Walker v. Bishop

• Decision Date: 25 March 1969
• Docket Number: No. 19049.,19049.
• Citation: 408 F.2d 1378
• Parties: James Dean WALKER, Appellant, v. O. E. BISHOP, Superintendent of Arkansas State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

408 F.2d 1378 (1969)

James Dean WALKER, Appellant, v. O. E. BISHOP, Superintendent of Arkansas State Penitentiary, Appellee.

No. 19049.

United States Court of Appeals Eighth Circuit.

March 25, 1969.

Gene Worsham, Little Rock, Ark., for appellant; Fletcher Jackson, Little Rock, Ark., with him on the briefs.

Don Langston, Asst. Atty. Gen., of Arkansas, Little Rock, Ark., for appellee; Joe Purcell, Atty. Gen., Little Rock, Ark., with him on the brief.

Before MEHAFFY, GIBSON and HEANEY, Circuit Judges.

MEHAFFY, Circuit Judge.

This appeal is from a judgment dismissing appellant Walker's petition for a writ of habeas corpus following a plenary evidentiary hearing before The Honorable J. Smith Henley, Chief Judge of the United States District Court for the Eastern District of Arkansas. Walker has been twice found guilty of murder in the first degree for the killing of a North Little Rock police officer. In the first trial, Walker was sentenced to death, but the Supreme Court of Arkansas remanded the case for a new trial, Walker v. State, 239 Ark. 172, 388 S.W. 2d 13 (1965). Upon retrial, Walker was sentenced to life imprisonment which conviction was affirmed by the Arkansas Supreme Court in Walker v. State, 241 Ark. 300, 408 S.W.2d 905 (1966). Following the affirmance by the Arkansas court in the second conviction, Walker attempted an appeal to the Supreme Court. His appeal was treated as a petition for a writ of certiorari and was denied, 386 U.S. 682, 87 S.Ct. 1324, 18 L. Ed.2d 403 (1967). The Supreme Court also denied Walker's petition for rehearing and motion to present argument in support thereof, 387 U.S. 926, 87 S.Ct. 2027, 18 L.Ed.2d 987 (1967). Chief Judge Henley's opinion denying the habeas writ in the instant case is published in D.C., 295 F.Supp. 767.

Upon appeal before us, Walker challenges the second conviction as being violative of his constitutional due process rights, asserting that the state trial judge was biased and made prejudicial comments as to the previous conviction; that the state suppressed and failed to disclose evidence which constituted a denial of due process as did the court's refusal to grant Walker a change of venue; that Ark.Stat. 43-2010 is invalid and contravenes the constitutional prohibition against compulsory self-incrimination; that the court erred at one stage of the proceeding in refusing to allow a thirty-minute recess in order for the defense to procure the attendance of witnesses who were under subpoena; and finally that Walker was denied the right of confrontation by two witnesses and the opportunity to cross-examine them.

Walker's present attorneys, who entered the case upon appeal following the first conviction, reargue with vigor the issues decided adversely to Walker, both by the Arkansas Supreme Court in the second case and the federal district court in this habeas proceeding. The seriousness of the charges warrants our closest scrutiny and discussion despite our agreement with the conclusions reached by the other courts on the same issues. We affirm the judgment of the federal district court dismissing the petition for writ of habeas corpus.

As a necessary prelude to our discussion, we recite the salient facts. On the evening of April 15, 1963, defendant Walker and a companion, Russell Freeman Kumpe, were in the company of Mary Louise Roberts and Linda Ford, two admitted prostitutes. This party, after frequenting other night spots, was at the South Main Business Men's Club when Walker and Kumpe became involved in an altercation resulting in one of them shooting and injuring a bystander. This happened about midnight and Walker and Kumpe fled the scene as did the two prostitutes. The men went to their motel for the purpose of checking out and skipping town and Kumpe telephoned Linda Ford to meet them at their motel. Ford and Roberts took a cab to the motel, and Ford was forced to accompany the men in their white Oldsmobile, being directed to show them the quickest route away from the city. Roberts wanted to go along but the men refused to take her and ordered her back into her cab. The cab driver, upon inquiry of her, verified that the men were involved in the shooting scrape at the club whereupon he notified his dispatcher who instructed him to follow the Oldsmobile until the police could pick it up. The two men with Kumpe driving, Linda Ford in the middle and Walker on the right side, proceeded across the bridge to North Little Rock. Alderman, the cab driver, and his passenger, Roberts, followed. Alderman was unable to keep pace with the Oldsmobile but another cab driven by Thomas Short took up the pursuit with the Alderman cab continuing to follow.

