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HENDERSON, James, JOHNSON, Gove, JOHNSON, James, and McDONALD, Monroe, all whites, all
hanged at Clarksville, A.kansas on June 22, 1883,

"MURDERERS HUNTED DOWN. = On Tuesday, Margh6, four western bandits, 'Governor' Johnson,
his nephew Jim Johnson, Ben McDonald and Jim Herrington boakded a Little Rock and Fort |
Smith train near Fayetteville, Ark., and in the attempt to rob the same killed conductor
Cain. ‘n the dXRXXKXHM confusion that followed, the killing, the firing became promis-
cuous. Mconald fired a shot at the brakeman, and 'Gov.' Johnson told his nephew to stop
shooting. Jim did so and tried to we i McDonald, when the latter turned on him and fired,
but missed him. Then Jim fired at Mc’onald and hit him. When the 'Governor,' who was
leader, saw that one of his own men was wounded, he pulled the rope and stopped the train.
Then the robbers jumped off and made for the brush, all escaping excepting McDonald, whose
wound prevented him from running fast. The day after the killing the sheriff of Azark
(sic), A. He Sadler, started out in pursuit of the robbers with a posse of deputies, and
after a few days found 'Governor' and his nephew hidden on a high bluff on White river,
about thirteen miles from Fayetteville. The robbers were cimpleteix taken by surprise and
EXEMUKMEAKALXMAEREREABHX surrendered at discretion. They were both half starving, and KX
the younger of them was suffering from a flesh wound received a couple of days before at
the hands of another pursuing sheriff's posse. Herrington was also captured a day or two
afterwards and, together with @@@ his companions is awaiting trial in jail at Little Rock.
POLICE GAZETTE, New York,April 28, 1863 (5<l = Woodcut likenesses of both Johnsonse)

one

‘

Lie

HENDERSON, James, JOHNSON, Gove, JOHNSON, James and McDONALD, Monroe, all hanged at
Clarksville, cera, on June 22, 1883. ¢

"Clarksville, ‘4rk., June 22, 1883+This has been an eventful day in the local annals of
Clarksville. At an early hour people were pouring into town from the mountain districts
and by 1 o'clock at least 3,500 had assembled to witness the exectuion of the four train
robbers. The excitement, though undemonstrative, was intense, and men, women and children
struggled and jostled azainst each other in tbheir efforts be get a: ee view of the sca= |
ffold: and catch every detail of the ghastly scene, :

"AtL2:12 o'clock. the condemned men were vaken from jailk olawed in a wagon and conveyed to
the place of! execution, followed by an immense throng, They’ were accompanied by the sheriff
their spiritual guide, Rev. J. W. Kargler, and an armed escort of fifty picked men, When
they arrived at the place of execution, the pristners were relieved of their manacles, | And,
gaily leaping from the wagon, they ascended the scaffold with a firm tread and manly bearing
Henderson smoking a cigar with remarkable,complaisance. They ‘viewed the vast throng, calmly
and respectfully, and not in a spirit of mock heroism, They were all tastefully attired

in well-fitting striped light suits and black felt hats, A few moments after their arrival
the death warrant was reade ©

when asked by the sheriff if they had anything to say, Gove Johnson, in a clear voice with-
outh the least tremor, said: "Friehds, I guess you have come to see the train robbers —
hanged, as.they call us, I have no confession to make to‘man, but to God only. I have con-
fessed my sins to. him and he has pardoned me, ‘My nephew. (Jim Johnson) received a letter
from his mother which I wish published in the GAZETTE, Now, young men, take warning of
my-terrible fate.- My trial was rather hurried, but no matter,now, I had hoped that my
nephew, in consideration of his youth, should have found mercyfrom the governor,'

"Jim Johnson said that he had.but little to say, No thought of a murder was in his head
when he boarded the: train; the deed was all done in excitement. He said that he did some
of the shooting, He told the sheriff he was very hot and to hurry up matters, His coolness
throughout for one so young astonished everyone, but in the supreme moment he fainted as the
sheriffwas in the act of letting the trap fall.

"Herndon said he did not kill Cain, If he had he did not know it,

"McDonald protested his innocence of the crime.

"After the declarations of the condemned, the ropes were adjusted, and the tratitdonal blact
caps placed on their heads,.and those unfortunate,men, whose crime was not separated, in ~
death were not divided, The drop was about seven feet. McDonald's neck was broken,. at

17 minutes to 1 PM. All their necks were broken except Gove Johnson who strangled for 13
minutese, Herndon died in 8 minutes and,McDonald in 8 minutes, Jim Johnson in 9 rit

and Gove Johnson in 13 minutes. In twenty minutes the ropes were cut, :

"One melancholy- incident of the day was the death on the grounds of a little baby off conse:
tion, The fond mother, to gratify a morbid sentiment to witness such scenes, little dreamec
that the shadow of death would strike her little treasure, and as the condemned would taste
of the same bitter waters. There was not the levity usually attendant upon such occasions,
The spectators were awed into Sy Remy by, the awful: methods of the law to vindicate its
majesty e

NHIST ORY OF ‘KE CRIME,

"On the night of March 12, 1883, the west-bound train on the Little Rock and Fort Smith
reilroad was boarded by a band of four robbers at a station, known as Mulberry, on the
western border of, and inside the county of Franklin and at once began shooting and yelling,
while slinging revolvers over their heads,, ordering the passengers to hold up their hands.
This created mich confusion, and in the midst of it Conductor Cain ran to thatpart of the
car the robbers were in,, and as he approached, Jim Herndon fired on him, and Cahn fell with
a bullet in his K&&a@% brain, Milton Lester, a brakeman, ran to Cain's assistance when Mc-
Donald shot him, Jim Johnson then ran forward to stop McDonald's further shooting, when,
in his excitement, McDonald fired at him, but missed Johnson, who returned McDonald's fire,
hitting him in the face, making a had wound and crippling him so. severely that he could not
get away with the others, and finding capbure staring him in the face, played wounded pass-
enger to perfection for some time.

"The killing of the conductor, wounding the brakeman and one of their own gang, demoralized
the robbers to such a degreeas to upset their plans entirely, so there wasnothing left for
then to do but to retreat or suffer capture. They accordingly fled, the two Johnsons going
one way and Herndon another, leaving McDonald in a house at the. station playing the role of

a_woundéd passenger, which he -did-successfully till Lester saw him, who, pointing ‘at hin,

saids 'He is one of the robbers, and is the one that shot iste and oh Star ial but a short

q

‘time to establish the fact, when he was placed under arrest. Thus, the first train robber
was arrested. The brakeman Lester was very badly wounded, the ball having posers ie be=
low the left eye, destroying it and lodged inside the. aWall, ¢ ; !
"Gove Johsnon appears to have been the leader in planning, but Herndon was. Beleched as. the
leader in the robbery.. The plan, as detailed by Gove, was as follows’: 'We organized in
house of Mrs, Herndon, mother of Jim, without her knowledge, but our plans were not.

avvually completed then; but it was understood that a train on the Little Rock and “Fort.

Smith railroad was to be captured and rgbbed. “e the adjourned to meet at Mulberry, where
dur plan of operations was formed, .in the woods near thetown, The intention was not .to
kill agyone except in self defense, and to avoid bloodshed unless BB it was actually
necessarye The shooting was done under excitement and wi thoyt necessity. Jim Herndon.
. Shot.and killed Cain, when a general firing began, .The plan was to capture Cain, go
through thepassengers and then secure the contents of the express car and make our escapee
"Gove:Johnson was 36-years-<old, born in Kentucky, but lived many years in Illinois, from
whence he moved to Kansas, remaining.there a very short time, when he sent his wife and
‘four children back to Illinois, while he came to Washington County ostehsibly to see his
brother, but from the fact of planning the attenpted train robbery so soon after reaching
' this State, the public will be uncharitable enough to think it. was to act the role of a
train robber ina part of the world where he thought.it gould be done with impunity. He
- said the had read the life of Jesse James, and was very much captivated with it, and it
pleased him very negnt ye and no doubt he aimed, as others had, to imitate that ideal
robber, :

"Jim Johnson, neshien to Gove, was quite a young man = only 18-years-old =, of very pleas~
&nt appearance, and in no sense looked like a man who would embark in such an enterprise
unless lead into it, as he appears to have.been in this case, He was a citizen of “ash-
ington County, Arkansas, and has passed the most of his time on a farm, and was no doubt
led astray by the expectation of a large haul in a successful train-robbery, -

"Monroe McDonald was a middle-aged man, without a fixedhome, but has made Franklin and
Madison Counties his abiding place for some.years, His reputation is that of a thief, as
he was guilty of stealing a large lot of eggs from a dealer, and a would-be mrderer, for
‘onthe dealer accused him of the theft he.fired three times at the accuseh, for which he

| indicted, but succeeded in evading the officers, but when very closely pressed, fled to e

that receptacle of all kindsof criminals, the Indian Territory,. where he remainéd until

a short time ago, when he returned in time.to take a hand in this attempted robbery,

"Jim Herndon was a citizen of Frmklin County, living near Mulberry with his mother. His ~
reputation was bad, and his life has been misspent, refusing the advice of a goody,

Christian mother, bonfdLL on the teaching and example of bad. companions and those of his

own seeing. His life@nded asmapy surmised that it would = on the scaffold, ©

"No one of the four app ared to grieve so much over their fate as the boy robber, who. said

his good mother's advice was entirely overlooked and forgotten until it was too late, and
- XXRXXNXKREXRASE XRGNK WXNAVEXEK MN XRKOERKN XRAY XK KX MMR XK AKU KX BK ERK AXKARAX XMS EERE XK OKRA
XEXKZKE af the past could have been blobted out, he would have bem a happy mortal to re-
main at home, working for that sae’ pees lise: heart will be broken at the fate. of her

boy=baby.
"After several days chase, and during ‘tice in a battle with our. posse after them, Jim
Johnson as wounded in the leg, the three who had fled were captured and taken to the | .

‘Ozark jail where they were shackeled and securely fastedned to the floor,
"They were tried in Clarksville, Hohsson County,. found guilty of mrder inthe first .
degree, and sentenced to-be hanged by the neck till dead. They werethen sent to the . "
penitentiary at Little Rock for safety until. the day of execution,. . |
‘The GAZETILE'S special says that during the early morning all the prisoners Stonks ee
and talked feely to persons admitted to their presence, Considérable time wasspent by
‘all in reading the Bible and during the talk McDonald described the white men he murdered
at Silver City, Montgomery County, Johnson, the leader of the gang, said he could have _
committed suicide any time after conviction and would have done so but for Jimny, his
nephew, also to be hanged, when he pulled a knife out of, ea lining of a shoe. where it had

nN ionobdlind: The prisoners ate a hearty dinner at ll o "clock and talked upon common= (
piace subjects. McDonald complained of being compelled to leave behind a wife and 5. &
children @stitute and :believed she wuld not survive him 19 days. Gove Johnson,said he
believed Jimmy Johnson fired the shot that killed Cain, not knowing what he was doing and

im replied that if he .did shoot him he did not know it .e he scaffold s built on the
dro any jpiavare onnecé bed wee h-a cord reaching t he pfatform above, 't paity NaWS, GAL-

vestoh, Texas, June 23, 1883. (3)

en ee ee Ee

80 IRON MEN

However, by the time the prisoners were arranged on the
platform of the gallows, the sheriff was his usual self. He
pulled the trap level of the gallows in a calm and method-

ical manner.

Enforcing the law often proved to be grim business for
Bud McConnell. One day a huge Negro ran amuck and
raped the wife of one of the town’s leading citizens. Bud was
successtul in quickly apprehending the fellow, but he mis-
judged the volatile and unpredictable nature of a mob that
quickly formed. Clarksville’s mob was as mindless as any
large crowd bent on a vague idea of revenge. As usual, a
few loud-voiced men, crazed with excitement, set the pace,
and the jail was stormed. Bud McConnell was trussed up like
a mummy; and the cell door was opened. The prisoner was
carried bodily to the rear of the jail and hung from the limb
of a small tree”

On another occasion, a miner in the coal mining com-
munity of Spadra, near Clarksville, was involved in an alter-
cation. Reporting to the scene, Sheriff McConnell noticed
the miner was holding a loaded and cocked shotgun. Mc-
Connell asked the fellow to hand over the weapon.

“You'll have to come and get it,” ‘grated the miner.

“All right,” McConnell answered calmly, “but you had
better hand it over.”

When the sheriff started toward the miner, he leveled the
shotgun, and Bud dropped him instantly with a precisely
aimed shot.

Despite the grimness of law enforcement, McConnell man-
aged to keep his excellent sense of humor. J. R. Tolbert was
one of the few citizens of Clarksville who grasped the fact
that the brusque, efficient Johnson County sheriff harbored
a deep love of wit and humor. As editors, they often ex-
changed ideas of community problems and possible solu-
tions. On subjects of law enforcement, Tolbert often men-
tioned his son’s affinity for posse work.

“Paden will work in the orchard,” mused Tolbert, “but I

THE IRON LAW OF JOHNSON COUNTY 81

have an idea that he simply likes to be out in the open,
rather than expressing anv regard for a young peach tree.”

Bud McConnell laughed. “You did a fine job raising that
hov. He’s a perfect gentleman, serious about anvthing he
undertakes to. do. But there is as much Old Nick in him as
there is in vou and me. Reckon that is whv [ thought he
would make a good posseman. It takes a well-rounded’ man
to make a first-class lawman.”

Tolbert nodded, pleased with the compliment. He re-
membered Bud McConnell’s lecture when Paden, bored

_with being a teacher, broached him for a job as a posseman.

“Son.” McConnell had barked, “I am more interested in
why a man wants to be a lawman than in hearing how good
he thinks he will be on the job. What's vour reason?”

Paden’s level, blue-eved stare had matched Bud's fierce
gaze.

“A Jawman is a necessary part of a community, especially
in a community that can go bad unless there is a good man
with a badge to stop it:”

McConnell was satisfied. He took a liking for the muscu-
lar young man with the thick Georgia drawl.

“We'll see how you work out. There is no place for a builv
with a badge in Johnson County, But, if von don't get re-
suits from a reasonable request, use vour best judgment. I
will insist on crack shooting if vou have to shoot. See that
you get plenty of practice.”

McConnell received considerable ribbing from loafers on
the courthouse square concerning his choice of a “polite
schoolteacher” for posse work. Bud, however, had made it a
point to personally observe his new “student” on the job.

“Cool as a cucumber,” was Bud’s verdict.

Following McConnell’s advice, Paden bought as much
ammunition for his new six-shooter as his meager school-

teaching salary permitted. He practiced with determination -

and soon Bud Ledbetter took an interest. Paden became his
boon companion and apt pupil. By the time Bud McConnell

1434 998 FEDERAL REPORTER, 2d SERIES

mediately on her father as soon as the door
opened and petitioners Richley and Orndorff
stayed by her. The fact that at trial Vicki
identified Holmes as being the first of two
attackers who immediately pounced on her
father is insignificant.

Some of the statements identified by the
petitioners are not of any real consequence to
the jury’s determination of ‘the sentence for
various reasons. Some deal with events be-
fore the intruders broke into the house #2 or
after the’ intruders left.!3 Several: of the
statements contain physical descriptions of
the intruders™ and, in particular, ‘their
shoes.* Others are descriptions of events
that occurred during the robbery and are
simply not new or changed.!6

[6] We can describe ‘the remaining new

or changed statements as adding ‘detail, col-
or, vividness, and perhaps credibility to Vicki
Lehman’s pre-hypnotic statements. ‘ Some of

these statements describe in greater detail

what occurred immediately after the petition-
ers forced their way into the house.!7_ Others
add detail to the actual fight that ensued.'8
These latter details are indeed new state-
ments because Vicki’s pre-hypnotic ‘state-
ments indicated that ‘she only “sensed” that
the fight had moved into the bedroom. At
trial she described her father getting away
from the petitioners and being chased down
the hall. Many of the statements describe
various details as she walked from room to
room with the intruders. Several state-
ments deal with Vicki’s own thought process-
es or feelings during the robbery.” Other
statements describe her mother’s actions.2!
When viewed as a whole, these variations
may have enhanced Vicki Lehman’s credibili-
ty and therefore could have affected the
jury’s decision. However, as we noted in our
prior decision, the “error is not harmful sim-

12. New Statements Nos. 63-66 and 83.

13. New Statements Nos. 49-62 and Changed
Statements Nos. 45 and 46.

14. New Statements Nos. 37-39.
15. Changed Statements Nos. 13, 14°and 47-50.

16. New Statement No. 30 and Changed State-
ments Nos. 32-37 and 42.

17. New Statements Nos. 1-12, 71-73, 78 and 79
and Changed Statements Nos. 3-8 and 15.

ply because the jury might have found her
testimony less credible had defense counsel
been able to probe the issue of her hypnosis

on cross-examination.” Orndorff, 906 F.2d at
1282.

The district court found that no significant
differences existed between the pre- and
post-hypnotic statements and therefore de-
termined the error to be harmless without
discussing the analysis set forth in Van Ars-
dall. We believe there to be enough varia-
tion, however, to warrant an examination of
the differences in light of the Van Arsdall
factors and we may make our own harmless
error determination without remanding to
the district court. See Yates, — US. at
—,, 111 S.Ct. at 1895 (“Although our usual
practice in cases like these is to reverse and
remand for a new determination under the
correct standard, we have the authority to
make our own assessment of the harmless-
ness of a constitutional error in the first
instance.”); see also Lufkins, 965 F.2d at
1481 (holding that in certain circumstances, a
reviewing court may conduct a harmless er-
ror analysis sua sponte).

The. first four factors. described in Van
Arsdall clearly weigh in favor of petitioners.
First, Vicki Lehman’s trial testimony was
very important to the prosecution’s case; the
prosecutor repeatedly said so to the jury.
See Orndorff, 707 F.Supp. at 1068. Second,
her testimony was certainly not cumulative
since she was the. only occurrence witness,

other than her mother who saw and remem-

bered very little, to testify for the state.
Third, the only person to either corroborate
or contradict her testimony on any material
issues was petitioner Holmes. And fourth,
the defense attorneys understandably cross-
examined Vicki rather gingerly about any

18. New Statements Nos. 13-23.

19. New Statements Nos. 42-48, 67, 69, 70, 74-
77 and 82 and Changed Statements Nos. 9-12,
16-19, 21-26, 30, 31, 39, 41, 43 and 51.

20. New Statements Nos. 24-27 and 68.

21. Changed Statements Nos. 27-29 and 40.


ORNDORFF v. LOCKHART 1435
Cite as 998 F.2d 1426 (8th Cir. 1993)

variations that they discovered in her trial
testimony.

This brings us to our discussion of the fifth
factor, the overall strength of the prosecu-
tion’s case. Petitioners argue that they are
entitled to an individualized evaluation and
we agree. In this case, the prosecution’s
case against each defendant for the death
penalty was different and we believe Yates
and Van Arsdall require us to evaluate the
case against each petitioner individually.
For each petitioner, we will consider the
variations in Vicki Lehman's testimony (that
is, those things about which she could testify
only after hypnosis) together with the evi-
dence of aggravating and mitigating circum-
Stances, and determine if we can nonetheless
Say that the error was harmless beyond a
reasonable doubt.

[7] We find the prosecution’s case against
petitioner Richley for imposition of the death
penalty was strong. The jury found that all
three applicable statutory aggravating cir-
cumstances existed 22 and that no mitigating
circumstances existed. Vicki Lehman consis-
~ tently described him as the leader of the
group, and consistently stated that he threat-
ened to kill her. At the penalty phase of the
trial, the prosecution presented evidence that
Richley had planned and executed a series of
armed robberies in the months prior to the
Lehman murder. The only variation in Vicki
Lehman’s statements which may have affect-
ed Richley’s sentence was her testimony that
all four petitioners were in the bedroom
when the. shots were fired. Although Vicki’s
first pre-hypnotic statement indicated that
Richley was not in the room at the time the
shots were fired, her second pre-hypnotic
statement indicated that Richley could have
been in the room. We can Say, however,
beyond a reasonable doubt that the error in

22. The jury was given a verdict form which listed
the following three aggravating circumstances:
“1, [Petitioner] previously committed another
felony an element of which was the use or threat
of violence to another person or creating a sub-
stantial risk of death or serious Physical injury to
another person.” See Ark.Code Ann. § 5-4.
604(3) (1987). “2. In the commission of the
Capital murder, [petitioner] knowingly created a
great risk of death to a person other than the
victim.” See id. § 5-4-604(4). And, “3. The

this case did not contribute to petitioner
Richley’s death sentence.

[8] We find that the prosecution's case

against petitioner Holmes for imposition of
the death penalty was strong. More impor-
tantly, we find that few if any of the varia-
tions in Vicki Lehman’s statements were ma-
terial to the prosecution’s case against
Holmes. The variations concerning Holmes
involved Vicki Stating that Holmes was the
first man on her father and that Holmes was
demanding the ‘guns. As we discussed
above, these statements are not really varia-
tions at all, and to the extent they are differ-
ent, the differences are insignificant. The
prosecution presented evidence which linked
Holmes to several of the robberies allegedly
committed by Richley.. The jury found that

all three statutory aggravating circumstances

existed, and that no mitigating circumstances
existed. The error in this case did not con-
tribute to petitioner Richley’s death sentence
beyond a reasonable doubt.

[9] We also find that the prosecution’s
case against petitioner Clines for imposition
of the death penalty was Strong and that few
if any of the variations. in Vicki Lehman’s
testimony were material to the prosecution’s
case against Clines. Vicki’s pre-hypnotic
statements consistently identified. Clines as
one of the two men immediately upon her
father and consistently placed him in the
bedroom at the time of the murder. More-
over, Vicki consistently described Clines as
the man who ripped the phone from the wall
and prevented her from calling an ambulance
for her father. . The jury found all three
aggravating circumstances existed and unani-
mously found that mitigating circumstances
did exist by virtue of Clines’ electrocution 23
and his excessive drinking. One or more of
the jurors found that Clines suffered from a

capital murder was committed for pecuniary
gain.” See id. § 5S-4-604(6).

23. In 1979, Clines.was accidentally electrocuted

while at work. At the penalty phase of the trial,
evidence was submitted that Clines began drink-
ing excessively and experienced a drastic person-
ality change as a result of the accident. The
Prosecution also presented evidence that even
before the accident, Clines drank excessively and
had been convicted of robbery.


1432 998 FEDERAL REPORTER, 2d SERIES

changes in Vicki Lehman’s story after the
hypnosis, as well as the possibility of “confa-
bulation,” “suggestibility,” and “memory-har-
dening” that is associated with hypnosis.°
After making these assumptions, we. must
determine if we can still say that the error
was harmless beyond a reasonable doubt.
To determine whether the defendants’ inabil-
ity to cross-examine Vicki Lehman about the
hypnosis did not contribute to the jury’s .im-
position of the death penalty, we must exam-
ine the evidence introduced at trial which
supported the verdict, as well as the other
factors listed in Van Arsdall.

Il.

[5] We review the district court’s harm-
less error analysis de novo, as a mixed ques-
tion of law and fact. See, eg. Gunn v.
Newsome, 881 F.2d 949, 964 (11th Cir.1989)
(en bane); Graham v. Wilson, 828 F.2d 656,
659-60 (10th Cir.1987). We therefore begin

our analysis, as did the district court, with a
comparison of Vicki Lehman’s pre- and post-
hypnotic statements. On appeal, petitioners

claim Vicki Lehman made 134 post-hypnotic

statements which contain significant varia-
tions from her two pre-hypnotic statements.
They contend 83 of the statements are “new”
and 51 of the statements are “changed” from
her pre-hypnotic statements.®

Petitioners emphatically claim that Vicki
Lehman has been inconsistent in remember-
ing the number ‘of guns she saw.’ Petition-
ers argue that Vicki’s pre-hypnotic state-
ments indicate that at different times she
saw either two or three guns, while at trial
she testified that all four petitioners had
guns.

Vicki Lehman has stated that she remem-
bered seeing the petitioners with guns at two
distinct times during the robbery. The first
instance was immediately after the petition-
ers forced their way into the house. Vicki
stated in her second pre-hypnotic statement
that when the intruders forced their way in

5. The dangers associated with using hypnotical-

ly-enhanced testimony in a criminal trial are

discussed in some detail in Little v. Armontrout,
835 F.2d 1240, 1243 (8th Cir.1988) (en banc)
(citing Rock v. Arkansas, 483 U.S. 44, 58-60, 107
S.Ct. 2704, 2712-14, 97 L.Ed.2d 37 (1987)).

the door, three of the men pointed their guns
at her for an instant while the fourth man
attacked her father. Of those three men
with guns, one then turned to the fight with
her father, the tallest man grabbed her and
held her at:gunpoint, and the smallest man
stood nearby with his gun. In her first
statement, Vicki stated that two men imme-
diately began wrestling with her father and
the other two had their guns on her. In -any
event, Vicki has never wavered from her
statement that petitioner Richley, the tallest
man, had a gun. She saw the gun pointed at
her and felt it pressed to her head and back
throughout most of the ordeal. In addition,
she has stated twice (once in the first pre-
hypnotic’ statement and once in the second)
that petitioner Orndorff, the smallest man,
had a gun when he first entered the house.

The second instance Vicki remembered
seeing guns was later that night when all
four petitioners were with her in the kitchen.
She recounted this event consistently in both

of her pre-hypnosis statements. Vicki was.

taken to the kitchen from her parents’ bed-
room to call. an ambulance, but petitioner
Clines intervened and ripped the phone from
the wall. Moments later, three of the peti-
tioners stood in front of her with their guns.
At trial, Vicki testified that she believed at
that moment all four men had guns in their
hands, one at her back and three in front. of
her. She testified later on cross-examina-
tion, however, that it was possible that there
were only two guns pointed at her, but “it
seem[ed] like” there were three guns in front
of her.

In sorting through these statements, we
conclude, as did the district court, that there
is no material or significant difference be-
tween Vicki Lehman’s pre- and post-hypnotic
statements concerning the number of guns
involved in this crime. She indicated before
and after hypnosis that at least three of the

6. We refer to these statements as “New State-
ments Nos. 1-83” and “Changed Statements
Nos. 1-51” as they are numbered in petitioners’
briefs.

7. This claim is made in Changed Statement No.
1.

1 eS a A py ON een ta tre, .
AAD oO. Sse asinine AE OPE go ute mts satiny ve oon

NF atte 8 OF meg

ORNDORFF jy, LOCKHART

1433

Cite as 998 F.2d 1426 (8th Cir. 1993)

petitioners, and Possibly all four, carried
guns.

Petitioners argue that Vicki Lehman’s pre-
hypnotic statements indicate that only three
of the petitioners were in the bedroom at the
time Don Lehman was murdered, but that
her trial testimony places all four in the
bedroom when the shots were fired.’ In her
first pre-hypnotic statement, Vicki clearly in-

dicated that the tallest man, Richley, stayed —

with her in the hall while the others were in
the bedroom. In her Second pre-hypnotic
statement, however, Vicki was less sure that
the tall man Stayed with her. She indicated
that she had her head down on the floor and
that he could have gone into the bedroom
with the others, Moreover, her second pre-
hypnotic statement indicates that she was
not positive that the man who originally
grabbed her was the same man that grabbed
her after the shots were fired. At trial, Vicki
admitted on cross-examination that it was
possible that not all of the petitioners were in
the bedroom at the time she heard the shots
fired. —

Perhaps the most dramatic addition to
Vicki Lehman’s pre-hypnotic statements is
her trial testimony about the behavior of
petitioner Orndorff while. inside the house.®
At ‘trial, she described Orndorff as “wirey
acting” and “squirrely-acting.” She testified
that Orndorff liked to play with the little toys
located on a bar in the main room and specif-
ically testified that he liked to pull down the
lever on the toy slot machine. There is no
mention of this behavior in her pre-hypnotic
Statements. She also Stated that “this little
guy, the guy who was darting around all
night, he kind of ran through there and
Swung on a chandelier. and Screamed real
loud like he' was happy or something.” This
incident allegedly occurred within minutes of
Don Lehman’s murder as Vicki was being
taken into the kitchen to use the phone. The
only pre-hypnosis mention of Orndorff’s be-
havior in this regard was in response to a
question by the police about the broken glass
in the dining room. Vicki replied, “This hap-

. 8. New Statements Nos. 28 and 29.

9. New Statements Nos. 31-36, 40, 41, 80 and 81
and Changed Statements Nos. 20 and 38.

pened later right before they left. He [refer-
ring to Orndorff] just went through there
and grabbed it....” At trial Vicki also. de-
scribed an incident that occurred in her par-

ents’ bedroom while her father lay dying. on. .

the bed. She stated that the
smaller guy was kind of kicking around
through the—through the clothes ... and
somebody commented that they'd better
get out of there, that the neighbors had
probably heard the guns and the smallest
guy looked out the window. I can remem-
ber seeing him look out the window and he
‘said something, I’m not real sure what he
said, something about, “The neighbors will
see us,’ or something.

This incident is not mentioned in either of

the pre-hypnotic statements.

Petitioners also claim that Vicki Lehman:
changed her. statements regarding petitioner -

Holmes’ involvement... At trial, Vicki testified
that after the phone was ripped off the wall,
all four petitioners were with her in the
kitchen “and they said, ‘Where’s any more
money or where’s some jewelry.’ I can re-
member. the big guy going, ‘Guns. Guns.
We know you have guns.” Petitioners
claim this testimony is significantly different

from her first pre-hypnotic statement in.
which she indicated that all three petitioners

standing in front of her at that time demand-
ed the guns, and from her second pre-hyp-
notic statement in which She said that the
unmasked man, petitioner Clines, demanded
the guns. Although her trial testimony is
inconsistent with her Second pre-hypnotic
Statement, it is not. significantly different
from her first pre-hypnotic statement in
which she indicated that petitioner Holmes
was one of the three men standing in front of
her demanding guns.

At trial, Vicki testified that petitioner
Holmes was the first one on her father when
the petitioners forced their way through the
door." Petitioners claim this is a significant
change from her pre-hypnotic statements,
In both the pre-hypnotic statements, howev-
er, petitioners Holmes and Clines were im-

10. Changed Statement No. 44.

11. Changed Statement No. 2.

SS seca es Soothe ae a

ei ee


First triple
execution
since 1962

By Steve Marshall
USA TODAY

The USA’s first triple execu-
tion since 1962 took place on
schedule Wednesday as Arkan-
sas put to death three killers.

The first to die by injection:
Hoyt Franklin Clines, 37, pro-
nounced dead at 7:11 p.m. CT.
Asked if he had final words,
Clines said, “Nope.”

Darryl Richley, 40, was pro-
nounced dead at 8:09 p.m. CT.
He said “No” when asked for
any last words.

At 8:55 p.m. CT, the U.S. Su-
preme Court denied an appli-
cation for a stay from James
William Holmes, 37. He was
pronounced dead at 9:24 CT.

The three, who had worked
as accomplices, were con-
demned for the murder of Don
Lehman, 47, of Rogers, Ark.

“This is the kind of situation
the death penalty was invented
for,” said Benton County prose-
cutor David Clinger, a witness
at the executions at the Cum-
mins Unit near Varner, Ark.

iile his family was forced
itch, Lehman was beaten
with a motorcycle chain. After

the masked intruders ran-
sacked the Lehmans’ house,
the victim was shot to death.

The fourth man convicted in
the case,. Michael Orndorff, 35,
had his death sentence com-
muted to life after a court
ruled that hypnosis-induced
testimony from the victim’s
daughter may have affected
his sentencing.

The condemned men had

By Nick Galifianakis, USA TODAY

argued in a late-hour appeal to
the Supreme Court that they
were being reduced to “hogs at
a slaughter.”

Holmes’ claim of inadequate
representation is typical of last-
minute appeals, says legal ex-
pert Robert Pugsley.

“People are increasingly dis-
illusioned ~ a justice system
that can a the case to trail
on for a uccade or more and

Arkansas puts 3 killers to death

CLINES

HOLMES

not allow this issue to be re-
solved sooner,” said Pugsley, a
Southwestern University
School of Law professor.

The USA’s last triple execu-
tion occurred Aug. 8, 1962, in
San Quentin’s gas chamber.

The Arkansas execution was
a tightly choreographed effort
to reduce employee overtime
and spare stress for prison
workers, Officials said.

“Nobody wants to get up in
the morning and go kill some-
body,” Correction Department
spokesman Alan Ables said
earlier this year.

Officials budgeted 45-60 min-
utes for each execution. Fol-
lowing each, officers removed
the man in a black body bag,
wiped down the gurney and
changed needles for the lethal
drug mixture.

“It’s very sad,” death penalty
foe Herb Rule said. “It’s sad for
the people being executed, it’s
sad for the state of Arkansas
and it’s sad for the family of

AP AP
RICHLEY

the victim.”

There was no such compas-
sion from Lehman’s survivors.
“Those ... murderers took ev-
erything away from us,” said
Lehman’s widow, Virginia. “It’s
time for justice to be done.”

The three got their final
meals between 2 and 3 p.m.

Their choices:

> Clines: 2 pounds of deep-
fried shrimp, french fries and
ketchup, Dr Pepper and ba-
nana pudding.

> Holmes: 8-0z. hickory
smoked beef sausage, Cracker
Barrel cheese, Wendy’s double
cheeseburger with pickles, on-
ions, lettuce and mayonnaise,
french fries and ketchup, a ko-
sher pickle, an onion, Coke
Classic and Breyers Viennetta
ice cream/cake combination.

> Richley: Porterhouse
steak (rare), extra sharp
cheese, salad with bleu cheese
dressing and root beer.

>» Debate, 8A, a


eee!
a

U.S. District judge
' postpones executions

United Press International:

LITTLE ROCK, Ark. — US. District Judge
Henry Woods yesterday postponed tomorrow’s
scheduled execution of four Arkansas death row
prisoners convicted of beating and killing a man
in front of his wife and children.

The stay of execution was granted less than an
hour after Marshall Carlisle of Fayetteville, an
attorney for one of the men, filed Separate sets of
motions of appeal on ‘eg :

“Tt was no-surpri
General Victra Few

ppeals
mays motions were the
eginning of the appeals pr vs through the fed-
eralcourt system.

en a La

Birmingham Post-Herald, Thursday, June 28, 1984


«
on accu *

“/
CLINES, Hoyt, HOLMES, William & RICHLEY, Darryl, whités, wree, ARS
( Benton) August 3, 1994

USA TODAY « WEI

Triple execution in Ark. 1

Critics: Shows
how ‘numb’ we are

By Tony Mauro
USA TODAY

Arkansas plans to execute three
death row inmates tonight — the na-
tion’s first triple execution since 1962 —
in what critics say is a sign of growing
callousness toward human life.

Hoyt Franklin Clines, 37, James Wil-
liams Holmes, 37, and Darryl Richley,
40, are scheduled to die in alphabetical
order starting at 7 p.m. for the 1981

murder of Don Lehman, a Rogers busi- —

nessman. They have chosen to die by le-
thal injection.

“It indicates how desensitized, how
numbed we have become about execu-

tions,” says Leigh Dingerson of the Na-

tional Coalition to Abolish the Death
Penalty. But state officials defended the
decision to schedule the executions on
the same day.

“This is not routine. Executions are
never routine from my standpoint,”
says Assistant Attorney General Olan
Reeves. “But they were involved in the
same crime, their appeals were denied
on the same day. It made sense to have
the executions on the same day.”

Alan Ables, a spokesman for the state
corrections department, says a second-
ary factor was that multiple executions
will “avoid an awful lot of stress” for
prison workers.

Ables says it is “extremely difficult to
execute people” and that prison work-
ers must ready themselves psychologi-
cally each time.

Gov. Jim Guy Tucker denied clemen-
cy on Monday, triggering a flurry of
last-minute appeals, but the execution
was expected to go forward.

Richley, who said last week he want-
ed to “get this comedy over with” and
be executed, changed his mind and
filed suit Tuesday.

The three will be given their final
meal at 4 p.m. today. Clines has request-
ed deep fried shrimp, Holmes wants a
Wendy’s double cheeseburger and
Richley asked for a porterhouse steak,
cooked rare. .

The first execution will take place at
7 p.m. CDT and all three executions
should be over by 9 p.m., says Ables.
Law enforcement officials and report-
ers will be witnesses. The victim’s fam-
ily is not permitted to be present.

By Danny Johnston, AP

ON DEATH ROW: Darryl Richley is escorted from Tucker Prison to a hearing last
week; he was denied clemency. He filed suit Tuesday hoping to block execution.

AP

~- SCHEDULED TO DIE: James William.

Holmes, left, Hoyt Franklin Clines

At clemency hearings last week, the
victim’s family and friends asked the
board to recommend death. “Those...
murderers took everything away from

us,” said .Lehman’s widow, Virginia.

“It’s time for justice to be done.”
Reeves called the murder “pretty
egregious,” with the defendants tortur-
ing the victim’s wife and daughter be-
fore they killed Lehman.
Multiple executions used to be fairly

common in the USA.

In 1960, Arkansas held double execu-
tions on four separate dates, and six
people were executed on the same day
in Washington, D.C., in 1942. The last tri-
ple execution was in California in 1962.

The triple executions come at a time
when the political popularity of the
death penalty seems to be increasing.

A bill pending before Congress ex-
pands the federal death penalty to
more than 50 new crimes. And efforts
by Democrats to allow racial statistics
to be considered in fighting death sen-
tences have been rejected.

“Politicians are willing to get a little
blood on their hands,” says Sister Helen
Prejean, a death penalty opponent who
works with death row inmates and
wrote Dead Man Walking.

Prejean hopes the triple execution
will make the public uncomfortable
about capital punishment.

“There’s no way to clean this up, to
make it pretty.”

USA TeDAY— 8-3-1994 GBH


a Ae eS 2 tr ee

mM ARKANSAS SETS EXECUTIONS: LIT-
TLE ROCK, Ark. — Barring any successful last-minute |
appeals, Arkansas will put three killers to death one by
one Wednesday, in order of their prison serial numbers,
in the nation’s first triple execution since 1962.

Hoyt Franklin Clines, James William Holmes and Dar- |
ryl V. Richley are scheduled to die by injection starting at 7

Des Se sgn

p.m. on the lone gurney in the state’s death chamber at the
Cummins Unit prison near Varner, 65 miles southeast of
Little-Rock. After one death, the body will be carried out in
a body bag, the gurney wiped down, the needle changed
and the next man brought in. The entire process is expect-
_ ed to take less than three hours.

Clines, 37, Holmes, 37, and Richley, 43, were convicted
with a fourth man of murder. The other man, Michael Ray
Orndorff, 35, is serving a life term without parole.

SoM


S42 Ark.

It is quite apparent that cases such as
these do not support the State’s position in
the case at bar. The only evidence that
connects these appellants with Hamm’s
death arises from their admissions and con-
fessions. That proof, which must have
been accepted by the jury, shows that these
men beat their victim for the avowed pur-
pose of robbing him. The question is not
that of the intent with which Hamm was
attacked.
took place at all; if it did, it was unques-
tionably done with criminal intent and con-
stituted robbery. True, the appellants insist-
ed in their confessions that they did not in-
tend to kill Hamm, but that issue was elim-
inated by an instruction to the effect that a
specific intent to take life is not necessary
if the life is unlawfully taken in the perpe-
tration of robbery.

Rather, it is whether the attack

In its other sense the word design means
a plan of action formed in the mind and to
be carried out in the future. Proof of
design in this sense is undoubtedly compe-
tent, for the fact that a crime was planned
in advance tends to show that it was actual-
ly committed. “The presence of a design or
plan to do or not to do a given act has pro-
bative value to show that the act was in fact
done or not done. A plan is not always
carried out, but it is more or less likely to
be carried out.” Wigmore on Evidence,
3d Ed., § 102; see also § 300. We have ap-
proved this principle on many occasions.
For example, in a prosecution for murder
in the perpetration of robbery it was proper
for the State to prove that three robberies
were planned in advance, although only one
was attempted. Ford v. State, 34 Ark. 649.
Again, in a prosecution for receiving stolen
cattle the State could prove that the accused
was engaged in that business and had
offered to pay a witness $8 a head for any
cattle that he might steal and deliver to the
accused. Long v. State, 192 Ark. 1089,
97 S.W.2d 67. Other cases in point include
Nichols v. State, 153 Ark. 467, 240 S.W.
716; Middleton v. State, 162 Ark. 530, 258
S.W. 995; cf. Jenkins v. State, 191 Ark.
625, 87 S.W.2d 78.

299 SOUTH WESTERN REPORTER, 2d SERIES

It is likewise apparent that the proof of
the Fenwick robbery does not come within
the scope of this second aspect of design.
The Fenwick incident occurred five days
after Hamm was killed; it has no tendency
to show that the robbery of Hamm was
planned in advance. There is actually no
evidence of an independent plan, formed
ahead, for the attack upon either victim.

It is plain enough that the robbery of
Fenwick was not competent to show design
either in the sense of criminal intent or in
the sense of a premeditated.scheme. If the
jury could not draw either of those permis-
sible inferences from proof of the subse-
quent crime, of what value was the testi-
mony to them? The only possible answer
is that this proof established the fact that
Boone and Boyd were criminals and were
therefore likely to be guilty of the offense
for which they were being tried. In short,
the jury were afforded the opportunity of
finding Boone and Boyd guilty of murder
upon the basis of proof that they had com-
mitted robbery on another occasion.

We have in our reports more than a
hundred decisions on this general subject.
It may be conceded, as we indicated in the
Alford case, supra, that these cases cannot
all be harmonized with the principles stated
there and here, or, indeed, with one another.
The subject is one in which confusion is
especially apt to arise. As we have seen,
when the offense involves conduct that may
be innocent or guilty, depending upon in-
tent, it is proper for the State to offer evi-
dence of similar conduct on the part of the
accused in order to establish the necessary
intent.
made that evidence of other offenses is
admissible to show intent, the rule may be
inadvertently applied in situations to which
it is really not applicable.

But once the statement has been

Perhaps the most conspicuous departure
from the general rule occurred in Scrape v.
State, supra. There, in a prosecution for
the robbery of a filling station, the State
was allowed to prove an attempted robbery
of another filling station on the following


been changed,
h <clusive,
t rs. The
‘dy proceeding,
loes not have

ppellants,

\ppellee.

kansas.

ted in the Cir-
yle Brown, J.,
“, and they ap-
, George Rose
e prosecu-
Riuknc:, it had
to prove that
‘ted and robbed
s after attack
erroneous ad-
would require
fendants, even
jury that such
‘red as to other
that jury had
ruilty and had
st all indicated
smony had been
fendants,

ec, J., dissented.

ut evidence to
“lice, court did

ee a

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el ee ae Se aE

Resin b

MOORE v. STATE Ark. 839
Cite as 299 S.W.2d 838

not abuse its discretion in denying change
of venue in homicide prosecution. Ark.
Stats. §§ 43-1501, 43-1502.

2. Criminal Law ¢=134(4)

Where petition for transfer of case was
not supported by affidavits of two credible
persons not related to defendants, as re-
quired by statute, and defense offered, in
addition to defendants’ affidavits, only un-
sworn statements, of court-appointed attor-
neys, to effect that they had unsuccessfully
attempted to find and employ someone to
make survey of a public feeling in county
and that local prejudice had been responsi-
ble for their failure to find someone quali-
fied and willing to make such survey, it was

not error to refuse to grant change of
venue. Ark.Stats. §§ 43-1501, 43-1502.

3. Criminal Law @=517(4)

In homicide prosecution, evidence that
victim had been missing for five days, that
his body had been found far from route he
would normally have followed in returning
to his home, and that his purse had been
taken, would have warranted jury in con-
cluding that he had been robbed and had
not died from natural causes; and; accord-
ingly, it was not error to admit defendants’
confessions, notwithstanding their claim
that there was no proof that offense charged
had been committed. Ark.Stats. §§ 43-1501,
43-1502.

4. Criminal Law €=369(1"
A defendant cannot be convicted of one
crime by proof that he committed another.

5. Criminal Law €=371(1)

When offense involves conduct that
may be innocent or guilty, depending upon
intent, it is proper for State to offer evi-
dence of similar conduct on part of accused
in order to establish necessary intent.

6. Criminal Law @=372(1)

Fact that crime was planned in advance
tends to show that it was actually com-
mitted, and proof of other conduct on part

j VS EA, aimee ae re Neetrerrrarte hee: Co

of accused may be competent to prove such

plan, even though it also shows commission
of another crime.

7. Criminal Law €=369(1)

Evidence of other offenses is inadmis-
sible when it has no permissible relevancy
to crime in issue and can only serve purpose
of persuading jury that since accused has
been guilty of similar offenses he is there-
fore likely to be guilty of crime charged.

8. Criminal Law ©=369(3), 673(5)

In prosecution for killing of hitchhiker,
it was error to permit State to prove that
two of defendants had assaulted and robbed
another hitchhiker five days after attack
upon decedent; and erroneous admission of
such evidence would require reversal as to
all four defendants, even though court had
instructed jury that such evidence could not
be considered as to other two defendants;
where fact that jury had found all four de-
fendants guilty and had imposed same pen-
alty against all indicated that prejudicial
effect of testimony had been carried over to
other two defendants.

