Walker v. Lockhart

• Decision Date: 10 June 1985
• Docket Number: No. 81-1700,81-1700
• Citation: 763 F.2d 942
• Parties: James Dean WALKER, Appellant, v. A.L. LOCKHART, Superintendent of the Arkansas Department of Corrections, Appellee. (Habeas).
• Court: U.S. Court of Appeals — Eighth Circuit

Page 942

763 F.2d 942

James Dean WALKER, Appellant, v. A.L. LOCKHART, Superintendent of the Arkansas Department of Corrections, Appellee.

No. 81-1700 (Habeas).

United States Court of Appeals Eighth Circuit.

Submitted Jan. 17, 1985.

Decided May 17, 1985.

Mandate Extended June 10, 1985.

Bill Bristow, Jonesboro, Ark., for appellant.

Theodore Holder, Asst. Atty. Gen., Little Rock, Ark., for appellee.

Before LAY, Chief Judge, and HEANEY, BRIGHT, ROSS, McMILLIAN, ARNOLD, JOHN R. GIBSON, FAGG, and BOWMAN, Circuit Judges, En Banc.

BRIGHT, Circuit Judge.

In January 1984, this court, in a five to four decision, affirmed the district court's ¹ denial of James Dean Walker's second petition for a writ of habeas corpus. Walker v. Lockhart, 726 F.2d 1238 (8th Cir.) (en banc), petition for cert. dismissed by stipulation, --- U.S. ----, 105 S.Ct. 17, 82 L.Ed.2d 912 (1984). Thereafter, new evidence surfaced relating to the crime for which Walker had been convicted. We recalled our mandate on June 13, 1984, and remanded the case to the district court with instructions to hold a hearing on the new evidence and to certify its findings to this court. Id. at 1265. Upon careful review of the new evidence and the district court's findings, we conclude that the ends of justice will be served by now directing the district court to grant the writ unless the State of Arkansas commences proceedings to retry Walker within ninety days from issuance of the mandate of this court.

I. BACKGROUND.

The factual background and lengthy procedural history of this case are set forth in some detail by both the majority and the dissent in this court's recent en banc opinion. Briefly, on April 16, 1963, James Dean Walker and a companion, Russell Kumpe, were at a Little Rock nightclub with two women, Linda Ford and Mary Louise Roberts. Following an altercation in which another patron was shot, Walker, Kumpe, and Ford left the Little Rock area in Kumpe's Oldsmobile. Roberts, who was concerned about Ford, followed in a cab driven by Aaron Paul Alderman. Police Officer Gene Barentine pursued and stopped the Oldsmobile and parked his vehicle behind it. Officer Jerrell Vaughan arrived on the scene almost immediately thereafter, as did cabdriver Alderman and another cabdriver, Thomas Short.

Barentine ordered Kumpe out of the driver's side of the car and began to search him. Vaughan approached the Oldsmobile on the passenger's side of the car. At this point, the precise order of events becomes uncertain, but following an exchange of gunfire, Officer Vaughan lay dead or near death with a single bullet wound to his heart. Walker, who sustained five gunshot wounds, lay face down beside the Oldsmobile a few feet from Vaughan. In his right hand, Walker held a fully-loaded, undischarged gun. Kumpe, who tried to escape at some point during the confusion, had been shot twice by Barentine.

It is undisputed that the gun found in Walker's hand was not the murder weapon. Police found a second gun, a fully loaded Colt .38, under the front seat of the Oldsmobile. A third gun, found either underneath or near Walker's body, was later identified as the murder weapon.

The State charged Walker with first degree murder. At trial, the prosecution proceeded on the theory that Walker shot Vaughan with the gun that was found near his body, and that Barentine then shot Walker. Linda Ford and cabdriver Thomas Short offered evidence indicating that Walker shot at Vaughan. Ballistics evidence indicated that the bullet which killed Vaughan was fired from the gun found on the ground near Walker. The jury convicted Walker of first degree murder and sentenced him to death. The Arkansas Supreme Court reversed his conviction and remanded the case for a new trial. Walker v. State, 239 Ark. 172, 388 S.W.2d 13 (1965).

Prior to Walker's second trial, defense counsel moved to disqualify the state trial judge on the ground that he was grossly prejudiced. The defense presented uncontradicted evidence that the judge, after granting Walker's request to go to church to be baptized, had instructed the deputy sheriff that if Walker "made a move to shoot him down, because he didn't want him brought back to him because he intended to burn the S.O.B. anyway." [R. II, 83.] ² The trial judge declined to recuse himself. During the retrial, he made a number of rulings and comments adverse to Walker.

