the Sheriff upon closer inspection determined to be blood, or the blood on the right sleeve and tail of a shirt he had worn that night and which the Sheriff noticed near his bed. The Sheriff then placed Trotter under arrest and Trotter dressed and drove the Sheriff to the City Jail in the Plymouth automobile parked outside, which later proved to be registered in Trotter's name.¹⁶

After taking Trotter to jail, the Sheriff, Griffin, the victim's escort, and her brother-in-law, accompanied by City Policeman Newton, proceeded to the home of Trotter's girl friend, because, according to Trotter, he had been with her earlier that night. His girl friend stated that when she and Trotter had gotten home that night she had left Trotter with Albert Harris.¹⁷ The Sheriff and Griffin, accompanied by City Policeman Newton then immediately went to the apartment of Albert Harris, where Harris lived with his wife. When they arrived, the Sheriff knocked on the door for some time and finally Harris' wife came to the door and opened it. The Sheriff walked inside and questioned Harris, who was in bed. Harris stated at first that he had been out with a friend that night and when questioned about the clothes he had worn that night Harris directed the Sheriff to a pair of trousers on a...