——_—_@—___.

W. Harold Flowers, Pine Bluff, for ap-
pellants.

Thomas Gentry, Jr., Atty. Gen., Paul C.
Rawlings, Asst. Atty. Gen., for appellee. .

GEORGE ROSE SMITH, Justice.

The four appellants, Moore, Boyd, Boone,
and Byrd, were convicted of murder in the
first degree, committed in the perpetration
of robbery, and were sentenced to death.
A number of grounds are urged for a re-
versal of the judgment.

[1,2] It is first contended that the court.
should have granted a change of venue.
The petition for a transfer of the case did
not comply with the statute, in that it was
not supported by the affidavits of two cred-
ible persons not related to the defendants.
Ark.Stats.1947, § 43-1502. Nor was there

< iS Piscean hrgins es Be hey: mene oie ike ae ee aa
aR Rhea ani pe GMa Nd a ee ba 2 4, Hip he Stat iniseeldop een


\rk.Stats. §
ess the
Fct na
(956. They
lamm, who
ride to his
Instead of
defendants
r down the
‘re the four
ir fists and
wn several
coin purse
containing
icy the de-
vy, * leaving

‘re.is ample
e was com-
of the con-
't his home
» into Tex-
¢ a bill and

een several
flamm was

‘wo of the
were ques-
ler ery
M1 nm.

where the
mm’s purse
His body,
ered undet
of a mile
» appellants
officers to
iew of the
r five days,
m the route
din return-
had been

. warranted
‘alone that
id not died
State, 217
eases there

‘tion in the
ced in per-

Scie eStats appa

Fi se

MOORE v. STATE Ark. 84]

Cite as 299 S.W.2d 838

mitting the State to prove that two of the
defendants, Boone and Boyd, assaulted and
robbed another man, T. B. Fenwick, five
days after the attack upon Hamm. AI-
though the two crimes were somewhat
similar, in that both victims were picked
up while hitchhiking, the record establishes
‘no connection between the two offenses.
In charging the jury with reference to the
proof of the Fenwick robbery the court
gave an instruction similar to that set out
in Scrape v. State, 189 Ark. 221, 71 S.W.2d
460, by which the jury were told that the
Fenwick incident “might be considered by
you as showing, if it does show, a scheme
and a design on the part of these two de-
fendants in the commission of crime, and
for no other purpose.”

That a defendant cannot be convicted of
one crime by proof that he committed an-
other is a fundamental principle of. fair-
ness conceded by every one. Judge Hem-
ingway ably summarized the rule in Bill-
ings v. State, 52 Ark. 303, 12 S.W. 574, 575:
“The general rule is well established, in
civil as well as in criminal cases, that evi-
dence shall be confined to the issue. It
seems that the necessity for the enforce-
ment of the rule is stronger in criminal
cases. The facts laid before the jury should
consist exclusively of the transaction that
forms the subject of the indictment, and
matters relating thereto. To enlarge the
scope of the investigation beyond this would
subject the defendant to the dangers of
surprise against which no foresight might
prepare and no innocence defend. Under
this rule, it is generally improper to intro-
duce evidence of other offenses; but if facts
bear upon the offense charged, they may be
proven, although they disclose some other
offense. The test of admissibility is the
connection of the facts offered, with the
subject charged.”

There are, of course, innumerable situa-
tions in which proof of other conduct on
the part of the accused is relevant to the
offense charged and is therefore perfectly
competent, even though it also shows the
commission of another crime. Many such

299 S.W.2d—531%4

situations were discussed in Alford y. State,
223 Ark. 330, 266 S.W.2d 804, and need not
again be reviewed. The question here is
whether evidence of the Fenwick robbery

was admissible to show a scheme and design |

on the part of Boone and Boyd in the com-
mission of crime,

Our many cases admitting evidence to
prove design fall naturally into two classes,
corresponding to the two senses in which
the word design is commonly used. First,

design may simply indicate intent or con-’

scious knowledge, as when one says that a
thing was done by design rather than by
accident or mistake. This usage is common
in cases involving conduct which may be
either innocent or criminal, depending upon
the accused’s guilty knowledge or intent.
A. typical instance is Johnson v. State, 75
Ark. 427, 88 S.W. 905, 908, which involved
a charge of larceny growing out of an
elaborate confidence game. In holding that
proof of similar conduct was admissible to
show design (in the sense of intent), we
said: “The general rule, of course, is that
one crime cannot be proved as tending to
prove another; but when the question of
intention in the performance of acts be-
comes material, then similar acts which
tend to show whether an innocent or crim-
inal intent is present become admissible.
This is frequent in cases of uttering forged
instruments, passing counterfeit coins, re-
ceiving stolen property, and is applied in
larceny as well as other crimes. 1 Wig-
more, Evidence, § 346. The question was
recently considered in this court, and this
rule announced: ‘When there is a question
as to whether or not the crime charged was
by accident or mistake, or intentional and
with bad motive, the fact that such act was
one of a series of similar acts committed
by the defendant is admissible, because it
tends to prove system and show design.’
Howard v. State, 72 Ark. 586, 82 S.W.
[196,] 201.” Among other cases using the
word design to mean intent or guilty knowl-
edge are Ross v. State, 92 Ark. 481, 123 S,
W. 756, and Norris v. State, 170 Ark. 484,
280 S.W, 398.

sbhe b geo peg} chet esa ays
5 te te tele! wees

a
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S40 Ark.

any sworn testimony (except the affidavits
of the defendants themselves) to show that
the minds of the inhabitants of the county
were so prejudiced that a fair trial could
not be had.
offered only the unsworn statements of the

four attorneys who were appointed to de-—

fend the case. These gentlemen said in
substance that they had unsuccessfully at-
tempted to find and employ some one to
make a survey of the public feeling in the
county. It was their opinion—and this was
at least in part a conclusion—that their
failure to find some one qualified and will-
-ing to make the survey was due to the
existence of local prejudice. Newspaper
reports of the crime were also introduced in
support of the petition, but we do not share
counsel’s opinion that these reports were
biased.

In the absence of competent evidence to
establish the existence of prejudice the
court did not abuse its discretion in denying
a change of venue. Appellants rely solcly
upon the decision in Hildreth v. State, 214
Ark. 710, 217 S.W.2d 622, but that case is
quite unlike this one. There the attorneys
submitted a sworn statement, and offered to
testify, that they had questioned numcrous
residents of the county and all thought the
accused could not obtain a fair trial, that
members of the jury panel had stated they
could not try the accused fairly, and that
public feeling was so antagonistic that the
statutory affidavits could not be had. In
the Hildreth case the judge refused to hear
the proffered testimony and denied the peti-

‘tion on the basis of his personal belief that
a fair trial could be had. In reversing that
action we did not say that a change of venue
should have been granted; we merely held

that the court erred in refusing to hear the -

testimony. That decision does not require
a trial court to order a change of venue in
the absence of any testimony that the statu-
tory ground therefor exists.

[3] A second contention is that the de-
fendants’ confessions were admitted in evi-
dence without other proof that the offense

Ibid., § 43-1501. The defense .

299 SOUTH WESTERN REPORTER, 2d SERIES

charged had been committed. Ark.Stats. §
43-2115. According to the confessions, the
four appellants were riding together in a
truck on the morning of May 9, 1956. They
picked up the decedent, M. R. Hamm, who
was on the highway soliciting a ride to his
home a short distance away. Instead of
driving Hamm to his home the defendants
took him to a lonely spot farther down the
lane on which Hamm lived. There the four
men beat the decedent with their fists and
with a club, knocking him down several
times. They took from him a coin purse
and a larger purse, together containing
$10.11. After dividing the money the de-
fendants drove away rapidly, leaving
Hamm lying by the roadside.

Apart from the confessions there is ample
evidence to show that the offense was com-
mitted. Testimony independent of the con-
fessions indicates that Hamm left his home
on the morning of May 9 to go into Tex-.
arkana for the purpose of paying a bill and
buying medicine. He was last seen several
hours later on his way home. Hamm was
missing until May 14, when two of the
appellants, Boyd and Boone, were ques-
tioned in connection with another robbery
and admitted the attack upon Hamm.
These two showed the officers where the
assault had taken place, and Hamm’s purse
His body,
badly decomposed, was discovered under
some brush about two tenths of a mile
Later on the other two appellants
were arrested and also led the officers to
the scene of the attack. In view of the
fact that Hamm was missing for five days,
that his body was found far from the route
he would normally have followed in return-
ing home, and that his purse had been
taken, the jury would have been warranted

was found by the road there.

away.

in concluding from this evidence alone that
Hamm had been robbed and had not died
from natural causes. JFzell v. State, 217
Ark. 94, 229 S.W.2d 32, and cases there
cited.

[4-8] The most serious question in the
case is whether the court erred in per-

a

7 —

YLYTEEN NEGROES WER WERE YuT fopEsTs.

—- Day's Work Le Sy the Seni ‘County,
Ark., Mob—Mare Hangiuys Likely.
Harexa, Ark, Oct 2~({Spocial.}—Tne Lee
County troubles ate probably af an end un-
lena, an is ‘poesibie, the mob ; attenipta to hang
‘the three negroce im the Marianna jail It
“now appears that no less thag fifteen negroes
were killed out of the gang of nineteen who
commenced. tae trouble. Of the remaining
four throe are in tha aii at Msrisnna and one
in the jailat Fomst Gaty. Shenf Derrick of
Lee County Bad a list of the naines of the
ninetoen offenders, ed as fast as they were
captured he left them in charge of guards
with instructioms to land them in jail at
Marianna, Special Di puty J. E, Wood, who
is the editor of the Lew Courty Courter, was
the only man who succeeded in getting his
pmsoners to jail. The, mob which took the
Degroes from the difereut squads of guards
nuinbered nearly 30 and were from Crit-
tenden, St Francis and Lee Counties .
At the door of, Milligmaire Merchant
J. F. Frank of Memphis is Jaid the
charge of inciting the troutle. Two weeks
ago Mr. Frank visited his plantation, known
asthe New Hope Piscx, He was dcissatisti
because his cotton was not beimg micted fast
enough His masaget, Mr Miller,  ex-
viained to him that he was gcting along
as fast as posible with the nur.
ber of hands he had, and that he
agreed to not pay over. 3 cents
perhundral Mr, Frank in ‘the. presence of
nearly a hundred negtees who werw  congre-
gatvdat his store remarked in d loud tone
that he was an oid manand had been in busi-
ness for many yeare and the anly way to get a
thing dope wasto pay. Ho eaid he wanted
his cotton picked and proposed to hare it
dose even if it cost SL per tmnared. The
next day Ais manager oNercd cents, but the
negrues did pot ga to York. Then it was
that Ben Patterson antl Joe Pryton, Milt and
Early Jones started eut to the adjoining
places to notify tha negroes that they could
get a dollar per hundred, and théy were fools
to work for less. The majority of them quit
work, and finding theme] ues suorcasful they
begas to farcibly prevent athera, ‘ Plantation.
owcers expustulated with the mnogleaders, but
to no effect. A day or fw afterwards Mr.
Miller was kiled by acrgwd of nineteen ne-
groca, beaded by the four gamed sbave. Thea
foliowed the barning of the gin-hause of J. F.
Frank and Terral & Bones. The balance of
the story has been to!ld. Ag angry mob killed
fifteen of the nngleadets, and are muttering
threats agwinst J. P. Frank.’ The Sf{ananca.
jal will be doubly guarded, for Shen Der
rick bas deter.hined that 0 more nse anal!
| -besscrificed. - hed dd dd



468 HISTORY OF CRAWFORD COUN'IY

Let us hark back to October or November, 1882,
when the first effort to rob a train in this state was made
on the Iron Mountain railroad near Hope by three young
men between 18 and 22 years of age. They were promptly
caught, tried and sentenced to the penitentiary. The eld-
est one died of a broken heart—“nostalgia”—I was told
by Dr. Lenow, who was the state’s physician at that
time. I commended the officers of the Iron Mountain road
for their action and belicved then, as now, that train
robbers should be speedily caught and punished, that

it should be made a capital offense; that such a law would.

go far toward making railroad travel safe in this state.
- But to my story: ;

Sitting in the home circle March 17, 1883, about 7
o’clock and feeling that all was well, the telephone rang
and Mr. Harris, the train dispatcher, said, “Here is some
bad news. Attempt to rob the train No. 1, Conductor
Cain killed. Brakeman shot. Train now at Alma. Robbers
jumped off train west of Mulberry. Orders?”

_ “Yes. Get best description possible of each robber
and wire me. Have baggage man take charge of train.
Have Cain’s body prepared for burial and returned. Do
all you can for brakeman. Notify other lines and agents.
Order special for me to be ready as soon as possible.”

“They killed Conductor Cain, my friend for 30 years!
A few years my senior, a fine, clean, honest man. Wife,
you will have to break the news to Mrs. Cain.”

“Hello, central. Give me Colonel Zeb Ward’s resi-
dence.”

I got him promptly and told him what had occurred —

and asked him for the bloodhounds and their keeper.

“All right, sir, if you can find the keeper,” was the
response. .

“Central, give me chief of police.” I asked for any
detective he could spare and went to my ofiice. Then I
got descriptions of the robbers and gave them. to the As-
sociated Press with an offer of $5,000 for the apprehen-
sion of the murders.

With a few friends I arrived at the scene of the
tragedy about daylight. This was about a mile west of

\

\

MISCELLANEOUS 469

Mulberry station. In a cabin close by we found a man
who had been shot in the face and who claimed to have
been a passenger and shot by one of the robbers. When
the train from Fort Smith arrived the next morning the
trainmen identified the wounded man as one of the party.
of would-be robbers. Sheriff Sadler of Crawford county
came down on the train and I had him arrest the man and
put him in jail in Van Buren. He was not badly hurt, but

I sent word to the doctor to scare a confession from him,

“but he didn’t scare worth a cuss.” I was anxious to lo-
cate all the home rendezvous of the gang the better to
direct the pursuit. A small party of “slow trailers” was
organized to get the direction taken by the three men who
escaped, which was found to be northward.

I sought all the publicity the newspapers would give
the afiair and besides ordered 10,000 descriptive hand-
bills with reward sent all over the northwest part of the
state.
The robbers boarded the train when it stopped at
Mulberry station, where it stopped for supper, and the
men took seats two on each side of the aisle near the back
end of the rear coach, and when the conductor asked for
tickets they jumped to their feet and drew their pistols .
and said “stop the train!” Conductor Cain realized at
once that they had the “drop on him” and reached for the
bell cord and (this I learned afterward from one of the
gang) the man who shot him thought he meant fight
and fired, the ball entering Cain’s forehead. Having
the bell cord in his right hand as he fell the engineer
got the signal to stop and shut off steam. The would-
be robbers became excited and lost their heads and be-
gan firing their pistols. Two rushed to the front end
of the coach just as Brakeman Lester entered to see
what was the matter and was shot and painfully
wounded. In the excitement one of these men shot
the other in the face. It happened the train was going
up grade just at this time and when it lost its momen-
tum began to roll back, there being no call for brakes.
“Dock” Rogers, the engineer, told me that he gave her
steam to hold the train and she began to move forward é


470 HISTORY OF CRAWFORD COUNTY

slowly and getting no further signal, he “supposed the
captain had put a man off.” He gradually picked up
speed, being entirely ignorant of what had really hap-
pened until the baggage man climbed over onto the
engine and told. him.

When the train began to move forward, the rob-
bers, not knowing how to stop it, rushed to the rear
of the car and jumped off. On a level grade where the
cars would have stopped the passengers might have
been robbed. The robbers’ story about the “big ship-
ment of money” was all bosh.

Detective Washmood with two other men was
Started out on the second day after with orders not to
return until they had caught or killed the rest of the
gang, to draw for all expense money needed. Some two
weeks later they reported the.last man of the trio in
jail.

_ In the meantime, however, the large reward offered
_had pretty well filled the woods with amateur detectives
and tramps were having a hard time “getting by” in
many places. For a week or two I was called to come or
send someone to identify supposed robbers.

Two or three days after Washmood and party started
out they had a running fight with the trio with the re-
sult that one of the party got a flesh wound in one leg
and they all got away.

Obtains Confession

On my return to Little Rock I sent Detective Sid
Basie to Van Buren with a letter to Sheriff Sadler to let
him work on the train robber. It was not long before De-
tective Basie was locked up with the train robber and got
his confidence by proposing to escape and learned all we
cared to know about who the robbers were and where
they lived. This information was wired the sheriff of
Washington county at Fayetteville, adding for effect
that “blood hounds will be sent.” This information soon
reached the robbers and caused them to stick close to
their hiding places in the bluffs of White river, where
a few days later John Powers, deputy sheriff of Johnson

i 7 cen i before build-
Pike School... top photo, taken in 1918,
ing abieiaceleien. and moved from Oe ee ee ie cotoel aes
derson. The front room was where P1ke g ;
a ae in 1832. Below, the old log house now contains a

museum on Highway 71, north of Mountainburg.


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Courthouse Sites Top photo—a view of the old s i
ae ae un-dial
on the lawn of the Crawford County Courthouse at Van Buren.

Below—Miss Eno standing beside the marker at th :
: e county’s
first seat of government, known as “Old Crawford Court Hodes

established “in 1820 near the ho f ;
of the Arkansas fiver” use of John Jay on the south side

MISCELLANEOUS 471

county, and his posse found two of the gang. Washmood
and his party trailed the third man into Missouri and
brought him in about a week later.

A short time after these men were jailed it was re-

ported that their friends would attempt a rescue and I
was waited on by a committee of trainmen who asked my
consent for the use of a train to take a party up to Ozark
to lynch the prisoners. Of course I refused, saying the
law will handle their punishment.

The prisoners were granted a change of venue to
Clarksville and were tried there and convicted and sen-
tenced to be hanged, no electric chair here then, at the
same place and time by Sheriff E. T. McConnell, which
event was told in the city papers at great length on that
date, June 22, 1883. a ae Dae :

Pending days of grace they were kept in the peni-
tentiary at Little Rock.

After the time set for hanging a petition was pre-
sented to Governor Berry asking for clemency. He called
men to his office and we went over the evidence. He was
at first disposed to commute the sentence of the young
man who really had done most of the shooting.

I told the governor my ambition was to make travel
on railroads in Arkansas safe, that the roads and the
state had spent a great deal of money to capture train
robbers and turn them over to the courts to be tried,
and it seemed to be a proper time to show by our action
that Arkansas would prove unhealthy for train robbers.
The governor finally said, “I will not interfere.” :

Att the next session of our legislature we urged the
enactment of a law to make train robbery a eapital
offense, but did not succeed. So, since then, we have had
our share of train robbing.

I have purposely refrained from naming any of the

men engaged in this affair.

Streams In Crawford County

Lee Creek: Named after a man who lived on the

creek by that name.

Little Lee Creek: Named for the same man. A smaller

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1066 707 FEDERAL SUPPLEMENT a

station hold-ups for the Rogers police de-
partment. Peters has never testified as an
expert witness but was called to the stand
once in a criminal trial when a former
client of his asserted as a defense that he
committed:a bank robbery under the influ-
ence of a post-hypnotic suggestion. Peters
has no degree from any accredited college
or university.

At the prosecutor’s suggestion Virginia
and Vicki Lehman went to Peters’ office to
be hypnotized on February 18, 1981.  Pe-
ters asked that the prosecutor not show
him the Lehmans’ prior statements because
he did not want to be in a position to ask
questions which’ suggested the answer.
Peters had, however, previously seen news-
paper accounts of the crime and he con-
ducted more than one session with the Leh-
mans at which their stories were recited.
In his deposition, which was introduced in
evidence at the. habeas hearing, Peters tes-
tified that he did not think Virginia was a
good subject for hypnosis but that he
would stand corrected if someone told him
otherwise. He recalled that Vicki, on the

other hand, was quite good and that he had |

four or five sessions with her. He only
twice tried to hypnotize Virginia, and she
testified at the hearing that she thought he
had only two sessions with Vicki.

Virginia was permitted to attend Vicki’s
sessions with Peters, and Vicki was present
at Virginia’s. But other than Peters no
others were present. During the sessions
Peters would try to get his subjects to
revisualize and relive the events of J anuary
8 and, following each session, he and the
Lehmans would report to the prosecutor’s
office. Peters took notes of each session
but no electronic recording devices were
used. His notes were never turned over to
the prosecutor and have since been de-
stroyed. Neither Peters or the prosecutor
have any record of the questions asked and
the responses given.-

At the habeas hearing the prosecutor
testified that he did not inform defense
counsel that the Lehmans had been hypno-
tized because no new information had been
elicited and he did not consider the fact
that hypnosis had been performed to be

exculpatory evidence. In fact, counsel for

the petitioners were not aware that hypno-

sis had been performed until after the ap-
peal was filed with the Arkansas Supreme

Court. The petitioners argue now that this.

failure to disclose the fact of hypnosis vio-
lates their Sixth Amendment right of con-
frontation and their Fourteenth Amend-
ment right of due process. The state re-

sponds that the non disclosure was harm- ©

less error beyond a reasonable doubt. ©

A. The Sixth Amendment Claim

{1] The Sixth Amendment to the United
States Constitution provides that “{iJn all
criminal prosecutions, the accused shall en-
joy the right ... to be confronted with
witnesses against him.” The purpose of
this. right to confrontation is to secure for
the defendant the opportunity for cross-ex-
amination, and the right is applicable to

State as well as federal proceedings.

Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct.
1105, 1109, 39 L.Ed.2d 347 (1974); Douglas
v. Alabama, 380 U.S. 415, 418, 85 S.Ct
1074, 1076, 13 L.Ed.2d 934 (1965). A defen-

dant shows a violation of the Sixth Amend- _

ment right to confrontation if he proves
that he was prevented from exposing facts
to the jury from which they could reason-
ably make inferences about the reliability
of the witness. Delaware v. Van Arsdall,
475 U.S. 673, 680, 106 S.Ct. 1481, 1436, 89
L.Ed.2d 674 (1985); Davis v. Alaska, supra
415 US. at 318, 94 S.Ct. at 1111; United
States v. Gregory, 808 F.2d 679, 680-81
(8th Cir.1987); United States v. Dempe-
wolf, 817 F.2d 1818 (8th Cir.), cert. denied,
USS. , 108 S.Ct. 245, 98 L.Ed.2d 203
(1987). But an otherwise valid conviction
should not be set aside if the reviewing
court is able to confidently say, on the
whole record, that the constitutional error
was harmless beyond a reasonable doubt.
Delaware v. Van Arsdall, supra 415 US.
at 684, 106 S.Ct. at 1438; Chapman v.
California, 386 U.S. 18, 87 S.Ct. 824, 17
L.Ed.2d 705 (1967). In this case the court
finds that there was constitutional error
committed and that the error was not
harmless beyond a reasonable doubt.

There have been a plethora of recent
federal and state court decisions concern-

gg TN ag RE GN ree Se


ORNDORFF v. LOCKHART 1065
Cite as 707 F.Supp. 1062 (E.D.Ark. 1988)

656 S.W.2d 684 (1983), cert. denied, 465

U.S. 1051, 104 S.Ct. 1328, 79 L.Ed.2d 723
(1983).

On June 28, 1984 appointed counsel filed
in this court separate petitions for habeas
corpus relief on behalf of éach petitioner.
These petitions were consolidated for dispo-
sition by order of October 23, 1984. Be-
tween June, 1985, and August, 1986, the
case was closed for administrative pur-
poses as there was a case before the Unit-
ed States Supreme Court which, if decided
in the petitioners’ favor, would have man-
dated that habeas relief be granted. It
was not so decided and a hearing was
scheduled for April, 1987, on the remaining
issues raised in the consolidated petitions.
See Lockhart v. McCree, 476 U.S. 162, 106
S.Ct. 1758, 90 L.Ed.2d 137 (1986), reversing
sub nom., Grigsby v. Mabry, 158 F.2d 226
(8th Cir.1985) (en banc) (in which the
Eighth Circuit held the “death qualified
Jury” unconstitutional). At the habeas
hearing the court ordered that post-hearing
briefs be filed and agreed to let counsel for
each of the petitioners divide the issues
raised so that they did not duplicate each
other’s efforts, and so they could each de-
vote more time to the research of each
issue. Following a delay of over one year,
occasioned by numerous requests for ex-
tensions of time in which to file the briefs
and the necessity of appointing substitute
counsel for one of the petitioners after the
briefs had been filed, the case is now ready
for disposition.

In their consolidated petition and com-
mon briefs the petitioners allege as
grounds for relief: (1) that the Arkansas
Capital Felony Murder Statute is unconsti-
tutional; (2) that the trial court’s denial of
motions for severance violates their Four-
teenth Amendment right of due process;
(3) that the use of a “death qualified jury”
violates the fair cross section requirement
of the Sixth Amendment; (4) that the jury
was improperly “death qualified” under
Witherspoon v. Illinois, 391 U.S. 510, 88
S.Ct. 1770, 20 L.Ed.2d 776 (1968); (5) that
the trial court’s decision limiting them to a
total of twelve peremptory challenges vio-
lates their Fourteenth Amendment right to
equal protection of the law; (6) that non

disclosure of the fact that two state wit-
nesses had been subjected to hypnosis at
the prosecutor’s direction violates their
Sixth and Fourteenth Amendment rights;
(7) that allowing the jury to consider the
motive of “pecuniary gain” as an aggravat- -
ing circumstance in the sentencing phase of
the trial violates their Eighth Amendment
rights; and (8) that petitioner Clines was
denied his Sixth Amendment right to effec-
tive assistance of counsel. The respondent
concedes that all state remedies have been
exhausted. Each issue will be addressed
below, not necessarily in the order raised.

I. HYPNOSIS

The murder victim’s wife, Virginia Leh-
man, and their daughter, Vicki Lehman,
were at home on January 8, 1981 and were
witness to the tragic events which took
place that evening. On January 9 and Jan-
uary 14, 1981 both Virginia and Vicki were
interviewed by the police and their state-
ments were recorded. Vicki was able to
give the police a description of the four
masked men and she helped a police artist
sketch ‘the one who had removed his mask
during the commission of the crime. She
later identified petitioner Clines in a police
line up as that man. The prosecutor testi-
fied at-the habeas hearing, however, that
on February 10, 1981 he had made the
decision to have the Lehman women hypno-
tized. The reason articulated for this deci-
sion was that Virginia’s descriptions were
vague and that Vicki was unable to recall

the name one of the intruders had called
the other. .

Carrying out his decision to hypnotize
Virginia and Vicki the prosecutor enlisted
the aid of one Gene Peters, who had
learned how to hypnotize people in a six
month course at the Springfield School of
Hypnosis in Springfield, Missouri. That
school has no official degree program, of-
fers no diploma and has a faculty of one—
the owner. Following his “graduation” Pe-
ters made his living for a time by helping
people to lose weight and stop smoking
with the aid of hypnosis. He also worked
with a couple of patients of a local dentist
and hypnotized witnesses to a string of gas


1064 . 707 FEDERAL SUPPLEMENT ae

titioner did not prejudice petitioner in capi-
tal murder prosecution and was effective
assistance; overwhelming evidence placed
petitioner at scene of crime; and witness
had previously identified petitioner as per-
son who removed his mask then beat victim
with chain. U.S.C.A. Const.Amend. 6.

13. Habeas Corpus ¢=87

Conclusion that joint trial resulting in
death sentence was conducted in an uncon-
stitutional manner inured to benefit of ha-
beas petitioners who sought to withdraw
issues decided in their favor or petition in
its entirety; court had jurisdiction by vir-
tue of petition of one defendant who did
not withdraw petition.

Ken Breckenridge, Hot Springs, Ark., for
Orndorff.

Marshall N. Carlisle, Fayetteville, Ark,,
for Holmes.

Gerald Coleman, West Memphis, Ark.,

for Clines.

Charles M. Hulen, Little Rock, Ark., for
Richley.

Carter Hardage, Ass’t Atty. Gen., St. of
Ark., Jack Gillian, Ass’t Atty. Gen., State
of Ark., Little Rock, Ark., for respondent.

MEMORANDUM AND ORDER

HENRY WOODS, District Judge.

On the 20th day of April, 1987, a hearing
was held on the consolidated petitions for

’ habeas corpus filed by the petitioners, Mi-

chael Ray Orndorff, James William
Holmes, Hoyt Franklin Clines and Daryl V.
Richley, pursuant to 28 U.S.C. § 2254. For
the reasons stated in this opinion the relief
Sought is granted in part and denied in
part.

BACKGROUND

The facts giving rise to the instant peti-
tions for habeas relief, stated in part in
narrative form, are as follows. At approxi-
mately 9:45 p.m. on the night of January 8,
1981, the front doorbell rang at Don: Leh-
man’s home in Rogers, Arkansas. Lehman
opened the door just a few inches to see

who was there but was immediately shoved
back as four masked men forced their way
into his home. At least two of the men
were armed with handguns and one was
carrying a chain. Following a brief strug:
gle with the intruders Lehman was thrown
into his bedroom. He was probably shot
once as he was thrown into the room, and
was shot twice more while held down on his
own bed. He died of the gunshot wounds
within minutes. Approximately fifteen to
thirty minutes later the four intruders fled
the scene, taking with them over $1,200.00
in cash and Don Lehman’s collection of
guns. Lehman’s wife and daughter were
present during the entire incident.

Six days later an information was filed
by the Benton County, Arkansas prosecut-
ing attorney charging Orndorff, Holmes,
Clines and Richley, collectively referred to
as the petitioners, with capital felony mur-
der. The information alleged that during
or in furtherance of a robbery one or more
of the petitioners caused the death of Don
Lehman under circumstances manifesting
extreme indifference to the value of human
life. “See Ark.Stat.Ann. § 41-1501(1)(a)
(Repl.1977) (now codified at Ark.Code Ann.
§ 5-10-101 (1987)). On May 14, 1981 an
amended information was filed which
charged the petitioners each, in addition to
the felony murder counts, with two counts
of aggravated robbery for the alleged use
of a deadly weapon with the purpose of
committing a theft from Lehman’s wife
and daughter. See — Ark.Stat.Ann.
§ 41-2102 (Repl.1977) (now codified at Ark.
Code Ann. § 5-12-103 (1987)).

The petitioners were tried jointly, despite
numerous motions for Severance, and the
jury returned verdicts of guilty on all
counts. On September 28, 1981 the trial

_ judge sentenced each of the petitioners to

consecutive life terms on the aggravated
robbery counts and, following the unani-
mous recommendation of the jurors, sen-
tenced each of them to death by electrocu-
tion on the felony murder counts. The
convictions were affirmed on appeal to the
Arkansas Supreme Court and petitions for
collateral relief pursuant to Arkansas Rule
of Criminal Procedure 37 were summarily
denied. See Clines v. State, 280 Ark. T1,


ORNDORFF y. LOCKHART
- 1062 (E.D.Ark. 1988)

Cite as 707 F.Supp
ing the effects of hypnotically enhanced
testimony, most of which are noted in the
Supreme Court’s recent decision on the
Subject. See Rock v, Arkansas, 483 U.S.
44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987).
Although Rock decided the converse of the
issue presented here—the right of a previ-
ously hypnotized criminal defendant to tes-
tify on his own behalf—that opinion is,
nonetheless, instructive. In Rock, the Su-
preme Court granted certiorari to review a
Supreme Court of Arkansas ruling which
limited the testimony of a criminal defen-
dant who had been hypnotized to “matters
remembered and stated to the examiner
prior to being placed under hypnosis.” The
basis for the Arkansas court’s decision was
that hypnotically refreshed testimony of a
witness is inadmissible per se because the
dangers of admitting such testimony al-
ways outweigh whatever probative value it
may have. The Supreme Court vacated
and remanded, reasoning instead that the
per sé exclusionary rule impermissibly in-
fringed on a criminal defendant’s right to
testify on his own behalf, in part because
the Arkansas rule left. the trial court with
no discretion to admit such testimony even
if it was determined to be reliable.

Discussing the reliability of hypnotically
refreshed testimony the Court stated that
the most common response to hypnosis ap-
pears to be an increase in both correct and
incorrect recollections. Id. at 107 S.Ct.
2713. In the Court’s words this occurs
because

[t]he subject becomes “suggestible” and

may try to please the hypnotist with an-

Swers the subject thinks will be met with
approval; the subject is likely to “confa-
bulate,” that is, to fill in details from the
imagination in order to make answers
more coherent and complete; and, the
Subject experiences “memory _harden-
— ing,” which gives him great confidence in
both true and false memories, making

effective cross-examination more diffi-
cult.

The Court went on to say that —

[t]he inaccuracies the process introduces
can be reduced, although perhaps not
eliminated, by the use of procedural safe-
guards. One set of Suggested guidelines

1067

calls for hypnosis to be performed only
by a. psychologist or psychiatrist with
Special training in its use and who is
independent of the investigation. These
procedures reduce the possibility that bi-
ases will be communicated to the hyper-
Suggestive subject by the hypnotist.
Suggestion will be less likely also if the
hypnosis is conducted in a neutral setting
with no one present but the hypnotist
and the subject. Tape or video recording
of all interrogations, before, during, and
after hypnosis, can help reveal if leading
questions were asked ... Cross-examina-
tion, even in the face of a confident de-
fendant, is an effective tool for revealing
inconsistencies, Moreover, a jury can be

educated to the risks of hypnosis

through expert testimony and cautionary
instructions. (citations omitted).

107 S.Ct. at 2713-14. Similar procedural

safeguards have also been Suggested by
the Eighth Circuit Court of Appeals. See

771 F.2d 1112 (8th Cir.), cert. denied, 475

US. 1046, 106 S.Ct. 1263, 89 L.Ed.2d 572
(1986). ~

[2,3] In the instant case it is undisput-

ed that Vicki Lehman, one of only two
occurrence witnesses, had been hypnotized
prior to the time she participated in a reen-
actment of the crime and before she testi-
fied at trial. It is further undisputed that
the trial court never had an opportunity to
rule on the admissibility or reliability of her
hypnotically refreshed testimony, because
the fact that she had been hypnotized was
never disclosed by the prosecution. Fur-
thermore, it is apparent that virtually no
procedural safeguards were followed. The
hypnotist had no college degree in psychol-
ogy or any other subject. He had read of
the events in question in the local newspa-
per and had conducted his Sessions without
charge in the hope of uncovering a new
lead which he could later “brag on.” Virgi-
nia Lehman, the only other occurrence wit-
ness, was present each time Vicki under-
went hypnosis and the sessions were not
electronically recorded.- The only notes of
the sessions have been destroyed and had
been, prior to their destruction, in the sole

ee Oe

bcd


car.
se he was afraid of
look for a trick and
) get the money. He
illed a man to get
his share. of: rent

ted only four hours
| a verdict finding
the count of. pre-
t guilty of aggra-
sravated robbery.
unced sentences of
the murder charge
zars on the robbery

nformed the ¢ourt
be filed. *

zing the fake burg-
me to console his
the exam, which he
’ Mr. Black said.
"surprised him
state of panic.
s counsel re-
: pressed the trigger
he was ina state of
actions after that
c.”’
rosecutor, John

ed there might well —

motive — in that
are with his sister a
neritance in his

ain was not con-
ad murdered out of

: youth for life, he

‘customary recom- -

num sentence **be-
1 my mind as to the
of your youth.”’

.ndrew Alder acted ©

itained? After the
surprisingly cool.
' him only a few
iers, and while he

1e assumed it was —

d exam. And in the

tudent, Nigel Grin-

‘ummate actor’’ in

on.

2d and reacted just

yone to do who has

ents have been kil-

ed.

' summed. up the

ds:

ing to suggest he
' like this. Ev-

and cannot
10W.
we will never

*

Jog 4

\

-——Gartet That Sang OF Death’

\\

have a little lighter hair than the blond
hair of Clines, but otherwise shé knew it
was the same man. At no time did she
hesitate in selecting Clines from the
lineup all three times. i

__ After the usual amount of hearings and
rulings on defense! and prosecution mo-
tions, jury selection began for the trial of
the four defendants on Monday, Septem-

ber 28, 1981. Seventy-nine. potential '

jurors had been summoned to the Benton
County Circuit Court. Prosecutor Clin-
ger was expected to ask for the death
penalty if the four men were convicted,so
the jurors would be questioned on their
feelings toward capital punishment.

More than two weeks went by before a
panel of five women and seven'men were
finally selected for a jury. The trial got
‘under way on Tuesday, October 13, be-
fore Judge William Enfield.

Prosecutor Clinger represented the
State. The defense attorney battery was
made up of Carrol Roddy and Don Huff-
man for Cline; Marshall Carlisle defend-
ing Holmes; and John Jennings repre-
senting Orndorff. Each defense counsel
gave an opening statement.

’ The prosecution spoke for 81 minutes
in its opening statement, with the four
defense lawyers taking considerably less
to express their cases. Prosecutor Clinger
said the State would call 40 to 50 witnes-

wy

\

\
}

\ (continued from page 19)

ses during its presentation. abe if
One of the prosecution witnesses cal-
led that day testified he had attended a

_ Party: some ‘time before the Lehman
- Slaying and there met Orndorff.

He said they were going to pull off a

big job,”’ the witness testified, and ‘‘use
ry \

force if necessary.’’ (

Two other men, whom the witness
identified as Holmes: and Richley,
attended the party, too. He ‘said he later
identified those two. men from photos
supplied by the Rogers Police Depart-
ment. When cross-examined by David-
son, the.witness testified that Clines was
not at the party and he had never seen
Clines with the other three men.

A woman testified all four of the de-
fendants appeared at her home about 7:15
p.m. on the night of the Lehman murder,
Orndorff was a close friend of her hus-
band.

““T answered the door,’’ she testified,
‘‘and a masked man pointed a gun at me.

. | was scared to death. The person began

laughing and took his mask off... it was
Clinég temas wig.d

The four men brought in some beer,
and played cards along with her husband
until about 9:30 p.m.; when they left:

“Thad left earlier to go across the
street to do our laundry,”’ she related-to
the jury. ‘‘The four of them came into the
laundermat with my husband wanting
him to go:with them. I told him pot to go
and they left without him.”” |

Vicki Lehman‘was the first witness to
take the stand on Wednesday and told the
jury of the events of the night as she
remembered them. Under cross-
examination by each of the defendant’s
attorneys, she was questioned about the
lighting inthe home at the time of the
murder.

The other witness that day was Virgi-

| nia Lehmah, wife of the victim. Testi-

mony and cross-examination of these
two major witnesses took the entire day,
Expert testimony from several witnes-
ses took up much of Thursday’s testi-
mony, which included Dr. Malak, the
state_chief pathologist. . ie
He testified that during the one minute
after the chest Wound was received, Leh-
man would have been able to have talked
and walked,’ but he would have been
short of breath, with his blood pressure
dropping, and would have begun stag-
gering soon.. Was. 4
Under direct questioning from Pro-
secutor Clinger, Dr. Malak testified ‘he

‘didn’t know which shot had been fired

first, but he did know which had been
fired last, He said the shot to the stomach

was the last shot fired because of the lack

of bleeding around the wound.
During cross-examination from Car-
lisle, Dr. Malak said it was possible that

“the gunshot wound to the chest was the

first shot, given the actions of Lehman
during the incident: He made this sup-
position based on the fact that the con-
tractor had stumbled down the hall and
Staggered to the bed.

Carlisle, Holmes’ defense attorney,
also asked if the abrasions to Lehman’s
body were caused before'death, and Dr.
Malak answered they were.

In redirect examination by the pro-
secutor, Dr. Malak said he believed all
three shots took place within two to five
minutes.

Other testimony included that of Pat-
rolman Malloy, who told the jury of the
arrest of Richley, alias ‘‘David Ander-
son,’’ and the subsequent uncovering of
evidence from the apartment and auto-
mobile. This chain of evidence included
weapons, gloves, masks and other items.
Also introduced was photographic evi-
dence of the Lehman home and the vic-
tim’s. body. :

While Deputy Sheriff Sherwood was
on the stand, he told the jurors about the
January 16 lineup in the dressing room of
the Benton County Jail, which included
six persons. He testified that Vicki Leh-
man looked at all six, *‘toe to toe,”’ and
identified Clines as the man whom she
had seen pulling his mask off that night.
He said she did this three times.

Richley’s landlady told of seeing the’
guns in the apartment and calling the
police about her'suspicions. She also tes-
tified that on January 2 Richley and two
other men came to her roller-skating rink
and, during a conversation with Richley,
he told her that if it wasn’t for him, she
would have been robbed that night (Janu-
ary 2).

“I’ve got an armed guard,”’ she testi-
fied she informed Richley.

‘That don’t matter,’’ Richley had re-
plied, **they would have just blown him

away.”’

An employe at the skating rink testi-
fied he was working the. night of that
incident. He recalled the three men com-
ing into the' rink. He testified one was
Mike Orndorff, and ‘he described the
other two, one being blond andweigh-

ing over 200 pounds, the other one tall .

and dark haired.

‘*I talked with Mike ‘for several mi-
nutes outside the rink,’’ said the witness.
**I’ve known Mike Orndorff for two

(continued on next page)
: 45

oe


. WALKER
- State Medical Examiner related
how victim crawled around for a
minute as blood flowed from him.

of a night you
e home and
‘@ warm bed.
at Thursday,
_Mr. and Mrs.
vith their 24- 4
er, Vickie, ar-
ural Rogers,
> after eating
»reparing for
they were in-

as already in bed
and her husband
ze when the front
s 9:40 p.m. She
nd he went to see

rent parts of the
Vickie met at the
?’* Lehman called
‘e he unlocked it.
» answer, Lehman
again. Someone
avid.’’
actor must have
e he knew, for he
nlocked the door.
icking him down,
es came bursting
ned. A large man .
with a chain as he

yelling, she heard’ her husband yell,

+ ‘‘Jenny, get my gun.’’ Next she heard a

shot.
Terrified, she tried to get out of the }

way when the mass of people suddenly

came through the bedroom door. She saw

her husband lunge into the room blood all

‘over his shoulders. ~ j

‘Jenny, get my gun,’’ he said once |
again, then fell on the bed. }

By this time, she.was in shock. She lay {
between the bed and the wall, staring at
the whirling blur of movement, unable to
distinguish persons, only figures ir in dark
clothing.

“Get in the corner and keep your head
down,’’ a man with*a mean voice told
her. She saw he had a gun pointed at her.

A short time later, she looked between
her arms and saw a large man with broad
shoulders holding her husband down on

at Vicki and she
the floor, if you
2 same.”’

| to fight his way
ward the master
frantically to. his
gun.”’

2hman had heard
‘ront door, like a
oming into the

umped out of bed
1en, realizing she ¥
eriff’s office or i Men in ski masks dra rl by the h 5 Be ie
i : gged young girl by the hair around her parents’ , (continued on next page
re telephone and house logking for money. om
Mi > wh Ne oe, @

didn’t keep large
house, but that ‘ : iS om

wits ieee | Holding her. by the hair, the tall man forced the young

eated on the bed, ‘
operator on the

W the-nole and woman upstairs. There he grabbed her tight and
art ron, looked down into her eyes, the big gun poised in one

“ong , hand. ‘And now...’ he said.

a Re)

etree

ae

Ss:

17


careless of the one
nask and worse to
cause it gave Vicki
tures. She was able

nough information |

drawing was made

2ould describe any
hey were medium-
was almost posi-
)» had held her up
yn at her on wire-
1 women remem-

ending below the

ed one of the de-
list of the seven
‘un cabinet. by the
‘ki could describe
the weapons that
1 carrying, which
only remembered

3 dark and small, -

ser. She did state
armed when they

interviewed the
ied a fair descrip-
thicle.

itory broke in the
o and television,
1an’s Association
reward. Lehman
building contrac-

‘the news media,
of the money and
| for Léhman to
sh in the house,”’
st sold some mer-

ws broadcasts of

who owned an
Skating rink in
: county line, but
1e south, remem-
uns in one of her
who rented the.
around with two
ugh and drank a
ner skating rink,
aore glad to see

he more she wor-
. She called the
artment and told
The police radio
vatrol car and had '
it out. /
"y and his partner
‘ove to the apart-
1966 Chevrolet
f the designated
ers were looking
ns came outside’
dirty and oily.’’
les with ‘‘skinny

faces.”’
‘*Who does the car belong to?’’ asked

Patrolman Malloy.

‘‘Darryl Richley,’’ replied the. man,
who was tall and wore glasses.

‘Who are you?’” Malloy queried. ©

‘*‘David Anderson,’’ answered the

‘man. ‘‘Richley just tossed me the keys to

9 99

the apartment and said, ‘It’s yours.

Patrolman Malloy remembered what |
the dispatcher had said about guns being
in the apartment. He motioned toward
the apartment the trio had come from and
said, ‘You have any guns in there?’’

‘*No,’’ the man answered.

The other officer got on the radio in the
patrol car and had the dispatcher check to

see if there were any warrants out for a

David Anderson, of his description. It
was determined there was a warrant out
for his arrest, so he was placed in custody
and taken to police headquarters.
In the apartment, officers found there
blue ski masks with red eyes and a pair of

gloves. Looking in the car trunk they —

found rifles and handguns. They knew
they had a ‘‘big fish’’ to question down at
headquarters. Meantime, the apartment
was sealed and the Chevy was impound-
ed. , a :

When the Fayetteville authorities
checked the Lehman gun list against the
rifles and handguns found in the truck of
the-car, the rifles were found to be those
taken from the home, as} well as .22-
caliber derringer. pistol. The ski masks
matched those worn by the men.who
burst intd the house.