Before the second trial, defense counsel obtained disclosure of ballistics evidence demonstrating that Vaughan, not Barentine, had shot Walker. Consequently, the State changed its theory at the second trial and contended that Walker fired first, and that Vaughan, although fatally wounded, managed to shoot Walker five times before he died. To support this theory, the State adduced essentially the same evidence as at the first trial. However, Linda Ford was not present at the second trial. The prosecution claimed that she was unavailable, and over defense counsel's objections, read her testimony from the prior trial into the record. The defense was thus unable to cross-examine Ford in light of the State's altered theory. The jury again convicted Walker of first degree murder, but sentenced him to life imprisonment. The Supreme Court of Arkansas affirmed the conviction. Walker v. State, 241 Ark. 300, 663, 408 S.W.2d 905 (1966), cert. denied, 386 U.S. 682, 87 S.Ct. 1325, 18 L.Ed.2d 403 (1967).

Walker then filed his first petition for habeas corpus relief alleging, inter alia, that the trial judge was biased and that the prosecution had suppressed testimony of cabdriver Aaron Paul Alderman which would have been highly favorable to Walker. At the habeas hearing, Alderman testified that Kumpe had scrambled underneath the Oldsmobile when the shooting started. [H. I, 142.] Alderman claimed that he saw Vaughan fire several shots at Walker [H. I, 155], and that Vaughan remained standing after Walker had fallen to the ground. [H. I, 142.] There was a momentary lull in the shooting, and then Alderman heard a final shot which had a hollow, muffled sound--as though it had been fired from a barrel or pipe. [H. I, 141.] Vaughan fell immediately after that shot. The police then told Kumpe to come out from under the car. [H. I, 142.] Alderman testified that he removed the fully-loaded gun from Walker's hand. As he walked away, he saw another gun near the rear end of the Oldsmobile where Kumpe had been during the exchange of gunfire. [H. I, 145.]

Alderman gave his statement to police immediately after the shooting. [H. I, 146.] Although he moved to Florida a month or two later, he claimed that he called the "criminal court office" or the prosecuting attorney's office before the first trial to advise of his location and availability as a witness. [H. I, 169-70.] However, he was never called as a witness or notified about Walker's trials.

The district court (Judge Henley) questioned Alderman's credibility on the issue of suppression because no written statement by Alderman had surfaced, he was unable to remember details about where and how he gave his statement, ³ and he could not identify the person he called to advise of his availability as a witness. Walker v. Bishop, 295 F.Supp. 767, 779 (W.D.Ark.1967). The habeas court noted, moreover, that Alderman's account of events varied from that of other witnesses. Id. The district court denied the writ, concluding, inter alia, that it was not convinced that the State had suppressed Alderman's testimony, and that the prejudice of the trial judge was not sufficient to deny Walker due process. A panel of this court affirmed the judgment of the district court. Walker v. Bishop, 408 F.2d 1378 (8th Cir.1969).

The present litigation originated in 1981 when Walker filed a second application for habeas relief. The district court (Judge Woods) ruled that four of the seven claims asserted by Walker in his second petition had previously been determined adversely to him in his original application for habeas relief. The court considered the guidelines for successive habeas petitions set forth in Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), ⁴ and concluded that because the prior determinations were on the merits, no intervening change in the law had occurred, and Walker had presented no new evidence, the "ends of justice" would not be served by reconsideration of the same claims. Walker v. Lockhart, 514 F.Supp. 1347, 1350-51 (E.D.Ark.1981). The trial court permitted Walker to present evidence on his newly asserted claims, but found the additional grounds to be without merit ⁵ and denied the writ.

On appeal, following arguments before a panel of this court, the case was referred to the court en banc. The court requested additional briefing on several issues, including whether the constitutional violations alleged (prejudice of the trial judge, suppression of evidence, or other violations) had grossly flawed the guilt determination in this case. After an en banc hearing, this court affirmed the judgment of the district court, holding that Walker had failed to show that the ends of justice required reconsideration of issues determined adversely to him in his first habeas application.

The four dissenting judges concluded that a great injustice had been done, and that Walker was entitled to habeas relief. In particular, the dissent emphasized that the admitted prejudice of the trial judge had deprived Walker of a fair trial, that the prosecution had suppressed evidence favorable to Walker, and that "the record as a whole indicates the strong probability that Walker did not shoot Vaughan." 726 F.2d at 1252. ⁶

Judge Arnold, although voting with the majority to deny the writ, agreed in a concurring opinion that Walker had been tried before a prejudiced trial judge. He pointed out that "[i]f due process means anything, it means a trial before an unbiased judge and jury." Id. at 1249. Judge Arnold further indicated that he disagreed with this court's 1969 deci...