In the interim, the North Little Rock police had been alerted and Officers Barrentine and Vaughan were ordered to give pursuit which they did in separate cars. Officer Barrentine soon had the Oldsmobile in view but, knowing the men were armed, did not attempt to stop the Oldsmobile until additional police help arrived. He was in communication by radio with Officer Vaughan and when he saw Vaughan signal him by activating his police light, Barrentine proceeded to stop the Oldsmobile. By this time, the Oldsmobile was a few miles beyond the city limits of North Little Rock on a narrow highway usually called the England Highway. Upon halting the Oldsmobile, it was brought to a stop on the right side of the highway with a part of the car on the shoulder. Barrentine parked his car behind the Oldsmobile and Vaughan, who arrived immediately, parked his police car more in the center of the road. Thereafter, the first cab driven by Short arrived at the scene and sometime later the cab driven by Alderman with Roberts as a passenger arrived, parking on the left or opposite side of the highway. Immediately upon Officer Vaughan's arrival, Officer Barrentine stepped to the front of his police car on the driver's side and ordered Kumpe to get out of the car and come back to his police car which was parked a few feet behind the Oldsmobile, and then proceeded to search him. Officer Vaughan went between the rear of the Oldsmobile and the front of Officer Barrentine's car to the right side of the Oldsmobile and was seen talking to defendant Walker. Nearly instantly, the front door of the Oldsmobile opened and a shot was fired during which time Officer Vaughan was backing away from the front door, with his gun drawn. Immediately, there was a fusillade of shots and Kumpe, who was being searched at the time, broke and ran into the ditch and weeds by the side of the highway, whereupon Officer Barrentine fired at him two or three times, wheeled and fired four shots into the rear window of the Oldsmobile. Barrentine then radioed for help which soon arrived. Officer Vaughan was found lying near the front door of the Oldsmobile, having been fatally wounded by a shot that penetrated his chest. Walker was also lying outside the door of the Oldsmobile. He had been struck five times and was seriously injured.

Walker was lying outside the Oldsmobile next to Officer Vaughan holding a fully loaded snub-nosed pistol in his hand. Underneath him or right beside him was found a second gun, a .38 caliber Smith & Wesson, which was definitely identified by ballistic experts as being the gun from which the bullet was fired causing Officer Vaughan's death within a short time and before he could make a statement.

Linda Ford, who was seated next to Walker, testified that Walker fired the first shot and there is no question but that Vaughan was killed by a shot from the pistol found under or by Walker's side. When he was approached, one of the officers kicked the gun he was holding out of his hand and the location of the gun seems to have caused some confusion, but, as stated, there is no question but that Vaughan was killed by a shot from the .38 caliber Smith & Wesson.

In the first trial, Walker interposed a defense of insanity and did not take the witness stand. Upon the second trial, however, his present attorneys, having entered the case after the first conviction but prior to the appeal, upon the case's being remanded depended upon the theory that one of Officer Barrentine's shots had ricochetted from the bumper of the Oldsmobile, thus causing Vaughan's death, and in effect theoretically corroborating Walker's statement in the second trial that he fired no shot.

The Trial Court's Asserted Bias and Prejudicial Statements.

Just before commencement of the secand trial, Walker's attorneys made an oral motion to disqualify the judge for his bias and prejudice. This motion was grounded on asserted statements made by the judge in chambers some months before when a minister and two companions sought the judge's permission to permit Walker to be taken to church for the purpose of his baptism. The judge granted this request but admonished the deputy sheriff to see that Walker was heavily guarded and to shoot him if he attempted to escape. The minister and his companions testified that the judge made that statement and also said that he intended to "burn the s.o.b." or "burn him anyway." In overruling the motion, the judge stated:

"I think I can give him a fair trial, but I have nothing to do with punishing him, certainly. It is up to the jury to do that. If I don\'t give him a fair trial, the Supreme Court can reverse me. They have reversed me once before when I thought I was right. I don\'t think my personal feelings have anything to do with it one way or the other. I did make the statement that if he ran to shoot him. I remember that. I don\'t remember saying that I was going to burn him, because that\'s silly; I can\'t burn him."

At the time above described, Walker had been transferred from the state penitentiary to the county jail for the convenience of his counsel, who, as the Arkansas Supreme Court noted, were given seven months for preparation for trial. The judge said he did not recall making the statement about "burning" the defendant as...