After extensive questioning of the two

girls and ‘‘Anderson,’’ the Benton Coun-,

ty Sheriff's deputies drove. over their

\

Hs

i \ v ‘ eRe Je
ga Ba , * a hres Sento ie

county between 6 and 9 p.m. Friday and

arrested three more men... :two.in Rogers

and one near Gravette.

By now,.‘‘Anderson’’ had been
moved to Bentonville, the county seat of
Benton County, in which the murder of
Lehman. had taken place. He was not
booked, however, ‘under the name of
Anderson, for it had been learned he was
actually Darryl Richley, 29, and Ander-

‘son was an oft-used alias.
The other three were Hoyt Franklin
_Clines and James William Holmes, both —

24, of Rogers, and Michael Orndorff,

‘21-year-old resident of Gravette.’ All
were charged with capital felony murder -
‘and held in the Benton County jail.

Benton County Prosecuting Attorney
David Clinger told the news media that
formal charges would probably be filed
on-Monday, the 12th. He also said that
authorities believed a number of robber-
ies in northwest Arkansas could have
been committed by the suspects.

A probable-cause hearing and a bond

hearing were held late Monday afternoon

in Benton County Municipal Court for
the four suspects on the capital felony
murder charges. They were ordered to be
held. in the county jail without bond.
The following day county Investigator
Townsend participated in a’search of the
house where Holmes lived in Rogers and
quickly confiscated a’ .22-caliber revol-

ver for evidence. It was found to be reg- -

istered to. Holmes. Crime lab technicians
went over the impounded Chevy and
lifted numerous fingerprints. af

-Dr. Fahmy A. Malak, the chief patho-
logist for the Arkansas State Medical Ex-
aminer’s office-in Little Rock, the state

1)

Benton County Courthouse,

‘scene of the trial In which quartet
.Of killers heard final sentence pro-

nounced: death by electrocution.

capital, did a thorough autopsy on the

body of Lehman on January 10. His re-
‘port stated he found three small-caliber

bullet wounds, one in the forehead just

above. the left eye, another to the right
upper chest and a third in the right upper
abdomen. . - :

Two of the bullet wounds could have

’ proven fatal, the report said.

_ The-head wound, Dr. Malak deter-
mined, was fired at close range, almost,
if not at, point-blank range, indicated by
powder burns to the skin and powder in
the brain, with the bullet fragmenting,
with several pieces going to the right side
-of the brain. He said the wound from that
shot would have paralyzed Lehman’s
right side, and also damaged motor re-
flexes on the other side, killing him.

The pathologist said in his report the
chest wound was fired from further

away, at about:a distance of two feet. He
said that wound would also have been
fatal, with the heart failing to function
- after about one minute and the sac around
the heart filling with blood, which would
have caused death.

Although the stomach wound had been
potentially fatal, if Lehman had received
medical attention soon enough he could
have survived that particular wound.

‘Lehman had suffered a broken rib
while he was still alive. This was caused
by a blunt object, such as links in a chain.

Numerous scrapings and abrasions,
with major ones to the left side of the face
and shoulder and one on the left chest
area, were found in the autopsy, accord-
ing to, the report from the state medical
examiner’s office.

Removing two bullets and three frag-
ments from Lehman’s body, Dr. Malak
had turned this evidence over to the
Arkansas State Crime Lab in Little Rock.
All of the .22-caliber weapons located in
the case had been taken there also to
undergo ballistics tests.

On Friday, January 16, Investigators
Townsend and Sherwood conducted a
lineup consisting of six persons, all
selected because they had the same body
types. It was viewed by Vicki Lehman,
who was not told in advance who would
be in the lineup. Vicki viewed the lineup
three times and each time she picked out
No. 4, which turned out to be Clines.

The only comment she made was that
the man who took off his mask seemed to

- (continued on page 45)
19

}

in ater a

re Re ae a ma

4

Hy
‘i
4:


the bed and another man sitting on the
edge of the ‘bed.

**I’ll finish him off this time,’’ said the
seated man.

There was the sound of another gun-
shot, then the men began to ransack the
room in search of money.

Vickie had been taken to her own bed-
room, where she gave the tall man some
Christmas money she had there. The tall

- man told her to give it to the other man

who had accompanied them.

**Aw, this isn’t money,’’ growled the
other man, when. she gave it to him.
**Where’s some real money?”’

Holding her by the hair of her head, the
tall man forced her upstairs, where he
grabbed her tight and looked down into
her eyes. ‘‘And now,”’ he said.

She was positive she was going to

either be raped or shot. She was not sex- |

ually molested. He might have changed
his mind, or he could. have been. just
trying to frighten her. After searching
through the upstairs, he practically drag-

ged her by her hair to her parents’ bed- .

room. Just before they reached it, she

heard a third shot. From the doorway, -

she saw her father lying across the bed,
face up, with his legs hanging off the
side. :

About this time one of the rhen disco-
vered the money in the night stand. In
doing so, he pulled up his mask in the
excitement and claimed, ‘‘Hey, look at
all these $100 bills!’’

When they had the money she stepped

into the room and asked the men about °

her father.

**He’ll be all right,’’ said the tall man,
*‘he’s only wounded.”’

The smallest of the quartet suggested
an ambulance be called when they
finished and were ready to leave.

‘The hell with that,’’ said the man

who had removed his mask. He grabbed |

the telephone and pulled the cord from
the wall.

One of the other men called out from
another part of the house, *‘We’vé got to
get out of here, the neighbors’ lights just
came on.”’

Taking Vicki with them, the men left
the bedroom. One of the men started the
car, and just before,they left the house, a
heavy-set man removed all the guns from
a living room gun cabinet and took them

along to the car. The tall man was the last
to leave the house: Still holding Vicki by |

the hair, he went outside with her.

Again Vicki thought she was about to
be killed; instead he left her in front of the
house and ‘got in the car with the other
three men. When the car drove off into
the darkness, Vicki ran back inside to see
about her father. : ;

Her mother had located a telephone,
18°

that hadn’t been ripped out and called the

Benton County Sheriff's Department,
telling them that four men had killed her
husband and her daughter. About that
time, Vicki came walking into the house.

Vicki hurried into her parents’ bed-
room, went over to her father, put her
hand behind his head and raised him up.
“‘Are you all right?’” she asked.

There was blood everywhere, and she
realized he was dead. She began'scream-
ing and running to find her mother at the
other end of the house...\ ~ \

In minutes, law officers had begun
arriving at the home. An'ambulance soon
followed; but Benton County Sheriff
Don Rystrom held the body until an’ex-

Ballistics expert’ Robert Phillips .
‘| described how killer's bullet rico-:

‘ cheted inside victim’s head.

amination was made’ by the county
coroner and photographs had been taken
from several angles of the body’ on the
bed, Pictures were taken of the bedroom,
and the rest of the house. '
The coroner pronounced Lehman
legally dead and after an initial examina-

‘tion, he stated he had been beaten and

shot three times — once in the head and
twice inthe chest. |. — f

Sheriff Rystrom and other members of
his department, including Dan Town-

‘send and Bill Sherwood, learned from

the two women the terror-filled events
that had)taken place in their home.
According to Vicki and her mother, the
men wore gloves and blue ski masks with

‘i a

‘red rimmed cutouts for eyes.’ '

Gs

)

- It-had been very careless of the one
‘man to pull off his mask and worse to
‘leave the mask off, because it gave Vicki
longer to study his features. She was able

to give a police artist enough information —

that a good composite drawing was made
of the man. a
The only way she could describe any

' Of the others was that they were medium-

sized, fat and tall. She was almost posi-
tive the tall man who had held her up

close and looked down at her on wire-

fraffied glasses. Both women remem-

bered blond hair extending below the

mask of the fat man.
Both women assisted one of the de-

_ puties in compiling’a list of the seven

guns taken from the: gun cabinet. by the

. **fat man.’’ Only Vicki could describe

anything about any of the weapons that
the intruders had been carrying, which
was very little. She only remembered

two of the guns being dark and small; -

possibly of a .22-caliber. She did state
positively that all were armed when they
barged into the house.

When the officers interviewed the
neighbors, they obtained a fair descrip-
tion of the getaway vehicle.

Not long after the story broke in the
area newspapers, radio and television,
the Rogers Businessman’s Association
established a $2,200 reward, Lehman
had been a prominent building contrac-
tor.
Giving the details to the news media,
Sheriff Rystrom spoke of the money and
guns; ‘‘It was unusual for Lehman to
have that amount of cash in the house,”’
he said, ‘*but he had just sold some mer-
chandise.’’ v,

After hearing the news broadcasts of

the murder, a. womdn who owned an:

apartment house and skating rink in
Fayetteville, across the county line, but
adjacent to Rogers on the south, remem-
bered seeing a lot of guns in one of her
apartments. The man who rented the
apartment from her ran around with two
other men who were rough and drank a
lot. They had visited her skating rink,
and she was always more glad to see
them leave than arrive.

As the day wore on, the more she wor-
ried about it. Finally, she called the
Fayetteville Police Department and told
them about the guns. The police radio

dispatcher contacted a patrol car and had '

the two officers check it out.
Patrolman Carl Malloy and his partner
answered the call and drove to the apart-
ment house. A brown, 1966 Chevrolet
was parked in front of the designated
apartment and the officers were looking
it over when three persons came outside.
All appeared to be ‘‘very dirty and oily.””
Two of them were females with ‘‘skinny

faces.”’
‘*Who does

Patrolman Ma

“Darryl Ri
who was tall :
**Who are )\
**David Ai
man. ‘*Richle.
the apartment
Patrolman |!
the dispatcher
in the apartm
the apartment
said, ‘*You h:
**No,’’ the
The other o!
patrol car and
see if there w
David Ander:
was determin
for his arrest, :
and taken to |

In the apart
blue ski mask:
gloves. Look
found rifles 2
they had a ‘*bi
headquarters.
was sealed an
ed.

When the
checked the L
rifles and han
the-car, the ri
taken from t
caliber derrin
matched tho:
burst into the

After exten
girls and **An
ty Sheriff's

Arkansas
to execute
3 in 1 day

Associated Press

:LITTLE ROCK, Ark — Arkansas
will put three convicted murderers
to’ ‘death on the same day next
month, the governor said Wednes-
day.

‘Gov. Jim Guy Tucker set Aug. 3
as‘the date for executing Hoyt
Clines, 37, Darryl Richley, 43, and
James Holmes, 37. They were con-
victed of capital murder in the Jan.
8, 1981, slaying of Donald Lehman
after breaking into his home in
Rogers. They are to die by injection.

Olan Reeves, the state’s senior
assistant attorney general, said last
week that US. District Judge Henry
Woods lifted their stays of execu-
tion after apparently agreeing with
the state’s assertion that the appeals
process had been exhausted for the.
three men. The case has been to the
U.S. Supreme Court twice and the
8th. U.S. Circuit Court of Appeals
twice.

“They've gone about as far as
they can go,” Mr. Reeves said.

Arkansas’ last triple execution
was in 1939.

‘Mr. Clines, Mr. Richley and Mr.
Holmes were accused of donning
masks, breaking into Mr. Lehman's
home, beating him with a bicycle
chain and shooting him to death in
front of his family. They were also
accused of stealing money, jewelry
and other valuables after the as-
sault.

ihe last time Arkansas executed
more than one inmate on the same
day was May 11, when Edward
Charles Pickens and Jonas Whit-
more were put to death for capital
murder in different cases. That dou-
ble execution was the first time a
State had executed more than one
inmate on the same day since be.
fore capital punishment resumed in
the United States in 1977.

“Alan Ables, a state Correction
Department spokesman, said com-
bining the executions saved the
State money and reduced stress on
prison employees. He said Arkansas
also had double executions in 1947,
1951, 1959 and 1960: triple execu-
tions in 1930, 1936 and 1939; and

quadruple executions in 1926 and
1930.

‘Michael Ray Orndorff was also
convicted of capital murder in Mr.
Lehman's death and was sentenced
to‘die. But an appeals court ordered
him resentenced after he argued
that his sentence was affected by
the testimony of a woman who had
been hypnotized. Resentencing
would require a trial.

‘According to Judge Woods’ or-
der, if Mr. Orndorff is not resen-
tenced by Oct. 28, his sentence wil]
be ‘reduced to life in prison without
parole, Mr. Reeves said. Prosecutors
have not decided whether to hold a

trial in order to resentence Mr. Orn-
dorff.

-Mr. Clines, Mr. Richley and Mr.
Holmes argued on appeal that post-
hypnotism statements given by
Vicki Lehman, the victim's daugh-
ter, affected their sentencing. They
Said the statements she gave after
hypnosis included more detailed
descriptions of the Suspects than
Statements she gave before she was
hypnotized.

‘But an appeals court found the
hypnotism resulted in Significant
differences only in the testimony
about Mr. Orndorff.

DALLAS meRnnnG wvews
THURS, 7-7-94


"Execution Stay Lifted
For 3 Arkansas Killers

~ Little Rock — A judge lifted a stay
- ‘of execution for three Arkansas in-
‘mates yesterday, making a triple
-- execution in the state a virtual cer-
tainty. a :
-. “It wouldn’t be a pleasant as-~
.signment, but it’s one we might
». have to carry out,” said Alan Ables,
spokesman for the Arkansas De-
partment of Correction.

Wy Iagationes od! The judge lifted the stay after
| syronny ot the U.S. Court of Appeals refused
-) ul so) so28-to entertain another petition from
i * ‘the condemned men. Arkansas of-
_., ficials said there is essentially no
..)@hance that the inmates will be
1 able to persuade the U.S. Supreme
«Court to intervene because it has
twice rejected their appeals.

_ ./t Hoyt Clines, 37; James W.
Holmes, 37; Darryl V. Richley, 43;

| and Michael R. Orndorff, 35, were
+ ""sentenced to death for the murder —
‘ °*_. of a prosperous Arkansas business-

meets 22 =

26V apluaal eepuRag wey %

mc
-

wa

oS

-
ee

. ~
ee eel
we

ree ge ye dy we’ ‘
ues otyer Man in 1983. ,
ee wt
a, a i *: ees
eae we f i s
’ i sey ae

» US. District Judge Henry-Woods.

“signed stays of. execution for James

-William “Holmes, 27; Darryl Richley,
_ 83; Hoyt Franklin ‘Clines, 27; and Mi-
_Chael Ray Orndorff,25,

The four were tried together and

convicted of capital murder in the

ae

‘Jan. 8, 1981, shooting: death of Don
Lehman, 47, of Rogers, and the agera-
vated robbery of Lehman’s wife and
daughter,

Marshall Carlisle, Holmes’ attor-

ney, said the stays were fairly routine,
“particularly in this status of the case

. since the federal court has never |[-
“tye “-

b-2°-F#

The petitions presented to Woods

'Taised several points, including the ar-
. Sument that it was unconstitutional to
“ try the four together,

Woods will consolidate the peti-
tions.so-he could conduct one he: Hie An
Carlisle said. The date for the hearing”.
will be set after the attorney general's -
office responds to the petitions, << |

Five men were put to death .@i%
Feb. 2, 1951, in Virginia.

epee ee es
ge

Execution Stay Lifted
For 3 Arkansas Killers

Little Rock — A judge lifted a stay
of execution for three Arkansas in-
mates yesterday, making a triple
execution in the state a virtual cer-
tainty.

“It wouldn't be a pleasant as-
signment, but it’s one we might
have to carry out,” said Alan Ables,
spokesman for the Arkansas De-
partment of Correction.

The judge lifted the stay after
the U.S. Court of Appeals refused
to entertain another petition from
the condemned men. Arkansas of-
ficials said there igs essentially no
chance that the inmates will be
able to persuade the US. Supreme
Court to intervene because it has
twice rejected their appeals.

Hoyt Clines, 37; James W.
Holmes, 37; Darryl V. Richley, 43;
and Michael R. Orndorff, 35, were
sentenced to death for the murder
of a prosperous Arkansas business-

Me CH pe

iota. om

thics

a;

man in 1983. LF)". be

prereety


‘ich the ma-
ro". error.
of rob-
Little Rock,
) 1933. Dur-
ctions, L. R.
filling station
ed to testify
had attempt-
, the day fol-
for which he
ion the Court
it’s objections
* instruction:
cd alone for
State has at-
ny that this
empted crime
ving the date
»w being tried
itted. If you
ence that the
nmit robbery
leged crime
it might be
ge, if it does
non the part
mmission of
Si d even
Hiy-,uilty of
on the day
‘try for which
at would not
‘onviction on
w being tried
wilty on this
ry reasonable
approved by
ze of Justice
ce many times
rimes closely
varged is ad-
snowledge or
‘my plan, or
rt of the ac-

{ to reconcile
Scrape case
“conspicuous
‘ule’, an iso-
‘rred because

ii

wih eae

Si th ag SAE Ea ates

weEeia | oi

=

}
4
|

BREWER v. HOWELL Ark. 85]
Cite as 299 S.W.2d 851

of “oversight”. Yet the majority do not
overrule the Scrape decision.

It appears to me that the law relating
to the admission of similar offenses in the
trial of a particular cause, is now so high-
ly technical and apparently conflicting, that
lawyers and judges, in trying to distinguish
between the various cases, can only reach
a complete state of bewilderment. The net
result will be that trial courts will never
permit the introduction of evidence of simi-
lar crimes committed by a defendant which
might well tend to prove intent, scheme,
or design in the case under submission. I
strongly feel such evidence to be invaluable
in the trial of a criminal case.

For the reasons herein set out, I am of
the opinion that the testimony relating to
the Fenwick robbery was competent and
relevant evidence, and the Court did not
err in admitting same. I accordingly re-
spectfully dissent to the views of the ma-
jority.

MILLWEE, J., joins in this dissent.

° KEY NUMBER SYSTEM

AMS

Herbert BREWER et al., Appellants,

Vv.
Leslie HOWELL et al., Appellees.
No. 5-1174.

Supreme Court of Arkansas.
March 18, 1957.

Action by taxpayers and residents seek-.

ing an-injunction against alleged illegal ac-
tivities by the school board and recovery of
public funds. I‘rom an adverse judgment
in the Chancery Court, Eastern District,
Lawrence County, Thomas F. Butt, Chan-
cellor on Exchange, the plaintiffs appealed.
The Supreme Court, Harris, C. J., held that

plaintiffs were not entitled to recover school
district funds paid to wives of. directors
performing teaching services where there
was no contention that the teachers were
overpaid but that an injunction should lie
against employment of such persons in the
future; that the suit was not barred by the
“clean hands” doctrine, and that denying
amendment to the pleadings was not an
abuse of discretion.

Modified and affirmed.

1. Schools and School Districts C@11

Taxpayers were not entitled to recover
funds allegedly illegally paid out by school
board to wives of school directors who were
employed as teachers and in other capaci-
ties where no fraud was involved and no
contention was made that the wives were
overpaid and it appeared that the parties
acted in good faith. Ark.Stats. §§ 80-505,
80-509.

2. Schools and School Districts €=79

Purchases made from a business con-
cern employing a school board member are
not in violation of the statutes since the di-
rector is not interested “either directly or
indirectly” as contemplated by the statute.
Ark.Stats. § 80-505.

3. Schools and School Districts C79

Where member of a school board was
a son of a merchant who sold supplies av-
eraging about $1,000 a year to the school
district, the purchases were not illegal as in
violation of the statute, where fair prices
were charged and value was received by the
district. Ark.Stats. § 80-505.

4. Schools and School Districts €=63(1)

Action of the school board in employ-
ing wives of directors who had not obtained
petitions as provided by the statute was a
violation of the law. Ark.Stats. § 80-505.

5. Injunction CII

The best evidence for obtaining an in-
junction against future violations is evi-
dence of prior violations of the law,


"4
i

Sec. 29
1 ‘es
DL. ae
n dollars
supposed
the first
t. Sure-
‘he word
)propria-

n to the
‘ent’s in-
1 be only
see how
ution of
it, within
to ques-

legisla-
ild have
tatement
be com-
purchase

‘jlecisions
invoking
I thor-
ay ed
st at
ble only
oreted is
invoked
ion they
Miguities
of none.
iount to
y of the
to pur-

Jeymight
latyre in
and how
' the in-
sence of
m, then,
md salu-
n where
so. This
to reach

y May
BOYD, BOONE, BYRD and MOORE, Blacks, electrocuted Arkansas (Miller County) on :
, 3 9’

13 and May 20, 1960.

ie Ae aa Nn wise 2

MOORE vy. STATE Ark. 907

Cite as 815 S.W.2d 907

James M. MOORE, Appellant,
v.
STATE of Arkansas, Appellee.
No. 4891.

Supreme Court of Arkansas.
July 1, 1958,

Rehearing Denied Sept. 29, 1958,

Defendant was convicted of murder
in the first degree and from a judgment of
the Circuit Court, Miller County, Lyle
3rown, J., the defendant appeals, The
Supreme Court, McFaddin, J., held that
the constitutional amendment authorizing
Prosecution either by indictment or infor-
mation filed by the Prosecuting attorney
is valid, that a motion for a continuance
was properly denied, that a denial] of equal
Protection of the law was not shown on
the ground of systematic exclusion of Ne-
gtoes from jury service and that the evi-
dence sustained conviction,

. Affirmed,

{. Criminal Law C>1134(1)

In a capital Case, Supreme Court re-
viewed every objection in the record.
Ark.Stats. § 43-2723.

2. Constitutional Law 2265

The constitutional amendment _ per-
mitting all offenses required to be pros-
ecuted by indictment to be prosecuted
either by indictment or information filed
by the Prosecuting attorney does not deny
due process. Const. Amend. No, 21,

3. Criminal Law C-589(1)

In murder prosecution where the pros-
ecutor, defense attorney and the trial court
arranged for some sort of a camcra out-
side the courtroom, motion by defendant
for a continuance to sce if the announce-
ment of the facts of the agreement on radio
Preceding the night of the trial had ad-

pik AURA IM: Cae UN gaits drab NRASNL TE yl Sa eid Ai dine sta WH 1

versely affected his client was properly
denied. Ark.Stats. § 43-1705 et seq.

4. Constitutional Law <=22|

In prosecution for murder, evidence
did not establish that defendant was denied
equal protection of the law and the ground
of the systematic exclusion of Negroes
from jury service or that there had been

a studied evasion thereof. U.S.C.A.Const,.

Amend, 14,

5. Criminal Law C531(1)

In murder Prosecution, state had to

Prove that confession of defendant was
voluntary,

6. Criminal Law C>519(1)

In determining whether a confession
is voluntary, the court should look to the

whole situation and surroundings of the
accused,

7. Criminal Law C671

In murder Prosecution where state
sought to introduce defendant’s confession,
act of the court in recessing the hearing
to the judge’s chambers for the trial judge
to sce if there was sufficient evidence of
voluntariness to submit the issue to the
jury was proper.

8. Criminal Law ©=531(3)

In murder Prosecution, evidence of
voluntariness of the confession of the de-
fendant was sufficient to justify the ad-
mission thereof in evidence,

9. Criminal Law ©=407(1)

In murder Prosecution, evidence of
statements by other Prisoners in defend-
ant’s presence tending to implicate him
in the crime was admissible where the
Statements were not denied by defendant.

10. Arrest C=70

The statute requiring where an arrest
is made without a warrant that defendant
shall forthwith be carried before the most
convenient magistrate is directory and not

mandatory. Ark.Stats. § 43-601.

ex


inion

the
lant’s
( ypin-

again

upon
‘need
being
cvery
1-27.23
s and
lings:

Ouash
‘ed on
cuting

pred

ourt
No.
> of
pro-
the
wore
roc-
ition
1 of
‘t*so
i by
ent.”

‘en re-
ishing-

2d 307,

afor-
ittor-
it. re-
Nant

, dd6
S633
on of
A

ite

’

ome ahd ea
Pa eibh dake oer a

MOORE v. STATE

oh Pe eee Se
ARR RIS Sr aie

”

Ark. 909

Cite as 315 S.W.2d 907

claims that prosecuting him by infor-
mation is violative of his rights under
both the State and Federal Constitu-
tions. Amendment 21 of the State Con-
stitution reads: ‘That all offenses
heretofore required to be prosecuted
by indictment may be prosecuted eti-
ther by indictment by a grand jury or
information filed by the Prosecuting
Attorney.’ This amendment has been
upheld by this court against such attack
as is here made, in numerous cases,
some of which are:. Penton v. State,
194 Ark. 503, 109 S.W.2d 131 and
Smith v. State, 194 Ark. 1041, 110
S.W.2d 24. The United States Su-
preme Court has repeatedly held that
a State can—if it so desires—provide
for a prosecution by information in-
stead of by-indictment. Some of these
cases are: Hurtado v. People of State
of California, 110 U.S. 516, 4 S.Ct.
111, 28 L.Ed. 232; Bolln v. State of
Nebraska, 176 U.S. 83, 20 S.Ct. 287,
44 L.Ed. 382; and Gaines v. Wash-
ington, 277 U.S. 81, 72 L.Ed. 793, 48
Ct. 468;

The United States Supreme Court re-
fused certiorari in the case of Washington
v. State, 335 U.S. 884; 69 S.Ct. 232, 93 L.Ed.
423. So our holding remains the same as in
Washington v. State.”

II. Motion For Continuance. The trial
of appellant’s case was duly set to com-
mence on July 10, 1957; and on the morn-

2. See also Smith v. State, 218 Ark. 725,
- 288 S.W.2d 649.

3. The defendant’s attorney testified in part
on this point: “My name is W. IIarold
Flowers, an attorney representing James
M. Moore, charged with First Degree
Murder in the Miller Cireuit Court. I
have not discussed with Mr. Gill but
upon one occasion in or about the cham-
bers of the Presiding Judge the grant-
ing of permission to film and televise the
proceedings in the trial of James M.
Moore. In that discussion which was
held during the month of June, on the
Friday referred to, we talked for a few
minutes and I gave more or less tenta-
tive consent to the plan to televise the

ing of that date the appellant filed a motion
for continuance, claiming:

“On a late news telecast over televi-
sion station KCMC at Texarkana,
Arkansas, July 9, 1957, Bill Gill, news-
caster, told viewers and listeners living
in a wide area covering all of Muller
County, Arkansas and much of the
four State area which it serves, that
Judge Lyle Brown had granted permis-
sion for the televising of the trial of
the defendant scheduled to begin on
July 10, 1957 at 9:00 A.M., in granting
permission for the filming and record-
ing from the corridors of the Miller
County Courthouse. The defendant,
by his attorney, moves for a continu-
ance to ascertain the effect of the sud-
den and dramatic interest created by
such an act, upon the minds of the in-
habitants of Miller County, Arkansas,
for a possible move to ask the Court
for a change of venue.”

Testimony on the motion was duly heard.

It disclosed that the defendant’s attorney.

had agreed 3 that a television camera could
be placed in a corridor of the Courthouse
and that through a window or conduit into
the Courtroom certain portions of the trial
could be filmed; that the filmed portions
would be edited after the trial; and that
the pictures could then be televised as si-
lent films. No cameras were stationed in
the courtroom and no pictures were taken
by any one in the courtroom.* The motion

proceedings; that Mr. Gill told me at
that time that we would have the privi-
lege of editing the telecast, and that they
only wanted to televise the summation
of the arguments to the jury.”

4. Canon No. 385 of the Code of Judicial-
Ethies, adopted by the American Bar A‘s-
sociation and by the Arkansas Bar As-
sociation (see 10 Ark.Law Review p.
295), provides: ‘Proceedings in court
should be conducted with fitting dignity
and decorum, The taking of photographs
in the court room, during sessions of the
court or recesses between sessions, and
the broadcasting or televising of court
proceedings are calculated to detract
from the essential dignity of the proceed-

o%

PR ees

=

"eg
~ ‘
"ee
i
ra
¥ “td
ad 2
44)
-
-
i i
*' a
Bat (
a
1
fe
b
aX

PRA

998 Ark.

It. Criminal Law ©-519(3, 8)

Mere fact that a confession is made
while the maker is in custody of a police
officer or while confined under arrest is
not sufficient of itself to affect its admis-

sibility, provided it is voluntarily made and

the rule applies whether the arrest is legal
or illegal. Ark.Stats. § 43-601.

12. Criminal Law ©=519(8)

In murder prosecution, confession of
defendant was not inadmissible because
it was obtained without taking him before

a magistrate as required by the statute.
Ark.Stats. § 43-601.

13. Criminal Law 537

In murder prosecution, fact that the
deceased’s billfold was found at the place
where the defendant and the officers

‘stopped to look for it tended to connect

defendant with the crime and to substan-
tiate his confession and render it admis-
sible.

14. Homicide ©=253()

Evidence sustained conviction for

murder in the first degree.

W. Harold Flowers, Pine Bluff, for
appellant.

Bruce Bennett, Atty. Gen., and Thorp
Thomas, Asst. Atty. Gen., for appellee,

McFADDIN, Justice.

This is a death sentence case. In Moore
vy. State, 227 Ark. 544, 299 S.W.2d 838 the

, oe

present appellant and three others had
been convicted for the murder of M. R.

Hamm. We reversed the convictions for

1. Some of the matters discussed in this
opinion have been considered in several
recent opinions of the United States Su-
preme Court, which we have earefully
studied, to wit: Payne v. State of .Ar-
kansas (opinion of 5/19/58), 856 U.S.
560, 78 S.Ct. 844, 2 L.id.2d 975; Thom-

315 SOUTH WESTERN REPORTER, 2d SERIES

the reasons stated in the majority opinion
in that case. The facts surrounding the
killing of Mr. Hamm and the appellant’s
alleged participation are stated in our opin-
ion in the first appeal; so we do not again
recite them.

[1] On remand, James Moore (pres-
ent appellant) obtained a severance, made
no claim for change of venue, and upon
trial was again convicted and sentenced
to death. This appeal ensued; and, being

a capital case, we have reviewed every

objection in the record. See §$ 43-2723
Ark.Stats. We group the objections and
assignments ! in convenient topic headings:

[2] I. Appellant’s Motion To Quash
The Information. Appellant was tried on
an information filed by the Prosccuting
Attorney instead of an indictment returned
by a Grand Jury; and he says:

“Again is presented to the Court
the contention that Amendment No.
21 to the Constitution of the State of
Arkansas violates those liberties pro-
vided for in the Constitution of the
United States of America. The more
recent interpretations of the due proc-
ess clause of the Federal Constitution

, activates interest in the question of
whether or not a State may, if it so
desires,. provide for prosccution by
Information rather than Indictment.”

The contention here made has been re-
jected in many of our cases. In Washing-
ton v. State, 213 Ark. 218, 210 S.W.2d 307,
308, we said:

“Appellant was tried on an infor-
mation filed by the prosecuting attor-
ney, rather than on an indictment re-
turned by a grand jury; and appellant

}

as v. Arizona (opinion of 5/19/58), 356
US. 290, TS S.Ct. SS5, 2 LJed.2d 865;
Jlong v. State of New Jersey (opinion of
H/ID/DS), 356 ULS. 464, TS S.Ct. S29, 2
L.Eebed 9128; and Kubanks v. State of
Louisiana (opinion of 5/26/58), 806 U.S,
DS4, TS S.Ct. OTO, 2 Liked. O91.

a Nae

p!


~ KXRX

time to establish the fact, when he was placed under arrest. Thus, the first train robber
was arrested. The brakeman Lester was very badly wounded, the ball having entered just be
low the left eye, destroying it and lodged inside the skull, . . ;

"Gove Johsnon appears to have been the leader in planning, but Herndon was selected as. the
leader in the robbery, The plan, as detailed by Gove, was as follows’: 'We organized in
thehouse of Mrs, Herndon, mother of Jim, without her knowLedge, byt our plans were not
actually completed then; but it was understood that a train on the Little Rock and Fort
Smith railroad was to be captured and robbed. We the adjourned to meet at Mulberry, where
gur plan of operations was formed, .in the woods near thetown, The intention was not .to
kill agyone except in self defense, and to avoid bloodshed unless BBB it was actually
necessarye The shooting was done under excitement and without necessity. Jim Herndon

. shot.and killed Cain, when a general firing began, .The plan was to capture Cain, go

through thepassengers and then secure the contents of the express car and make our escapee
"Gove:Johnson was 36-years<old, born in Kentucky, but lived many years in Illinois, from
whence he moved to Kansas, remaining.there a very short time, when he sent his wife and
four children back to Illinois, while he came to Washington County ostehsibly to see his
brother, but from the fact of planning the attempted train robbery so soon after reaching
this State, the public will be uncharitable enough to think it was to act the role of a

train robber in a part of the world where he thought.it éould be done with impunity. He

said 'he had read the life of Jesse James, and was very much captivated with it, and it

pleased him very highly,' and no doubt he aimed, as others had, to imitate that ideal

robber, ¢ | e ;

"Jim Johnson, nephew to Gove, was quite a young man = only 18-years-old -,of very pleas-~

ant appearance, and in no sense looked like a man who would embark in such an enterprise

unless lead into it, as he appears to have.been in this case, He was a citizen of Washe

ington County, Arkansas, and has passed the most of his time on a farm, and was no doubt

led astray by the expectation of a large haul in a successful train-robbery,. .

"Monroe McDonald was a middle-aged man, without a fixedhome, but has made Franklin and

Madison Counties his abiding place for some. years, His reputation is that of a thief, as

he was guilty of stealing a large lot of eggs from a dealer, and a would-be murderer, for

when the dealer accused him of the theft he,fired three times ab the accuseh, for which he

was indicted, but succeeded in evading the officers, but when very closely pressed, fled to

that receptacle of all kindsof criminals, the Indian Territory,. where he remained until

a short time ago, when he returned in time to take a hand in this attempted robbery.

"Jim Herndon was a citizen of Frmklin County, living near Mulberry with his mother, His

reputation was bad, and his life has been misspent, refusing the advice of a goddy,

Christian mother, to-follow the teaching and example of bad companions and those of his

own seeing. His life@nded asmayy surmised that it would - on the scaffold. © |

"No one of the four app ared to grieve so much over their fate as the boy robber, who, said

his good mother's advice was entirely overlooked and forgotten until it was too late, and
CXRKREXRARE XROUK MXNAVEXRK RN XRKOE LEN XOUK XKKXKO UK XKKUKX REMAX KARKX XM RLAK XK GX RRA AN

boy=baby.e .
"After several days chase, and during which in a battle with oub. posse after them, Jim
Johnson was wounded in the leg, the three who had fled were captured and taken to the |

- Ozark jail where they were shackeled and securely fastedned to the floor,

"They were tried in Clarksville, Hohsson County, found guilty of murder in the first
degree, and sentenced to-be hanged by the neck till dead, They werethen sent to the
penitentiary at Little Rock for safety until the day of execution,,

‘The GAZETTE'S special says that during the early morning all the prisoners slept soundly .
and talked feely to persons admitted to their presence, Considdrable time wasspent by

~ all in reading the Bible and during the talk McDonald.described the whit men he murdered

at Selver City, Montgomery County, Johnson, the leader of the gang, said. he could -have.

~ committed suicide any time after conviction and would have done so but for Jimmy, his

nephew, also to be hanged, when he pulled a knife out off the lining of a shoe: wiere it had
been concealed, The prisoners ate a hearty dinner at 11 o'clock and talked upon common=
place subjects. McDonald complained of being compelled to leave behind a wife and 5
children cestitute and believed she would not survive him 19 days. Gove Johnson,said he
believed Jimmy Johnson fired the shot that killed Cain, ‘not knowing what he was doing and

jim replied that if he did shoot him he did not know it» | »eThe scaffold was built on the
drop p any trigeers onriecbed with a cord reaching the platform above, i DALEY NWS, GAL=
3 N ;

ves Texas, June 23, 1883. (3)

HENDERSON, James, JOHNSON, Gove, JOHNSON, James, and McDONALD, Monroe, all whites, all
hanged at Clarksville, A.kansas on June 22, 1883,

"MURDERERS HUNTED DOWN. = On Tuesday, Margh6, four western bandits, 'Governor' Johnson,
his nephew Jim Johnson, Ben McDonald and Jim Herrington boakded a Little Reck and Fort
Smith train near Fayetteville, Ark., and in the attempt to rob the same killed conductor
Cain. ‘+n the dSXHWXKXAM confusion that followed, the killing, the firing became promis-
cuouse Mconald fired a shot at the brakeman, and 'Gov.' Johnson told his nephew to stop
shooting. Jim did so and tried to ete McDonald, when the latter turned on him and fired,
but missed him. Then Jim fired at Mc“onald and hit him, When the 'Governor,' who was
leader, saw that one of his own men was wounded, he pulled the rope and stopped the train.
Then the robbers jumped off and made for the brush, all escaping excepting McDonald, whose
wound prevented him from running fast. The day after the killing the sheriff of Azark
(sic), A. He Sadler, started out in pursuit of the robbers with a posse of deputies, and
after a few days found 'Governor' and his nephew hidden on a high bluff on White river,
about thirteen miles from Fayetteville. The robbers were completely taken by surprise and
XUKEBUMMEAXALXMIRARAKIBMX surrendered at discretion. They were both half starving, and KH
the younger of them was suffering from a flesh wound received a couple of days before at
the hands of another pursuing sheriff's posse, Herrington was also captured a day or two
afterwards and, together with @@R his companions is awaiting trial in jail at Little Rock.
POLICE GAZETTE, New Yerk,April 28, 1863 (5=1 = Woodcut likenesses of both Johnsons.)

HENDERSON, James, JOHNSON, Gove, JOHNSON, James and McDONALD, Monroe, all hanged at
Ps ) Clarksville, Arkansas, on June 22, 1883, ¢
oe t bt L ef en

(erie, irks,» dune.22, 1883-This has been an eventful day in the local anhals of
osc A lease At an early hour people were pouring: into town from the mountain districts
and by 1 o'clock at least 3,500 had assembled to witness the exectuion of the four train
robbers. The excitement, though undemonstrative, was intense, and men, women and children
struggled and jostled avainst each other inibheir efforts to get a good view of the sca-=
ffold: and catch every detail of the ghastly scene,
"AtL2:12 o'clock the condemned men were vcaken from jailk .placed in a wagon and conveyed to
the place of execution, followed by an immense throng, They were accompanied by the sheriff,
their spiritual guide, Rev. J. W. Kargler, and an armed escort of fifty picked men, When
they arrived at the place of execution, the pris@ners were relieved of their manacles, And,
gaily leaping from the wagon, they ascended the scaffold with a firm tread and manly bearing,
Henderson smoking a cigar with remarkable .complaisancee They viewed the vast throng, calmly
and respectfully, and not in a spirit of mock heroism, They were all tastefully attired
in well-fitting striped light suits and black felt hats, A few moments after their arrival
the death warrant was reade
"When asked by the sheriff if they had anything to say, Gove Johnson, in a clear voice with-
outk the least tremor, said: "Friehds, I guess you have come to see the train robbers
hanged, as. they call us, I have no confession to make to man, but to God only. I have con-
fessed my sins to him and he has pardoned me. My nephew (Jim Johnson) received a letter
from his mother wiich I wish published in the GAZETTE, Now, young men, take warning of
my terrible fate. My trial was rather hurried, but no matter.now, I had hoped that my
nephew, in consideration of his youth, should hata feund mercyfrom the governor,'
"Jim Johnson said that he had. but little to say, No thought of a murder was in his head
when he boarded the. train; the deed was all done in excitement, He said that he did some
of the shooting, He told the sheriff he was very hot and to hurry up matters, His coolness
throughout for one so young astonished everyone, but in the supreme moment he fainted as the
sheriffwas in the act of letting the trap fall.
"Herndon said he did not kill Cain, If he had he did not know it,
"McDonald protested his innocence of the crime,
"after the declarations of the condemned, the ropes were adjusted, and the traditional black
caps placed on their heads,. and those unfortunate, men, whose crime was not separated, in
death were not divided, The drop was about seven feet, McDonald's neck was broken, at
17 minutes to 1 PM. All their necks were broken except Gove Johnson who strangled for 13
minutes.. Herndon died in 8 minutes and,McDonald in 8 minutes, Jim Johnson in 9 minutes,
and Gove Johnson in 13 minutes, In twenty minutes the ropes were cut,
"One melancholy. incident of the day was the death on the grounds of a little baby off congese=
tion, The fond mother, to gratify a morbid sentiment to witness such scenes, little dreamed
that the shadow of death would strike her little treasure, and as the condemned would taste
of the same bitter waters, There was not the levity usually attendant upon such occasions,
The spectators were awed into solemnity by, the awful methods of the law to vindicate its
majestye

"HISTORY OF THE CRIME,
"On the night of March 12, 1883, the west-bound train on the Little Rock and Fort Smith
railroad was boarded by a band of four robbers at a station known as Mulberry, on the
western border of. and inside the county of Franklin and at once began shooting and yelling,
while slinging revolvers over their heads, ordering the passengers to hold up their hands.
This created mich confusion, and in the midst of it Conductor Cain ran to thatpart of the
car the robbers were in,. and as he approached, Jim Herndon fired on him, and Cahn fell with
a bullet in his K&XaX brain, Milton Lester, a brakeman, ran to Cain's assistance when Mc~
Donald shot him, Jim Johnson then .ran forward to stop McDonald's further shooting, when,
in his excitenent, McDonald fired at him, but missed Johnson, who returned McDonald's fire,
hitting him in the face, making a had wound and crippling him so severely that he could not
get away with the others, and finding capture ‘staring him in the face, played wounded pass-~
enger to perfection for some time,
"The killing of the conductor, wounding the brakeman and one of their own gang, demoralized
the robbers to such a degreeas to upset their plans entirely, so there wasnothing left. for
then to do but to retreat or suffer capture. They accordingly fled, the two Johnsons going
one way and Herndon another, leaving McDonald in a house at the. station playing the role of

a wounded passenger, which he -did-successfully till Lester saw him, who, pointing at hin,
saids tHe is one of the robbers, and is the one that shot Me | and it required but a short

RIZONA REP

aiien

Double the Circulation of Any Daily

Paper Published in Arizona.

ee IX, ARIZONA. WEDNESDAY MORNING, JUNE 29, 1892. .
re a
| Pennsylvanian, ang h h a 3 ;
| IKE in the closing a EIN pe ae po anti promptly arrested and. taken to Salem information that Mr. Per
i " r . r he-Snven- | VU. jailand will havea preliminary hearing. dition when takenin on
tion of the resolution authorizing and a ‘ a Grave fears are entertained for Taylor’s sp |morning was only the |
empowering the National committee to safety, as the popular feeling against ‘ of Saturday night’s =f
ti os its chairman, and as tlie clfair- cas salma bar Pcuirarns some Ses a Pelteved thi 1 peck, had ¢ :
vention a fe The Debauching Work raovuuaTFuLsalt Binns, ,| Phat Obscene Spanish cee. cca puatind dros!
ona _ . i y
oday. committee. Should Mr. Whitney be ofa Teamster. They Remove Their Shoes so as Not to Communication. preg api heli be
; ~*~ ag ehaifman he-will be regarded ’ : Disturb the Jailor’s Slumbera. ‘ it was necessary to subject f
, {asthe persagal mouth piece of Grover .sBaNon, Mo., June 28.—Three pris- ho was ft for sese@ewon wit
S$ From Cleveland, and the latter will beto alli Fhe Ruined Girl Con- onan cacabed from the Lebanon, jail A New Arrest Made Yes- | prisoners. PRET, 22 KT
ected. intente and purposes _the actual man- fesses Amid Tears. sawed their way cut of the cell, ond terday Morning. THE wou
ager of his o a i
Own campaign, Harrityiea barefooted, elipped down stairs and An Important Meeting of tt
born Pr acing re be na ea and the out of the ag as Spr ge bins “ Committee Cast Nigh!
Who the y that he may be pushed to! yng were seen by several families near the) Probably the Work:of a Jiited
possi Ole a t : er Promise of Ma ; ; y i e An informal meeting of th
‘in one side is not regarded -with particular rriage her Suirkands, Ther too agp ater committee of the Worlds’ }

t the Most
tes Men-
Forces.

— [Associated
National con-
mM party prac

1 the meeting

Chairman

a oP

mary object of

ion of tempo-

sation but the

2 iteeli to thie
ely in the na-
, a8 far as pos-
eedings of the
red and fifty
d several spe-
ray. Fourteen

2 presidential

vemorest.

. The
r of the lat

subscribe liber-

‘ut the leaders

take well a

wil le

hall tomorrow

od National Re-
rs plows go The Head of Te Almost Tere from
sn between the * the Body and Blood Gpurted

ibition parties. from the Arteries.
t of the meeting RET

Fort Smira, Ark., June 28,—-[Aseso-
site the various | ciated Press.) Three men were hanged
13 of the Nation | here today. They were John Thornton,
— pagent pre John Brown and John Paynier. Thorn-

)
ling at the con-
muel Dickie of
sted that there
the parties and
onference today
without effect.
re today or ex-
ver of Iowa; E.
Hiram. Maine,
sver resolations
nally presented

row.

