Walker v. Bishop

• Decision Date: 28 September 1967
• Docket Number: No. PB-67-C-42.,PB-67-C-42.
• Parties: James Dean WALKER, Petitioner, v. O. E. BISHOP, Superintendent of the Arkansas State Penitentiary, Respondent.
• Court: U.S. District Court — Eastern District of Arkansas

295 F. Supp. 767

James Dean WALKER, Petitioner, v. O. E. BISHOP, Superintendent of the Arkansas State Penitentiary, Respondent.

No. PB-67-C-42.

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

September 28, 1967.

COPYRIGHT MATERIAL OMITTED

Gene Worsham, Fletcher Jackson and Dale Price, of Howell, Price & Worsham, Little Rock, Ark., for petitioner.

Robert D. Smith, III, and Don Langston, Asst. Attys. Gen. of Arkansas, Little Rock, Ark., for respondent.

Memorandum Opinion

HENLEY, Chief Judge.

This is a habeas corpus proceeding brought by James Dean Walker, an inmate of the Arkansas State Penitentiary, pursuant to a judgment and commitment of the Circuit Court of Pulaski County following Walker's second conviction of the crime of first degree murder.

Petitioner was charged with willfully and maliciously killing Patrolman Jerrall Vaughan of the North Little Rock, Arkansas Police Department during the early morning hours of April 16, 1963, in the course of a gun battle involving Walker, his companion Russell Freeman Kumpe, Officer Vaughan, and Officer Gene Barentine of the North Little Rock Police Department.

Petitioner was tried first in May 1964 and found guilty and sentenced to death. He appealed to the Supreme Court of Arkansas which Court reversed the conviction on account of procedural errors committed in the course of the trial. Walker v. State, 239 Ark. 172, 388 S.W. 2d 13.

The second trial commenced on November 29, 1965, and continued for several days. Walker was represented by new counsel at that trial, which counsel are representing him in the instant proceeding. A vigorous defense was interposed with the theory being advanced that Officer Vaughan had been shot accidentally by Officer Barentine, a contention which does not seem to have been advanced at the first trial.¹ The defense also complained throughout the second trial that the State had suppressed evidence prior to and during the first trial.

The second jury, like the first, was convinced beyond a reasonable doubt that Walker was guilty; however, the second jury fixed his punishment at life imprisonment. There was a second appeal, and this time the conviction was affirmed; rehearing was denied but the Supreme Court granted leave to Walker to attack the judgment of the sentencing court collaterally on the basis of a specific contention that in connection with the second trial the State had suppressed the testimony of Mary Louise Roberts and Linda Ford, two prostitutes who had testified for the State in the course of the first trial. Walker v. State, 241 Ark. 300 and 663, 408 S.W.2d 905. The Supreme Court of the United States refused to review the action of the Arkansas Supreme Court.² Walker v. Arkansas, 386 U.S. 682, 87 S.Ct. 1325, 18 L.Ed.2d 403, rehearing denied, 387 U.S. 926, 87 S.Ct. 2027, 18 L.Ed.2d 987.

Instant petition was filed in this Court initially on June 13, 1967, and was dismissed summarily for an apparent failure of petitioner to exhaust available State remedies. On August 8, 1967, on motion of petitioner and over the objection of respondent the case was conditionally reinstated on the docket; on August 16 the Court refused to dismiss the petition again and set the matter down for hearing on the merits on August 28. The hearing commenced immediately after noon on that date and was concluded about noon on August 30. The record is voluminous and includes transcripts of proceedings in the State courts and copies of briefs filed in both the Supreme Court of Arkansas and in the Supreme Court of the United States.

Petitioner contends that his second conviction was tainted with numerous alleged denials and deprivations of due process of law in violation of the 14th Amendment to the Constitution of the United States. He contends specifically that the trial judge was guilty of manifest prejudice against him; that pretrial newspaper publicity rendered it impossible for him to have a fair trial in Pulaski County, and that the trial judge refused him a change of venue; that the State knowingly suppressed material defense evidence; and that the State knowingly used perjured testimony to procure the second conviction. Respondent, actually the State, denies that any of petitioner's contentions has merit.