4

sign Opened by

» Resolution.

28.—J Associated
paign was
iate today on the
s resolution as
fita of protection
wasible effect of
Senator Hale
lank of the Dem-
to enit the

al

,
.

ade

om the Pacific

between Gene-
The
e leaders who

i-

favor in local Democratic circles.

Water Rates in Californta.
Ventura, Cat.,

rates.

Adjournment Talk.

up tomorrow.

adjourn by July 15th or 20th.

Silver in the House,
Wasnineton, June 238.—Pierce,

A SICKENING SIGHT.

Varioug Offences.
Lak ae

ton murdered his own daughter in

ening spectacle.

. Bhre at San francisco.

inenrance.

June 28,—People
here have complained lately because of
high water rates. The town trustees
made a new schedule today and cu
down the rates of the Santa Ana Wate
company. The water company began
suit against the town in the United
States court for an injunction restrain-
ing the trustees from enforcing the

Wasaineton, June 28.—Several pen-
sion bills were passed and the house
adjourned, after notifying the members
that the tin plate bill would be called
"The genera] opinion
among the members ot the house is that
basinese will be closed up and congress

of
Tennessee, today introduced in the
house a bill identical with the silver
coinage bill now pending in the senate,
as nodified by Stewart’s amendment.

Three Murderers Hanged for

ie
Choctaw nation one week after she wis
married. Brown murdered Jonah Poor-
bay and Thomae Whitehsad, Paynter,
boy of 19, killed to traveling compan-
iong, Sam Naudows and William Beld-
ing. Alithe murders were sommitted
in the Choctaw nation. John Thornton
madea confession on the stand. His
head wae almos: torn from his body’ by
the fall, the arteries were broken and
the blood sported out, forming a sick-

Saw Francisco, Juve 28,—The Holmes
Carriage factory was not entirely de-
stroyed by fire thie morning, as the
flames were extinguished at this point
before the storage room had caught. Ali; wag unnecessarily ex
large number of vehicles were badly
damaged by smoke and water. Sixty-
three horses belonging to Hugh & Flinn,
‘wood and cole dealeray and five ‘horses
G. D. Sullivan’s livery stable periehed.
The losses will aggregate $50,000; no

Ruin Was Accomplished.

Her Story the Sequel to Another in
Which Her Betrayer Figured as
the Heavy Villian.

Sr. Lous, Mo., Jane 28.—A charge of
seduction yesterday caused the arrest
of James Sommers,“ teamster for a
South Endgbathtub manufacturing
compatt®. Ile was lodged in the Sou-
lard Street station to await the issu-
ance of s warrant. It is claimed thé
accused has a mania for debauching
young girls. The latest alleged victim,
Miss Birdie 8. Stone, lives with her
parents at 2625 South Broadway. She
claims that he accomplished her ruin
at Forest park gone night about a month
ago under the promise of marriage.
When requested to right the wrong by
mayrying “the girl it ie claimed he re-
fased to do #0.

hey became acquainted about two
months ago. ‘She was introduced to
Sommers at the home of her parents by
her own stepmother. From the ac-
tions of the girl last Thursday it was
seen by her father, that something was
wrong. When questioned she told of
her raination amid tears.

Now that Sommers is in custody the
police claim he desires to marry Miss
Stene. It is also stated that he was ar-
reated fore similar offense in which the
alleged victim was another girl under
age several years ago. While the trial
was pending and after he had made th
girl his wife she died. :

SEPARATED BY FORCE.
inn

The Only Child of%n Erving Mother Tori
From Her Arms.

“Sr: Lovis, Mo., June 28.—The work-
heuse was at about noon today the
scene of a very sad affair, in which Mra.
Mary Epstein, an’ inmate, wae forcibly
separated from the only pereon she
loved, a S:year-old-girl, by the'strong
sige ofthe Igw. The woman was eent

the institution two weeks ago for
three months a fine of $50for being

drank on the giyeet. She had been ar-

ted in Cayondelet: The story of hér
i ie a sad one. Morphine was the
ag of her downfall. Several years
ago ehe was the wife of a prosperous
Soath End merchant. In eicknoss 8
doctor prescribed morphine. When she
recove she had become @ victim to
the terrible drug. From it she took to
drink. Her hasbank left her, seenring
adivorce. The.woman sank lower and
lower until she reac her present
stage. When sent to the workhouse
she took the child with her, it having
no home. Several daye ago Superin-
tendent Lohrum ‘notified Mayor Noo-
nan of the fact that the child was at the
workhogse with ite mother, saying that
to evil.
Yesterday Police Matron Harris went
to get the child. The mother when
she wasinformed that the girl would
be taken from her, grabbed her in her
arme and fought desperately. She was
only overpowered with the assistance
of two guards. When the child was
taken away she went into hysterics.

pom Mens, ete | ek ee wees Me es

The escaped prisoners are John Criep,
the Wright county rourderer; Robert
Earnest from Hickery county, eharged
with abduction, and Grant Vickers, a
Camden county prieoner, charged with
carrying concealed weapons.

Sheriff Godall and deputies are in
pursuit of the fugitives, and their cap-
ture1a only a matter of time. It 1s
thought that the delivery was planned
while Will Howard was in jail, but he
wae returned to St. Louis for safe keep-
ing before it could be accomplished.

SAVED THEIR SWEETHEARTS.

} REXEL f
Two Young New Jerseymen Swima Mile,
Each Carrying His Girl.

Keyrort,N.J.,June 28.—Jamee Carroll
Thomas L. Seabrooke and two young
women who were with them on board
small yacht, were thrown into Raritan
bay yesterday afternoon daring a squall.
The yatch* capsized more than a mile
from land. Carroll took hia sweetheart
on his back and Seabrooke did likewise.
Then they etruck out for the shore, a
mile distant, and after swimming
against the tide for an hour, reached
land intafety. They were ‘thoroughly
exhausted, but were well enough today
to tell of their thrilling experience.

BOOKS WERE STOLEN.

Sensational Features in an
Alleged Defaication.

Prominent Attorneys Enter the Of-
fice of the State Secretary and
Take Away the Books.

Svoxang, Wash., June 28.—A senga-
tional feature in the alleged defalcation
of the Washington Farmers’ Insurance
company funds and securities, by Secre-

tary F. R. Marvin, occurred today.
torrid sta

te Secretary Wier was engaged
in examination of thecompany’s books at
the Hotel Spokane this afternoon,seven
mén, among whom were Frank Graves,
. U. McKinstry, members of the most
rominent firm of attorneys in the city;
*, R. Marvin, A.C. McCoy and. three
others unknown, entered the roomand
demanded the books and papers, saying
the company wanted them. i
* Secretary Wier refused to give them
up when,at a signal from Frank Graves,
every man grabbed a book ‘and paper
containing the secretary’a notes an
made. for the door. Secretary Wier
fought to prevent the robbery, but he
was overpowered and every evidence of
the alleged embezzlement againet Mar-
vin wae spirited away in a ype
which was in waiting in front of the
hotel.
he affair has created intense excite-
ment. Secretary Weir said tonight that
he will ewear oyt warrante for assault
and robbery against every man who
was engaged in the outrage. The ex-
amination ef the company’s books up
to date disclosed a shortage of $10,000.
Marvin will be prosecuted forembezzle-
ment. \

TWO MEN MISSING.

Not Heard From Since Entering the Nav-

and Revetigeful Lover.

The Result of the Commissioner's
Examination May Free San~
tlago Jimenez.

An interesting case was before United
States Commissioner Earley yesterday.
‘The case dates back to November 18, of
last year, whena letter was. taken out
of the Phanix postoffice addressed to
Dolores KF, Gonzales. The letter was
unsigned, but though it waa couched in
excellent’ Spanish chirography and
showed ho mean attempt at composi-
tion, it was possibly one of the vilest
epistles which the unsuspecting servants
of Uncle fam ever undertook to carry
ia consideration of the fact that the
writer had pasted upon the upper right
hand corner of the envelope containing
it a two-cent stamp. w

The mildest term applied to the re-
cipient of the letter was “pimp,” and
least vilifying assertions made were that
she had been a party to the ruin of her
daughter Antonia Gonzales, and that
she bad known of anabortion performed
to hide her daughter’s shame.

On the receipt of this letter the
mother ot the daughter was over-
whelmed with consternation. She ap-
plied for advice to Senor Garcia, who
had formerly been a court interpreter
here, and he advised. her to bring the
matter to the notice of the United
States commissioner.

For several cireamstantial reasons it

wag believed that the writer of the let-
ter was Santiago Jimenez, who had
lately been a suitor for the daughter’s
hand. Mre. Gonzales had until recent-
ly lived on land near Tempe belonging
to him and on account of a sudden un-
accountable coldness which had settled
apon the love of Antonia and Jimenez
the mother concluded that he had taken
a nge:
Jimenez was arrested and indicted by
the grand jury for the May term, but
the evidence appeared unsatisfactory
and the case was continued. He
in the meantine been in prison since
last winter. He had also in bis con-
finement been collecting evidence that
he might obtain his freedom. He had
learned that he bad a rival in the mat-
ter of Antonia’s affections and that bis
nawe wae Antonio Pacci.

After a temporary infatuation
girl had cast Pacci aside. Sooy alter
this the letter was written and Pacci

as the first to convey to Dolores (Gon-

les information that there was a letter
in the postoffice for her. No one ever
seemed to wonder how he knew the
letter was there and he ‘was not sus-
ted because it was known-that he
could not write. :

Pacci, however, had en intimate
friend, Juan:Alaiorez, who could write,
and Jimenez-kaew that he. was innocent
and his suspicions naturaily reeted
upon Alstorez.

He was arrested yesterday morning
‘and taken before the votmmiijsioner.
The contents of the obnmoxioua letter
were dictated to him and he was or-
dered to» transcribe them “in his owas
hand, In the opening addrees, Dolores
F. Gonzales, his writing was almogt 2

he

ajo Reservation.

raph of the same name in the
photog: tastene aerant. thet tashaed of &

ciation was held at the city.
night. There were present )”
Thibodo and Mesers. J...J. W
McMillan, J. M@¢{Montano ane
. Nearly ali y
the proposed exhibit were re}
and eteps were taken to ¢
ono a material, It ie py
settled that Arizona will offe
in the way of Aztec or other '
these no one has reason to be
boast. The energy of the
will be confined to the advert
what the terrigory is really |
her wonderfdl agricuitars!,

tural and mineral resouregy.

LUCAL AND. PERSO

Mr. W. B. Prattand wife le:
for Long Branch, California, »
will spend the heated season.

Mr. H.C, Baker yesterday
contract fur erecting the seco:
the Doris building on Mohs
opposite the court house.

Messrs. T, A.Qerd, B. A. B
and Crabb, of Pomona, Cel,
city. These genticinen are
careful etudy of freit facilit
Salt River Valley. }

«. IT WOULDNT &

Neither Would a B:
Nibble.

Westward the Gourse of a |
and Ingenious Scheme
‘ its Way.

A new game has arrived in
in communities less on the loo.
wiles of the eastern tendgrioe
prove extremely profitatile, ©
appeared at the bay rogm of ©
hotel, but the bax tender wa’
and a timely waraig giyen

bad|half a dozen bystandurs }

game. The scheme in this:
follows: A young man tole
dressed called at the bar for

which after having drank,

down a fiye dollar gold )
‘sing’ was suspicious at
tender after having ex
money carefully and aubmit:

vengl sounding tests refured |

‘fhe youug man wanted to’
Was all right and tryed to »
house into a discussion. :
Several hangers on abou’
were appealed to dicate
at decided Yhat the
fete ‘The young ps iy
bet it-wae, but oa wink fr/
tender aii ‘refused to beer
The owner of the piece was »
pelled to put up a piece of
cerning whose genuinenes:
no doubt. |
This racket started in
about eix months ago. @!
nious it usually euccesd
te generaily chosen aa |
operations and if the pro;
assistants have never bear

comes a fruitful source of

ORNDORFF v. LOCKHART

1069

Cite as 707 F.Supp. 1062 (E.D.Ark. 1988)

hypnotic expert violated defendant’s right
to fair trial).

The procedures followed in this case,
however, compounded by the prosecutor’s
failure to disclose, denied the trial court an
opportunity to assess the reliability of the
testimony, denied the petitioners the right
to full and effective cross-examination and
denied the jury the opportunity to assess
the credibility of a key state witness from a
proper perspective. All of the instances
where Ms. Lehman’s trial testimony dif-
fered from or added to her previous state-
ments need not be discussed because the
court finds that the prosecutor’s failure to
disclose. was inherently prejudicial. As
stated by one court,

[o]nce a witness makes a recitation under

hypnosis, his confidence in that supposed

memory—whether genuine or invented—
is greatly strengthened (sic). The wit-
ness then may have an unshakeable sub-
jective conviction that gives his account
on the witness stand the. imprimatur of
absolute confidence. (citations omitted).

United States v. Valdez, 722 F.2d 1196,
1202 (5th Cir.1984). The petitioners have
the right to bring this, and other problems
associated with hypnotically refreshed

memory before the jury on cross-examina-
tion.

The prosecutor knew, or should have
known, that his failure to disclose may
constitute reversible error. At the habeas
hearing he testified that he did some legal
research regarding hypnosis in which he
located the case of United States v.
Adams, 581 F.2d 193 (9th Cir.), cert. de-
nied, 439 U.S. 1006, 99 S.Ct. 621, 58 L.Ed.
2d 683 (1978). That case expressly states
that reversals have been predicated on the
failure to disclose the fact of hypnosis. Jd.
at 198. Yet, the prosecutor chose not to
reveal that two witneses had been hypno-
tized and, in part because of that decision,
this court finds that the petitioners’ Sixth
Amandment right to confront witnesses
against them has been denied.

| B. The Fourteenth Amendment Claim

{4] The petitioners argue that their
right to due process under the Fourteenth

Amendment was denied because the prose-
cutor failed to inform defense counsel that
a state witness, Vicki Lehman, had been
hypnotized. The court agrees. Brady v.
Maryland, 373 U.S. 88, 83 S.Ct. 1194, 10
L.Ed.2d 215 (1963), holds that the suppres-
sion of evidence favorable to an accused
upon request violates due process where
the evidence is favorable either to guilt or
punishment. And evidence which may be
used to impeach a witness’s credibility has
been held to come within the Brady rule.
Giglio v. United States, 405 U.S. 150, 154-
55, 92 S.Ct. 768, 766, 31 L.Ed.2d 104 (1972).
Constitutional error occurs, however, only
if the evidence is material in the sense that
its suppression undermines confidence in
the outcome of the trial. United States v.
Bagley, 473 U.S. 667, 678, 105 S.Ct. 3375,
3381, 87 L.Ed.2d 481 (1985). The court
concludes in this case that there was consti-
tutional error.

{5] Arkansas Rule of Criminal Proce-
dure 17.1 requires the prosecutor to dis-
close to defense counsel upon timely re-
quest

any reports or statements of experts,

made in connection with the particular

case, including results of physcal or men-
tal examinations, scientific tests, experi-
ments or comparisons.

Additionally, a pretrial order was issued by
the trial court which required the prosecu-
tor to disclose, inter alia, the “results of
scientific tests when available.” The court
has no doubt that hypnosis falls within the
broad category of “scientific tests.”
Therefore, construing the pretrial order as
conclusive evidence of a timely request, the
court finds that disclosure was required
under Brady.

Although numerous witnesses testified
as to events which occurred prior to or
after the robbery and murder, only Vicki
and Virginia Lehman were witness to what
took place inside their home. Moreover,
since Virginia Lehman was instructed by
the intruders to remain on the floor in a
face down position Vicki’s testimony be-
came most important. She described in
detail the way the four masked men broke
through the door and the positions each of


ORNDORFF v. LOCKHART

1071

Cite as 707 F.Supp. 1062 (E.D.Ark. 1988)

must so consider each defendant, rendering
separate verdicts as if each had been tried

separately. The record shows more than.

ample evidence from which the jury could
have ‘found, beyond a reasonable doubt,
that each petitioner was guilty of the
crimes charged. There is simply no indica-
tion of a “smear” effect and, in the face of
evidence showing unequivocally that the
petitioners jointly planned and executed an
armed robbery during which a homocide
was committed the court cannot say that
the petitioners were prejudiced by eviden-
tiary rulings so as to make their trial fun-
damentally unfair. Accordingly, this claim
for habeas relief is denied.

IV. JURY SELECTION UNDER WITH-
ERSPOON

[7] Witherspoon v. Illinois, 391 U.S.
510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968),
holds that a state may not carry out a
sentence of death imposed by a jury which
was selected by excluding veniremen for
cause simply because they voiced general
objections to the death penalty or ex-
pressed religious or conscientious scruples
against its infliction. Jd. at 521-22, 88
S.Ct. at 1776-77. The most that can be
demanded of a prospective juror is that he
or she be willing to consider all of the
penalties provided by state law, and that he
or she not be irrevocably committed before
the trial has begun to vote against the
death penalty regardless of the facts and
circumstances that might emerge. Jd. at
522, n. 21, 88 S.Ct. at 1777 n. 21. The
petitioners contend here that the Wither-
spoon rule was violated with respect to
three veniremen. The court disagrees.

The petitioners argue that Betty Kaiser
was excused for cause because she stated
that she didn’t “think” she would impose
the death penalty, and that Karen Dick was
excused for cause because of her statement
that she “might could” vote for the death
penalty. They also state that their request
to have Harley Woods excused was refused
even though he said he could not vote for
anything other than the death penalty on
the first ballot, and that they had to exer-
cise a peremptory strike against him which
would have been used later.

{8]- In ruling on these claims on appeal
the Arkansas Supreme Court held that, in
context, the statements relied on were ten-
tative or equivocal. The court went on to
rule that the trial court was in the best
position to gauge the attitude of the venire-
men and that the trial court’s discretion
was not wrongly used. Clines v. State,
280 Ark. at 89-90, 656 S.W.2d at 688-89.
These rulings of the trial court and the
state supreme court are entitled to a pre-
sumption of correctness under 28 U.S.C.
§ 2254(d). Wainright v. Witt, 469 US.
412, 105.8.Ct. 844, 83 L.Ed.2d 841 (1985).
The petitioners have not overcome the pre-
sumption. eps? *

In addition to the excerpts of the voir
dire relied on by the petitioners, Kaiser
stated that she could not impose the death
penalty herself, and that that feeling was
fairly firmly fixed. When asked by the
prosecutor if she could consider alternative-
ly life without parole or death she answer-
ed that she could not. And she stated
without equivocation that even though she
believes some people deserve the death
penalty’ she would not vote for it.

Dick was excused for cause both because

she had preconceived notions of guilt and
because of her inability to consider the
death penalty. She stated that at the time
she received information from the media
and third parties she had formed an opinion
as to guilt or innocence. And she placed
herself in a category of persons who, while
not opposed to the death penalty, could not
personally impose it. In addition, she stat-
ed that if the evidence presented a close
question as to guilt or innocence she would
feel some pressure to vote for guilt be-
cause of the expectations of third parties.

Woods, whom the trial court refused to
excuse for cause, stated that facts and
circumstances may dictate a sentence of
life without parole as opposed to the death
penalty. He assured the court that he
could keep an open mind on punishment
until he had heard all of the evidence in the
sentencing phase of the trial. In response
to defense counsel’s question whether he
thought the only permissible punishment

—


1068

possession of the hypnotist thereby making
it virtually impossible to determine whether

subtle or overt suggestions were intro-
duced. :

This haphazard manner in which the ses-
sions were conducted leaves no doubt that
the state’s failure to disclose the fact that
hypnosis was performed on one of its two
occurrence witnesses prevented the peti-
tioners from exposing facts to the jury
from. which they could make inferences
about the reliability of the witness’s testi-
mony—a violation of the confrontation
clause of the Sixth Amendment. And the
prosecutor's own arguments at trial, in
which he emphasized the clarity of Vicki
Lehman’s memory and the importance of
her testimony, prevents the court from con-
cluding that the error was harmless beyond

a reasonable doubt. An example is illustra-
tive.

The prosecutor began his opening state-
ment by stating that the jury was going to
be “amazed at the recollections” of Vicki
Lehman. Then, in closing, he stated that

[i]n spite of being faced with the trau-
matic ordeal as it happened, [Vicki] did
not lose her presence of mind. She did
not lose her sense of observation or ob-
jectivity. It was stored there. It took a
little while to get it out of her, we had to
talk to her several times. We had to go
back and re-enact that scene finally and
jerk her hair around, just like it was.
Just like it happened to her to get her to
remember if a gun was: pointed here,

_ who was here and who was there. It
was stored in there and she was later
able to recall it. And she recalled it well
on the stand. I suggest to you that she
saw and heard exactly what she testified
to could not be doubted. Her physical
description of these four people, just in-
credible. (Tr. 4269).

This girl has powers of observation
that were working and working right
then and never quit working. There
were times when things were confusing,
but I suggest to you that her testimony

707 FEDERAL SUPPLEMENT

was unimpeachable. They tried to attack
it and they got nowhere. (Tr. 4269-70).

Her testimony is real important. Im-
portant for several reasons, two in par-
ticular. One, because it just describes

the hideous crime, the hideous, unpro- -

voked attack on—breaking in the door
and attacking her father. But two, her
testimony showed unequivocally, that all
four of these defendants—each and ev-
ery one of them—were involved directly
in the attack that resulted in her father’s
death. (Tr. 4270).

Had the fact of hypnotism been disclosed
to defense counsel and the trial court this
court may well have decided this issue dif-
ferently. Federal courts are in agreement
that a witness’ hypnotically enhanced testi-
mony does not violate the confrontation
clause, in and of itself, where both the
witness and the hypnotist are available for
cross-examination concerning the effects of
the procedure. See, e.g. Clay v. Vose, 771
F.2d 1 (1st Cir.1985), cert. denied, 475 U.S.
1022, 106 S.Ct. 1212, 89 L.Ed.2d 324 (1986);
Chaussard v. Fulcomer, 816 F.2d 925 (8rd
Cir.1987), cert. denied, — US. —., 108

S.Ct. 189, 98 L.Ed.2d 96 (1988); McQueen

v. Garrison, 814 F.2d 951 (4th Cir.), cert.
denied, —- U.S. ——, 108 S.Ct. (332, 98
L.Ed.2d 359 (1987); Harker v. State of
Maryland, 800 F.2d 487 (4th Cir.1986);
Beck v. Norris, 801 F.2d 242 (6th Cir.1986);
United States v. Charles, 561 F.Supp. 694

(S.D.Tex.1983).. And the Eighth Circuit has

adopted a flexible rule for the admissibility
of hypnotically refreshed testimony where-
by the district court may allow it after
conducting a pretrial hearing to assess the
effect of hypnosis upon the reliability of
the testimony. The proponent of such evi-
dence bears the burden of proof and, if
such. evidence is admitted, the opposing
party may cross-examine concerning hyp-
nosis and both parties may bring in experts
to testify to the problems and benefits of
hypnosis. Sprynczynatyk v. General Mo-
tors Corp., supra at 1122-24: Little v,
Armontrout, 835 F.2d 1240 (8th Cir.1987)
(failure to provide indigent defendant with

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1070 707 FEDERAL SUPPLEMENT ee

them took up inside the home. She re-
traced their movements and it was her
testimony alone that placed all four intrud-
ers in the bedroom where the murder took
place—a deviation from her pretrial state-
ment in which she could place only three

men in that room when the shots were
fired.

In contrast to Vicki’s vivid testimony,
Virginia Lehman’s testimony was brief and
was lacking in detail as to the events which
unfolded. She remembers hearing the
commotion when the intruders broke in and
then she remembers hearing a shot, but
cannot be sure where the people were
when she heard it: Her testimony only
places three of the intruders in the room
and she remembers only one gun ‘and one
gunshot. This lack of detail in Virginia’s
testimony and the gaps in her memory
highlight the importance of Vicki’s testimo-
ny to the jury.

The court’s review of the entire record
does reveal, beyond a reasonable doubt,
that the petitioners were responsible for
the robbery homicide for which they were
tried. Their activities in preparation for
the armed break-in and the events which
later lead to their apprehension were fully
documented through the testimony of thir-
ty four prosecution witnesses. However,
even though there is no question of their
guilt for the crimes charged, the court is
unable to say with confidence that the jury
would have recommended the death penal-
ty for each and every petitioner had de-
fense counsel been informed of Vicki Leh-
man’s hypnosis. Critical portions of her
testimony may have been disregarded by
the jury had they known of the effects of
hypnosis, or the trial court may have
deemed some testimony inadmissible alto-
gether. Cf Little v. Armontrout, supra
(trial court’s refusal to appoint an expert in
hypnosis for an indigent defendant violated
due process and rendered the trial funda-
mentally fair).

Therefore, it is the finding and decision
of this court that the petitioners’ Sixth and
Fourteenth Amendments rights. were vio-
lated, and that, unless the state either re-
tries the petitioners or commutes their

oN

death sentences to life without parole with-
in 120 days, the writ shall issue. For ap-
peal purposes the court will now address

ers.

II. ARKANSAS’ FELONY MURDER
STATUTE

The petitioners assert that the Arkansas
Felony Murder Statute is unconstitutional
because (a) it does not require the jury to
consider the culpability of each defendant,
(b) it provides for a mandatory death penal-
ty, and (c) it is vague and overbroad. Each
of these issues was fully addressed and
rejected by the Arkansas Supreme Court in
a well written opinion with which this court
concurs. See Clines v. State, supra. Ac-
cordingly, without further discussion, this
claim for relief is denied.

lil. SEPARATE TRIALS

[6] The petitioners take the position
that the trial court’s denial of their motions
for separate trials was an abuse of discre-

tion which resulted ifi a “smear effect” |

among them and the exclusion of certain
out of court statements alleged to be excul-
patory to individual petitioners. Inasmuch
as this argument turns on alleged viola-
tions of Arkansas procedural rules it does
not state a claim for habeas relief. Rather,
the petitioners must show that the trial
court’s failure to grant their motions for
Severance rendered the joint proceeding
fundamentally unfair so as to violate due
process. Johnson v. Dugger, 817 F.2d 726
(11th Cir.1987); Manning v. Warden, Lou-
tstana State Penitentiary, 786 F.2d 710
(5th Cir.1986); Cf. Robinson v, Wyrick,
735 F.2d 1091 (8th Cir.), cert. denied, 469
U.S. 983, 105 S.Ct. 390, 83 L.Ed.2d 324
(1984) (to obtain federal habeas relief for
failure to sever offenses, the joinder must
render the trial fundamentally unfair).
Upon review of the record the court finds
that the petitioners have failed to meet
their burden of proof.

At voir dire each of the jurors stated
under oath that he or she could consider
each defendant separately and they were
instructed at the close of trial that they

the remaining issues raised by the petition-

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(continued from page 45)

years.”

An assortment of rifles and -a/.22-
caliber derringer pistol taken during the
armed robbery of the Lehman home were
introduced in the trial on Friday. Two
.22-caliber revolvers, one belonging to
Holmes and the other to Richley, were
also introduced.

The prosecution also introduced 27
fingerprints lifted from the Chevy be-
longing to Richley, which had been
seized at his apartment following his
arrest. Police officers testified that they
removed the rifles that had been identi-
fied as belonging to Lehman from that
vehicle. The three blue ski masks and
gloves removed from the apartment were
introduced into evidence that day as well.

Two pawnshop owners testified. One
told the jury he had sold Richley, a 322-
caliber pistol on November 7, 1980, and
the other pawnbroker testified the same
gun was pawned to him on December 26,

1980, but picked up on December 27;
The firearm transactions of the two.
pawnshop owners in’ testimony showed |
the guns had the same serial number.
Identified as Richley’s girlfriend, a
15-year-old girl testified that she had met
Richley about two years prior to the trial

when she was only 13 and they began “

living together about six hours after they
met. She said they lived in California for
awhile, moving to the Arkansas area in
October, 1980, and that the two had
known Orndorff for about three and a
half years. Gut

The couple had just moved into the
Fayetteville apartment on the day of the
slaying, she said. Later that night, she
testified, Richley, along with the other
three defendants, arrived at a. home
where she was visiting about 10 p.m.

‘They were all acting very strange
and went into the bedroom immediately
and changed shirts,”’ she told the court.
While they were in the bedroom, they
talked in whispers. ‘When they came
out, twenty minutes later, they were still
nervous.””

Later, she testified, she, Richley,
Holmes and Holmes’ girlfriend went to
Richléy’s apartment, arriving about 4:30

- a.m. She said she had been in the’ bath-

room of the apartment and came out

when she saw a ‘‘bunch of guns.”’ The .

four of them played with the guns awhile,

and she was playing with one she ‘‘really ,

fancied.” ae

She identified the .22-caliber derrin-
ger, entered into evidence earlier and
46 ‘

ees

which had belonged to. Lehman, as the
gun she was ‘‘playing’” with. Her testi-
mony revealed that she had assisted in
carrying things into the Fayetteville
apartment that morning, including three
blue ski masks with red eyes.
Later that day, January 9, the four of
them went to visit Holmes’ father. They
took some guns into the gunshop’ of
Holmes’ father and,later returned, While
they were at the home of Holmes’ father,
Richley and young Holmes disappeared
for about three hours.
During this time, she told the jury, she
heard the news on the radio about the
Lehman robbery and murder. She be-
came worried and went to Richley’s car
and was about to drive back to the apart-
ment to get rid of the other guns when the
two men returned. | ;
Richley left Holmes with his father
and went to a Fayetteville residence
where he tried ‘to sell guns to a fellow
named ‘‘Charlie.’’ They then returned to
‘the apartment, where police arrested
them a short time later. | :
On Monday morning, the girlfriend
was.cross-examined, and stated that she
had not been using drugs on the day of
Lehman’s murder.
“‘Isn’t it true you worked as a prosti-
tute?’’ asked Carlin, one of Richley’s
attorneys... (
».¢*While I was living in: California,’’
she replied. :
Prosecutor Clinger interrupted Car-
lin’s cross-examination, saying, **! think
it’s improper cross-examination,’’ and
impeachment. He then entered an objec-
‘tion, with Judge Enfield ruling. in his
favor, = :

- **You don’t know much about what
happened, do you?’’ Carlin continued to
question her. at

‘I know what I remember,’’ she
answered.

Robert Phillips, ballistics expert from

the Arkansas State Crime Lab, testified

that he ran ballistics tests on the two
bullets and fragment from the victim’s
body. He asserted the two bullets match-
ed other bullets fired from a .22-caliber
pistol registered to Holmes.

Under crdss-examination, Phillips ex-
plained that the other two weapons that
were test-fired included the .22-caliber

‘derringer and the .22-caliber rifle that
had belonged to Lehman, He said. he
definitely ruled out those two guns as the
murder weapon. /

*-s>Benton. County Investigator Town-

send testified of locating and seizing the
.22-caliber. pistol belonging to Holmes
during a search of Holmes’ home in Ro-
gers. He also told of Vicki Lehman iden-
tifying Clines during a lineup at the coun-
ty jail.

"Another witness for the. prosecution
was Charlie Keller, a convicted drug
dealer, who related to the jury that Rich-
ley told of the events surrounding the
shooting of Lehman.

- **He said the four of them went to the
door wearing ski masks,”’ said Charlie

' on the stand. ‘‘He told me they busted in

ena guy witha motorcycle chain, and the’
guy made a break for the bedroom, and
that the guy with the chain'took his mask
off.”’

He said Richley added that the guy
‘*went for a gun’’ above the bed and that
Richley Said he put a gun up to the man’s
head and shot him,

When the prosecution had rested its
case, defense attorney Carlisle surprised
the courtroom by calling Holmes, his
client, to the witness stand to testify on
his own behalf. He told a different tale of

the murder than did the prosecution wit- —

nesses. ;

According to Holmes’ testimony, the
following sequence of events took place
on January 8, 1981: ;

Holmes, along with the other three
defendants spent the day drinking beer
and visiting the homes of several friends.
They went up to one friend’s house with
masks on, and Clines was standing there
with a pistol in his hand when the man’s
wife came to the door. ae

At this particular home, all the men

- played cards and drank beer for about 45

minutes before the quartet left again in
Richley’s car. Holmes was doing the
driving and someone in the car, he
couldn’t remember who, kept giving him
directions. He kept turning ‘‘this direc-

tion and that,’’ trying to follow the direc-. .

tions being given him.

When they arrived at the Lehman
home, they all put on ski masks and went
to the door, Someone in their group rang
the doorbell and a lady answered the
door. The-four went into the house. ~

Clines, according to Holmes, started:
beating Lehman witha motorcycle.

chain, in what Holmes called the foyer
area of the home. He said Vicki Lehman

was told to lie down, which she did inthe —

hallway. Holmes testified that it was he
who later pulled her up by the hair of her
head and took her around the house,

checking for other people who might be

there. . ;
This took about three minutes, he said,
and while they were upstairs, he heard

+) (continued on next page)

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two gunshots from’ the front or. back of
the house, he didn’t know which. He
then took her to her parent’s bedroom
doorway,, where he heard: a third shot.
Inside the bedroom, he said he saw four
people, including Richley and Clines
who, he said, were standing by the bed.
A man was lying on the bed, who had
been shot, and a lady was over by the
wall.

Clines pulled the mask off when he
ripped a telephone from the'wall, Holmes
testified, after Miss Lehman,was going to
be allowed to call an ambulance. He. said
he and Ordnorff went to the car and
started it, and were followed by Clines

» who brought the guns to the car and by’

Richley, who was the last one in the car.
He testified that the four of them went

‘to several homes of girlfriends and wives

‘drinking beer and taking

and that they eventually split up. He and
Richley went to Richley’s home in Fayet-
teville where they sat up playing cards,
*“*speed”’
amphetamines. He also said he helped
move the guns taken in the Lehman rob-
bery into Richley’s apartment.

Under qross-examination, Prosecutor
Clinger hammered at inconsistencies be-
tween Holmes’ testimony and that of Pr
secution witnesses. :

‘Were you lying-in the’statement you
made after your arrest?’’ asked the Ero
secutor.

“Yes,” replied Holmes.

Prosecutor Clinger suggested to
Holmes that he had made up much of his
testimony to protect himself after hearing
what other witnesses had said.

The prosecutor stressed that it made no
difference which one of the four fired the

_ fatal shot because the actions of the four

defendants made them equally guilty of
capital felony murder by acting together
in an aggravated robbery and in the
course of the crime causing the death of
Lehman.

He reviewed the testimony of several
of the prosecution witnesses, including

(continued on next page)

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~ Quartet That Sang. Of Death

(continued from page 47)

Miss Lehman, whom he iNdteribabie as a
‘*true heroine.’’ She was able to give
details about the intruders, especially of
Clines, even though she had been faced
with the trauma of her father’s murder.

One witness’ testimony, he said, had
indicated that the four defendants had
planned to use deadly force if necessary
for a planned ‘‘big robbery.” ~

The prosecutor continued to point out .

it was probably Richley who shot Leh-
man in the head with his own .22-caliber
pistol. He said the state never did find
that weapon, but he specualted that it was
cut up into little pieces-in the gunshop of
Holmes’ father. He said the first and last
shot had come from Holmes’ gun, and
that it was the first shot which had killed
Lehman. That shot, he said, passed
through the victim’s lung, heart and ma-
jor artery.

He said it was Clines who had held

Lehman down on the bed. when Richley

fired a shot into Lehman’s head.

‘*What was said when the four of you
arrived at the Lehman home that night?’’
asked Clinger.

A — Let’s go to the door.

Q — What would you have ome if
persons had resisted?

A — I would have left.

Q— What about the testimony of Miss

Lehman, who described the man who
dragged her about the house as a tall man
with glasses? How do you reconcile that?

A — She must have been mistaken.

Q — How heavy are you?

A — 250 pounds.

It was then pointed out by Prosecutor
Clinger that Vicki Lehman had testified
that it was the ‘‘big fat one’’ who had
taken the guns from the cabinet. Her
mother had testified that it was the ‘‘fat

ne’’ that came ‘‘flying into the bed-
room’’ and it was he who also held her
husband down on the bed.

Testimony in the trial ended on
Wednesday, October 21, then the trial
was recessed until the following Monday
because of a prior commitment of trial by
Judge Enfigld.

Anentire day on Monday, October 26,
was spent on closing arguments. The

. prosecution opened the closing argu-

ments, following by each of the four de-

fense counsels, with-Prosecutor Clinger

having the final closing argument.
‘*There was never any remorse shown

- by these men,’’ asserted Prosecutor Clin-
ger. ‘‘They never fled or threw their guns _
a fighy the state’ S decision to prosecuted ihe

down or offered any protest to the murder
48 : ; : oe Skee og

or withdrew from the house. Instead,

they all went after money and guns that’

they thought were inthe house, dragging
Vicki around with them, taking Christ-
mas money and tearing the house apart.’’

Each of the defense counsels attemp-

.ted to show that his client did not trigger

the fatal shot, and therefore should be

ed death sentences by electrocution.
Three days later, on Friday, Judge En-
field formally sentenced them on the re-
commended death sentence.

Slaughter On Tower Mountain

“(continued from page 15)

agency’’ until a short time before. Police

learned the two boys had moved out after

having a fight in the aunt’s home.
Jimmy Henson had never attended

‘school while in Antlers, said the princip-

1 a :
**The King youth,”’ he said, *‘just got
to the 10th grade. He had quit school on
November 15, 1978, and ‘‘had a low
attendance record and family problems
like most of the boys involved.”’

Authorities revealed the Henson
brothers’ father is in prison in Huntsville,
Texas, and that their mother lives in
Oklahoma City. “

A secretary for the Antlers’ school dis-
trict also said, ‘All we know about the
boys’ disappearance is what we’ve been

_told. No member of the family contacted

us that they were missing.

‘*Those boys were pretty well flipped -

out on drugs. We had trouble with them
when they were in school.”’

Since ‘‘Little John’’ had not been
attending high school regularly, even his
absence after September 14th was not
reported, -

Several persons identified ‘as relatives
of the three victims glared menacingly at
the older Eastham as the ‘*‘Gang of
Five,’’ which-the suspects had been dub-
bed by authorities: and the press, filed

into the courtroom on November Sth. :

Theré was a standing-room only crowd
packing. the county courtroom to listen
to testimony in the preliminary hearing.

They were disappointed. Associate -
, District Judge Lowell Burgess. Jr.

ordered the hearing continued until
November 25th, at the request of four of
the five defense attorneys. who argued
they hadn’t had time or the investigative
reports needed to prepare. a defense.
Attorneys, for the little, baby-faced
White twins also asserted they would
need more) time to obtain evidence to

ee

two as adults.

Again the courtroom was packed as

the first witness, Rick Woods, began his
testimony in the preliminary hearing on
Tuesday, November 25th. He was the

only witness in a long first day, after.

being called to the stand by District

- Attorney Joe Tom Smith.

Woods admitted he drove the van car-
rying the group and the three victims to
the execution site after he had been told
repeatedly by Eastham, whom he identi-

. fied as the leader, that the trio was only

going to be beaten up.

Early on Saturday, the 13th of Reteoe:
ber, Woods testified he met the defen-
dants and joined them in the search for
the victims. Eastham had explained the
trio had stolen several bags of marijuana
worth about $200 from him and he wan-
ted to get revenge on them and maybe
recover some of the ‘‘pot’’.

**Both him'and Junior (Simmons) kept

insisting they were going to kick their -

asses,’’ Woods testified. ‘‘You know,
give them a good whupping.”’

He told of not finding the victims until
Sunday, when they located them swim-
ming nude in the river. He described the
events leading up to the shootings, de-
nying that ‘he knew at any time that the
three would be shot. It was also indicated
by Woods that the three victims probably
didn’t know either’

‘ Hearing the sound of a’vehicle on the
logging road, Woods testified, he turned
and saw a white pickup speeding below
on the narrow, rough road. When he

turned back around, toward the group in -
_the clearing, he saw Simmons pull out a

hunting knife and Eastham aim the shot-
gun at the hostages.
Not believing what he was seeing, he

“watched Eastham shoot Jimmy Henson

without saying a word prior to the act. He

(continued on next page) ?

SPARE ra mas ee ERATE

Rae res

es ae

TE LT TT I SA EE:

i’ ’
‘ ‘
acquitted. i eh,
The case went to the jury at 4:10 p.m. 7 described t
Monday after all the closing arguments : ae oe
had wound down from both sides. In less 8
than an hour, they returned with a guilty start '
verdict. After a penalty hearing on Tues- 4 tellit ;
day, the same jury deliberated from, 5:30 I —
:m. to approximately 10 p.m. — ‘ side |
‘ ote eek Jimmie and
Each of the four defendants was hand- oilfield rou; |
and the men!

around toge }

with Cheste

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killings, bu
It’s too bad
like they ‘sa
On the se
Woods repe
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the day it ha
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At the clo
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the nature of


498 245 SOUTHWESTERN REPORTER (Ark,

murder in the first degree against the de-
fendants.

{18] But it is insisted that the body found
in the burned house was not identified as
that of a human being. We cannot agree
with counsel in this contention. It is true
that the physician who examined the body
testified that because it was burned so badly
and because it had no legs he was not cer-
tain that it was a human body. At another
place in his testimony, however, we find that
he stated that the skin and hairs remaining
on the body resembled that of a human
being, and that from the examination of the
brain he felt certain that it was a human
body.

‘here is no reversible error in the rec-
ord, and the judgment in each case must
be aflirmed.

(156 Ark. 216)
LANIER v. NORFLEET. (No. 40.)

(Supreme Court of Arkansas. Dee. 11, 1922.)

Notaries ¢=>2—Aro neither de jure nor de facto
officers unless residents in county wherein
appointed.

Residence in the county wherein he is ap-
pointed is essential to constitute one either a
de facto or de jure notary public, and under
Const. art. 19, § 4, and Crawford & Moses’ Di-
gest, §§ 7969, 7970a, and 7975, prescribing the
qualifications of notaries public, a notary who
has permanently removed from the county
wherein he was appointed is not thereafter a
de jure officer, notwithstanding that before
such removal he had the right to take affidavits
or acknowledgments any place in the state,
since such power does not make the office mi-
gratory, nor can he be a de facto officer, since
he lacks the possession of the office which, with
the acquiescence of the public, is necessary to
constitute him a de facto officer.

Appeal from Circuit Court, Crittenden
County; W. W. Bandy, Judge.

Action by W. J. Lanier against M. B. Nor-
fleet, Sr. On defendant’s motion the case
was dismissed, and plaintiff appeals. Af-
firmed.

On the 28th day of August, 1922, W. J.
Lanier instituted an action against M. B.
Norfleet, Sr., in the Crittenden circuit court
to contest his nomination for senator in the
Thirty-Second senatorial district of the state
at the primary election of the Democratic
party held on August 8, 1922.

The specific grounds of the contest were
stated in the complaint, and need not be re-
peated here, because they are not necessary
to a decision of the issue raised by the ap-
peal.

With the complaint was filed an instru-
ment in writing signed by 10 reputable citi-

members of the Democratic party, to the et-
fect that the statements in the complaint
were true to the best of the knowledge, in-
formation, and belief of each of the subscrib-
ers thereto. Then follows the signatures of
the 10 persons, and it purports to have been
subseribed and sworn to before O. I’, Tem-
pleton, notary public.

Among other grounds, the defendant, Nor-
fleet, moved to dismiss the complaint because
O. F. Templeton was not at the time a duly
commissioned and acting notary public. On
this point the case was tried upon an agreed
statement of facts as follows:

“That O. F. Templeton was formerly a citizen
of Clay county, and was granted a commission
as notary public by the Governor of the state
of Arkansas while residing there; that subse-
quently the said O. F. Templeton moved to
Crittenden county, Ark.; that in the year 1921
he assessed his personal property in Critten-
den county for taxation; that he paid his poll
tax due for the year 1921 in Crittenden coun-
ty, Ark., and that he voted in Jasper township,
in Crittenden county, Ark., in the primary
election held August 8, 1922, and since his re-
moval to Crittenden county he has continu-
ously resided there and has continuously exer-
cised the duties of notary public under the
commission as issued to him in Clay county,
Ark., and that he has received no additional
appointment as notary public in any county ia
the state of Arkansas from the Governor, and
that his term of office under his Clay county
appointment expires February 24, 1923, by the
terms of that appointment, and as such notary
public, under the Clay county commission, be
took the affidavits of the affiants to the affi-
davit supporting the complaint filed in this
cause; that O. F. Templeton has filed no bond
in Crittenden county, where he has exercised
the duties of notary public, but immediately
after the execution of the Clay county commis-
sion the said O. F. Templeton filed in the office
of the circuit clerk of Clay county, Ark., @ bond
conditioned as required by the statute; that
said O. F. Templeton is now, and has been
since his appointment, single and unmarried,
put the family of his father reside and are
citizens of Clay county, Ark., and that said
Templeton has made trips to Clay county vis-
iting the said family of his father.”

The court held that O. F. Templeton was
not a notary public at the time he attempted
to take the affidavits in question, and dis-
missed the complaint for want of jurisdic
tion.

From the judgment rendered the plaintiff,
W. J. Lanier, has duly prosecuted an appeal
to this court.

Berry & Wheeler, of Marion. Frank Berry,
of Parkin, and W. J. Lanier, of Forrest City,
for appellant.

Rudolph Isom, of Marion, J. W. House, Jr
of Little Rock, L. C. Going, of Memphis,
Tenn., and S. H. Mann, Sr., of Forrest City,

zens of Crittenden county, Ark., who are

for appellee.

G=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

i Pika i ea AD em AES corr

Ark.) LANIER v. NORFLEET 499
(245 S.W.)

HART, J. (after stating the facts as above).
Séction 3772 of Crawford & Moses’. Digest
confers a right of action on any eandidate to
contest the certification of vote as made by
the county central committee, and provides
that the action shall be brought in the cir-
cult court within any county in the cireuit
or district wherein any of the wrongful acts
occurred, if the contest is for a circuit or
district office. It provides further that the
complaint shall be supported by the affidavits
of at least 10 reputable citizens within a des-
ignated number of days.

This court has held that the filing of the
affidavits in the manner prescribed by the
statute is a prerequisite to the exercise of
jurisdiction by the court in a contested elec-
tion case brought under the act. Logan V.
Russell, 136 Ark. 217, 206 S. W. 131, and
Ferguson v. Montgomery, 148 Ark. 83, 229
S. W. 30.

This makes it necessary to decide whether
or not O. F. Templeton was & notary public
de jure or de facto at the time the instru-
ments in question purport to have been sub-
scribed and sworn to before him.

This court has held that a notary public
is a public officer. Sonfield vy. Thompson et
al., 42 Ark. 46, 48 Am. Rep. 49, and State
ex rel, Gray v. Hodges, 107 Ark. 272, 154 Ss.
W. 506.

After the admission of the state in 1836
by an act of the General Assembly of Novem-
ber 23, 1837, it was provided that the Gov-
ernor should, by and with the advice and
consent of the Senate, appoint one notary
public in each county. Revised Statutes Ark.
p. 588. Section 6 of the same act provides
that, if any notary die, resign, or remove
from the county, or be removed from office,
his record book and all his public papers
shall be delivered to the clerk of the county
court to be delivered to his successor.

quoted above as section 6 of the Revised Stat-
utes.

It is contended that under these sections of
the statute a notary public is a state officer,
and, although from 4 particular county, he
may remove to another county in the state
and still continue to be a notary public until
his term of office expires. In making this
contention counsel lay special stress on the
fact that under the statutes a notary public
may take affidavits or acknowledgments in
any county in the state. We.cannot agree
with counsel in this contention. Whatever
the extent of the territorial jurisdiction con-
ferred upon him, he is an officer of the coun-
ty. One purpose contemplated by the statute
as expressly shown by its language is that
the Governor may appoint a convenient num-
ber-of notaries public for each county. The
same section further provides that they shall
be citizens of the county for which they are
appointed and file a bond with the recorder
of deeds for the county.

Section 7975, which, as we have already
seen, was a part of the Revised Statutes, pro-
vides that, if any notary die, resign, or re-
move from the county, or be removed from

office, his record book and all his public
papers shall be delivered to the county clerk.
All these provisions clearly indicate that it
was the intention of the Legislature for a
notary public to be a county oflicer, and that
his permanent removal should work an aban
donment or forfeiture of his office. This
is in accord with the provisions of article 19,
§ 4, of our present Constitution, which reads
as follows:

“ANl civil officers for the state at large shall
reside within the state, and all district, county
and township officers within their respective
districts, counties, and townships, and shall
keep their offices at such places therein as are
now or may hereafter be required by law.”

The Legislature of 1848 amended the act
so that the county court of each county

might appoint one notary public. Acts of

1848-49, p. 32.

The Legislature of 1874 provided that the
Governor may appoint a convenient number
of notaries public for each county, who shall
be citizens of the county for which they are
appointed, and who shall file in the office of
the recorder of deeds for the county a bond
to the state for the faithful discharge of their
duties in the sum of $1,000, with security to
be approved by the clerk of the circuit court
of the county, and who shall hold office for
the term of four years. Crawford & Moses’

Digest, § 7969.

The Legislature of 1905 (Acts 1905, p. 687),
amended the act to give a notary public pow-
er coextensive with the state for the purpose

of swearing witnesses, taking affidavits, etc
Section 7970a.

The general rule is that, if the law requires
an officer to reside in the county or district
in which he holds his office, and during his
term he ceases to reside in such courty or
district, his removal to another county or
district operates as ar abandonment of his
office and creates a vacancy therein. Of
course, this would not apply to a merely tem-
porary removal for business or pleasure with
no intention of abandoning his office. People
y. Brite, 55 Cal. 79; Yonkey v. State, 27 Ind.
936: Relender vy. State, 149 Ind. 283, 49 N.
BE. 30; Lyon v¥. Commonwealth, 6 Ky. ©@
Bibb.) 430; Curry V. Stewart, 71 Ky. (8
Bush) 560; MeGregor vy. Allen, 83 La. Ann.
870; State v. Skirving, 19 Neb. 497, 27 -N.
W. 723; In re Bagley, 27 How. Prac. (N. Y.)
451; Crawford v. Saunders, 9 Tex. Civ. App.
295, 29 S. W. 102; and Ehlinger v. Rankin,
9 Tex. Civ. App. 424, 29 S. W. 240.

It follows by necessary implication from

Section 7975 is the same provision as that the language used in the several sections of

of

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494 245 SOUTHWESTERN REPORTER (Ark.

jury must have an abiding conviction to a moral

certainty” of accused’s guilt to justify con-

viction.

16. Criminal law ¢=>829(19)—Instruction that
each juror should not do violence to his con-
science but stand on his own convictions held
unnecessary.

Where the court fairly submitted the ques-
tion of reasonable doubt and presumption of
innocence, there was no necessity for instruct-
ing that, in harmonizing their views to reach
a verdict, “no juror should do violence to his
own conscience; rather than this, he should
stand on his own convictions, even though such
stand resulted in a mistrial.”

17. Criminal law @==511(1)—Homicide e253
(1)—Evidence held to show first degree mur-
der.

Evidence held sufficient to corroborate an
alleged accomplice’s testimony and to justify a
conviction of first degree murder. 3
18. Homicide @=>228(1)—Evidence held suffi-

clent to identify charred remains as human
body.

Evidence held sufficient to identify body as
that of a human being, after deceased was shot
and his house and remains burned.

Appeal from Circuit Court, Ashley County ;
Turner Butler, Judge.

F. G. Bullen, Duncan Richardson, and Ben
Richardson were convicted of first degree
murder, and they appeal. Affirmed.

William Beauregard Stuckey, of Bastrop,
La., for appellants.

J. S. Utley, Atty. Gen., and Elbert Godwin
and W. T. Hamurock, Asst. Attys. Gen., for
the State.

HART, J. F. G. Bullen, Duncan Richard-
son, and Ben Richardson were separately
indicted for the crime of murder in the first
degree, charged to have been committed by
killing Ira H, Culp in May, 1922, in Ashley
county, Ark.

[1, 2] At the request of the defendants, the
cases were consolidated, and the defendants
were jointly tried before a jury. The jury
returned separate verdicts finding each de-
fendant guilty of murder in the first degree,
as charged in the indictnrent.

The court had told the jury that, under
such a form of verdict, the law fixed the pen-
alty at death by electrocution. ‘The court
also instructed the jury that under the stat-
ute it might find each defendant or all of
them guilty of murder in the first degree, and
fix the punishment at imprisonment for life
in. the state penitentiary.

From the judgment and a sentence of
death pronounced by the court, the defend-
ants have duly prosecuted an appeal to this
court.

A verdict in this form was approved by
the court in Kelley v. State, 133 Ark. 261, 202
S. W. 49. Besides this, under the instructions

given by the court, there can be no doubt as
to the punishment intended by the jury. The
court expressly told it that the law would
impose the penalty of death upon the verdict
in the form returned by the jury, and that,
if the jury intended to reduce the punish-
ment, it might do so, under the statute, by
returning a verdict fixing the punishment at
inrprisonment for life in the state peniten-
tiary.

[3,4] Counsel for the defendants assign
as error the overruling of the motion of the
defendants to compel the state to elect upon
which count or paragraph of the indictment
it intended to rely for the conviction of the
defendants.

In the first part of the indictment it is
charged that the defendants killed the de-
ceased by shooting him, and in the second
part that they killed him by striking him
with an ax. This court has held that if the
offense may have been committed in different
modes and by different means, the indict-
ment may allege the modes and means in dis-
tinct counts. Howard v. State, 34 Ark. 434,
and Franklin vy. State (Ark.) 240 S. W. 708.

[5,6] The next assignment of error is tbat
the court erred in refusing to grant the re
quest of the defendants to hear testimony,
in the absence of the jury, on the question
of whether or not Filmore Gaul and Bill
Bowden were induced to give their testi
mony by bribes or threats.

{7, 8] The well-established rule is that con-
fessions of guilt to be admissible must *
free from the taint of official inducement pro
ceeding either from the hope of gain or the
torture of fear. The approved practice is to
withdraw the jury while the evidence on this
point is being heard. The reason is that, if
the court should not admit the evidence, the
defendant might not be prejudiced by the
hearing. In the case at bar the confessions
were admitted in evidence, and the defend-
ants did not show that the testimony of the
witnesses in question was given by any it
ducement of gain or fear. On the other
hand, the deputy sheriff, who had the wit
nesses in charge, testified that no induce
ments were held out to them either of hopt
or fear; and the witnesses themselves testi-
fied to that effect. Bowden was not charged
with being implicated with the crime, and
was only held by the officers to be used 88 #
witness. Filmore Gaul was arrested as 88
accomplice, but gave his testimony as the
result of being told by some of his relatives
to tell the truth. It is true Gaul made othe
statements, but he says this was done unde?
threats made by the defendants. Therefore
no prejudice could have resulted to thes
from the action of the court. Greenwood f
State, 107 Ark. 568, 156 S. W. 427, and De
wein vy. State, 114 Ark. 472, 170 S. W. 5%
Moreover Gaul and Bowden were not defend
ants, and their testimony was not a confer

od

@=—>F or other cases see same topic and KEY-NUMBER in all] Key-Numbered Digests and Indexes

Gd een hee neewthen

Ark} BULLEN v. STATE 495
(245 8. W.)

sion by thent; but, on the other hand, it was
the testimony of witnesses of matters and
things they saw and heard, and about which
they bad personal knowledge. Hence any
promises or threats made to induce them to
testify would only go to their credibility as
witnesses, The witnesses claimted they were
telling the truth at the trial.

($] The next assignment of error is that
the court erred in permitting Mrs. Ira H.
Culp to testify on direct examination that
the relations between her and her husband
were friendly. We do not think that this as-
sicnment of error is well taken, because it is
not made a ground for a motion for a new
trial by the defendants. An exception to the
admission of testimony, which is not brought
forward in the motion for a new trial, will
not be considered on appeal. Ince y. Stafe,
77 Ark. 418, 88 S. W. 818; Gooch v. State,
150 Ark. 268, 234 S. W. 33; and Freeman vy.
State, 150 Ark. 387, 234 S. W. 267. Besides
this, there was nothing unfavorable to the
defendants in allowing the wife to make the
statement that she had been on friendly
terms with her deceased hushand, She was
not present when the crime was committed
and was not in any way involved in it.
Therefore there was no prejudice in the in-
troduction of the testinfony. Shinn v. State,
150 Ark. 215, 234 S. W. 636.

{10] The next assignment of error is that
the court erred in permitting Filmore Gaul
to testify that F. G. Bullen told him about
taking an ax and cutting off the arms and
legs of the deceased in the house after he
had been shot by Ben Richardson. Filnrore
Gaul was a boy 16 years of age, and, accord-
ing to his testimony, accompanied the de-
fendants to the scene of the killing on horse-
beck, but remained on his horse and took
ho part in the killing. The defendants first
called Ira H. Culp out on the porch, and he
came out dressed in his night clothes. The
defendant Ben Richardson then shot at Culp
and missed him. Culp shet back at Richard-
®on twice and missed him. Ben Richardson
then shot at Culp again, and Gaul saw Culp
fallon the porch. The three defendants then
went into the house. Duncan Richardson got
a double-bitted ax in front of the wood pile
and carried it into the house with him. Ben
Richardson and F. G. Bullen got Culp by
his arms and dragged hint back into the
house. Dunk Richardson followed them into
the house. This much the witness saw. He
then testified that the defendants cut off
the arms and legs of Culp, and, when asked
‘hy he knew this, he stated that F. G. Bul-
len told him so. He-also testified that Ben
tod Dunk Richardson were present at the
time. The witness also heard the sound of
#n ax cutting while they were in the house.

There was no error in the admission of
the testimony. It was not testimony of the
declarations of a coconspirator after a crime
tad been committed and the conspiracy end-

ed, but it was testimony in the nature of
a confession made by F. G. Bullen to the
witness in the presence of his codefendants.
Therefore this assignment of error is not
well taken.

{11] The next assignment of error is, that
the circuit court erred in refusing to exclude
the whole testimony of Filmore Gaul, on the
ground that his direct examination was ex-
tremely leading. In the first place it may
be said that his examination was not leading,
and in the next place it is always within the
sound discretion of the trial court to permit
the witness to be asked leading questions,
and it cannot be said that there was an abuse
of discretion in this respect in the exanrina-
tion of Filmore Gaul.

{12,13] The next assignment of error is
that the circuit court erred in refusing to
strike out the testimony of Filmore Gaul, on
the ground that he was a coconspirator, and
that his testimony was not admissible to con-
nect any others with commission of the crime.
In support of their contention, the defend-
ants cite cases to the effect that, when the
object of the conspiracy has been accomplish-
ed, the subsequent acts and declarations of
one of the conspirators are, not admissible
in evidence for the purpose of showing the
guilt of the others. This well-known rule of
law has no application to the testimony of
Filmore Gaul. According to his testimony,
Filmore Gaul went with the defendants to the
scene of the killing, but did not participate
in it. Whether he did or did not participate
in the killing has no bearing on the assign-
ment of error now under consideration. The
witness testified to matters which he saw
and heard. Testimony of matters coming
under the personal observation or knowledge
of a witness are not acts or declarations of
a coconspirator. They are admissible as a
narrative of things heard and seen by the
witness, and which come within his own per-
sonal knowledge.

{14] The next assignment of error is that
the court erred in permitting the prosecuting
attorney to cross-examine the defendants as
to whether or not they had been guilty of
other murders in that vicinity. The defend-
ants took the stand in their own behalf, and
for the purpose of testing their credibility as
witnesses they might be cross-examined as to
other crimes committed by them. Shinn v.
State, 150 Ark. 215, 234 S. W. 636.

[15] The next assignment of error is that
the court erred in refusing to give instruc-
tion No. 5-B, which is as follows:

“T charge you further that the jury must
have an abiding conviction to a moral certainty
of the guilt of the accused to justify a con-
viction.”

The court fully and fairly submitted to the
jury the question of reasonable doubt, and it
was not required to multiply instructions on
the same point,

re

ee ee er ee

BSOotin-cwn or

496 245 SOUTHWESTERN REPORTER (Ark.

[16] The next assignment of error is that
the court erred in refusing to give instruc-
tion No. 5-C. This instruction is as follows:

“J charge you further that in your effort to
harmonize your views for the purpose of reach-
ing a verdict, no juror should do violence to his
own conscience; rather than this, he should
stand on his own convictions, even though such
stand resulted in a mistrial.”

“We do not think there was any error in re-
fusing to give this instruction. The court
gave full and fair instructions on, the ques-
tion of reasonable doubt and on the presump-
tion of innocence of the accused. We do
not deem it necessary to prolong this opinion
by any further discussion of the instructions
asked by the defendants. They were either
argumentative in form, or fully covered by
the instructions given by the court. The de-
fense of the defendants was that they were
at home when the crime was committed. The
court fully instructed the jury on the ques-
tion of alibi, and the credibility of the wit-
nesses.

The court also submitted to the jury the
question of whether or not Filmore Gaul was
an accomplice’ of the defendants, and also
told the jury that, if it found him to be an
accomplice, it could not convict on his uncor-
roborated testimony, and that the corrobo-
ration would not be sufficient if it merely
showed that Culp was killed and the circum-
stances thereof.

[17] Finally it is insisted that the evi-
dence is not legally sufficient to support the
verdict, Filmore Gaul, the principal witness
for the state, was about 16 years old when
the crime was committed, According to his
testimony, Ira H. Culp was killed by the de-
fendants at his own home in Ashley county,
Ark., on Thursday night, May 11, 1922. ~ Fil-
more Gaul was living with his grandfather,
Randall Bullen, and his wife, at the time the
crime was committed. Their dwelling house
had three rooms. It had two front rooms,
and a kitchen behind them running the full
length of the front rooms. Gaul went to bed
that night at 9 o’clock. F. G, Bullen, some
times called Coley, and a Mrs. French were
also living with Randall Bullen at the time
the offense was committed. After Filmore
Gaul had gone to bed on the night of the
killing, he was awakened by hearing Beu
Richardson calling Coley. F. G. Bullen heard
Ben Richardson calling him, and went out of
the house and talked to him. In about 15
minutes Bullen came back into the house and
told Gaul to get up and go and stay all night
with Ben Richardson, so that they could go
hog hunting the next morning. Bullen and
Gaul then saddled their horses and rode off
with Ben Richardson down to Nathan Morris’
at La-Ark and found there Dunk Richardson
sitting on his black mare. Ben Richardson
was riding a gray horse, Bullen, a bay mare,
and Gaul, a sorrel horse with a blaze face.

Gaul did not carry a gun; Bullen carried a
.88 special with a 6-inch barrel; Ben Rich-
ardson a .3855 rifle, and Dunk a 10-gauge
shotgun, They rode up to the gate at Culp’s
house, and Ben and Dunk Richardson and
¥. G. Bullen got down and hitched their hors-
es. There was a full moon. Gaul remained
on his horse. After hitching their horses, Ben
and Dunk Richardson swapped guns. Dunk
took the rifle, and Ben the shotgun. They
told Gaul they were going to kill old man
Culp. Gaul said, “Don’t kill him.” They
said they were going to kill the danined old
Yankee, and that if Gaul told it they would
kill him. Dunk Richardson climbed the fence
and got behind some rolls of fence wire. Ben
Richardson stopped beside the gate. Bullen
got behind the tank right at the corner of
the house. Ben then.called Culp. Culp came
out on the gallery in his night clothes, Ben
Richardson shot at Culp and missed him
Culp shot back at Ben twice. Ben then shot
again at Culp and killed him. Gaul saw
Culp fall on the porch and he did not strug-
gle after falling. Dunk then went out in
front of the wood pile and got a double-bitted
ax, which he carried in his hand into the
house. -Ben and Bullen got Culp by his arms
and dragged him back into the house. Dunk
followed them in. They carried Culp into 4
room next to the back porch and Gaul heard
the sound of an ax cutting. The defendants
then set fire to the house and came out. z
G. Bullen told Gaul, in the presence of Ben
and Dunk Richardson, that they had cut of
Culp’s arms and legs. When they came out
of the house, Ben Richardson looked at his
watch, and it was 2 o’clock in the mornin¢.
They again told Gaul, that if he ever told
about the crime they would kill him. Dunk
said that they had killed Culp because he had
been stealing their hogs. ‘The parties then
separated and went to their respective homes.

Will Bowden, a boy 17 years of age, was
also a witness for the state. According to his
testimony he lived with B. B. Richardson,
the father of Ben Richardson and Dunk Rich-
ardson. Ben Richardson lived with his fa-
ther, and slept in the same room with Will
Bowden. On the night that Culp was killed,
Dunk Richardson came to the home of B. B.
Richardson about dark, riding his black
mare, and carrying his 10-gauge shotguD-
Dunk and Ben Richardson rode away from
the house that night. Ben carried a 88-53
high-powered rifle, and Dunk his 10-gause
shotgun. The witness did not know what
time of night they got back. Ben was in bed
when he waked up the next mornings. At the
barn the next morning Ben, Dunk, and old
man Richardson were talking about old maa
Culp. Dunk told old man Richardson that
they had got shut of the old man last night
The latter asked, “What old man?” and Dunk
replied that “damned old Yankee.” Thea

Mr. Richardson asked “How did you get #4]

Ark.) : BULLEN v. STATE 497
(245 S.W.)

of him?” Dunk said, “They killed him, chop-
ped him up, and burned the old son-of-a-bitch
up.” This was Friday morning, and the wit-
pess subsequently learned that Culp had been
killed the night before.

According to the testimony of Mrs. Ran-
4all Bullen, Filmore Gaul was her grandson
and F. G. Bullen was her nephew. They
lived with her and her husband ‘at the time
Culp was killed. “On the night of the killing
some one whom she thought was Ben Rich-
ardson came to her house and called Coley,
meaning F. G. Bullen. Coley got up and
went outside, and she heard him talking to
some one. Coley then came back into the
house, and later he and Filmore Gaul went
out, She heard their horses’ hoofs as they
all left the place. They came in the next
morning when she was cooking breakfast.
She did not know where they had been all
night.

According to the testimony of Mrs. Ora
French, she was living with Mr. and Mrs.
Randall Bullen at the time Culp was killed.
She went to bed about 7:30 o'clock that eve
ning, and Filmore Gaul and Coley Bullen
were at home at that time. They were there
the next morning when she awoke. On Fri-
day, a week later, she washed ¥. G. Bullen’s
overalls, and they had blood on them.

Another witness testified that on the night
of the killing he saw four men on horse
back riding down the road towards the de-
ceased’s house but did not recognize any of
them.

A tenant on the farm of Ira H. Culp went
to Culp’s home early the next morning after
the killing. He found that Culp’s house had
been burned down and found Culp’s body in
the fire burning.

D. A. Whitaker went to the Culp place at
6:30 o'clock on the morning of May 12, 1922.
The house had burned down. The witness
mw the remains of a body lying right beside
abed. It was a human body, and with other
persons they took it out of the fire. ‘They
found a bunch of keys, a pair of pliers, and a
fMece of dental work in the fire.

The wife of the deceased testified that she
lived in Wilmot, Ark., and saw her husband
last on Thursday morning May 11, 1922.
Bhe identified the bunch of keys, the pair
of pliers, and the piece of dental work taken

parts, the doctor said that it was a human
body.

On cross-examination the witness said that
he was not right sure that the skeleton was
that of a human being. He further stated
that he could not say from the body that it
was a human body, but that from the brain
he could say that it was a human body. He
also testified that the skin left on the body
had hair on it like that of a human being.

The defendants were witnesses for them-
selves, and denied the killing. They claim
that they were at home on the night of the
killing and did not leave there at any time
during the night. Their testimony was cor-
roborated by that of all the other members
of the family except Filmore Gaul, Bill Bow-
den, and Mrs. Randall Bullen.

We do not deem it necessary to set out in
detail the evidence adduced in their behalf,
for, in testing the legal sufficiency of the
evidence to support the verdict, the evidence
for the state alone need be considered. It
is perfectly plain from the evidence of the
state that the killing was the result of delib-
eration and premeditation, That the killing
was deliberately planned as the result of pre-
meditation on the part of the defendants is
shown by the fact that they went armed in
the nighttime to the home of the deceased
and called him out on his front porch and
then shot him down, with a gun earried with
them for that very purpose. They then
hacked the arms and legs off of the body and
set fire to the house, evidently for the pur
pose of concealing the crime.

Filmore Gaul was the principal witness
for the state, and, even if the jury believed
that he was an accomplice of the defendants,
it might have found that his testimony was
amply corroborated by the other evidence.
Will Bowden testified that on the morning
after the killing Dunk and Ben Richardson
were talking about the killing to their fa-
ther at his barn. They told him that they
had killed Culp and then chopped him up
and burned him. ‘This statement was in the
nature of a confession by them that they had
committed the crime. The finding of the
charred body in the burned house tended to
eorroborate the confession. A bunch of
keys, a pair of pliers, and some dental work,
which were identified as the property of
the deceased, were found near the burned

ont of the fire as the property of her husband.

Dr. Harrington, a practicing physician at
Wilmot, Ark., went to the home of the de-
ceased early in the morning on May 12, 1922,
The house had burned down, and, close to
where there had been a bed, a body was
found lying on its right side. On first ex-
amination the witness could not tell that
It was a human body, because it had no legs.
He cut the heart open and examined the
valves, He then examined the left lung and
the brain and pieces of skull. From his ex-
amination of the heart, lung, skull, and other

245 S.W.—32

body. Mrs. Randall Bullen testified that
some one whom she thought was Ben Rich-
ardson waked up her nephew, F. G. Bullen,
and after talking with him for some time
outside the house, F. G. Bullen came back in-
to the house and got Filmore Gaul, and all of
the parties left the place together. They
did not return until she was getting break-
fast early the next morning. All these. facts
and circumstances were sufficient to corrobo-
rate the testimony of Filmore Gaul, and war-
ranted the jury in returning a verdict of

weee emer s

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small part of
Not one miner
rust his life to
might be his
engine, who
he best hoist-
Hannon, could
n which would
bill
is wanted
more than 30
greed upon as
' should apply,
lesser horse-
st as likely to
ster in conse-
tiably less,
8 detected by
er and. that
curing an ad-
who must be
whose salary
260. “Where,”
vid a practical
ake the job at
cer Jones also
9 bill. It was
nite postpone-
ly one - sided

to

endation was
f Mr, Murphy
ishment for
temobiles. It
ul form for a
for the first
fence for the
ellation of the
the remainder
3 amended by
yosed ‘that the
order’ denying
the right to
rear from the
A feature of
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current juris-
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yes that was
ound that po-
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se Two)

ra

:

Norris of Nebraska, and Capper 6
Kansas—later vigorously criticized
Senator Heflin for his criticism of

Senator Couzens. _. .

Senator HefKn offered to with-
draw his comment on Senator Cou-
zens if the latter would reciprocate,
but Mr. Couzens refused, demanding
a vote. "

Senator Heflin admitted he had
‘changed his remarks in the record
referring to Senator Wadsworth in

minor particulars, but he defended |.

AKG, ittle again foug 1s
way free, this time from Chief Oaks, 4
Claud Smith, former detective chief
of El] Paso, Sam Dreben, soldier of
fortune, and severel El Paso and
Juarez police.

Chief of Police Oaks, Smith, Dre-
ben and a chauffeyr were arrested
and held in the Juarez jail 48 hours
Little Phil received protection at Lib-
erty hospital where. his wounds re-
ceived in the affray were dressed.
He was next taken to Chfhuahua

this as. senatorial custom. Repub-
toate” however, declared he had

altered material statements.

and held in the state prison until the

move to Mexico City was ordered last]

week. .

DOOMED CONVICTS SMILE AS
HAND OF DEATH TOUCHES KEY

THAT SENDS S

7 Lita ROCK, Ark., Feb. 2—
Four n convicted of murder were
electrocuted at the Arkansas peni¢
tentiary early today. All faced
death calmly. The men went to the
electric chair in the following order:
Duncan Richardson, Ben Richard-
son, F. G. Bullen, all convicted of
the murder of Ira Culp, farmer Dear
Wilmot, Ark., and Will Debord, con-
victed 6f the murder of Mr. and Mrs,
W. M. Silaby, in Stone county}

rkansas.
ms A Richardson stepped into
the chair at 7 o’clock. Debord was
executed at 8:02. o’clock.

Duncan Richardson, aged 29, was
taken in the death chamber several
minutes before the apparatus was
ready. J

“ood morning gentiemen,” he
smiled to the witnesses and atten.
dants. He displayed no nervousness,
He walked about.the Chair looking
started toward the switch-

»

at it an
board where the executioner was at
work. The executioner moved

ickly away...
Wipowt be afraid of me,” Richard-

3-4 2

}was pronounced dead if three min-

OULS TO REST

son said, who was not handcuffed.
‘I would ag soon have you do it
as any one,”

When the apparatur was ready,
he entered the chair voluntary. He

>

utes.

Ben Richardson, 19, was pale but
calm. He said nothing.

The body of Bullen after being’ in
the chair five minutes, was rémoved
and placed in a casket. Phe under-
taker noticed he appeared to be
breathing slightly and refused ‘to
take the body. She body was re-
moved, replaced fh the chair and
the current reapplied.

As Debord was being strapped in
the chair, he shouted to an at-
tendant:

“Look out’ thére,
mashing my hand.”

None of the men showed much
emotion, and all “ee able to walk
unassisted to the chair,

fellow, you're

The execution of the four marked
the largest toll exacted by justice
in a single-day in Arkansas’ history.

ARVZOVN Q

Psp bo <

tet

WO = Ail We)
clue today to the
ing the death of
yearsld Unive
freshman, who
seated in a chair
shotgun in his
Tau Omega frate
Fraternity bro
were sleeping in
that the shootin;
Min&ahan, they sz
to clean his shot
for a hunting triry
Hyde Park pc
pressed the belies
han had shot }t
despondency over
in the house hearr
ended the student
li¢e said, to the f
of the gun was p
before the trigger
Pending an ing
morrow, the poli
addressed to Mina
hotel, which arris
edy, in the hopes
veal a motive.
Minahan's deat
the announcemen
Dr. John Minahan
physician, had. 68
threatened tubere
death by. a specté
removing a tack.
in the course of ¥
to stop the girls
one side, and ther
tragedy in his &
wheels of a train
the right of wa
drowned when the
mid-ocean after
iceberg about i)

IRELAND HAS
DUBLIN, Feb.
convention initiate
tion of all membe
publican army, wit
Sunday. The gathe
tion - wig jh the ,

a


BULLEN, DeBORD & the RICHARDSONS (1923);
HOWELL,

BUSTER,

Jack (1925);
1930); OWENS, 41923); SEASE (1923 & WELLS

(1922)

a ntecen se PAS aRerR CHIME he
ehh AEE ABO: PP PTO nantsiinmeememeaicees te a

hee V9BE

VER SINCE _ the days when Jack

Lee, the amazing Englishman, lived

to write his memoirs after being
hanged six times, sporadic outbursts
have appeared in the press of almost
every country in the world condemning
capital punishment.

It was this English murderer, con-
victed to be hanged by the neck from
the rope-worn gibbet at Exeter gaol
more than fifty years ago, who first
brought before the reading public a vivid
factual account of a condemned man’s
sensations as he awaited the “grim
gray dawn” that was to be his last.

Either because of his own Herculean
neck development, or through conni-
vance with his jailers, the Englishman
couldn’t be hanged. After he had dangled
from the end of the rope half a dozen
times, only to smile placidly at his
executioners when they cut him down,
outraged crowds stormed through the
stréets of English towns and villages,
demanding that “the barbarism cease. A

‘sharp London solicitor dug up a musty

law from the days of Charles III, which
held that a convicted felon was legally

‘dead after three hangings whether life

had left his body or not.
As Lee had mounted the thirteen steps

-

At left is the chair with
which until recently Ar-
kansas electrocuted its
condemned men. Joe
Wirges, co-author of this
article, has seen it take
thirty-four men’s lives.

As Told By
JOE WIRGES

To
MARK SMITH

DIXON (1927);

and dropped

times, the

cided that he
there was ni

it. They ope

gates in the
walk forth,
law.

But the
proved hims
indeed. Far
peared on t
country and
dressed in t
hangmen, t
in the stag:
rope around
to the arm o
The rope wa
and Jack’s
above the st

that like a>

spit. The gu
as it was 1
dainty ladie
thought of ¢g
see if Jack’
thing.
Anyhow
the man tl]
sharply to t
there actual
hanging ;
really suffer
of terror as
the old Bibl
eye was all
savage days
but now pec
less barbaric
The cont:
ever since,
Today we
America wi
battle agai
John Edga:
man compet
are slowly \
tal punishi
source of ai
would cure
would kill h
Science i
the “cure’’ |
trists and
more and n
criminal ty]
the “kill c¢
potential mi
ing strange
a deep inter


and dropped to the end of the'rope six
times, the thoroughgoing English de-
cided that he was already twice dead and
there was nothing more to be done about
it. They opened the ancient hand-forged
gates in the prison wall and bade him
walk forth, a ghost in the eyes of the
law.

But the man_ they couldn’t hang
proved himself to be a very wise ghost
indeed, Far from being dead, he ap-
peared on the music hall stages of the

country and allowed a couple of stooges, ©

dressed in the masks and plain garb of
hangmen, to drop him through a trap.
in the stage floor with. one end of a
rope around his neck, the other attached
to the arm of a gruesome looking gibbet.
The rope was always taut after the drop
and Jack’s head was always visible
above the stage, turning this way and
that like a roast of English beef on a
spit. The gullible audiences gasped and,
as it was in the swooning era, many
dainty ladies fainted and nobody ever
thought of going underneath the stage to
see if Jack’s toes were touching any-
thing.

Anyhow he got away with it. But
the man ‘they couldn’t hang brought
sharply to the public mind the fact that
there actually was such a thing as legal
hanging; that condemned criminals
really suffered the pangs of remorse and
of terror as their hour drew’ nigh; that
the old Biblical adage of an eye for an
eye was all right for those dark and
savage days in which it was written,
but now people were more modern and
less barbaric.

The controversy has been going on
ever since. :

Today we are making rapid strides in
America with a bitter and concentrated
battle against crime. According to
John. Edgar Hoover and every other
man competent to discuss the subject, we
are slowly winning the fight. But capi-
tal punishment still remains a sure
source of argument between those who
would cure the criminal and those who
would kill him.

Science is rapidly allying itself with
the “cure” branch of thought. Psychia-
trists and psychologists are turning
more and more toward intense study of
criminal types with a view to removing
the “kill chant” from the brains of
potential murderers. And there is noth-

ing strange about the fact that I take ~

a deep interest in that possibility.

I have watched thirty-four men die.

‘T have’ seen the convulsive shudder pass

through the bodies of thirty-four c6n-
demned - criminals as the electricity,
struck them with all its violence.

I have witnessed these executions
largely against’ my will. I never have
gone to the death cells of condemned
men out of morbid curiosity. Nor have
I gone as a narrow exponent of the “eye

for an eye” theory. I’ve gone on. direct _ -

assignment from my newspaper, the
Arkansas Gasette of Little Rock, to
cover these executions and report on
them. :

I’ve done my best, on such assign-
ments, to keep my emotions in the back-
ground; but. sometimes that. is a hard
thing to do.

Out of this experience I have formed
a few opinions about the efficacy . of
capital punishment as a crime deterrent.
I have seen men-go to the chair whom T
thought deserved to die, and others I
believed could have become useful ‘citi-
zens had they been allowed to live. But
these opinions were not reached through
the cold light of psychiatric study. Any
opinion from any man who has wit-
nessed an execution must needs be tinged _
with an emotional stab, unless it be
given by a person with the dulled senses
of a brute.

As proof, let me cite a few of my own
experiences in that little room whose
only piece of furniture is an arm chair
upholstered with copper.

The first man I saw die in the chair

‘left me shaken with emotion, unable to

remember. clearly any ‘incident of the
ugly proceedings. The condemned man
was John Owens, a gray-haired, soft-
spoken murderer who had killed a neigh-
bor in a quarrel.

John Owens stepped from the ranks
of obscure slayers-not worth an inch of
space in anybody’s newspaper, when he
tried to escape from the- penitentiary in
broad daylight by placing an iron pipe
against the wall and scrambling up the
pipe like a weak and ailing monkey.
When the hoary-headed prisoner reached
the top of his pipe, he found himself still
unable to stretch his arms high enough
to clutch the edge of the wall. And a
guard was standing directly above, wait-
ing to receive him.

The condemned man became news-
paper copy in the next few moments.
“Shoot me,” he pleaded to the guard.
“Pyt a bullet in me. You can see I’m :

Even to a death house reporter an

execution is a horrible spectacle

A MADURA ABU Bred

Top: Joe Wirges, whose duty is to
watch men die even though he
dislikes it. Above: Bill Howell,
electrocuted shortly after this pic-
ture was taken, shakes hands
with his son, Ves Howell. The
son was later killed in a gunfight
with police. Like father, like son.


IMMUNE"

Herbert Sease
grinned at the chair,
swore his body was
a dynamo that

enough current to
counteract the lethal
‘charge and render
it harmless. He was
wrong.

DOUBLE JOLT

Already pronounced
dead and placed in
a coffin, F. G. Bul-
len was seen to
move. He was car-
tied back to the
- chair and electro-

SHAKEN

tuple execution;
William DeBord had
to be borne to the

his two comrades
lying in their coffins
in the prison hall,

FANATIC
In religious frenzy,
Jack Buster declared
he was God's mes-
senger, and refused
to walk to the chair
of hig, own accord
because that would
be suicide and thus
bar him \from

ioe

‘could generate

cuted once again, .

Third in a quad._

chair after he saw —

Warts

trying to escape, can’t you? Will you shoot me if I run?”
The guard smiled sadly down at the strained, upturned face.
“It’s no use, John,” he said. “No chance of you getting
yourself bumped off that way.”
Again the old man pleaded. Once more he was refused.
‘Then he let go his hold of the pipe after telling the guard

' the fall might serve the purpose after all.

Owens was disappointed. The fall back to the prison yard
‘left him with no more serious injuries than a cracked rib.
‘But his avowed preference for a guard’s bullet to the electric

chair brought him to the attention. of the newspapers. I was
sent to: interview him.

For. four hours—I was a young reporter then—TI sat with
the first condemned man I had ever known. I came to like
the old man. I returned the next day, and the next. Finally
I visited’ the penitentiary on, the day before John Owens was

* to. die. if,

“IT won’t have a friend in there.” The old man*shuddered
and nodded towards the death cell.’ “Unless you come, Joe,
there won’t be anybody in there but a lot of cold-blooded wit-
nesses. Not a friend.” -

He exacted a promise from me, and at daylight next morn-
ing, when I kept my word, the old man paused in the brief
death march to the execution chamber and said: “I knew you’d
come, Joe. Thank you. Thank you and—good-bye.”

He wept when the leather mask was put over his head.

‘ And I felt sickened—my stomach muscles’ tightened—when

the: executioner grasped the switch.

Jesse Cherry was another. A bad man in the eyes of the
law, Jesse had killed a youth in a holdup. It was Cherry’s first
holdup as far as the law'could learn—and his last. But he had
killed while engaged in.a decidedly criminal practice. There
wasn’t a chance in the Arkansas courts for Cherry to escape
‘the electric chair.

And yet, when I came to know him, visiting him in his

, cell half a dozen times, it seemed to me he could have been
steered right. Certainly he didn’t have a criminal mind. He
was no mug and no moron.

Lonnie Dixon was another type. A mulatto, Dixon had
killed a girl after a criminal attack. The crime had taken
place in a church belfry. The superstitious may find ample

, to'toy with in the way Lonnie Dixon was caught:

As the mulatto struggled with the beautiful small-town
chorister whom he had ‘dragged into the belfry, his foot caught
in the pulley rope and the bell tolled once, a deep, reverberating
sound that rolled out over the quiet Ozark village and brought
the church janitor and the town marshal hastening to in-
vestigate, The mulatto was caught while he still stood astride
his dead and ravished victim in the church belfry.

The bell that was intended to call the religious to worship,
instead brought a curious crowd to the village square. Curi-
osity turned to blind rage when the villagers heard what was
afoot. Lonnie Dixon escaped a ravening mob- only because
the town marshal and a sheriff had the courage to spirit him
away to another town. But the mob formed again when
Lonnie went to trial. A jury quickly found him guilty and
sentenced him to die. Still the mob demanded his blood and
stormed the penitentiary gates. The execution was ordered
without the customary delay. ;

The air in the death house was tense. Preparations were
made ‘hurriedly. Outside the walls the howling of the mob
came to the ears of the prisoner. His fellow men were de-
‘manding the right to lay hands on him themselves—demand-
ing the-right to tear him into bits even while the scientific
instrument. of the.law was. being prepared to snatch his life in
a shuddering shock of electricity.

The lights in_the big building winked once, twice, three
times.’ The moan of the mob was like the forlorn howl of

starving wolves whose prey has escaped.

Lonnie Dixon’s crime was a frightful thing. But an hour
before he died he confided to me: “I don’t know why I done
it, Joe. . Something in mé made everything go red when I
seen her.”> —,

Could sc

praved and
Jack Bu:
his cell, sc
on the mur
moved a m
in the ligh
tion of a d
Bible he r
lieved hims
to take car¢
to me, if |}
tantamount
his place i:
carry him.
But Jack
hours befor
religious rz
sitting hud
just awake:
I believe
a few years
The first
since then |
Strangely 1
actions of t!
demned.
Negroes ;
tional and
last few d:
with exalt
phrases on
parently hay
ace in som:
Or they die
silence, hate
and their a:
witnesses \.
front of the
These wi
study in the
law requires
twelve men
an executio:
tentiary war
besieged wit
a “ticket |
house” as s
is sentenced
ly thirty or
to crowd in
tion chambe:
be there. A
I’ve seen se)
I never sa
They stare
lick all the r
the last jolt
men often k
seen men t:
themselves.
The citize:
group at an
brutal facts.
the man in tl
nesses stand
while the ju
times more.
nesses watch
minutes until
But they are:
“Burning”
is not suppos:


914 Ark.

taken to the Prosecuting Attorney’s office
in Arkadelphia and the signed confession
obtained from him, and that it was not until
May 21st that Moore was returned from
the penitentiary and appeared in Court
in Texarkana. Because of the above men-
tioned statute and the stated facts, appel-
lant insists that the confession was not ad-
missible.

[11,12] In the case of State v. Brown-
ing, 206 Ark. 791, 178 S.W.2d 77, 80, we
held that the statute (§ 43-601 Ark.Stats.)
was directory only and not mandatory. We
there quoted from Wharton on Criminal
Evidence, 11th Ed. Vol. 2, p. 1023, § 610:
“The mere fact that a confession is made
while the maker is in the custody of a police
officer, or even while confined under arrest,
is not sufficient of itself to affect its admis-
sibility, providing that it is otherwise vol-
untarily made. This rule pertains equally
whether the arrest is legal or illegal.”
Then, in the Browning case, the holding of
this Court was summarized in the follow-
ing language:

“The fact that the confession was ob-
tained while the accused was being held
without a warrant, and before he had
been carried before a committing
magistrate, does not of itself make the
confession inadmissible, but is a cir-
cumstance, along with all the other
facts and circumstances under which
the confession was made, to be taken
into consideration by the jury in deter-
mining its voluntariness.

[13] We, therefore, find that there is no
merit in this third point urged by appellant
in regard to the confession.!°

[14] V. Other Objections Or Assign-
ments. It would unduly prolong. this opin-
ion to discuss in extenso every objection or
assignment in the record; but we have
given careful consideration 4 to each, and

10. See annotation in 19 A.U.R.2d 1881;
and annotation in 93 L.Idd.U.S. 115.

315 SOUTH WESTERN REPORTER, 2d SERIES

find none to possess merit. The declara-
tions and admissions made by Moore show
his connection with the crime charged.
Wooten v. State, 220 Ark. 750, 249 S.W.2d
964. The fact that the deceased’s billfold
was found at the place where Moore had
the officers stop to look for it tends to con-
nect Moore with the crime and to sub-
stantiate the confession. Shufflin v. State,
122 Ark. 606, 184 S.W. 454. The evidence
was amply sufficient to support the verdict;
and there was no error in any of the chal-
lenged instructions.

Affirmed.

° KEY NUMBER SYSTEM

4ums

Clinton W. ROGERS, Appellant,
ve .
Ruth CROWDER et al., Appellees.
No. 5-1616.

Supreme Court of Arkansas.
June 16, 1958.

Rehearing Denied Sept. 29, 1958.

Proceeding on father’s petition for
change of custody of child. The Chancery
Court, Ft. Smith District, Sebastian Coun-
ty, Franklin Wilder, Chancellor, denied
relief, and father appealed. The Supreme
Court, George Rose Smith, J., held that
evidence supported finding that father had
largely disregarded his responsibilities, and
that interests of child would be best served
under his present circumstances.

Affirmed.

1. Parent and Child €=2(4)

In proceeding on father’s petition for
change of child’s custody from that of

{!. Included in the record are the summa-
tion arguments of counsel to the jury;
and we have also read these arguments.

nig Hci il wc ina

decease
ported

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2. Pare:

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ternal gr
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awarded ‘
month-old

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| Yahoo | Write Us | Search | Info |
[| Index | News | World | Biz | Tech | Politic | Sport | Scoreboard | Entertain | Health |

Thursday January 9 6:59 AM EST

Arkansas Executes 3 Killers Despite Protests

VARNER, Ark. (Reuter) - Three convicted killers were put to death in Arkansas in only the
second triple execution since the United States restored the death penalty in 1976.

_————

The three men were given lethal injections at scheduled intervals in the same execution chamber
Wednesday night at the Cummins Unit prison in southern Arkansas despite a storm of protest

from a number of human rights groups.

The last of the three men to be executed, Kirt Wainwright, received a temporary reprieve when
he was already strapped to a gurney awaiting the injection. He was then forced to lie there for
about an hour with needles in his arms while the Supreme Court considered, and ultimately
rejected, an appeal motion.

Moments before he was finally put to death, Wainwright, 30, read out a two-page poem he said he |
had composed.

"As I lay here my heart is racing fast but there is no fear. I fear only my God," he said. "If need
be, I am ready to die. To a higher place my soul must fly."