Most of the contentions which petitioner advances here have been advanced already in the Supreme Court and rejected by that Court. It is well to point out before going further that this Court does not sit in this proceeding to review questions of State law upon which the Supreme Court has passed. The function of this Court is limited to a determination of whether petitioner received the essentially fair trial guaranteed to him by the 14th Amendment. To the extent that the Supreme Court of Arkansas has ruled on federal constitutional questions presented by Walker, its rulings are entitled to respect, but on those questions this Court in the last analysis must exercise its own independent judgment. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770.

It is undisputed that about midnight on April 16, 1963, Walker and Kumpe in the company of two women, Linda Ford and Mary Louise Roberts, were patrons of a drinking establishment in downtown Little Rock. Both men were armed. Walker got into a fight with one Calvin Mattison and pistol whipped him severely; Kumpe aided Walker by drawing his own gun and preventing anyone from coming to the assistance of Mattison. Walker's pistol was accidently discharged, and the bullet struck and wounded another patron of the establishment.

Walker and Kumpe left the night club and repaired to their motel for the purpose of packing up and leaving town. They were traveling in an Oldsmobile sedan. Walker telephoned the Ford woman at her mother's apartment and instructed her to join the two men at the motel, and she did so. Whether Roberts accompanied Ford to the motel is disputed. It is clear that Roberts went to the motel in a cab driven by one Paul Alderman. She undertook to join the two men and the Ford woman but was ordered back into the cab. The two men and Linda Ford entered the Oldsmobile and Kumpe took the wheel; all three occupied the front seat with the woman in the middle.

The vehicle crossed the Arkansas River into North Little Rock and was driven through and beyond that City. The Alderman cab with Roberts in it followed the Oldsmobile, and the cab driver communicated with his despatcher by radio; the despatcher alerted the North Little Rock Police Department and Officers Barentine and Vaughan, operating separate police cars, undertook to give chase to the Oldsmobile and stop it. The Alderman cab had not been able to keep up with the Oldsmobile, and another cab, driven by Thomas G. Short, took up the chase but with the Alderman cab continuing to follow.

At a point some few miles East of North Little Rock on Arkansas State Highway No. 130 Barentine was able to bring the Oldsmobile to a halt; Officer Vaughan arrived on the scene almost immediately in his car. Barentine had caused Kumpe to get out of the Oldsmobile and come back to the Barentine car to be searched. At about this time the Short cab came upon the scene and stopped; a few seconds later the Alderman cab appeared.

Vaughan left his car, walked between the Barentine car and the Oldsmobile and approached the right front door of that vehicle. That door was opened either by Vaughan or Walker and firing broke out. At the commencement of the shooting Kumpe either ran from Barentine or threw himself to the ground; Barentine fired twice at Kumpe; he then fired four shots into the Oldsmobile; reloaded and fired a fifth isolated shot into that vehicle. Barentine used his radio to call for reinforcements which arrived almost immediately.

There is no question that both Barentine and Vaughan participated in the shooting. Walker was shot four or five times by Vaughan; Vaughan was struck in the chest by a single bullet and died in a very few minutes; he never made any statement as to who shot him.

It was the theory of the defense at the second trial that Vaughan was killed by a bullet fired from Barentine's gun which bullet had struck the Oldsmobile on the rear bumper and had, according to the defense, ricocheted striking Vaughan and inflicting a mortal wound. At the second trial Walker took the stand in his own defense and denied that he had fired any shots; he also denied that he had more than one gun; it was the State's theory that he had two.³

The evidence produced at both trials was ample to justify the findings of both juries that Walker killed Vaughan willfully, maliciously, and with premeditation and deliberation, although the question of his guilt or innocence was for the jury, and the second jury might well have come to a different conclusion.

At the first trial Linda Ford testified positively that Walker killed Vaughan and the testimony of cab driver Short was to the same effect. Mary Louise Roberts testified at the first trial that she and Alderman drove up to the other vehicles before the shooting started; however, she stated that when the firing began, she threw herself down in the back seat of the cab and did not witness the details of the shooting.

The State issued subpoenas for both women prior to the second trial, but they were not served, and neither woman was present at the second trial. Over the objections of the defendant their prior testimony was read into the record. Short and Barentine testified at both trials. Alderman was not called as a witness at either trial.

Major Paul McDonald of the Arkansas State Police, a qualified ballistics expert, testified at both trials that the fatal bullet which had been removed from Vaughan's body was fired from a .38 caliber Smith & Wesson revolver having a four inch barrel which was found under Walker at the scene of the shooting. When Walker was first observed after the shooting he was holding a .38 caliber Smith & Wesson having a two inch barrel in his...