The executions of the two other murderers -- Earl Denton, 47, and Paul Ruiz, 49 -- went ahead on
schedule at the prison about 110 miles southeast of Little Rock.

Wainwright was sentenced to death for the 1988 murder of a convenience store worker, while
Denton and Ruiz were both executed for the 1977 murders of an Arkansas marshal and a park
ranger while on the run after escaping from prison.

The men were killed over a three-hour period.

Craig Lamibert,_an attorney for Wainwright, angrily told reporters the final appeal motion should |
have been accepted. "What happened tonight was a tragedy. We presented compelling evidence |
that Kirt was not the triggerman. I dont think the system failed, I know it failed."

The delay suffered by Wainwright at the end was likely to generate further controversy.

"To execute three human beings on the same day is to commit an act of barbarism shared only by |
a decreasing minority of countries,” William Schulz, executive director of Amnesty International in
the United States, said earlier on Wednesday.

Prison officials said they decided to keep Wainwright strapped to the gurney until a decision was
made on his fate, thinking it would be cruel to take him back to his cell and then have to bring him
back to the execution room.


Date: 1/7/97 Time: 14:44:27 FSF ar Sr" Bet

In addition, the ADP proposes that carousels provide about 1.3 bags per foot of carousel in the
peak hour.“ As was shown by the preceding section, the addition of a carousel to Terminal 2
would not meet this planning objective, as during the peak hour 3.4 bags per foot would occur, or
2.7 bags per foot during the average hour. The replacement of the carousel in Terminal 1 would
result in 1.4 bags per foot during the peak hour or 0.8 bags per ft during the average hour. As the
ADP planning standards were developed for the Peak Hour, neither of the projects would achieve

this service objective.

The proposed addition of a baggage carousel to Terminal 2 and the replacement of a carousel in
Terminal 1 are separate and apart from the ADP elements. The carousel projects are proposed to
proceed regardless of the Port’s implementation of the ADP. These carousel projects do not
commit the Port/tenants to the ADP, nor do they preclude available options or alternatives to the
ADP. It is anticipated that the equipment that comprises these carousel projects would be
salvaged and relocated or incorporated as part of a final design for the consolidated terminal
concept of the ADP. As a result, no considerable contribution to the cumulative impacts
addressed by the Draft EIS/EIR would occur from these carousel projects.

Terminal Expansion Concepts Study Technical Report, Port of Oakland by HNTB Corporation, Sept. 27, 1996, Table
2.10

C:\ADMIN\SEVEN\BAGGAG~1.DOC a 11 - 01/07/97 12:20 PM

a?
43PM


The only other triple execution carried out since the Supreme Court reinstated the death penalty in
1976 was also in Arkansas, in 1994.

Denton and Ruiz responded "no" when asked if they wanted to make final statements. They died
within four minutes of the lethal mix of chemicals being administered, coughing and twitching
slightly as the chemicals took effect. The chemicals took 12 minutes to kill Wainwright.

Amnesty International said 56 convicts were put to death in the United States last year, placing it
among the top five countries in the world for judicial executions.

About two dozen anti-death penalty activists held a candlelight vigil outside the governor's mansion
in Little Rock to pray and push for a last-minute reprieve for the three men.

But Gov. Mike Huckabee refused to back down and final appeals before the Supreme Court were
unsuccessful.

"There are some crimes so vicious, so heinous, so contemptuous of life that the only appropriate
response is to carry out the death penalty," Huckabee told Reuters earlier this week.

A former Baptist minister, Huckabee said the Bible contained no arguments against the death
penalty.

"Who so sheddeth man's blood by man shall his blood be shed," he said, quoting the Bible. "If there
was ever an occasion for someone to have argued against the death penalty, I think Jesus could
have done so on the cross."

Several relatives of those killed by the three men were at the prison Wednesday night but were
not allowed to witness the deaths. All said they were relieved their ordeal was over.

"I was so pleased that justice was done. It's finally over. | feel now that daddy can rest" Virginia
Hamilton, daughter of slain marshal Marvin Richie, told reporters as she gasped for breath and
tears streamed down her face.

Police said Denton and Ruiz murdered up to seven people in Arkansas, Oklahoma and Louisiana
in a two-week killing spree after escaping from an Oklahoma prison in 1977. They were finally
captured and later sentenced to die for the murders of Richie and park ranger Opal James.

Help

[ Index | News | World | Biz | Tech | Politic | Sport | Scoreboard | Entertain | Health |

Copyright © 1996 Reuters Limited. All rights reserved. Republication or redissemination of the
contents of this screen are expressly prohibited without the written consent of Reuters Limited

Questions or Comments


a
4

2 SLAVES (1M, 1F)

"In 1853 (in Ashley Cofjty, ark.), a negro man
and woman were hanged for the murder of their
master..." BIOGRAPHICAL AND HISTORICAL MEMOIRS

OF SOUTHERN ARKANSAS; Nashville, Chicago and
St. Louis, 1890, page 875,

Owners name was Davis,

w-y- TIMES Fe). 8 -S5-9Y

Death-Penalty Foes Cite Triple Execution to Bolster Their Cause

special to The New York Times Arkansas prison officials argued sentenced to death for murdering a = None had any last words. But earli-
LITTLE ROCK, Ark., Aug. 4 — that the multiple executions were prominent businessman in front of er, in a joint last appeal, they had
Opponents of the death penalty, 4 more efficient and produced less his family in 198). The victim, Don argued, ‘This scheduled mass execu:
group whose influence has dwindled strainon prison workers than individ- | Lehman, was beaten with a motorcy- tion, by reducing human beings to
amid growing public concern about ual executions. “Nobody wants toget cle chain and shot in the chest and hogs at the slaughter, will exponen-
violent crime, claimed new moral up in the morning and go kill some- head during 4 robbery. He ran Up- tially increase the jevel of fear, Un-
ground on Wednesday when Arkan- body,” said Alan Ables, a spokesman stairs after he was shot, but the men certainty and psychological stress
cas executed three men in less than for the Correction Department. chased him down and held him on a_ that someone condemned normally
three hours. - : bed while he was shot again as his experiences in the usual course )
“At what. point will they stop?” For the previous week, guards had wife lay on the bedroom floor. events.”

‘ a rehearsed the process in 15 steps. The : 3
asked Kika Mates of the NAACP Le jethal injections began at 7 p.M. and On Wednesday night, each man in Jang Rust-Tierney, director eo
: Capital Punishment Project for the

gal Defense and Educational Fund. were re

agi i peated at about one-hour in- turn stepped out of his cell and lay ‘ :

i wl gon bet eg tt resale tis 8 avandl concrete-block down on prison’s only gurney. They American Civil Liberties Union, said,

not so long 2b0. nak 8 f room at the Cummins Unit of the were strapped down and wheeled To take mass execution 3S a model

evultipe ty of 2 es away ia state prison system. The order of the about 30 feet to the death chamber, of efficiency only underscores how

FG etbeeay ity of the person sent executions was originally scheduled where they were injected with a fatal out of step we are with the rest of the

9 ae XG according to prisoner numbers. That mixture. ; world.

rkansas’ triple execution was the pian had to b bandoned when

first in the United States in 32 years, ar o be BOER “ d es Mr. Clines was the first to die, at Mr. Ables, the Correction Depart:

and it accounted for a third of the nine ” sk enor Lea the 7:1] P.M. Fifty-eight minute’ inier,” Sr ees countered: “It

inmates the state has executed since Teed ah abevs who was Sup- and an hour ahead of the orfginal nice to be criticized for being effi-
posed to die secon” schedule, Mr. Richley was declared cient. The people that are involved in

1976. With only one exception — 4 :
double execution by Arkansas in May The condemned men, Hoyt Frank- dead. Because of the switched times, this are very concerned that what
_ the other 246 prisoners executed in _ lin Clines, 37 (No. SK886), James Wil. Mr. Holmes went to his death 84 they do Is proper, done professionally

the last 18 years have gone to their liam Holmes, 37 (No. SK887) and Dar- minutes later than he had expected, and with decorum. They want this to
deaths individually. ryl V. Richley, 43 (No. SK888), were 9:24 P.M. go well.


Which spectacle is more shocking?

Executions in Arkansas

Three murderers were exe-
cuted by lethal injection in
Arkansas Wednesday night.
Before the executions were car-
ried out, Diann Rust-Tierney of
the American Civil Liberties
Union in Washington said:

“I think what we’re about to
witness in Arkansas is a shocking
spectacle.”

She was referring to the fact
that all three killers were going to
be put to death, one right after
the other, on the same evening.
Leigh Dingerson, of the National
Coalition to Abolish the Death
Penalty, said: “It indicates how

desensitized, how numbed we ‘

have become about executions.”

Well, perhaps. But the number
of executions carried out by the
States are a tiny fraction of the
number of executions carried out
by murderers in this country. The
truly shocking spectacle is not
the state of Arkansas carrying
out the court-ordered death
penalties against those three
killers. The shocking spectacle is
documented in America’s news-
papers every morning of the year
— the spectacle of killers in large
cities and small towns, devastat-
ing the fabric of our nation.

Weep for families

Weep, if you will, for the three
murderers who were painlessly
put to death on Wednesday for
their terrible deeds. Some of us
will save our tears for the family
they destroyed.

The three murderers were
Hoyt Franklin Clines, 37; James
William Holmes, also 37; and
Darryl Richley, 43. Most of the
news coverage of the three men
has concentrated on how all of
them were put to death on the
Same evening, and how barbaric
some people found that.

Apparently the grieving for
the three of them did not extend
to the town of Rogers, Ark.
“There’s very little sympathy

Bob
Greene

Syndicated
Columnist

here for those three guys,” said
Rusty Turner, editor of the
Northwest Arkansas Morning
News, the daily paper that serves
Rogers. “The people here feel the
same pain that the family felt.”

The family was the family of
Don Lehman, a well-liked busi-
nessman in Rogers. The Lehman
family has been all but over-
looked in the coverage of the
three executions. Certainly no
reporter ever inquired about
what Don Lehman was served for
his last meal, the way reporters
asked what Clines, Holmes and
Richley had ordered for supper
on Wednesday. Lehman had no
chance to beg for his life, the way
his killers were given endless
opportunities to let lawyers beg
for theirs. He simply opened his
front door on a January evening
in 1981.

According to trial testimony,
standing outside the door were
Clines, Holmes, Richley and a

fourth man — Michael Orndorff, |

who also would be convicted of
Lehman’s murder, but who
would eventually have his sen-
tence reduced to life in prison.
The four of them apparently
chose the Lehman house at ran-
dom. They were simply looking
for someplace to rob.

Lehman opened the door. The
men burst in. Two of them
grabbed him; a third grabbed his
young daughter, Vicki. Lehman
broke away for a brief moment as
his daughter was thrown to the
floor. The men chased Lehman
into a bedroom.

ee of \
—_— , ; ( es)
i,

be / Weta ( Ab

They beat him with a motorcy-
cle drive chain. The beating was
severe enough to damage
Lehman’s bones and to render
him unconscious. An autopsy
found abrasions on his face in the
shape of a chain, and metal parti-
cles embedded in his wounds.

Shot him twice

They shot him twice. One of
the men picked his daughter off
the floor by her hair, and led her
to her own bedroom, ordering her
to find money for them. She gave
them $70. Then they led her back
down the hall. In her parents’
bedroom, she found her father
sprawled and bleeding on the bed,
her mother kneeling beside him.
Two of the men were going
through drawers, looking for
cash. The daughter lifted a phone,
trying to call for help. One of the
men tore the phone from the wall.
With Lehman’s wife, Virginia,
watching, one of the men said,
“Tl finish him off this time,” and
fired a final shot into Lehman.

More than 13 years have
passed since that night. The
members of Don Lehman’s fami-
ly have lived with their anguish
every day of those 13 years. His
crime was opening his front door.
For that he was executed —
while his wife and daughter had
to watch.

Don Lehman was given a mat-
ter of seconds to live. Clines,
Holmes and Richley were given
13 years to live after they mur-
dered Lehman — they were fed,
clothed, housed, and, in the end,
given their choice of a method of
death. Those Americans who do
not mourn the executions of the
murderers are, according to anti-
death penalty activists quoted in
one news report, symbolic of a
“growing callousness toward
human life.”

Bob Greene is a columnist for
Tribune Media Services, Inc.

¥/ hq q+}


Clines, Holmes, Orndorff, & Richley..

~ Arkansas sets triple execution.

Action would be Ist
in U.S. in 32 years

By Sean Harrison
Special Contributor to The Dallas Morning News

LITTLE ROCK, Ark. — Four
armed men wearing ski masks burst
through the front door of Donald
Lehman's northwest Arkansas
home, whipped him with a motorcy-
cle chain and shot him several
times in the chest. ;

That was 13 years ago. This week,
Arkansas plans to execute three
men convicted of that crime, the
nation's first triple execution in 32
years.

Arkansas Gov. Jim Guy Tucker

DACHS Norm we
F3N7Y

SCiN.

(Benton)

Hoyt Franklin Clines
has set Aug. 3 as the date for the
executions of Hoyt Franklin Clines,
37; James William Holmes, 37; and
Darryl V. Richley, 43.

Coincidentally, the National Co-

James William Holmes

peck RIE Ls”

Darryl V. Richley

alition to Abolish the Death Penalty
is holding its 14th annual national
conference in Little Rock over the
weekend, just before the scheduled
Please see ARKANSAS on Page S1A.

MEWS

Continued from Page 49A.
execution.

Friday afternoon, about 100 pro-
testers marched three-quarters of a
mile from the downtown conven-
tion headquarters to the state Capi-
tol. Coalition leaders held a press
conference on the Capitol steps,
asking Mr. Tucker to commute the
sentences.

The three condemned men were
convicted of capital murder in the
1981 slaying of Mr. Lehman, 47, a
Rogers building contractor. Prose-
cutors have said the motive was
apparently robbery, and the slaying
came at the end of a lengthy crime
spree.

The three men have chosen to
die by lethal injection rather than
electrocution. Alan Ables, a spokes-
iman for the Department of Correc-
tions, said Wednesday’s executions
would begin at 7 p.m. and take up to
an hour to complete at the Cum-
mins Unit correctional facility at
Grady, about 60 miles southeast of
Little Rock.

Combining executions reduces
stress on prison employees and
saves money for the state, Mr. Ables
said.

The country’s last triple execu-
tion was in California in 1962, when
John F. Kennedy was president. Ar-
kansas's last triple execution was
June 30, 1939, when Franklin D.
Roosevelt was president.

But the historical significance of
this week's planned execution
means little to members of the vic-
tim’s family, who say they just want
the long ordeal to end.

‘Ready tor justice’

“We are ready for justice to be
served so that we can free ourselves
from the past as much as possible,”
Arnold Lehman, one of Donald Leh-
man’s two surviving younger broth-
ers, said in a written statement.
Family members have declined to
talk directly with reporters because
of the emotional toll, said Arnold
Lehman’s wife, Carmen Lehman.

The family’s one-page statement
recounted Donald Lehman's efforts
to build a good life for himself and
his family. He picked beans and
strawberries when he was a child to
help provide income for his par-
ents. He served in the military for
four years, then drove a chicken
truck for a while.

Later, he and Arnold Lehman

taught themselves to build houses
and started a construction business,
which Arnold Lehman still oper-
ates. -
“(Don) loved to fish and hunt,
and his hobby was buying, fixing,
and selling old Ford Mustang con-
vertibles,” Arnold Lehman said.
“My brother’s life was taken from
him just as he was beginning to
enjoy his successes.”

The statement also expressed
sympathy for the convicts’ families,
“because we know the pain of los-
ing a loved one.”

Benton County Chief Sheriff's
Deputy Don Townsend, a lead inves-
tigator in the Lehman murder case,
said Mr. Clines, Mr. Holmes and Mr.
Richley were “known troublemak-
ers” before Mr. Lehman was killed.

“They stole just to buy booze and
drugs and pizza,” he said. “Richley
came here from California, and
since he was the oldest, I guess he

Arkansas s

(nosnett)

rc
Wr

°

ets triple execution

hess
a

Associated Press

Vicki Lehman (left) is comforted by her sister, Donnett
West of Dallas, during a clemency hearing Thursday in
Little Rock, Ark., for two of the four men convicted of
murdering the women’s father.

was the ringleader.”

They jumped from odd job to odd
job, Deputy Townsend said, never
staying anywhere for very long.

Time in prison

At least two of the men — Mr.
Clines and a fourth defendant, Mi-
chael Ray Orndorff — had served
prison time. Mr. Clines spent five
months in Arkansas prisons in 1980
and was paroled five months before
the Lehman slaying. Deputy Town-
send said Mr. Clines had been re-
leased from Springdale city jail for
an alcohol-related parole violation
just days before the Lehman mur-
der.

All four men had committed a
string of armed robberies through-
out Benton and Washington coun-
ties in the weeks before the mur-
der, Deputy Townsend said.

Witnesses at their trial testified
that the men had boasted about
some of their crimes and had
clowned around with friends by
mocking a robbery while wearing
ski masks and pointing guns.

Several of the men said at a party
a week before Mr. Lehman’s death
that they were planning to rob
“some rich old (man) in Rogers”
and might have to kill him, accord-
ing to testimony.

After bursting into Mr. Lehman’s
home, Deputy Townsend said, the
men beat and struggled with Mr.
Lehman, who tried to escape to the
bedroom. There, his assailants fatal-
ly shot him several times in the
chest with a .22-caliber handgun as
his wife, Virginia, huddled in a cor-
ner. At the same time, the couple’s
daughter, Vicki, then 24, was being
held by the hair and walked
through the home with a gun point-
ed at her head.

As Mr. Lehman lay mortally
wounded, the intruders ransacked
the house. They stole Mr. Lehman’s
gun collection and about $1,200 in
cash, which they split four ways,
authorities said.

One of the men, identified as Mr.
Clines, had lost his ski mask during
the struggle with Mr. Lehman, so
Vicki Lehman later was able to give
police a description that led to ar-
rests of all four defendants the next
day.

“The horror was just unimagin-
able, and we shouldn't forget it,”
Prosecuting Attorney David Clin-
ger said last week.

Mr. Clinger, who was Benton
County prosecutor then and now,
said he chose to try all four men at
once to avoid making mistakes in
one trial that might be used for
appeals in the others. '

“It was unusual and it was risky,
I guess. But we had strong evi-
dence,” he said in a recent inter-
view.

A jury found that all four men
had planned and committed the
crime. .

Appeals by the defendants went
to federal appeals court twice and
the U.S. Supreme Court twice. One
issue was whether multiple convic-
tions from a single trial were con;
stitutional.

The strongest appeal case in-
volved an argument that the defen-
dants’ rights were violated because
the prosecution failed to disclose
that a hypnotist had helped en-
hance Ms, Lehman’s memory before
her testimony.

Mr. Clinger admitted that failing
to tell the court about the hypnosis
was a mistake, but he maintained
that there was no significant dis-
crepancy in Vicki Lehman’s testi-
mony before and after hypnosis.

Hypnosis issue

On the hypnosis issue, all four
death sentences were overturned
in 1988 by a federal district judge in
Arkansas. But in 1990, the 8th U.S.
Circuit Court of Appeals in St. Louis
reinstated the convictions, except
for Mr. Orndorff's. The court ruled
that testimony from Ms. Lehman
was significantly different concern-

ieee penaisoeisestphnyte retains.

fo pee

ing Mr. Orndorff after her memory
was enhanced through hypnosis.

The state’s lead litigator of
death-penalty cases, senior Assis-
tant Attorney General Olan Reeves,
asked for a reduced sentence for
Mr. Orndorff after the Lehman fam-
ily said it did not wish to endure
another sentencing hearing.

Mr. Orndorff will serve life in
prison without parole.

Two weeks ago, Mr. Clines and
Mr. Richley requested executive
clemency from Mr. Tucker, a for-
mer prosecutor and state attorney
general with a tough-on-crime repu-
tation.

Thursday and Friday, the state
parole board held hearings on the
requests then recommended to de-
ny clemency. The board’s recom-
mendation is not binding on Mr.
Tucker, and he had no immediate
response to the board’s action.

Defendant James Holmes re-
fused to seek executive clemency,
his attorney, Marshall Carlisle of
Fayetteville, said.

Mr. Carlisle, who has repre-
sented Mr. Holmes from the time he
was arrested in 1981, refused to say
why his client rejected a clemency
request.

“I’m very sad. 1 wish there was
something I could do,” the lawyer
said. :

Arkansas executions

The executions would be Arkan-
sas’ seventh, eighth and ninth since
1990, when the state executions af-
ter the Supreme Court ruled them
constitutional in 1976. Executions
stopped throughout the country in
1967 while the high court consid-
ered appeals arguing that capital
punishment was inhumane.

Before 1990, Arkansas had not
used the death penalty since its
169th execution in January 1964.

Litigation wasn’t the only hold-
up for the state’s use of capital pun-
ishment: In December 1970, Gov.
Winthrop Rockefeller, who had lost
his bid for re-election and adamant-
ly opposed the death penalty, com-
muted the sentences of all 15 men
on Arkansas death row.

_ Arkansas’ fifth and sixth execu-
tions since 1990 occurred May 11,
when Edward Charles Pickens and
Jonas Whitmore were put to death
for separate crimes. It was the coun-
try’s first double execution since
1965 in Kansas, said Leigh Dinger-
son, executive director of the Na-
tional Coalition to Abolish the
Death Penalty.

Since reinstitution of the death
penalty, there have been 245 execu-
tions in the country, Ms. Dingerson
said. Arkansas, with six executions,
ranks eighth among the 37 states
that use the death penalty. Texas
ranks first, with 78 executions.

Arkansas ranks seventh in exe-
cutions per capita, she said, and
12th in the number of death-row
inmates per capita, with 41. Arkan-
sas has about 2.4 million people.

Ms. Dingerson said the National
Coalition had planned last spring to
hold its conference in Little Rock
on July 29-31, partly because the
city was President Clinton’s home.
It was coincidence that the meeting
would be so close in time and loca-
tion to a scheduled execution, she
said.

Sean Harrison is a free-lance
writer who lives in Little Rock.

£1.

+

ORNDORFF v. LOCKHART

1437

Cite as 998 F.2d 1426 (8th Cir. 1993)

In that decision, we said that the Confron-
tation Clause error—the deprivation of the
chance to cross-examine Lehman about her
hypnosis—‘is not harmful simply because the
jury might have found her testimony less
credible had defense counsel been able to
probe the issue of her hypnosis on cross-
examination.” Orndorff, 906 F.2d at 1232.
The Court today evidently infers from this
that, even if Lehman’s testimony after hyp-
nosis differed from or was more detailed
than statements she made beforehand, we
may not consider, in our harmless-error anal-
ysis, those discrepancies and additions serv-
ing only to enhance the credibility of her
testimony.

I do not read Orndorff's holding as broadly
as the Court does. Orndorff held that the
mere possibility that hypnosis may have af-
fected Lehman’s testimony by rendering it
more convincing did not in and of‘itself mean
that the error was harmful. In that case, we
vacated the lower court’s holding that the 137
variations between Lehman’s pre-hypnosis
and post-hypnosis statements were “ ‘inher-
ently prejudicial.’ ” Orndorff, 906 F.2d at
1232 (quoting Orndorff 707 F.Supp. 1062,
1069 (1988)).? Instead, we required the Dis-
trict Court to analyze these variations. Orn-
dorff, 906 F.2d at 1232. Thus, Orndorff does
not require exclusion from our harmless-er-
ror analysis of the color, detail, and vividness
that Lehman’s post-hypnosis testimony add-
ed to her previous statements; it mandates
evaluation of the effect of the specific
changes and additions on the overall testimo-
ny, including, in my view, its credibility.

To read Orndorff as disallowing consider-
ation of credibility evidence in determining
whether the denial of the right to confront
the witness was harmful would conflict with
Delaware v. Van Arsdall, 475 U.S. 673, 106

tized, was a constitutional error.

Omdorff, 906
F.2d at 1232. ;

2. The District Court stated that “[a}ll of the in-
stances where Ms. Lehman's trial testimony dif-
fered from or added to her previous. statements

need not be discussed because the court finds —

that the prosecutor's failure to disclose [the hyp-
nosis] was inherently Prejudicial.” Orndorff v.
Lockhart, 707 F.Supp. 1062, 1069 (E.D Ark
1988). The reason for this holding was the effect
of hypnosis on trial testimony. Hypnosis has

S.Ct. 1431, 89 L.Ed.2d 674 (1986). Van Ars-
dall, like this case, concerned the credibility
of testimony: In that ‘case, the Supreme
Court addressed whether it was harmful er-
ror to prevent the defendant from cross-
examining the government’s witness about an
unrelated criminal charge against him. Jd.
at 676, 679, 106 S.Ct. at 1433, 1435. The
government had dropped that charge in ex-
change for his agreement to talk with the
prosecutor about Van Arsdall, potentially bi-
asing the witness's testimony. Jd. at 676,
684, 106 S.Ct. at 1433, 1438.. In Van Arsdall,
as here, the prosecution was allowed “to in-
troduce evidence that was not subject to
constitutionally adequate cross-examination.”
Id. at 684, 106 S.Ct. at 1488. In both Van
Arsdall and this case, the prohibited cross-
examination might have enabled the defen-
dants to “cast doubt on the testimony of an
adverse witness.” Jd. And, here, as in Van
Arsdall, “the reviewing court should be able
to decide whether the not-fully-impeached
evidence might have affected the reliability of
the factfinding process at trial.” Jd.

Our task is to decide whether the error is
harmless beyond a reasonable doubt. It
must be harmless even “assuming the dam-
aging potential of the cross-examination were
fully realized.” Van Arsdall, 475 U.S. at 684,
106 S.Ct. at 1438. To make this determina-
tion, we must consider the impact that the
denied cross-examination would have had on
Lehman’s testimony, including its credibility.
Cross-examination of Lehman about the ef-
fects of the hypnosis on her recollections
might have prompted the jury to disregard
those parts of her testimony relying upon
new memories that arose after hypnosis.
See Orndorff, 707 F.Supp. at 1070. Thus, we
must be able to consider the color, vividness,
and detail added to the post-hypnosis testi-

been known to enhance a witness's confidence in
her testimony, whether true or imagined, once
she has recited it under hypnosis. Id. This
tends to make the testimony more convincing to
the factfinder, id., and is known as “‘memory-
hardening.” Williams vy. Armontrout, 877 F.2d
1376, 1380 (8th Cir.1989). It is also important
to scrutinize the particular effects of the post-
hypnosis testimony because hypnosis causes not
only memory-hardening, but also the creation of ~
imaginary memories. [d.


1436 998 FEDERAL REPORTER, 2d SERIES

personality change after the electrocution.
Because there are no significant variations in
Vicki Lehman’s testimony which may have

affected the jury’s decision to sentence Clines

to death, we can say beyond a reasonable
doubt that the error in this case did not
contribute to petitioner Richley’s' death sen:
tence. . aoe

[10] We find that the prosecution’s case

' against petitioner Orndorff. for imposition of

the death penalty was the weakest in this
case. We also find that the variations . in
Vicki Lehman’s testimony about Orndorff’s
behavior were the most significant. The jury
found that only two of the three aggravating
circumstances existed (the jury did not find
that Orndorff created a great risk of death to
a person other than the Victim) and one or
more of the jurors found. that two mitigating
circumstances existed (that Orndorff was act-
ing under unusual pressures or influences or
under the domination of another person and
that Orndorff was an accomplice and his
participation was relatively minor). We can-
not say beyond a reasonable doubt that the
variations in Vicki Lehman’s testimony did
not contribute to the jury’s decision to sen-
tence Orndorff to death. Without Vicki Leh-
man’s descriptions of Orndorff playing with
toys, swinging from the chandelier, and look-
ing out the window for the neighbors, the
jury may have sentenced Orndorff to life
imprisonment rather than death. -

We therefore affirm the district court’s
denial of habeas relief to petitioners Richley,
Holmes, and Clines.- We reverse the denial
of habeas relief to petitioner Orndorff and, in
accordance with our previous decision, Orn-
dorff, 906 F.2d at 1283, we remand the case
to the district court with instructions that the
court’s order granting habeas relief should
give the state the option of conducting a new
sentencing proceeding or reducing the sen-
tence to life without parole.

RICHARD S. ARNOLD, Chief Judge,
concurring in part and dissenting in part.

For the reasons given by the Court, I
concur in reversing the denial of habeas cor-

1. Although in Orndorff the Court did not decide
whether there was a violation of the Confronta-
tion Clause, it was not necessary for it to do so.

pus relief to Michael Ray Orndorff. I concur.

also in denying this relief to Hoyt Franklyn
Clines and James William Holmes. As to
the imposition of the death penalty on Darryl
V. Richley, however, I respectfully dissent.
I would grant Richley the requested relief
because the constitutional error—the denial
of the chance to cross-examine Vicki Lehman
about her hypnosis—was not harmless be-
yond a reasonable doubt. I disagree also
with the Court’s holding that our prior ruling
in Orndorff v. Lockhart, 906 F.2d 1230 (8th
Cir.1990), cert. denied, — U.S. —, lll

S.Ct. 1338, 113 L.Ed.2d 269 (1991), prevents

us from considering the actual effect of-the
hypnosis on the credibility of the hypnotized
witness.

iL.

As the Court has explained, using in a
criminal prosecution the testimony of a previ-
ously hypnotized witness, even when the de-
fendants were not given the chance to cross-
examine the witness about the hypnosis, does
not require automatic reversal. Rather, the
Confroritation Clause error, the use of this
testimony, is subject to a harmless-error
analysis. Delaware v. Van Arsdall, 475 US.
678, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986):
Lufkins v. Leapley, 965 F.2d 1477, 1480-81
(8th Cir.), cert. denied, — U.S. —, 113
S.Ct. 271, 121 L.Ed.2d 200 (1992); see also
Williams v. Armontrout, 877 F.2d 1376,
1379-81 (8th Cir.1989), cert. denied, 493 U.S.
1082, 110 S.Ct. 1140, 107 L.Ed.2d 1044 (1990)
(due-process claim). The Court must find
the error to be harmless beyond a reasonable
doubt. Van Arsdall, 475 U.S. at 684, 106
S.Ct. at 1438; Chapman v. California, 386
USS. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705
(1967). Van Arsdall provides a list of five
factors to be considered in analyzing the
harmfulness of Confrontation Clause errors.
Van Arsdall, 475 U.S. at 684, 106 S.Ct. at
1438. Before applying the Van Arsdall cri-
teria to Richley’s claim, however, I first con-
sider this Court’s interpretation of the hold-
ing of our earlier decision in this case, Orn-
dorff v. Lockhart, supra.} .

This was not in issue because the State already
had conceded that the use of Lehman’s testimo-
ny, without disclosure that she had been hypno-

“a? ra eek -

a AT re eg ee wae


1438

mony (which may have been the product of

memory-enhancement _ techniques). Al-
though our earlier opinion does not allow us
to presume that the many additions to Leh-
man’s statements.in the post-hypnosis testi-
mony necessarily render the error harmful, it
permits us to consider how the detail, color,
and vividness affected both. the substance
and credibility of Lehman’s testimony in this
particular case. As the Court recognizes,
those details which go to the behavior and
attitude of. the petitioners during the crime
could have. persuaded the jury to impose the
death penalty.

Because I interpret Orndorff to permit the
evaluation of the effect of specific changed or
added statements that add detail on the wit-
ness’s testimony, including its credibility, I
would analyze under the Van Arsdall factors
the testimony that the Court declines to con-
sider. See ante at nn. 11-20, at 1433-34. I

have therefore done so in reviewing Richley’s
claim.’

II.

In my view, the denial of the chance. to

cross-examine Lehman about. her hypnosis:
was not harmless beyond a reasonable doubt.

with respect to the imposition of the death
penalty on Richley. I discuss the points on
which the Court and I agree before turning

to how I would apply the Van Arsdall case’s
fifth factor to Richley. i Fag He

‘I agree with the Court’s analysis. of the
first four Van Arsdall factors.‘ I also agree

3. I have also considered this sort of testimony in
reviewing the claims of Holmes and Clines.
Specifically, I have evaluated the additions to
testimony that made Lehman's account more de-

tailed, and those that, by describing her feelings’

and thoughts during the crime, enhanced both
her credibility and the horror of the crime. For
example, I have considered Lehman's new trial
testimony that she remembered feeling like she
needed to calm down and regulate her breathing,
and that she recalled “crunching up” when she
heard the gunshots. New Statements 24-27. Al-
though such statements are legally material un-
der Orndorff, they make no difference as to
Holmes and Clines. I believe the jury would
have imposed the death sentence on them even
without these additions to the testimony.

4. However, I would emphasize them more than
the Court does. Lehman's testimony undoubted-

998 FEDERAL PEP ORIEN, 2d saree

that \ we must consider the fifth Van Arsdall
factor—the overall strength of the prosecu-
tion’s case—as to each defendant individual-
ly I.further agree that we must determine
the effect of. the error on the factfinding
process at trial, Van Arsdall, 475 U.S. at 681,
106 S.Ct. at 1436, that is, on the sentence
obtained, see Chapman, 386 U.S. at 24, 87
S.Ct. at 828 (applying harmless-error analy-
sis‘ to:.the “verdict obtained”). To do this
here, we must compare the overall strength
of the prosecution’s case for the death penal-
ty with and without: the hypnotically en-
hanced testimony. That is, “we must exam-
ine. the other evidence introduced at the tri-
al” to determine whether it affected the sen-
tence imposed. Lufkins v. Leapley, 965 F.2d
at 1481--(citing Yates v. Evatt, — U.S. at
——, 111 S.Ct. at 1892). Although I agree
with the Court’s statement of the law, I
disagree with its application of Van Ars-
dall’s fifth factor in this case.

Richley first’ argues that Lehman’s post-

hypnosis testimony drastically altered the ju-
rors’ perception of his role in the death of
her father. At trial, she testified that Rich-
‘ley left her while the shots were fired, sug-
gesting that. he was in the bedroom when her

father was killed. New Statements 28 and

29, at App. 86-87. The State argues correct-

ly that in her second pre-hypnosis statement,

she said that she did not know if Richley had
stayed with her during the shooting. App.
48, 50. But neither did she know whether he
had. boos that he “wasn’t touching” her
then. :App. 48. Moreover, she said. very

ly influenced the severity of Richley’s punish-
ment because that testimony was almost the only
testimony about Richley’s behavior during the
crime and his treatment of her and her family.

5. I also agree with the Court’s rejection of peti-
tioner’s argument that Yates v. Evatt, — US.
—, 111 S.Ct. 1884, 114 L.Ed.2d 432 (1991),
overruled on other grounds, Estelle v. McGuire,
— U.S. ——, —— n. 4, 112 S.Ct. 475, 482 n. 4,
116 L.Ed.2d 385 (1991), alters the harmless-
error analysis in this case. Yates ‘is consistent
‘with the Van Arsdall test, particularly as an am-
plification of its fifth factor. Yates required a
comparison of the probative force of the evidence
the jury considered with the effect of the errone-
‘ous presumption given in the jury instructions.
Id. — U.S. at ——, 111 S.Ct. at 1893, ©

Sees Sen Set te, nt, doen

Oe ce Reseda ge oy eee en


SMITH v. GROOSE

1439

Cite as 998 F.2d 1439 (8th Cir. 1993)

clearly in her first pre-hypnosis statement
that Richley stayed with her during the
shooting. App. 17-18, 19, 36. She said that
the three other petitioners were in the bed-
room, App. 33-34, that Richley was not, and
that he “had ahold of me the whole time.”
App. 34.6 At trial, she bolstered her testimo-
ny that Richley had left her during the shoot-
ing and then came back; she described her
remembrance of Richley’s heavy walk and his
boots upon his return. Changed Statements
13, 14, 47, and 48, at App. 87-88, 160-61.
But before her hypnosis she had said that
she did not see Richley’s feet. App. 23. The
placement of Richley by her side during the
shooting is key to his defense, particularly
since he had said that he didnot want to be
part of a murder and he wanted to let Leh-
man call an ambulance for her father. App.
38, 54. This change in testimony, increasing
the likelihood that the jurors would think
that Richley was in the bedroom during the
shooting, may well have strongly influenced
the jurors in selecting his sentence. In my
view, this change was not harmless beyond a
reasonable doubt.

_ Other post-hypnosis statements may have
influenced the jury to impose the death pen-
alty because they portrayed Richley as a
leader, controlling Lehman and the other
men. E.g., New Statements 3 and 9 (Leh-
man addressing specifically Richley in asking
what the intruders wanted); New Statement
7 (asking Lehman who else was home); New
Statements 10, 11, 71, 73, 78, and 79 (noting
his reactions to the fight and directing Orn-
dorff to go help in the fight); Changed State-
ment 18 (telling Lehman to hand her Christ-
mas money to Orndorff); New Statement 68
(recalling feeling that if she kept talking and
searching for money, Richley might not shoot
her). Juxtaposition of these post-hypnosis
statements with the post-hypnosis placement
of Richley in the bedroom at the time of the
murder could also have influenced the jury in
sentencing Richley to death.

It is true that Lehman’s pre-hypnosis
statements also showed Richley to be violent
and a leader. E.g., App. 16 (telling Lehman
to shut up); App. 18, 45 (leading her by her

6. At trial, she no longer recalled saying this.
App. 191-92. Although this may be a normal

hair); App. 21 (pushing her hard, pushing
gun against her head); App. 37 (Lehman
stating that if anyone was the leader, it was
probably Richley); App. 45-46 (carrying a
gun). I still believe, however, that Lehman’s
trial testimony about Richley’s location dur-
ing the murder was very likely a decisive
consideration in his sentencing (particularly
since some of the jurors would have found his
participation in the murder to be relatively
minor and that of an accomplice, App. 257).
Lehman’s post-hypnosis trial testimony was
vital to the prosecution’s case for the death
penalty and unique among the other testimo-
ny because of its detailed description of Rich-
ley’s behavior and attitude while committing
the crime. In my view, this testimony en-
hanced the strength of the prosecution’s case
for the death penalty and therefore is harm-
ful, and reversible, error.

iw
° E KEY NUMBER SYSTEM
T

Brian R. SMITH, Appellant,

77. |

Michael GROOSE, Appellee.
No. 92-2770.

United States Court of Appeals,
Eighth Circuit.

Submitted April 16, 1993.
Decided July 16, 1993.

Following Missouri court conviction of
first-degree assault upon guilty plea and de-
nial of state postconviction relief, 784 S.W.2d
855, federal habeas corpus petition was filed.
The United States District Court for the
Eastern District of Missouri, George F.
Gunn, Jr., J., denied petition.. Petitioner ap-
pealed. The Court of Appeals, Ross, Senior
Circuit Judge, held that: (1) - petitioner’s
claims that he was not fully informed of

memory lapse, it may well be attributable to the
hypnosis.

pam ee


Four to die in Arkansas Friday
-~ 26-84

LITTLE ROCK, Ark. (UPI) — Four Arkansas killers are
scheduled to die one after another Friday for beating a man
to death in front of his wife and daughter, but the state is
anticipating a stay of execution.

Marshall Carlisle, an attorney representing one of the
four prisoners, said a petition asking to stop the executions
would be filed in federal court today.

“I'd say that unless they fail to file something, they won’t
be executed,” said Victra Fewell, an assistant attorney
general. “None of ours (in Arkansas) has ever failed to get a
stay. We don't have a reason to think this is any different.”

The Arkansas Supreme Court twice postponed execu-
tion dates, but on May 29 the state court denied a petition
for a post-conviction review and scheduled the executions
for Friday. ;

Donald Lehman, 47, was killed by four men wearing ski
_masks who forced their way into his home Jan. 8, 1981, ina
robbery, 2-2 SoS ee. :

“ _Lehman,.a building contractor, was beaten with a chain
and shot three'times with a :25-caliber pistol as his wife and
daughter watched. ©. = * : 2

Carlisle represents James William Holmes, 28. The other

three, all convicted in October 1981, are Hoyt Franklin
Clines, 28; Michael Orndorff, 25; and Darrell V, Richley, 33.

Carlisle said the appeal will focus on the exclusion from
the jury of prospective jurors who said they would not be

willing to sentence a person to death and denial of separate -

trials to the four. Pn &
_~- Attorneys also have gr, ued th
been tried separately, "8. °F"

———

e four men should have |

———_e

3 32 =

gy

5-30-f£Y.

CUMMINS UNIT — Convic-
tions upheld in Slaying: The
State Supreme Court rejected

_the second appeal by 4 death
row inmates convicted in the

1981 beating and shootin
- death of a Rogers boaiiese

‘Man. Th
~lawyers erred during the trial.

ey. contended their

LITTLE ROCK — Gov. Clin-

«ton OKs multiple executions:
~ Pending a last-minute stay, 4
men convicted in the 198]
Shooting death of a Rogers
businessman will be executed

“June 29. The state Supreme

«Court -has denied their latest
appeal, but they have several
more chances before their
electrocution.

SAPrarrnians
ao anfa

eT ~ 2

-

+. HOT

i)


First two murderers
executed in Arkansas

@ Deathwatch: A

temporary stay |
delayed the execution
of a third inmate

By Dennis A. Byrd
ASSOCIATED PRESS WRITER

VARNER, Ark. — Two men
sentenced to death for killing a
businessman in front of his family
were put to death Wednesday
night, with a third killer waiting
in the wings to complete the na-
tion’s first triple execution in 32
years. )

The first to face execution,
Hoyt Clines, was strapped to a
gurney at 7 p.m. and injected with
a lethal dose of drugs. Asked if he
had any last words, he replied:
“Nope.”
er, Darryl Richley died on’ the
Same gurney. James Holmes was

Bo
4 es
a,

- A little more than an hour lat-

expected to follow him into the
prison death chamber within an-
other hour.

Shortly before the parade of
executions began, the U.S. Su-
preme Court“denied appeals by
all three. A federal appeals court
also denied a separate appeal for
Holmes.

Clines, who was pronounced
dead at 7:11 p.m., had his final
appeal rejected by the U.S. Su-
preme Court 16 minutes earlier.

Two other appeals — one on
behalf of all three men, the other
for Richley — also were denied

_ by the Supreme Court.

A three-judge panel of the 8th
U.S. Circuit Court of Appeals
had. stayed Holmes’ execution
Wednesday so ‘he could have
more time to pursue a separate
appeal. That stay was dissolved

_less than three hours later by an

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from page 1A

8-3 decision of the full 8th Cir-
cuit.

The three-judge panel had said
Holmes should
be granted ad-
ditional time to
appeal his con-
viction and
death sentence
on the basis of
a new. argu-
ment, that his
trial counsel
was ineffective.

The>, three
menage’: all Ommes
argued in a late-hour appeal to
the Supreme Court that they were
being reduced to “hogs at a
slaughter.”

The last-minute change, the or-
der of their executions was to
have been determined by their
prison serial :
numbers
Clines SK886;
Holmes SK887;
Richley SK888.
But prison offi-

cials changed
the order at the
last minute,

executing
Clines first and

Richley second.
They didn’t say
why.

The prison planned for 45 to 60
minutes between executions
enough time to carry the body
out in a bag, wipe down the gur-
ney and change the needle before
the next man was brought in.

“This scheduled mass execu-
tion, by reducing human beings
to hogs at the slaughter, will

Clines

aE —

exponentially increase the level of
fear, uncertainty and psychologi-
cal stress that someone con-
demned normally experiences in
the usual course of death,” the
inmates said in their appeal.

They also argued that it is
unconstitutional for the state to
‘‘assess who they think is worthy
of another hour or two of life.”’

The state has said that multiple

executions reduce overtime and
“Nobody

stress on employees.
wants to get.up
in the morning
aad’ eo. ‘kil
somebody,’’
Correction De-
partment
spokesman
Alan Ables said
earlier. this
year.

The victim,
Don Lehman,
was beaten Richley
with a motorcycle chain and shot
in the chest and head by four
masked men who forced their
way into his home, chased him
down and held him on a bed. His
wife was on the bedroom floor at
the time.

The fourth man convicted in
the murder had his death sentence
commuted to life in prison after a
court ruled that hypnosis-induced
testimony from the victim’s
daughter may have affected his
sentencing.

The nation’s last triple execu-
tion was Aug. 8, 1962, when three
men went to the gas chamber in
California. Arkansas put two
prisoners to death for unrelated
crimes on May 11 in the first dou-
ble execution since the Supreme
Court in 1976 allowed capital
punishment to resume.


tla Cagle, ithan. Ae

Wiregrass/Nation

Thursday, Aug. 4, 1994

Arkansas execution

under way;

appeals

court denies stay

By The Associated Press

VARNER, Ark. — The first of
three killers scheduled for execution
Wednesday night was put to death
after declining to make a final state-
ment. The other two men were
expected to follow him within hours.

“Nope,” was all Hoyt Clines said
when asked if he had any last
words. Then he was strapped to a
gurney and a lethal dose of drugs
was injected into his body.

Just minutes earlier, a feder-
al appeals court had lifted a stay
of execution granted for another
of the three condemned men,
James Holmes. He had been
scheduled for execution after
Clines, but at the last minute
prison officials dropped him to
the third spot.

Holmes, 37; Clines, 37; and Dar-
ryl Richley, 43, were scheduled to
die one by one beginning at 7 p.m.
for killing a businessman in front of
his family during a 1981 robbery.

Clines was pronounced dead at
7:11 p.m., a state prison official
announced. An appeal on his behalf
had been denied by the US.

Supreme Court at 6:55 p.m.

Two other appeals — one on
behalf of all three men, the other for
Richley — were also denied by the
Supreme Court.

A three-judge panel of the 8th U.S.
Circuit Court of Appeals had stayed
Holmes’ execution Wednesday so he
could have more time to pursue a sep-
arate appeal. But that stay was dis-
solved less than three hours later by
an 8-3 decision of the full 8th Circuit.

The three-judge panel had said
Holmes should be granted addition-
al time to appeal his conviction and
death sentence on the basis of a
new argument, that his trial coun-
sel was ineffective.

The three men had all argued in
a late-hour appeal to the Supreme
Court that they were being reduced
to “hogs at a slaughter.”

Before the last-minute change,
the order of their executions was to
have been determined by their
prison serial numbers — Clines
SK886; Holmes SK887;_ Richley
SK888. Prison officials didn’t imme-
diately say why they moved Holmes
to the third spot.

The prison planned for 45 to 60

Pe

Family of murder victim Don Lehman issues a press release on the executions

minutes between executions —
enough time to carry the body out
in a bag, wipe down the gurney and
change the needle before the next
man is brought in.

“This scheduled mass execu-

tion, by reducing human beings to
hogs at the slaughter, will exponen-
tially increase the level of fear,
uncertainty and __ psychological
stress that someone condemned
normally experiences in the usual

course of death,” the inmates said
in their appeal.

They also argued that it is
unconstitutional for the state to
“assess who they think is worthy of
another hour or two of life.”


S44 Ark.

fenses, including robbery, was prejudicial
we said: “There is no connection between
these various crimes and the killing of
McDermott, and the only, and the neces-
sary, effect of this testimony was to show
the desperate character of appellant as a
confirmed criminal. There was no question
as to the purpose for which appellant held
up Chance, and that he robbed him, and that
while still at the scene of the crime he
killed the officer who attempted to arrest
him.”

There are many other holdings to the
same effect. Recent thefts of saddles or
bridles cannot be shown in a prosecution
for the theft of horses. Dove v. State, 37
Ark. 261; Endaily v. State, 39 Ark. 278.
Where the accused was charged with as-
sault with intent to kill, after he had broken
into a woman’s room with a pistol, the
State could not show two other occasions
on which he had broken into women’s
rooms with a pistol. Morris v. State, 165
Ark. 452, 264 S.W. 970. <A scparate at-
tempt to rape cannot be proved in a. prose-
cution for rape. Alford v. State, supra.
Evidence of the <heft of other cars is inad-
missible upon a charge of larceny of an
automobile. Rhea v. State, Ark., 291.S.W.
2d 521. See also Davis v. State, 170 Ark.
602, 280 S.W. 636.

Thus we are firmly committed to the
universally accepted rule that evidence of
other offenses is inadmissible when it has
no permissible relevancy to the crime at
issue and can only serve the purpose of
persuading the jury that since the accused
has been guilty of similar offenses he is
therefore likely to be guilty of the crime
charged. It follows that the introduction
of proof concerning the Fenwick robbery
constituted prejudicial error as to Boone
and Boyd.

Whether the error was also prejudicial
as to Moore and Byrd, who had no part
in the later crime, is apparently a question
of first impression in this state. In ad-
mitting proof of the Fenwick robbery the

299 SOUTH WESTERN REPORTER, 2d SERIES

court instructed the jury that the testimony
could not be considered as to Moore and
Byrd. It is of course possible that the jury
were able to obey the court’s admonition
and were not adversely influenced as to
Moore and Byrd. On the other hand, the
admission of the Fenwick proof was preju-
dicial as to Boone and Boyd, and the fact
that the jury found all four defendants
guilty and imposed the same penalty in
every case indicates that the prejudicial
effect of the testimony may have carried
over to the other two defendants.

In the particular circumstances of this
case we think the error was prejudicial to
all four defendants. It is quite possible that
if the attack on Fenwick had been men-
tioned only casually in the course of this
prolonged trial, its effect as to Moore and
Byrd would have been overcome by the
court’s admonition to the jury. That, how-
ever, is not the situation at all. The record
discloses beyond question that the State
undertook to, and did, prove the Fenwick
robbery in every detail and beyond a rea-
sonable doubt. Before it had even been
shown how Hamm met his death Fenwick
was called as a witness and described at
length how Boone and Boyd beat him with
a claw hammer and forcibly took his wrist
watch and a wallet containing an 1891
Seven law enforcement offi-
the investigation of

silver dollar.
cers testified about
Hamm’s death; all of them except a police
photographer also testified about the Fen-
wick crime. The wrist watch had been
found in Boone’s cap and was introduced
in evidence. The silver dollar was traced,
recovered, identified, and received in evi-
dence. The officers described their search
for the hammer and accounted for their
failure to produce it as well. A substantial
portion of the trial was devoted to the
State’s meticulous proof of the. later crime,
and it was mentioned several times in the
prosecution’s arguments to the: jury. It
is fair to say that the proof of the attack
upon I*enwick was even more conclusive
than the proof of that upon Hamm, for

’ testimony
\Ic and
at ury
admonition
iced as to
hand, the
was preju-
id the. fact
lefendants
penalty in
»rejudicial
ve carried

s of this
udicial to
sible that
een men-
e of this
oore and
by the
hat, how-
je record
he State
Fenwick
id a rea-
‘en been
lenwick
“ri t
hin h
his wrist
an 1891
‘ont offi-
‘tion of
a police
he Fen-
id been
roduced
» traced,
in evi-
* search
r their
stantial
to, the
“crime,
-in the
ty. It
attack
‘clusive
i, for

eee

hitiagl

MOORE v. STATE

Ark. 845

Cite as 299 S.W.2d 838

the latter involved circumstantial evidence
while the former was proved by direct
testimony,

“Where the effect of an erroneous in-
struction or ruling of the trial court might
result in prejudice, the rule is that the
judgment must be reversed on account of
such ruling, unless it affirmatively appears
that there was no prejudice.” Crosby v.
State, 154 Ark. 20, 241 S.W. 380, 382. We
cannot conscientiously and sincerely say
that the court’s admonition eliminated the
possibility that prejudice to Moore and
Byrd resulted from the voluminous testi-
mony relating to the brutal attack upon
Fenwick. All four of the defendants had
acted in concert in beating and robbing
Iiamm. When it was shown that two of
these men also beat and robbed Fenwick,
it would be natural for the jury to conclude
that the other two would have joined in the
attack had they been present. When the
matter is thus open to doubt we are not
warranted in holding that the record af-
firmatively shows the absence of prejudice.

Reversed.

- HOLT, J., joins in the opinion except
with respect to the trial court’s denial of a
change of venue; on this point he agrees
with the concurring opinion of Mr. Justice
McFADDIN. The CHIEF JUSTICE and
Mr. Justice MILLWEE would affirm the

judgment.

McFADDIN, Justice (concurring).

I concur in the reversal of this case, but
for reasons entirely different from those
stated in the majority opinion: hence this
separate concurrence.

I. Proof Of Acts Of A Similar Nature.
The majority is reversing the judgment
because of the admission of the testimony
regarding the attack on: Mr. Fenwick;
and the majority says that any admission

4. When the defendants—or someone for
them—employed present counsel to per-

of testimony regarding the Fenwick inci-
dent violates the holding of this Court in
Alford v. State, 223 Ark. 330, 266 S.W.2d
804+. I dissented in the Alford case; and
I maintain that the majority opinion in
the present case does not answer the cases
cited in my dissent in the Alford case. I
think the Trial Court was correct in the
case at bar in allowing the testimony re-
garding the Fenwick incident; and I
would not reverse the judgment for that
reason.

II. Change Of Venue. My vote to re-
verse the judgment in the case at bar is
because of the failure of the Trial Court
to grant a change of venue. I think the
matter of change of venue falls within the

purview of our holding in Hildreth v.
State, 214 Ark. 710, 217 S.W.2d 622.

The situation in the case at bar needs
to be stated in some detail regarding the
motion for change of venue. When the
defendants were unable to employ counsel,
the Court appointed four splendid lawyers
of the Texarkana, Arkansas, bar to rep-

resent the defendants, jointly and several-

ly. These attorneys were Dennis K. Wil-
liams, Joe Rosenblum, Van Johnson and
William H. Arnold III. Each of these
attorneys served, as court-appointed coun-
sel, without compensation of any kind, and
exemplified the fine ethics of the legal
profession in acting as officers of the
court in such capacity. The Trial Court
advised the four attorneys that they would
work together, but each would take the
responsibility for the individual interest
of one particular defendant. The feel-
ing against these four defendants was so
high in Miller County that the defendants
were kept in another county and the place
of confinement was kept secret. The de-
fendants were at one time confined in the

| jail in Hempstead County and at one time

they were placed in the State Penitentiary
for safekeeping. When the attorneys de-
sired to consult with their clients, they

fect this appeal, the Court released the
court-appointed counsel,


299 SOUTH WESTERN REPORTER, 2d SERIES

Ls a . 846 Ark.

were taken to the place where the de-
fendants were confined, rather than hav-
ing the defendants brought back to Miller
County. All of this is reflected in the
record.

The attorneys filed a petition for change
of venue, which reads:

“Come the defendants, James FE,
Moore, James Boyd, Rogers Boone
and Willie Henry Byrd, jointly and
severally, and respectfully petition the
Court for a change of venue and
State:

“This petition for change of venue
is made jointly and severally by each
and all of us.

“We are Negroes and are charged
with robbing and murdering M. R,
Hamm, an aged white man. Almost
immediately upon being arrested in
Miller County, Arkansas, on the 15th
day of May, 1956, we were all taken to
the Clark County Jail in Arkadelphia,
Arkansas, where we remained several
days, and thereafter we were trans-
ferred to the Arkansas State Peniten-_
tiary, where we remained several days,
and thereafter we were transferred to
the Hempstead County Jail at Hope,
Arkansas, where we remained several
days. We were advised by the officers
we were taken to these places for safe
keeping.

“When we were arraigned the first
time, we were brought secretly by the
officers from the Hempstead County
Jail at Hope, Arkansas, to the Miller
County Jail at Texarkana, Arkansas.
Attorneys were appointed for us and
after brief consultation with one of
the attorneys, we entcred a plea of
not guilty and were immediately taken
back to the Hempstead County Jail
at Hope, Arkansas; during the mean-
time, an amended information was
filed against us and we were again
secretly brought to Texarkana, Ar-

kansas and arraigned and_ quietly

placed in the Miller County, Arkan-
sas, Jail, at Texarkana, Arkansas.

“Upon inquiry from the officers as
to why we were taken away from
Miller County, Arkansas we were

advised the feelings in the minds of —

the inhabitants of Miller County, Ar-
kansas, were so prejudiced against us
that there was great danger of mob
violence, 7

“The newspapers of Texarkana,
Arkansas-Texas published that we
had confessed to killing M. R. Hamm,
when in truth and in fact, no such
confession or statement was made by
either or all of us; this erroneous
publication caused the minds of the
inhabitants of Miller County, Arkan-
Sas, to become so prejudiced against
each and all of us that we cannot re-
ceive a fair and impartial trial in said
county.

“We and each of us believe that
the minds of the inhabitants of Miller
County, Arkansas, are so prejudiced
against us that each and all of us be-
lieve that a fair and impartial trial
cannot be had in Miller County, Ar-
kansas.

“Wherefore, James E,. Moore,
James Boyd, Rogers Boone and Willie
Henry Byrd, jointly and_ severally,
pray the Court order removal of this
criminal cause to some other county
for trial.”

The petition for change of venue was
not supported by the affidavits of wit-
nesses, as required by law, for the ad-
mitted reason that the attorneys appointed
by the Court stated that they were unable
to obtain any persons to make a survey
of Miller County so as to be prepared ta.
testify in the trial. The attorneys pub-
lished a notice in the Texarkana Gazette
for three days, asking that anybody who.
wanted to obtain employment in making
a survey would contact. one of the at-
torneys. Any person answering the no-

tice promptly r
what kind of \
then contacted
ment Office, a:
obtain anyone

Here is the sta:
Williams, cour:
to the Court in
change of veni

“My naine
and I am on
pointed to re}
and in the v:
suggested to t
Prosecuting /
were going to
venue, and d
tried to conta:
make a surve
out the feeli:
was ab gi
would :.
Thursday, wh:
made a survey
all that he co:
ought to be bi.
party was also
past Saturday
later than Mor,
not even seen

him Friday up

but I have ‘no:

“Another m
he would giv:
day morning
morning—and
Courthouse, a
talked with hb
told him what
and that after:
and said that
wife, and his \
any part to do

“As Mr. Jo
these people, a:
they wo ‘* o
this wa: D}

‘and they retus:
as a last resor’


e proof of
m hin
o1 gn.

five days
io tendency
lamm was
actually no
in, formed
her victim.

robbery of
how design
intent or in
me. If the
‘ose permis-
the subse-
.s the testi-
ible answer
he fact that
's and were
the offense
1. In short,
portunity of
' of murder
ey had com-
asion.

tore than a
era ject.
iCa . the
cases cannot
iciples stated
one another.
confusion is
e have seen,
uct that may
ing upon in-
to offer evi-
e part of the
he necessary
nt has been

offenses is .

rule may be
ions to which

.

sus departure
{in Scrape v.
osecution for
on, the State
opted robbery

the following

coh dim

MOORE v. STATE Ark. 843
Cite as 299 S.W.2d 838

night. We held the evidence admissible,
citing Wilson v. State, 184 Ark. 119, 41
S.W.2d 764, and Sibeck v. State, 186 Ark.
194, 53 S.W.2d 5. It is at once apparent
that neither decision supports the principal
case, for both the Wilson case and the
Sibeck case involved conduct that might
have been innocent or criminal, according
to intent. Thus a sound rule of law was
lifted from its context and by oversight
applied to a different fact situation.

It is easy to demonstrate that isolated
cases such as the Scrape decision are out of
harmony with the great majority of our
opinions on the subject. A few examples
will suffice. In Wood v. State, 157 Ark.
503, 248 S.W. 568, 570, we held that evi-
dence of a prior charge of robbery was in-
admissible in a later prosecution for rob-
bery. This language was quoted with
approval by Judge Frank Smith: “On the
trial of one indicted for robbery, as in the
case of other criminal prosecutions, the
general rule is that evidence is not admis-
sible which shows, or tends to show, that the
accused has committed a crime wholly
independent of the offense for which he is
on trial. Under this rule, therefore, evi-
dence of another separate and distinct
robbery, committed the preceding night, by
the defendant upon another person, in the

same neighborhood, in much the same way,’
: ) y)

is not admissible in evidence against one
who is being tried for robbing a pedestrian
on the street in a city by pointing a pistol at
him.” It will be observed how precisely
this language fits the case at bar.

That two unconnected offenses do not
themselves establish a scheme or design
was unequivocally decided in Yelvington v.
State, 169 Ark; 359, 275 S.W. 701, 703.
There the accused was charged with the
theft of mules. We reversed the judgment
because the State had been allowed to
prove that when the stolen animals were
found in the accused’s possession he also
had in his possession some stolen sets of
harness. Chief Justice McCulloch analyzed
the issue in detail: “We are of the opinion
that it was error to admit the testimony

of other thefts and appellant’s possession
of the other property which had been stolen.
This court has adopted a very liberal rule
in declaring exceptions to the general rule
against proof of other crimes. We have
said that proof of other crimes of a similar
nature, shown to have been committed about
the same time, may be admitted as disclosing
the good faith or criminal intent of the
accused, or to prove a scheme or plan or
system of committing crime, or to show
a connection between that particular crime
[Citing
seven cases.| The proof in'the present case
does not, however, fall within the exception.
The proof of the theft of the harness had
no connection with the alleged theft of
the mules. It occurred at a different time
and place, and under those circumstances

and the one under investigation.

it had no tendency to establish a plan or
scheme which included the theft of the
stock, and formed no connection with that
incident. The court admitted the testimony
on the theory that it tended to establish
the good or bad faith of the accused, but
we do not think that it was proper for that
purpose. The assignment falls squarely
within the decision of this court in the
recent case of Mays v. State, 163 Ark. 232,
259 S.W. 398. In that case the defendant
was convicted of the offense of receiving
stolen property, and the state proved the
theft of a valise containing woman’s ap-
parel, that two of the dresses were found
in the possession of appellant, and that
other stolen property had also been found
in his possession. We held that the testi-
mony was incompetent, and the same rea-
soning calls for the exclusion in the present
case of testimony relating to other thefts.
The fact that the stolen harness was found
in appellant’s possession at the same time
that the mules were found there does not
relieve the testimony of the objection that
it relates to another crime.”

The charge in Williams v. State, 183 Ark.
870, 39 S.W.2d 295, as in the.case before
us, was murder committed in the perpetra-
In holding that the ad-
mission of testimony concerning other of-

tion of robbery.

bo megan me eae

owen eth att thee ar

76 IRON MEN

passengers staring with horrified eyes at the inert form of
the trainman.

Brakeman Lester heard the boom of the shot from an-
other coach, and he decided to investigate. When he en-
tered the smoky coach containing the masked men, one of
the outlaws fired another shot. The bullet creased the train-
man’s head nastilv, and the impact sent him spinning to the
floor. Several women passengers recovered their voices and
began to scream wildlv, and if the outlaws had a plan, it
suddenly went awry. They bolted, scrambling for the
vestibule, and tangled with each other in the narrow aisle.
In their excited struggles with themselves the bandits began
firing their guns. Bullets whacked into the woodwork of
the coach, and a few leaden slugs crashed the glass of a
couple of windows. One wild bullet thumped into the tin
stovepipe of the cast-iron monkey stove in the forward part
of the coach. The frail pipe fell apart, spraying the adjacent
passengers with soot. The air was now fogged with dense
gun.smoke, and male passengers, with hoarse shouts, made
dives for the floor. Above the din the piercing shrieks of
women could be heard.

Reaching the vestibule of the coach, the outlaws, with
wild abandon, Hung themselves from the now rapidly mov-
ing train.

The frightened passengers began sawing on the emergency
cord, and the train was brought to a jolting stop. Except for
scratches caused from flying wood splinters and fragments
of glass, none of the excited passengers were injured. The
wounded brakeman was bleeding badly, and after a hasty
consultation, the trainmen decided to back the train to Mul-
berry in order to secure medical attention as quickly as pos-
sible. The engineer opened his throttle as far as it would go,
so that the train would be moving too fast for boarding when
it passed the spot where the outlaws had made their exit.

Half expecting to undergo a fusillade of shots as the train

chugged rapidly past the place where the bandits had

THE IRON LAW OF JOHNSON COUNTY 77

jumped, the passengers peered fearfully at the dense thickets
near the track. However, the outlaws evidently were through
with the train, and there was no sign of them to be scen.

The train quickly made its reverse run to Mulberry, and |

the authorities were notified. A number of passengers were
certain that one of the bandits had accidentally wounded a
companion during the excited gun plav. A hastilv formed
posse was dispatched at once to the site on the tracks, and
the injured man was soon located, hiding under a bush. He
had been deserted bv his friends, for he was in no condition
to ride. The bandits had hidden horses near the place so
they could flee after the holdup.
Although the shooting had occurred in Franklin County,
Bud McConnell sent two of his crack deputies to the neigh- |
boring countv to lend a hand. Bud Ledbetter and John
Powers with a carefully chosen young posseman loaded their
horses aboard the next westbound train and journeyed to
the site of the holdup.

Ledbetter and Powers, already experienced manhunters,
went to work. The fact that the outlaws had hothered to
mask themselves after boarding the train stamped them as
amateurs, but with a murder charge now hanging over their
heads, they would be extremely dan gerous men to comer.

The captured bandit flatly refused to divulge anv intorma-
tion, despite having heen left behind by his companions, but
it did not take Ledbetter long to locate the site where the
horses of the outlaws had been staked out. Trampled
ground and horse droppings were easily found, but a trained
eye was required to spot the trail leading away from the
site. Finding the trail, the three lawmen knew that the
wanted men had fled northward to the densely forested
mountains.

Powers wired Bud McConnell that an extensive pursnit ap-
peared to be in the offing. The lawmen rented a mule and
loaded it with supplies. A sack of corn meal was added for
the horses and mule, for green-up time had just come to


74 IRON MEN

he appointed James F. “Bud” Ledbetter a Johnson County
deputy sheriff. |

McConnell quickly realized that Ledbetter was a “born”
lawman. The two “Buds” often ranged the length ‘and
breadth of the county together in search of dangerous
quarry. Folks in the caned river bottoms to the south, in the
rolling, thickly forested Ozark Mountains to the north, the
Pinev Creek area to the east, ‘and among the burgeoning
coai mines svestward—all were aware that a hard-riding
bunch of lawmen was on dutv in the countv. Hard-cases
knew that “those Jaws in Clarksville weren't fooling around,”

J. R. Totbert had more than an editor’s interest in law en-
forcement. His oldest son, Paden. was vitally interested in
the activities*of Bud McConnell and Bud Ledbetter. Stories
of the days of Sid Wallace intrigued Paden, and he was an
authority on the subject.

“Perhaps,” mused Tolbert, “it was the wav we raised the

-bov that makes him so interested in the causes of rough and

dangerous times.”

Young Paden had received the best education possible
in Georgia, despite Tolbert’s limited means. The stubborn
father even swore off the use of cheroots for long periods
of time in order to provide his older sons with “school
britches” and shoes.

Paden Tolbert’s schooling had provided him with a job.
School Commissioner Littlebury Robinson offered him a
post teaching school, and Paden took it. However, his father
easily detected a restless spirit in the young man. In line
with the vogue of the era, Paden had carefully nurtured
an adolescent mustache that now was thick and stylish. The
mustache though, was just about the only nod to the cus-
toms of most young men of the day that Paden Tolbert per-
mitted himself to make. Aside from perfunctory attendance
to play-parties, even those sponsored by the school, the
young teacher preferred a life out of doors. At every op-
portunity he voluntecred for posse duty and became fa-

&

a=
/

THE TRON LAW OF JOHNSON COUNTY 75

miliar with the remote corners of the county. From his
meager salarv he purchased a fine Colt .45 single action
Army Model six-shooter. The weapon sported a pair of
ivorv grips with carved steer heads in has-relief.

J. R. Tolbert sighed the dismay countless ‘fathers hefore
him had expressed when they suspected that the first-born
was not following the paternal footsteps. Tolbert's peach
trees were growing sturdily, but he knew that it would be
some time in the too distant future before the orchard would
begin bearing fruit and call for his full time.

Bud McConnell’s dream of changing protessions was hav-
ing trouble materializing too. On March 7, 1883, the Little
Rock-Fort Smith Railroad suffered a holdup, or more ac-
curately, the train was shot up.

When the westbound train stopped for passengers at Mul-
berry, a. town some thirty miles west of Clarksville. four
characters ambled nonchalantly aboard. They were Jim
Johnson, Monroe MacDonald, Gove Johnson, and James
Herndon. Thev found seats in a coach, and as they were
average-appearing young men, the other passengers gave
them little heed. As the train began to move, the four men
pulled large bandannas from their pockets. They adjusted
the big kerchiefs to form masks for their faces.

Conductor Cain came down the aisle of the coach,
methodically punching tickets. He paused in astonishment
before the masked group.

“We ain’t got no money or tickets,” leered one of the men.

Conductor Cain promptly raised his hand to grasp the
emergency cord near the ceiling of the coach. Before he
could jerk the cord, one of the bandits snaked a Colt out of
his waistband and thumbed a quick shot. The conductor,
with his arm stretched over his head, was hit squarely. He
fell backward, killed instantly.

The crash of the Jarge-caliber revolver was a thunderclap
in the confines of the coach. Through the haze of smoke
from the shot the bandits could see the white faces of the


78 IRON MEN

the mountain and livestock forage would still be sparse.
Several boxes of ammunition were added to the mule’s bur-
den.

The Johnson County Herald followed the adventures of

the lawmen as closely as was possible for J. R. Tolbert’s son

Paden was the voung posseman with Powers and Ledbetter.

Clarksville citizens read the Herald accounts of the man-
hunt with zest for three weeks. The lawmen followed the
trail of the bandits on a zig zag course back and forth across
the ridges of the Ozark Mountains. The trail often crossed
itself, until finally, the pursuers sighted their quarry, The
ragged and unkempt outlaws gave up in disgust.

wee H].”. grumbled one? weary gunman, “those bastards
would of chased us to Kingdom Goma”

jailed &t Ozark, Keb ausis: the countv seat of Franklin
County, the public defender was successful in requesting a
change of venue. The trial was held in Johnson County,

which was a mistake for the welfare of the outlaws, for
they were sentenced to hang for the murder of Conductor
Cain.

The wounded gunman, now fully recovered, would make
a total of four who would march to the gallows. The little
indoors gallows of the Johnson County courthouse in Clarks-
ville was deemed to be too slow for the task at hand. Bud
McConnell ordered a special gallows erected near the rail-
road depot in the southeast part of the town. The temporary
gibbet was cesigned to accommodate its candidates quickly
and efficiently.

The date for the hanging of the Franklin County outlaws
was set June 22, 1883, but a few days prior to the big event,
a state-wide convention of county sheriffs was scheduled in
Little Rock. During the convention, Bud McConnell was one
of the speakers. While addressing the assembly he mentioned
that he would shortly hang four condemned men. Noting
the round of applause that. greeted his remarks, he ex-
tended an invitation to the entire body of lawmen to come

THE [RON LAW OF JOHNSON COUNTY 79

to Clarksville and witness how Johnson County “enforced
the law.” Forty-two sheriffs accepted his offer.

T. Hartman, the former conductor on the Little Rock-
Fort Smith train, had been promoted to the post of super-
intendent. Sheriff McConnell’s sweeping invitation to con-
vention attendants received quite a plav in the Little Rock
newspapers, and Hartman sent a message to \feConnell’s
hotel; the railroad company could provide a special coach
for such an interesting trip. Bud accepted the of ter.

The special coach was attached to the train bound. for
Clarksville: soon the small army of sheriffs was assembled
at the spanking new gibbet. Bud MeConnell took charge ot
the situation. He ordered the undertaker’s wagon to be
pulled away at a discreet distance from the: eallows. He
then requested the town’s three physicians to mount the

steps to the platform and called for a minister. One of
Bud's deputies informed him that a preacher was over in the
jail with the condemned men. Bud tilted his black Stetson
to the back of his head and fired up a cheroot. ile leaned
against the pillar of the gallows to wait for his deputies to

arrive with the four prisoners.

A member of the train crew walked up and hanced Sheriff
McConnell a large envel ope. As the man w alked away, Bud
straightened BP ne tore the envelope open, [t was a state-
ment, signed hy Superintendent Hartman, for the use of the
special pac: The amount of the hill was S125—the exact
amount the railroad company had asked for the use of its
train nine years ago, ater Bud had commandeered it.

For a moment Bud’ s big mustache quiv ered as his heavv
jaw clamped the cheroot in his mouth. Then he remov ed
the cheroot and Jet out a great, booming laugh.

The visiting sheriffs were at irtled, thev could sce nothing
comical in a situation where four men were about to die,
and the townspeople in the big crowd were puzzled. Thev
knew that their sheriff was not given to humor when per-
forming certain official tacks.


-S- he a :*
& a Peet we

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SOP G ee eth

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ries bdes S3

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Paty reese wire on a 1

To MIKE and SANDY

As with all children———

é . . Pe
. they will face trontiers
of their own—

—_——

Library of Congress Catalog Card Number 64-10048
Copyright © 1967 by C. H. McKennon
All Rights Reserved
Printed in the United States of America


ORNDORFF vy. LOCKHART
Cite as 998 F.2d 1426 (8th Cir. 1993)

was. This tall intruder never let go of her
until he left and constantly had his gun point-
ed at her head or back. She led him into her
bedroom and produced an envelope contain-
ing some money she had received for Christ-
mas. From her bedroom, Vicki was taken
back down the hall, upstairs to a loft or office
area above the main room, and then back
downstairs. She was then led into her par-
ents’ bedroom where she saw her father lay-
ing motionless on the bed and her mother
cowering in the corner. While in that bed-
room, the medium-sized man found several
hundred dollars in a drawer. He became
excited and removed his mask. Then he and
the heavy man began tearing out drawers
and throwing clothes about the room search-
ing for more money. The smallest man then
Suggested that she be allowed to call an
ambulance for her father.

Vicki was taken into the kitchen area to
use the phone. Before she was able to make
the call, however, the medium-sized man
grabbed the phone from her and stated she
was not going to call anyone. Vicki then
stared eye-to-eye with this unmasked man.
All four attackers were in the kitchen area
and they demanded more money and guns.
Vicki directed them to the gun cabinet in the
living room. The tallest man, still holding
Vicki, ordered two of the attackers, the
smallest and medium-sized man, to get in the
car and ordered the heavy man to remove
the guns from the cabinet. The heavy man
took the guns out to the car and the tallest
man followed.

The police arrested all four petitioners
within several days of the murder. After a
joint trial, petitioners were convicted of
armed robbery and capital murder. The
death penalty was imposed on all four.! Pe-
titioners exhausted their state remedies and
filed petitions for habeas corpus relief in
federal court. Petitioners raised several
claims in their habeas petitions, but only one
was found to have merit.

1. In Arkansas, a person convicted of capital mur-
der may receive the death penalty or life impris-
onment without parole. Ark.Code Ann. § 5-10-
110 (1987) (“A person commits Capital murder if
... he commits ... robbery ... and in further-
ance of the felony ... he or an accomplice
causes the death of any person under circum-

1429

After petitioners had appealed to the Ar-
kansas Supreme Court, they discovered that
Vicki Lehman had been hypnotized prior to
trial in an attempt to enhance her memory.
The prosecutor had arranged for this hypno-
sis, but failed to inform the defendants or the
trial court. In their habeas petitions, peti-
tioners claimed they were denied their sixth
amendment right to confront the witnesses
against them because they were denied the
opportunity to cross-examine Vicki Lehman
about the hypnosis.2 The district court
found that the prosecutor’s failure to inform
the defendants about this hypnosis was con-
stitutional error. The court further found
that this error was harmless with respect to
the petitioners’ convictions of capital murder,
but held that the error was not harmless
with respect to the petitioners’ sentences.
Orndorff v. Lockhart, 07 F.Supp. 1062
(E.D.Ark.1988),

On appeal from that decision, we affirmed
the district court’s holding that the error did
not warrant reversal of the convictions be-
cause “(t]he evidence of petitioners’ guilt,
even without Vicki Lehman’s testimony, is
overwhelming.” Orndorff 906 F.2d at 1233.
We remanded the case, however, with di-
rections for the district court to reconsider
the question whether the error was harmless
with respect to the petitioners’ death sen-
tences. Jd. On remand, the district court
found the error harmless and denied peti-
tioners’ request for habeas relief. Petition-
ers appeal from that decision.

II.

{1] We begin with the premise that when
reviewing a constitutional violation for harm-
less error, courts traditionally required “the
beneficiary of a constitutional error to prove
beyond a reasonable doubt that the error
complained of did not contribute to the ver-
dict obtained.” Chapman v, California, 386
US. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705

Stances manifesting extreme indifference to the’

value of human life.’’).

2. “In all criminal prosecutions, the accused shall
enjoy the right ... to be confronted with the
witnesses against him.”’ U.S. Const. amend. VI.


Pee ee

ORNDORFF v. LOCKHART 1431

Cite as 998 F.2d 1426 (8th Cir. 1993)

analysis is flawed.‘ Respondent Lockhart
argues that Yates deals with harmless error
in the context of an improper presumption
and therefore is not relevant to this confron-
tation clause harmless error analysis. We
find that Yates is consistent with Van Ars-
dall and does not require us to remand.

[3] In Yates, it was determined that the
trial court’s jury instructions created certain
presumptions which improperly shifted the
burden of proof from the prosecution to the
defendant. In analyzing the question wheth-
er this unconstitutional burden-shifting jury
instruction was harmless, the Court em-
ployed a two-step approach. In essence, a
reviewing court must first establish “what
evidence the jury actually considered in
reaching its verdict.” —- U.S. at ——, 111
S.Ct. at 1893. The purpose of this first step
is to determine what evidence may have been
considered as tending to prove the improper-
ly presumed fact. The second step is to
“weigh the probative force of that evidence
{determined in the first step] as against the
probative force of the presumption standing
alone.” Jd. The Court concluded that the
proper test is “whether the jury actually
rested its verdict on evidence establishing
the presumed fact beyond a reasonable
doubt, independently of the presumption.”
Id.

Petitioners argue that the methodology
used in Yates should be “extrapolated” to the
present harmless error analysis of this con-
frontation clause violation. They argue that
Yates requires a reviewing court to first de-
termine what evidence the jury considered
on the issue of the death sentence. Accord-
ing to petitioners, the court must then deter-
mine if there are any differences in the pre-
and post-hypnotic testimony of Vicki Leh-
man, and finally determine whether the ver-
dict of death actually rested on the hypnoti-
cally enhanced testimony. We agree with
petitioners that Yates is instructive of our
analysis, but we do not agree that Yates
changes the Van Arsdall analysis.

4. After Yates was decided, petitioners requested
the district court to reconsider its decision. The
district court denied this request stating, ‘‘The
Court will not resolve this question because it is

In analyzing a violation of the confronta-
tion clause for harmless error, the Court in
Van Arsdall stated that:

Whether such an error is harmless in a
particular case depends upon a host of
factors, all readily accessible to reviewing
courts. These factors include the impor-
tance of the witness’ testimony in the pros-
ecution’s case, whether the testimony was
cumulative, the presence or absence of cor-
roborating or contradicting testimony of
the witness on material points, the extent
of cross-examination otherwise permitted,
and, of course, the overall strength of the
prosecution’s case.

475 U.S. at 684, 106 S.Ct. at 1438. The fifth
factor described in Van Arsdall (the overall
strength of the prosecution’s case) requires
us to examine the evidence presented by the
prosecution which the jury may have consid-
ered in deciding to impose the death sen-
tence. In Lufkins v. Leapley, 965 F.2d 1477
(8th Cir.1992), we analyzed a confrontation
clause violation for harmless error and cited
Yates for the proposition that “to determine _
whether the [error] was harmless beyond a
reasonable doubt, we must examine the other
evidence introduced at trial and determine
whether it appears ‘beyond a reasonable
doubt that the error complained of did not
contribute to the verdict obtained.’” Jd. at
1481.

[4] In sum, our analysis under Yates,
Van Arsdall, and Lufkins must proceed as
follows. We must first compare the pre- and
post-hypnotic statements to determine if any
“significant differences” exist. If no signifi-
cant differences are found, the error is
deemed to be harmless. If, however, signifi-
cant differences do exist, we must determine
if the variations nevertheless are harmless.
To accomplish that task, we assume that
Vicki Lehman had been cross-examined
about the hypnosis, and we also assume that
the damaging potential of that cross-exami-
nation was fully realized. See Van Arsdall,
475 U.S. at 684, 106 S.Ct. at 1438. That is,
we assume the jury was made aware of any

a matter for the Court of Appeals.” Omdorff v.
Lockhart, —— U.S. ——~, 111 S.Ct. 1338, 113
L.Ed.2d 269 (1991) (order denying motions for
new trial or hearing).


1428

Gerald A. Coleman, West Memphis, AR,
argued, for Clines.

Mark S. Cambiano, Morrilton, AR, argued,
for Richley. .

Jackie Ward Gillean, Deputy Atty. Gen.,
Little Rock, AR, argued (Winston Bryant,
Atty. Gen., and Olan W. Reeves, Sr. Asst.
Atty. Gen., on the brief), for appellee.

Before RICHARD S. ARNOLD, Chief
Judge, HENLEY, Senior Circuit Judge, and
MAGILL, Circuit Judge.

HENLEY, Senior Circuit Judge.

We visit this habeas case for the second
time. Michael Ray Orndorff, James William
Holmes, Hoyt Franklin Clines, and. Darryl V.
Richley (petitioners) appeal from the judg-
ment of the district court denying their re-
quests for habeas relief under 28 U.S.C.
§ 2254. Petitioners were convicted of capital
murder and were sentenced to suffer the
death penalty. The.district court found that
at trial petitioners were denied their sixth
amendment right to confront the witnesses
against them. The court granted petitioners
partial relief, finding that this error was
harmless with respect to their convictions
and affected only their death sentences. Re-
spondent Lockhart concedes the error at tri-
al, but contends this error was harmless with
respect to the convictions and sentences.
We affirmed that part of the decision deny-
ing relief and remanded for further: consider-
ation. Orndorff v. Lockhart, 906 F.2d 1230
(8th Cir.1990), cert. denied, — U.S. —
111 S.Ct. 1338, 118 L.Ed.2d 269 (1991). On
remand from this court, the district court
held that the error was harmless with re-
spect to the petitioners’ sentences and denied
their requests for habeas relief. We affirm
in part. and reverse and remand in part.

1.

Petitioners broke into and robbed the
house of Don Lehman in Rogers, Arkansas.
In addition to stealing several hundred dol-
lars and some guns, one or more of the
petitioners shot and killed Don Lehman and
threatened to kill his wife and daughter, who
were in the house at the time.

998 FEDERAL REPORTER, 2d SERIES

At trial, Don Lehman’s daughter, Vicki
Lehman, testified in great detail about the
murder-robbery. In addition to her trial tes-

timony, she gave the police two statements .
which were recorded and transcribed: one —

within hours after the murder and another
several days later. Although there are some
variations between her trial testimony and
her two pretrial statements, there are many
similarities in her descriptions of what hap-
pened that night. i

Vicki Lehman has consistently stated that
at approximately 9:45 on the evening of Jan-
uary 8, 1981, she heard the front doorbell
ring and got out of bed to go to the door.
Vicki met her father in the hall on the way to
the door and followed closely behind him.
When her father unlocked the door, four men
wearing ski masks forced their way into the
house and attacked him. Vicki was held at
gunpoint by one of the men while two or
three others attempted to subdue her father
who was struggling. Vicki was ordered to
kneel down, face the wall, and put her head
in her hands. She could sense that the fight
had moved down the hall and into the bed-
room. Vicki then heard two gunshots. Mo-
ments later, one of the men grabbed her by
the back of the hair and led her through the
house, searching for money and other valu-
ables.

Vicki has consistently described the four
attackers as follows: (1) the tallest man who
wore wire rim glasses that were visible
through the ski mask, later identified as peti-
tioner Richley; (2) the heavy or biggest man,
later identified as petitioner Holmes; (8) the

‘short or smallest man, later identified as

petitioner Orndorff; and (4) the medium-
sized man who removed his mask during the
robbery, later identified as petitioner Clines.
She got a very good look at the man who
removed his mask, and within hours after the
murder helped an investigator create a com-
posite drawing of that man. Several days
later she positively identified petitioner
Clines in a line-up.

Vicki has also consistently described the
sequence of events as she was led through
the house. After she heard the gunshots,
the tallest man with the glasses grabbed her
and demanded to know where some money


imi ieee

Bice RON Ss: ica

1430 998 FEDERAL HEPORTER, 2d SERIES

(1967). The Supreme Court has ‘cebtly
altered this premise, holding that the correct
harmless error standard in most habeas cor-
pus cases is “whether the error ‘had substan:
tial and injurious effect or influence in deter-
mining the jury’s verdict.’” Brecht v. Abra-
hamsom, US. : , 113 S.Ct. 1710,
1722, 123 L.Ed.2d 353 (1993) (quoting Kottea-
kos v. United States, 328 U.S. 750, 776, 66
S.Ct. 1239, 1253, 90 L.Ed. 1557 ’(1946)).3
This court has recently noted the quéstion
whether the Brecht standard applies if the
state courts never considered the harmless
error issue because they found no error.
Hoversten v. Iowa, 998 F.2d 614; No. 92-
2402 (8th Cir.1993). In Hoversten, however,
this court declined to answer that question
because the error was not harmless under
either standard... Jd. 998 F.2d at 617. We
now reach the unresolved question. .

Brecht reached the Supreme Court after
two state appellate courts, a federal. district
court,.and a federal court of appeals had
reviewed the error under the Chapman
harmless error standard. - Petitioners argue
that the Court declined to. apply the Chap-
man harmless error standard on collateral
review because to.do so would undermine
“the finality of convictions that have survived
direct review within the state court system.”
Brecht, —- U.S. at ——, 118 S.Ct. at 1720
(citations omitted). The Court noted that
“[s]tate courts are fully qualified to identify
constitutional error-and evaluate its prejudi-
cial effect on the trial process under Chap-
man,” and that “it scarcely seems logical to
require federal habeas courts to engage in
the identical approach to harmless-error re-
view that Chapman requires state courts to
engage in on direct review.” Jd. at ——, 113
S.Ct. at 1721.

We believe the Brecht rule is based largely.
on the notion that because the state courts
can properly apply the Chapman harmless
error standard on direct review, the federal
habeas courts need only review those deci-
sions under the Kotteakos harmless error
standard. In the case before us, however,

3. After this case was argued and submitted, the
Supreme Court decided Brecht. At this court's

the state courts did not have the: opportunity
to- review the error at all, and the federal
habeas court was the first court to review the
constitutional error under the Chapman

harmless error standard. As a result, we

find ‘that rule announced in Brecht does not
apply and that the Chapman harmless error
standard is the appropriate test in this case.

[2] We therefore must determine wheth-
er the error in this case “was harmless be-
yond a reasonable doubt.” Chapman, 386
US. at.24, 87S. Ct. at 828. More specifically,
in the context of this confrontation clause
violation, ‘ “(t]he correct inquiry is whether,
assuming that the damaging potential of the
cross-examination were fully realized, a re-
viewing court might nonetheless say that the
error was harmless beyond a reasonable
doubt.” Delaware v. Van Arsdall, 475 US.
673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674
(1986) (listing five factors a reviewing court
should evaluate in making its decision).

In remanding this case, we instructed the
district court to conduct its inquiry using the
harmless error analysis set forth in Van Ars-
dall.’ We noted that the court should com-
pare the pre-hypnotic statements to the trial
testimony “with an eye toward sorting out
those things about which Vicki Lehman could
testify without the aid of hypnosis (that is,
from actual memory) from those things about
which she could testify only after being hyp-
notized.” Orndorff, 906 F.2d at 1282. We
further stated that “[uJnless this sorting pro-
cess reveals significant differences, the error

should be deemed harmless.” Jd. (footnote -

omitted). The district court found there to
be a “remarkable consistency” in Vicki Leh-
man’s recitations of the murder-robbery and
therefore concluded the error was harmless.

After the district court made its ruling on
remand, the Supreme Court decided Yates v.

. Evatt, — US. —, 111 S.Ct. 1884, 114

L.Ed.2d 432 (1991). Petitioners argue that
Yates changes the legal test announced in
Van Arsdall and therefore the case must be
remanded because the district court’s legal

request, the parties filed supplemental briefs dis-
cussing the effect Brecht may have on this case.

+S emmnre’ ih ht thn tate TT ee

co ee

OT te Nn tn tee ts OPEN nat TP sacar

4 tried t

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CLINES, HOLMES, ORNDORFF and RICHLEY - Arkansas.

Sr algh be de
a
—+| seeks stay
| ea ‘ia
| “By Sam Meddis a
: USA TODAY.
egies
‘GRADY, ‘Ark. — One man sien
: wants lethal injection. Two “As of May 1
a" ~ * want the electric chair. One re-
fuses to choose how he’ll die.
_., The four men — convicted ape
of killing a Rogers, Ark., build- The ‘largest rriutiole executio
ing. contractor in 1981 — are when more tharl one person was
scheduled to be executed Fri- day — occurred in Minneso-
day in what would be the larg- -
- est mass execution since 1951.
Defense lawyers on Tuesday
intend to ask a: federal court in
Little Rock-ior a siay —- charg-
ri lei dimetrmcrner ie to By Dash at USA TODAY
“/ But the victim’s family wih AE Ne Se PRS § Rae ;
wants the executions to pro- dropout said. At most, Orndorff . On the night of Jan. 8, 1981,
‘ceed. “The sooner the better,” said, he should have been con- 47-year-old Don Lehman an-
- id Virginia Lehman, who  victed of being an accomplice swered a knock at the front
watched hysterically as her to a robbery. “The jury ... door of his home and four
husband was killed. “I know heard other things against oth- masked men burst in. Lehman
we have our laws and every- er guys which prejudiced me,” was beaten with a motorcycle
thing, but they didn’t give Don Orndorff said. chain and then shot three
a chance. Why should they get Trial witnesses said that on _ times, once in the head at point
‘2et" all these chances?” the night of the killing, Orn- blank range. About $1,200 and
The killing “rocked” the con-. dorff said he didn’t want to go some guns were stolen.
servative, highly religious rural along on a robbery of the Leh- — - Benton County Prosecutor
area, Benton County Daily man home. Also, the victim’s David Clinger said the four
Democrat reporter Mary Jane daughter testified that Orn- — men acted “like a pack of wild
Clemmer said. dorff suggested calling an am- — qogs” in the killing — so it was
A Residents backed the jury, bulance but another intruder fair to try them together. ~~
Clemmer said, but the execu- tore the phone from the wall. Carmen ' Lehman. the vic-
tions could bring “a lot of sad- _ Orndorff, who did not testify tim’s sister-in-law, said the joint
} ness and sympathy and sorrow _ .in his own defense at the trial, proceedings were just. “They
ie that this happened here.” decided to grant an interview didn’t go in to do it separately;
_ The execution of 24-year-old __ last week against his lawyer's yy. should they be tried sepa-
Michael Ray Orndorff — who advice. “I’m tired of people - rately?” she said.
has chosen lethal injection — telling me, ‘Don’t say any-
could be particularly trouble- _ thing,’” Orndorff said. “I want But defense lawyer Matthew
some. Some residents felt that’ the (victim’s) family to know Horan, of Fayetteville, said the 5 eed
Orndorff “should not have I’m sorry. I was the youngest, jury couldn’t possibly deter- ORNDOREFF: Sa s he onl
been thrown in with the rest of smallest man of all. I was mune varying degrees of guilt ined victim y a
them” at trial, Clemmer said. _ scared to death. of different defendants. “Try- Earat a
Orndorff says he wouldn’t be “I was 21 years old,” Orn- ing them together is tyingthem when Kansas hanged two men
’ on death row if he hadn’t been dorff continued. “I was mar- together, Horan said. who took seven lives on a cross-
tried along with the others. ried and had a 3-month-old. — The last time any state exe- country murder spree, said
“I was guilty till proveninno- daughter. I was trying to settle °° cuted more than one personon Watt Espy of the University of
cent,” the junior high school down and live my life.” . a single day was June 22, 1965, plates 2 Taw Center. igi OSES
: : ae aa ae Be 2 as me ae . ¢ eas cane ‘ ae
FO ES: TE ee : oe _ = ~ — . % ae


LETTERS

EXECUTIONS

Thanks so much for Mara Leveritt's col-
umn “On the Eve of Executions.” The hu-
manness was so powerful.

Sunday night! found myself baking loaves
of banana bread and on Monday, I drove to
Cummins Prison to try and deliver atleast one
to Hoyt Clines.

When | arrived at the gates, I was met by
members of his family just completing a visit.

Inside the gates I was politely denied a
request to leave my letter and package. Why?
Secunity, of course. The young lady made a
second call and had just agreed to take my
letter only when I heard my name called. It
was Warden Reed.

“Is there a problem, Mrs. Rule?”

“No, I just wanted to leave this banana
bread for Hoyt.” .

“Can't, because of security.”

“What do you mean?”

“AJL the prisoners in this unit are high
security and we do not allow them to receive
food from outside.”

“Because?”

“Because of the safety factor.”

[ started laughing. It was probably comic
relief or just never laughing but I kept think-
ing ...

Onmy worstday in the kitchen, my banana
bread would not kill Hoyt and here this man
is acting like he is protecting Hoyt from the
dangers of my spatula and flour as he pre-
pares his lethal injection.

My inappropriate laughter did break some
of the strain between us. I think Warden Reed
must have read my thoughts because he said
he was not implying I couldn't cook and
smiled.

I smiled, too, as | handed him my letter. I
left the bread on a picnic table.

I'll never see banana bread, eat banana
bread or make banana bread that! won'tthink
of Mara's column, Hoyt and this day.

Renie Rule
Little Rock

ATALLY BLO Ave

WHERE ARE ALL THE PROTESTERS NOW. ?

END? Za

DRAW, By GENE PERRY , ON DEARTH Row
IN ARKANSAS


“pipes aaa
aS

t

|

be ie aa Tig Sunt d
Ee Tea ee OC Un MS Ge Seer me
SRS CL EG RT SEE RoR IAD

SR beaseyanemte ue ‘ BEA SONG AN AES OUT ES HPOY genet.

r

PERS eS DNAS

Ne. Tet Gee eee
Appeals lik ly to! delay executions

LITTLE ROCK, Ark. — Four men who beat and
killed a businessman while his wife and children
watched are scheduled for a mass execution

something, they won’t be execute

d,” said Victra

Fewell, an assistant attorney general.

“None of

“a :

Friday, but appeals likely will postpone the [°%
deaths. “I’d say that unless they fail to file

roe
ee ens Tg

- ours (in Arkansas) has ever failed to get a stay. |
We don’t have a reason to think thisis any

different.” Attorney Marshall Carlisle, .

representing one of the four prisoners, said state |
appeals have been exhausted, but a petition \

\

seeking a stay will be filed today in federal

court. “We have never

been in the federal courts _

in this case,” Carlisle said. The Arkansas
Supreme Court twice postponed execution dates,
but on May 29 the state court denied a petition —
for a post-conviction review and scheduled the

“executions for Friday.

Four men wearing ski

masks forced their way into the house of Donald
Lehman, 47, a building contractor, on Jan. 8,

1981. They beat him with a chain, shot him three

times with a .25-caliber pistol in front of his wife

and daughter, stole $1,200 and took several guns.
Carlisle represents James William Holmes, 28,

of Rogers. The other three, all convictedin ~~~
‘October 1981, are Hoyt Franklin Clines, 28, of -
Rogers; Michael Orndorff, 25, of Gravette; and
Darrell V. Richley, 33, of Fayetteville. All are in |

the Cummins Unit of the state Correction
Department.

47
A

Birmingham Post-Herald, Tuesday, June 26, 1984

AB.

Sites Mitte geek

AR RR Ft AS
GOs SBS SE EAR, Sey
: Ute


Judge Grants Execution Stay

4 4m wg "3 t

, LITTLE ROCK, Ark., June 27 (UPI)
_— Federal District J udge Henry Woods
- today postponed the executions, of four
kansas men convicted of beating and
ing a man in front of his wife and
- Children. The four were Scheduled to
die Friday, a
-’ The. stay was granted less than an
“=3;hour after Marshall Carlisle of Fay-
_| etteville, an attorney for one of the

men, filed motions of appeal on behalf
of all four.

The men were convicted of killing
Donald Lehman, 47 years-old, a
Rogers, Ark., building contractor, in
his home in J anuary 1981 while robbing
him of cash and several guns. They
were arrested the day after the killing
and were convicted in October.

Mr. Carlisle met Tuesday night with
all four of the inmates on death row at
the state prison near Pine Bluff. The
motions focused on the exclusion from
the jury of prospective jurors who said
they would not be willing to sentence a
person to death, and the denial of sepa-
rate trials. ;

The four are Michael Orndorff, 25, of
Gravette; James William Holmes, 28,
of Rogers; Darrell Richley, 33, of Fay-

etteville, and Hoyt Franklin Clines, 28,
of Rogers.

¥

~~ For Four Arkansas Convicts

THE NEW YORK TIMES, THURSDAY, JUNE 28, 1984

£2 &: fal:

oe PN ets

Sa
. pee
pia

i oot
rs
os

a

ian gs


92 Ark:

immunity or reward and without being
threatened or abused in any manner, vol-
untarily made the confession. The deputy
sheriff's testimony was corroborated by
Mrs. Merrill, the stenographer who tran-
scribed it, and Max Tackett, the other offi-
cer present. In the confession the appel-
lant admitted that he was not mistreated,
that he had not been threatened and had
been promised nothing by way of reward
or leniency. This issue, as to whether
Boone’s confession was voluntary, was
properly submitted to the jury in the court’s
‘nstruction No. 12 in accordance with our
holding in McClellan v. State, 203 Ark.
386, 156 S.W.2d 800, 803, where we said:
“In such cases the practice approved by us,
which was followed in the instant case, 1s
for the court to hear the testimony in the
absence of the jury as to the circumstances
under which the confession was given, and
if there is a substantial question as to
whether it was freely and voluntarily made,
to submit that question of fact to the jury,
after admonishing the jury to disregard
the confession unless it was found to have
been ‘voluntarily made.”

Finally it appears that at the close of
the State’s case, appellant objected to the
action of the court in overruling his motion
for a directed verdict on the ground that
the State failed to prove the corpus delicti,
failed to prove any criminal agency and
that the confessions were not legally ad-
mitted in evidence. Our statute provides
(Ark.Stats. 43-2115): “A confession of a
defendant, unless made in open court, will
not warrant a conviction, unless accompa-
nied with other proof that such an offense
was committed.”. In construing this stat-
ute, we held in Ezell v. State, 217 Ark, 94,
229 S.W.2d 32, that: “An extrajudicial
confession of a defendant accompanied by
proof that the offense was actually commit-

327 SOUTH WESTERN REPORTER, 2d SERIES

ted by someone is sufficient to warrant his
conviction, whether there is any other testi-
mony tending to connect him with the crime
or not.” In the present case we think the
evidence, even independent of Boone’s con-
fession, was sufficient to sustain the ver-
dict of first degree murder. The evidence,
as shown in a stipulation of facts, reflects
that Mr. Hamm left his home in the morn-
ing of May 9th to go to Texarkana. On
his way home, about 10 o’clock, he stopped
at a service station on Broad Street, Tex-
arkana, where he rested for about thirty
minutes. He then proceeded up highway
No. 67 to. a point near Jack Miller’s courts
where he “hitched” a ride on a truck driven
by Henry Byrd and occupied by James
Moore, James Boyd and appellant, Rogers
Boone. He was last seen alive on his
way home. He was missing until his
body was discovered May 15th. All four
occupants of the truck showed the officers
where Hamm was assaulted and murdered.
Hamm’s billfold, with $10.11 missing there-
from, was found empty about 200 yards
from the scene of the murder. We think
that the admitted fact that Hamm’s body
was found at the place indicated by appcl-
lant and the other three Negroes with his
billfold found empty would warrant a jury
in finding that Hamm had been murdered
and robbed and sufficient to sustain Boone’s
conviction. The fact that the body was
found where Boone said the assault took
place certainly connects him with the crime
and sustains his confession. Citing Shuf-
flin v. State, 122 Ark. 606, 184 S.W. 454.
We conclude therefore that the evidence
was sufficient to support the verdict.

’

This being a capital case, it is our duty
to consider all alleged errors and objections
and after having done so, we find no error
that would require reversal of this case.

Accordingly, the judgment is affirmed.

OEP Re et Nas,

Se eT

LA HOP eny

|

Eugene HARD

Vv
COMMONWEALTH o.

Court of Appea!
March 6

Rehearing Denic

Proceeding to rev.
fendant, who had pk
charges of grand larce:
ment had been fixed at
ment in prison on eac.
order of the Circui
Branch, First Divisio:
Thomas J. Knight, J.,
and sentencing defends.
od of four years, the |
The Court of Appeal
that judgment sentenc
not be collaterally att
to correct record to si
ment was to be for a to!
imprisonment.

Judgment affirmed

See also, Ky., 317

1. Criminal Law G=982:'

Where defendant p
charges of grand larcen;
and his punishment was
confinement in prison ©
he was. granted probati
havior for a period of |
ing period of probation
charge of possessing bu:
been convicted of a felo
and granted probation,
its discretion in revok

KRS 439.260, 439.270.

2. Criminal Law €=>982.9;
In proceeding on m:

bation of defendant who
to two charges of grand
punishment had been fi
confinement in prison on


, BOYD, BOONE, BYRD and MOORE, blacks, electrocuted
May 13 and May 20, 1960. : ’ ed Arkansas (Miller County) on

838 = Ark. 299 SOUTH WESTERN REPORTER, 2d SERIES

and does not apply to the kind of proceed-
ing involved in the case at bar.

Article 7, Section 28, of the Constitution
provides: “The county courts shall have
exclusive original jurisdiction in all matters
relating to * * * bastardy Rick ae
The subject of bastardy is dealt with in de-
tail in Title 34, Chapter 7 of Arkansas
Statutes, found in Volume 3. The statutes
provide that the county court has juris-
diction in bastardy proceedings. The stat-
utes also provide for an appeal to the cir-
cuit court and a trial de novo in that court.
Apparently, everything that may arise in
connection with a case of that kind is men-
tioned in detail.

The action in the case at bar is to compel
an alleged father of an illegitimate child to
support such child. If this is a bastardy
proceeding, then original jurisdiction is in
the county court and not in the chancery
court, according to Article 7, Section 28, of
the Constitution. This brings us to a con-
sideration of the meaning of the word
bastardy used in the Constitution. Bal-
lentine’s Law Dictionary, page 142, defines
a bastardy proceeding as “a proceeding of
a civil nature to compel a bastard’s father
to support him.” And, that is exactly the
kind of proceeding involved in the case at
bar. “The common law affords no remedy
to compel a putative father to contribute
to the support of his illegitimate offspring.
Statutes now exist in most jurisdictions,
however, providing for judicial proceedings,
usually called filiation or bastardy pro-
ceedings, to establish the paternity of a
bastard child and to compel the father to
contribute to its support.” 7 American

Jurisprudence 679.

In Epperson v. Sharp, 222 Ark. 456, 261
S.W.2d 267, 268, the mother instituted pro-
ceedings in the county court to compel the
alleged father of her bastard child to contri-
bute to the support of the child. In that
case, this court said: “This is a bastardy
proceeding.” Perhaps the reason for plac-
ing jurisdiction in bastardy matters in the
county court no longer exists, but, neverthe-

less, the Constitution has not been changed,
and the county court still has exclusive,
original jurisdiction in such matters. The
case at bar is clearly a bastardy proceeding,
hence the chancery court does not have
jurisdiction.

Reversed.

James MOORE et al., Appellants,
V.
STATE of Arkansas, Appellee.
No. 4862.

Supreme Court of Arkansas.

March 18, 1957.

Defendants were convicted in the Cir-
cuit Court, Miller County, Lyle Brown, J.,
of murder in the first degree, and they ap-
pealed. The Supreme Court, George Rose
Smith, J., held that even though prosecu-
tion was for killing of hitchhiker, it had
been error to permit State to prove that
two of defendants had assaulted and robbed
another hitchhiker five days after attack
upon decedent; and held erroneous ad-
mission of such evidence would require
reversal as to all four defendants, even
though court had instructed jury that such
evidence could not be considered as to other
two defendants, since fact that jury had
found all four defendants guilty and had
imposed same penalty against all indicated
that prejudicial effect of testimony had been
carried over to other two defendants.

Reversed.

Harris, C. J., and Millwee, J., dissented.

t. Criminal Law G=134(4)

In absence of competent evidence to
establish existence of prejudice, court did

ed

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BOONE v. STATE Ark, 91
Cite as 327 S.W.2d 87 ,

tion the judge informed appellant’s counsel
of such communication. The counsel stat-
ed to the judge it was all right, but he
wished to save his formal exceptions. Even
this would not have been a compliance with
the statute, if nothing further had been
done, but, after the jury had returned into
court with its verdict, and before the court
had received the same, the court informed
the jury of the communication that the
judge had with the foreman, and inquired
of them if such was their understanding of
what had happened, and asked them if the
conduct of the judge and the foreman had

exerted any influence on them in reaching

their verdict, and they answered that it
had not. Thus it appears that the commu-
nication between the judge and the foreman
of the jury was repeated in the presence of
the jury and counsel in the court room, be-
fore the verdict was received and an-
nounced. Counsel for the respective par-
ties were thus notified of what had taken
place and what was then taking place in
open court, and they were then given an op-
portunity to register any objection they had,
or might have had to the procedure, and
they offered none. Counsel for appellant
was immediately informed by the presiding
judge of the communication between him

and the foreman, and given an opportunity

then to request that the jury be brought
into open court, and that the same informa-
tion be there given the jury as had been
given to its foreman, and counsel for ap-
pellant did not ask such request.

“Tt occurs to use that the error of the
trial judge in communicating with the fore-
man of the jury in the hall of the court-
house was fully cured by repeating the
communication in the presence of counsel
and jury in open court, before the jury’s
verdict was received and announced, when
appellant’s counsel were given an oppor-
tunity to then and there offer any objection
they had to the communication. Wawak &
Vaught v. State, 170 Ark. 329, 279 S.W.
997, The statute was complied with both
in letter and spirit, and therefore no preju-
dicial error resulted.”

III

[3] Appellant says the court erred in
admitting the alleged confession of appel-
lant and amended statements and confes-
sions of James M. Moore, James Boyd, and
Willie H. Byrd. It appears that this same
objection of admitting confessions of
Boone’s codefendants was raised in the
very recent case of Moore v. State, Ark.,
315 S.W.2d 907, 913. We there said:
“This evidence of the statements by the
other prisoners in Moore’s presence tend-
ing to implicate him in the crime was ad-
missible testimony under our holding in
Martin v. State, 177 Ark. 379, 6 S.W.2d
293, wherein we said: ‘* * * itis a gen-
eral rule that the statements of one accom-
plice made in the presence and hearing of
another, which are not contradicted by
him are admissible in evidence against him
as an admission on his part for his failure
to contradict them. Polk v. State, 45 Ark.
165; Ford v. State, 34 Ark. [649], 654.’
In 20 Am.Jur. 428, ‘Evidence’, § 493, the
general rule is stated: “The rule preclud-
ing the use of the confessions of co-con-
spirators and codefendants as evidence
against those not making the confessions
is limited to confessions made in the ab-
sence of such other defendants. A con-
fession of a coconspirator or codefendant
made in the presence of the accused and
assented to by him, impliedly or tacitly by
his silence or conduct, is admissible against
him, upon the same principles which per-
mit the introduction of evidence that the
defendant stood silent when accused of
crime, but it must appear that he did as-
sent to the confession.’ ”

It is undisputed that appellant made and
signed a confession. He denies, however,
that he voluntarily made it. The deputy
sheriff of Miller County, in this connection,
testified that he took charge of the appel-
lant and his accomplices, Moore, Byrd and
Boyd, at Texarkana and with other officers
transported them to the prosecuting attor-
ney’s office at Arkadelphia. He further tes-
tified that appellant, without any promise of


fee

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ves 28

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90 Ark.

punishments is a matter for each of you
to decide to your own satisfaction.

“‘By the Court: Gentlemen, are there
any other questions?

“‘By Member of the Jury: You didn’t
help us much.

“ «By the Court: I am sorry, but I have
got to go by the law. Suppose I give you
about ten minutes and then I may call on
you to report to the court.

“*By Member of the Jury: We will stay
longer than that, if necessary.

“By the Court: As far as that goes,
gentlemen, I will stay until the cock crows
in the morning, if you want to. Don’t
hurry on my account. As long as you
feel there is a reasonable chance to come
to some conclusion and reach a verdict, I
will be right here, and happy to stay with

.9)

you.

It thus appears undisputed that appellant
agreed to the court’s entering the jury
room, as indicated, and he points to no
evidence in the record tending to show that
anything was said or done prejudicial to
the rights of appellant. Our statute, 43-
2139 Ark.Stats. (1947), on this question
provides: “After the jury retires for de-
liberation, if there is a disagreement be-
tween them as to any part of the evidence,
or if they desire to be informed on a point
of law, they must require the officer to con-
duct them into court. Upon their being
brought into court, the information re-
quired must be given in the presence of, or
after notice to, the counsel of the parties.”
Here the trial judge, after conferring with
both counsel for the State and defendant
and with their approval, went into the jury
room with the court reporter and instruct-
ed the jury, as indicated. He then re-
turned to the court room and with the as-
sistance and agreement of both counsel for
appellant and counsel for the State, drafted
additional instructions, returned to the jury
room and read it to them. We are con-
vinced, that on the record here, appellant,
by agreeing to. the actions of the court,

327 SOUTH WESTERN REPORTER, 2d SERIES

waived his right to challenge such actions
unless such acts were shown to be so harm-
ful or prejudicial to his rights as to con-
stitute error and, as indicated, we hold, in
the circumstances, that the court did noth-
ing prejudicial. What we said in Aydelotte
v. State, 177 Ark. 595, 281 S.W. 369, 372, in
a somewhat similar situation, applies with
equal force here. There this court said:
“* * * The most serious question in
this case is whether or not the court erred
in telling the foreman of the jury in the
hall of the courthouse, apart from his fel-
lows, in answer to a question propounded to
the judge by the foreman, that the jury

could give less than one year for the low-

est degree of homicide according to the
instruction twice given to the jury. If this
were all the record showed, it would un-
doubtedly be reversible error, because con-
trary to Sec. 3192, C. & M. Digest, which
provides: ‘After the jury retires for de-
liberation, if there is a disagreement be-
tween them as to any part of the evidence,
or if they desire to be informed on a point
of law, they must require the officer to con-
duct them into court. Upon their being
brought into court the information re-
quired must be given in the presence of, or
after notice to, the counsel of the parties.’
The provisions of the above statute are
mandatory, and, where the facts call for an
application of its provisions, unless the rul-
ings of the court comply with the statute
they will constitute prejudicial error. The
design of the lawmakers in the enactment
of this statute was to protect defendants on
trial as well as the state, after causes have
been finally submitted to the jury for its
deliberation and verdict, against any fur-
ther steps being taken in the case in regard
to the evidence or the law, unless in open
court and after notice to the counsel of the
respective parties. While the records show
that the communication between the fore-
man of the jury and the trial judge oc-
curred in the hall of the courthouse; yet
the record further shows that appellant’s
counsel was standing within 30 feet of the
judge and the foreman of the jury at the
time, and immediately after the communica-

ERR nthe sey ee cath “HE on

Sa ean NE, PS

Se cee

on

oP ee niagane; Pag mene er Pa cH ta

tion the jud;
of such con
ed to the ji
wished to sa:
this would n
the statute,
done, but, af
court with it:
had received
the jury of
judge had w.
of them if su
what had ha;
conduct of t!
exerted any
their verdict.
had not. Th
nication bety
of the jury vu
the jury and
fore the ve:
nounced. C
ties were thu
place and w!
open court, a)
portunity to r.
or might hay
they offered
was immediat
judge of the
and the foren:
then to requis
into open cou:
tion be there
given to its {
pellant did not

“Tt occurs |
trial judge in
man of the ji
house was fi
communicatio:
and jury in o
verdict was r:
appellant’s co:
tunity to then .
they had to th:
Vaught v. St:
997. The stat
in letter and sg;
dicial error re:

“stead of appropriating $50C0,00 as requested, they yoted to spend

the Court that the public chin required for the safety of the citizens

of the county that such persons shou id be securcd as said ve may
find necessary, It is opdared “that they have the use of the jail for
that purpose una the Sherriff o% the County is ordered to p ErmLb said

Committee to imprison their prisoners in said jail aad to taxe bem ch
again whenever he shell be regrired to do so by said Comittee,
County Gourt Record Vol, A. page li? - Hay 8, 1041,
Now on this day cama Thomas Waticins, Williar
Tarner Esqe, “no Resaet to the court the proceedings 02 a
ing ef the Citic ens of the County held abt Searcy on the 27%:
ril. 19$1, at which the following revolutions smong others ;
to wits -. :
RESOLVED: That we ave in faver oF the immediate sept of
the State of Arkansas from ths Federal Union and cur imme
to the Confederate States of the South and with this view we
solicit the State Corventicn to pass an ordinemes of unconditio

. VO union
respectsuliy

fonaL and

re a)

4 i aticad “ 3 A aide tnoanall
immediate Secession at the earliest practicatie Momeni, Sic

i“ ii eltien a, je a 4 2 On Ox th 5 erty ay oh os
to elect delegates to represent tha Stete Gn the souvnemn Leis

a) ;

a

os

Preys ny pte £45 Te a OP. < shy

RESOLVED: That we do herety respectfully ps butt om the

§ _ a. F Fares a ween BPA A pe

Court of this county to . 4 8 ob Lenst $bO00,00 xronm

treasury for the arming re of its citizens,
{
bi a, or © BALD
nty Court Record = Vou. A, May 68, 2862.

by = . * 5a) 2 2 : wm, ne RE aoe ae eee One
Court allowed gohn W, Bond ~ $15.00 for feeding snaurrectionary

negros on arrest.

County Court Record Vol, A - June 3, 16651,
H, Stevenson allowed $29.00 for board of Negros implicate od 4a the

insurrection . =>
; —L uy. YP f SS BA '
—— Ki ed Pol < of LA 2 oe - We ge 2 + ]

AVY 2 ff = j
oo a, / H Yn Yiptie ean ara ste ys J
{

/ This is the all the records fornd pertaining to the insurrection.
No evidence of a trial cowld te found, jooking at the ahove: we have

no reccrd of ths other thinss disc ssed at the mass meeting but the act-

ion of the court gives an TndiLeation of the fe-.ing in the countye ‘in-

&7500.CO for arms and ammunition, kt cha dune LOth session they voted
to void this action, A Hous Guard was authorized by the court, duly €,
1861, but each man was to furnish his own arms and eammanitioit.s

The Committee of Safety seemed ‘to be operating outside ths outh-
ority of the County Law enforcement. msg’ eetent of their poxsr is not
known and they may have conducted the trial, if there was a hanging
no expense was found, charged to the county e

Afi fee +e seetly U
L abwttf &


athousand or four thonsard,
will make no diptinction between the
partios.”’ Gs U7

A reise i xéoution.

Newronte Ark. April 6—Train rob
bers J. L. Wyriok, Thomas Brady and
Albert. Mansker,-who killed Conductor
W. DP. MoNally at Oliphant November
Dth last, were hanged here today. They
spent the night in prayer &nd prepara
tion for death. When they found that
all hope was gone they confassed that
the story told by Georges Padget, who
tirned state's 6VIdénGe waa true “ATI
three, however, asserted that Padget
planned the orime and drew the others
into itand then deserted them. The

trippleexecution passed off emoothly,

Secretary Vasant
Santa he, N. M., April 6—Seoretary
of War Lamont arrived here today, in.
speoted - the~-post \ at’ Port Maroy and
leftat Il a. m. for Colorado Springs.


From ths Ghrenticles ef Arkenens « Margaret Roas @ Arkengas Casotte,
3 oe ! Mey 20, 1961 :
Wednesday, May &, LO6L the Des Are Citizen reported that en attem~

ted insurrection had baer thwarted by the arrest of eome 26 Heros __ _ at.

Searcy, The insurrection was planed by Rev. ‘Charles Cavender » a Meth-

“edist ninister who lived at Gil Trough Bottom in Jackson County, The

scheme was said to be “to massacre a whole section of country, then cap-

ture Memphis, and establish a tmdidule confedaracy,' "

‘The Negros were “to start from avstia aad Bielor; Fieins, killing
everybody they met until they veached Ssarq,, Here Carender was to take
charge and take them to prams, where tha eal che unite with anoth ier gre
oup. ae 3 ; !

A Negro who lived near Austin war b to Bee arcy en ipril 27 and reports
ed that his company was ready, end would start on the following Saturday
night, May 4, The Negros held a s rset rag in ne ety outbuilding about 15 miles
west of fustin, A gourd cf powder was Found in the coat pocket of cons

7

of the Negres by his ewloyer, aad the plot wes thus or

ave ie gros a he rire eight 5

7% RS | Oe Th Rye. A ocz 5 i s y , 7
2 people west: of Des ire ae state sty Ongar gel a wigllence com
eye Ven ; 4 Tr i F ok * r oe nS a Y
er tkens The Des dc Regulators were exmed ati ready to defend the
yer fe F : WE axad dow “ x 2 : Des ee eee atk nan a
town, and Bos Are ond vinlolty were placed under strict police guard.

The Prairie Democrat resorted vhs Jemes Keclinson of Indiana was
arrested and trie bas v Lance — for 0 ma bring
use of Language ge o cendiery natiice and for symathiaing too freshly

ae

Fe o,
io
eo
——s
we
és
Gi

Son Diietin od nat Eb ne ee oe . ome
with Lincoln," He was found guilty, and ris head was shaved on one side
to resambie a penitentiary comvict, He was released with orcers to Leave
tow,
n pamiaecnt or % <y P i BR PD Rian gee ow ie &%
( This is reorinted by peradesion of Hee, Margeret Ress ond the

aN ye, ‘+. 3 Be Be im %

Avkanzas Gazontes, j

SW BS OER RI EE a

‘ 3G 4 thoy Pies bea Fhacorydtce Dinmeceddes gpeweginQ dete, Pn Ot Ea a) nh «
Jt *heci G vlad rth wes VE leea ad bud aks LUI a Ge cs Fallow 3 fa wee

County Court Record < Vol, A ~ page 169 ~ ~ May Za LeS1

This day came sundry citizens of the County and petitioned the
court for the use of the County Jail to secure such persons as the Com-
mittea of Safety in this County should find it neceasary for the public
safety to te kept in prison, Ani it appearing to the satisfaction of

‘6, CMT PRIN PES.

EPEH

Zier

CY Raga

WF To SATE eh ES

PASTE Ah



uremia RINE RT A amie on

a ial

RTT

A Saga of the Depaty Uniied States
arshais

Who Rode the Indian Territory

Cc. H. McKENNON

DOUBLEDAY & COMPANY, INC., GARDEN CITY, NEW YORK

sematit dh aks

rere

Library of Congress Catalog Card Number 64-10048
Copyright © 1967 by C. H. McKennon
All Rights Reserved
Printed in the United States of America

To MIKE and SANDY

As with all children———
they will face frontiers
of their own——————


ne ee

74 IRON MEN

he appointed James F. “Bud” Ledbetter a Johnson County
deputy sheriff. .

McConneil quickly realized that Ledbetter was a “born”
lawman. The two “Buds” often ranged the length and
breadth of the county together in search of dangerous
quarry. Folks in the caned river bottoms to the south, in the
rolling, thickly forested Ozark Mountains to the north, the
Piney Creek area to the east, and among the burgeoning
coai mines westward—all were aware that a hard-riding
bunch of lawmen was on dutv in the county. Hard-cases
knew that “those laws in Clarksville weren't fooling around.”

J. R. Tolbert had more than an editor’s interest in law en-
forcement. His oldest son, Paden, was vitallv interested in
the activities ot Bud McConnell and Bud Ledbetter. Stories
ot the davs of Sid Wallace intrigued Paden, and he was an
authority on the subject. tte

“Perhaps,” mused Tolbert, “it was the wav we raised the

doy that makes him so interested in the causes of rough and

dangerous times.”

Young Paden had received the best education possible
in Georgia, despite Tolbert’s limited means. The stubborn
father even swore off the use of cheroots for long periods
ot time in order to provide his older sons with “school
britches” and shoes.

Paden Tolbert’s schooling had provided him with a job.
School Commissioner Littlebury Robinson offered him a
post teaching school, and Paden took it. However, his father
easily detected a restless spirit in the young man. In line
with the vogue of the era, Paden had carefully nurtured
an adolescent mustache that now was thick and stylish. The
mustache though, was just about the only nod to the cus-
toms of most young men of the day that Paden Tolbert per-
mitted himself to make. Aside from perfunctory attendance
to play-parties, even those sponsored by the school, the
young teacher preferred a life out of doors. At every op-
portunity he volunteered for posse duty and became fa-

THE IRON LAW OF JOHNSON COUNTY 75

miliar with the remote corners of the county. From his
meager salarv he purchased a fine Colt .45 single action
Army Model six-shooter. The weapon sported a pair of
ivory grips with carved steer heads in bas-relief.

J. R. Tolbert sighed the dismay countless fathers before

him had expressed when they suspected that the first-born ~

was not following the paternal footsteps. Tolbert's peach
trees were growing sturdily, but he knew that it would be
some time in the too distant future before the orchard would
begin bearing fruit and call for his full time.

Bud McConnell’s dream of changing protessions was hav-
ing trouble materializing too. On March 7, 1883, the Little
Rock-Fort Smith Railroad suffered a holdup, or more ac-
curately, the train was shot up.

When the westbound train stopped for passengers at Mul-

eng 2

berry, a town some thirty miles west of Clarksville. four —

characters ambled nonchalantly aboard. They were Jim
Johnson, Monroe MacDonald, Gove Johnson, and James
Herndon. Thev found seats in a coach, and as they were
average-appearing young men, the other passengers gave
them little heed. As the train began to move, the four men
pulled large bandannas from their pockets. They adjusted
the big kerchiefs to form masks for their faces.

Conductor Cain came down the aisle of the coach,
methodically punching tickets. He paused in astonishment
before the masked group.

“We ain’t got no money or tickets,” leered one of the men.

Conductor Cain promptly raised his hand to grasp the
emergency cord near the ceiling of the coach. Before he
could jerk the cord, one of the bandits snaked a Colt out of
his waistband and thumbed a quick shot. The conductor,
with his arm stretched over his head, was hit squarely. He
fell backward, killed instantly.

The crash of the large-caliber revolver was a thunderclap
in the confines of the coach. Through the haze of smoke
from the shot the bandits could see the white faces of the


oa

76 IRON MEN

passengers staring with horrified eyes at the inert form of
the trainman.

Brakeman Lester heard the boom of the shot from an-
other coach, and he decided to investigate. When he en-
tered the smoky coach containing the masked men, one of
the outlaws fired another shot. The bullet creased the train-
man's head nastilv, and the impact sent him spinning to the
floor. Several women passengers recovered their voices and
began to scream wildly, and if the outlaws had a plan, it
suddenly went awry. They bolted, scrambling for the
vestibule, and tangled with each other in the narrow aisle.
In their excited struggles with themselves the bandits began
firing their guns. Bullets whacked into the woodwork of
the coach, and a few leaden slugs crashed the glass of a
couple ot windows. One wild bullet thumped into the tin
stovepipe of the cast-iron monkey stove in the forward part
of the coach. The frail pipe fell apart, spraying the adjacent
passengers with soot. The air was now fogged with dense
gun. smoke, and male passengers, with hoarse shouts, made
dives for the floor. Above the din the piercing shrieks of
women could be heard.

Reaching the vestibule of the coach, the outlaws, with
wild abandon, flung themselves from the now rapidly moy-
ing train.

The frightened passengers began sawing on the emergency
cord, and the train was brought to a jolting stop. Except for
scratches caused from flying wood splinters and fragments
of glass, none of the excited passengers were injured. The
wounded brakeman was bleeding badly, and after a hasty
consultation, the trainmen decided to back the train to Mul-
berry in order to secure medical attention as quickly as pos-
sible. The engineer opened his throttle as far as it would go,
so that the train would be moving too fast for boarding when
it passed the spot where the outlaws had made their exit.

Half expecting to undergo a fusillade of shots as the train

chugged rapidly past the place where the bandits had

THE IRON LAW OF JOHNSON COUNTY 7

jumped, the passengers peered fearfully at the dense thickets
near the track. However, the outlaws evidently were through
with the train, and there was no sign of them to be seen.

The train quickly made its reverse run to Mulberry, and -
the authorities were notified. A number of passengers were
certain that one of the bandits had accidentally wounded a
companion during the excited gun plav. A hastily formed
posse was dispatched at once to the site on the tracks, and
the injured man was soon located, hiding under a bush. He
had been deserted bv his friends, for he was in no condition
to ride. The bandits had hidden horses near the place so
they could flee after the holdup.

Although the shooting had occurred in Franklin County,
Bud McC aenell sent two of his crack deputies to the neigh-
boring county to lend a hand. Bud Ledbetter and John
Powers with a carefully chosen young posseman loaded their
horses aboard the next westbound train and journeved to
the site of the holdup.

Ledbetter and Powers, already experienced manhunters,
went to work. The fact that the outlaws had bothered to
mask themselves after boarding the train stamped them as
amateurs, but with a murder charge now hanging over their
heads, they would be extremely dangerous men to comer.

The captured bandit flatly refused to divulge any informa-
tion, despite having been left behind } by his companions, but
it did not take Ledbetter long to locate the site where the
horses of the outlaws had been staked out. Trampled
ground and horse droppings were easily found, but a trained
eye was required to spot the trail leading away from the
site. Finding the trail, the three ievnien knew that the
wanted men had fled northward to the densely forested
mountains.

Powers wired Bud McConnell that an extensive pursuit ap-
peared to be in the offing. The lawmen rented a mule and
loaded it with supplies. A sack of corn meal was added for
the horses and mule, for green-up time had just come to


ie

Omen

Pn eT

a

Clines, Holmes, Orndorff, &,Richley. ARK. (Benton)

1230 906 FEDERAL REPORTER, 2d SERIES

Michael Ray ORNDORFF, Appellant,
: Vv

A.L. LOCKHART, Director, Arkansas
Dept. of Correction, Appellee.

James William HOLMES, Appellant,

v

A.L. LOCKHART, Director, Arkansas . |

Dept. of Correction, Appellee.
Hoyt Franklin CLINES, Appellant,

Vv.

A.L. LOCKHART, Director, Arkansas
Dept. of Correction, Appellee.

Darryl V. RICHLEY, Appellant,

v.
A.L. LOCKHART, Director, Arkansas

Dept. of Correction, Appellee.
" Michael Ray ORNDORFF, Appellee,
v.
A.L. LOCKHART, Director, Arkansas
Dept. of Correction, Appellant.
James William HOLMES, Appellee,

Vv.

A.L. LOCKHART, Director, Arkansas
Dept. of Correction, Appellant.

Hoyt Franklin CLINES, Appellee,

Vv.

A.L. LOCKHART, Director, Arkansas
Dept. of Correction, Appellant.
Darryl V. RICHLEY, Appellee,

Vv.

A.L. LOCKHART, Director, Arkansas
Dept. of Correction, Appellant.

Nos. 88-2344, 88-2405.

United States Court of Appeals,
Eighth Circuit.

Submitted April 13, 1989.
Decided June 19, 1990.

Defendants were convicted, in the Ben-
ton County Circuit Court, William H. En-

field, J., of capital murder and were sen-
tenced to death. They appealed. The Su-
preme Court, 280 Ark. 77, 656 S.W.2d 684,
Hays, J., affirmed. Postconviction relief
was denied, 282 Ark. 541, 669 S.W.2d 883.
Defendants brought petitions for habeas
corpus relief. The United States District
Court for the Eastern District of Arkansas,
Henry Woods, J., granted relief in part, 707
F.Supp. 1062. Appeals were taken. The
Court of Appeals, Bowman, Circuit Judge,
held that: (1) once district court concluded
that use of posthypnotic testimony violated
confrontation clause, court should have
compared witness’ prehypnosis statements
with her trial testimony as part of its harm-
less error analysis, and (2) in event that
error is found to be harmful, State should
be given option of either conducting new
sentencing proceeding or reducing sen-
tences to life without parole.

Affirmed in part, vacated in part, and —

matter remanded.

1. Criminal Law ¢1168(2)

District court, having concluded that
use of posthypnotic testimony violated con-
frontation clause, performed improper
harmless error analysis; court should have
compared witness’ prehypnosis statements
with her trial testimony with eye toward
sorting those things about which witness
could testify without aid of hypnosis from
those things about which she could testify
only after being hypnotized, with error be-
ing deemed harmless unless sorting pro-

cess revealed significant variations. U.S.
C.A. Const.Amend. 6.

2. Criminal Law ¢1170'A(5)

That defense counsel is denied use of
legitimate means of cross-examining ad-
verse witness is not in and of itself
grounds for disturbing guilty verdict.

3. Homicide <-345

Where harmful error in use of post-
hypnotic testimony goes only to imposition
of death penalty and not to jury verdict on
guilt, proper remedy is for State to be
given option of either conducting new sen-

anim ty pargetent + Canes nincams 8 %

een SY

(p W £ Ca A Dry / GIL Ar ka nots Pripl CLEC

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< - .
a

LOS ANGELES TIMES

2 Die by Lethal Injection

as Third Awaits in Arkansas

~, Holmes, 37; Clines, 37; and Ric Rich--

|
{

= Penalty: Inmates say
the triple execution is like
taking ‘hogs to the
slaughter.’ But prison
officials say it makes it
easier on their staff.

From Associated Press

ARNER, Ark.—The first two

of three killers scheduled to
be put to death Wednesday night
in the nation’s first triple execution
in 32 years received fatal injections
after refusing to offer final words.
' The three men had all argued in
a late-hour appeal to the Supreme
Court that they were being re-
duced to “hogs at the slaughter,”
but the last execution was expected
to follow the first two within hours.
| “Nope,” was all Hoyt Clines and
Darryl Richley said when asked if
they had any last words. Then they
were strapped to gurneys, about an
hour apart, and the lethal doses of
drugs were injected.
: Minutes before Clines’ execution,
a federal appeals court lifted a stay
of execution granted for James
Holmes. He had been scheduled for
execution after Clines, but at the
last minute prison officials dropped
him to the third spot.

THURSDAY, AUGUST 4, 1994

A13.

ley, 43, were scheduled to die one
by one beginning at 5 p.m. PDT for
killing a businessman in front of his
iaaly during a 1981 robbery.

Clines was pronounced dead at
5. 11 p.m. and Richley died at 6:07
p.m., a state prison official an-
nounced. An appeal for Clines was
ies at 4:55 p.m.

wo other appeals—one on be-

half of all three men, the other
ke Richley—were also denied by
the Supreme Court.
| A three-judge panel of the U.S.
8th Circuit Court of Appeals had
stayed Holmes’ execution Wednes-
day so he could have more time to
pursue a separate appeal. But that
stay was dissolved less than three
hours later by an 8-3 decision of
the full 8th Circuit.

The three-judge panel had said
Holmes should be granted addi-
tional time to appeal his conviction
and death sentence on the basis of
a new argument that his trial
counsel was ineffective.

' Before the last-minute change,
the order of their executions was to
have been determined by their
rison serial numbers—Clines
SK886; Holmes SK887; Richley
SK888. Prison officials didn’t im-
mediately say why they moved
Holmes to the third spot.
| The prison planned for 45 to 60
minutes between executions—
enough time to carry the body out
in a bag, wipe down the gurney and
change the needle before the next
man was brought in.
' “This scheduled mass execution,
by reducing human beings to hogs

at the slaughter, will exponentially

increase the level of fear, uncer-
tainty and psychological stress that
someone condemned normally ex-
periences in the usual course of
death,” the inmates said in their
appeal.

They also argued that it is un-
constitutional for the state to “as-
sess who they think is worthy of
another hour or two of life.”

The state has said that multiple
executions reduce overtime and
stress on employees. ‘‘Nobody
wants to get up in the morning and
go kill somebody,” Correction De-
partment spokesman Alan Ables
said earlier this year.

But Diann Rust-Tierney, direc-
tor of the Capital Punishment Proj-
ect for the American Civil Liber-
ties Union, said: “To take mass
execution as a model of efficiency
only underscores how out of step
we are with the rest of the world.”

he murder victim, Don Leh-
man, was beaten with a motor-
cycle chain and shot in the chest
and head by four masked men who
forced their way into his home,
chased him down and held him ona
bed. His wife was on the bedroom
floor at the time.
The fourth man convicted in the

murder had his death sentence

commuted to life in prison after a
court ruled that hypnosis-induced
testimony from the victim’s
daughter may have affected his
sentencing.

_ kato, Minn.,

, spectacle,

| ——1'he nation’s last triple execution

was Aug. 8, 1962, when three men
went to the gas chamber in Califor-
nia. Arkansas put two prisoners to
death for unrelated crimes on May
11 in the first double execution
since the Supreme Court in 1976
allowed capital punishment to re-
sume.

On Feb. 1-2, 1951, Virginia sent
eight men to the electric chair.
Before that, at least 17 states
executed four or more people in
one day.

In 1862, federal officials in Man-
hanged 38 Dakota
Indians after the tribe declared war
on the United States for failing to
honor treaties.

S* inmates have been executed
in Arkansas, and 246 nation-
wide, since capital punishment re-
sumed.

“IT think what we’re about to
witness in Arkansas is a shocking
” Rust-Tierney said.
“The notion that Arkansas is get-

' ting into this assembly-line men-

tality doesn’t fit in with our societal
respect for life.”
Ables’ response to the oppo-

Tnents: “If anybody is going to be

criticizing us, it’s nice to be criti-
cized for being efficient.

“The people that are involved in
this are very concerned that what
hey do is proper, [done] profes-
ionally and with decorum,” he
aid. “They want this to go well.”

rere


d the Ford.
king some-
| heard the
‘ing to pull
could make
driver got a
ted walking

eymour cut

that he was
dark suit. I
. about the
\| yonder, a
started run-
had come.
shoulder as
thought I'd
was going
»gnized the
ists.”

nough. She

yresence,
u wait. Sey-
follow the
o bring the
and learned
. ride to the
There, bag
boarding a

| ahead, giv-
ine and his
Chief John
1e Incoming
e of town.
iark by then,
had left the

ing into the
e had taken

detectives
ior a possi-
io Chester
nere was a
ing in the

iddress they

a sister and
table, law-
idea where

ining look-

bled father

1uch about
t any home
hat | know
. He told
Childers,
-d. I don’t
fe is. Her
| wouldn't

let him bring Lucille here until he
showed us the marriage certificate,”
Mr. Comer continued. “We liked Lu-
cille right well, once we got acquaint-
ed. They were here for a while, then
they went out to McLean, Tex., where
Chester got a job. Not long ago he came
back by himself. The marriage hadn’t
worked, he said, and they’d got a di-
vorce.”

It was well into Saturday before
Oklahoma City Police Chief Watt
passed this information back to Sher-
iff Seymour. About that time, in the
Maysville-Blanchard Community, Jim
Leavett, Verna’s father, was riding to
Pauls Valley with a neighbor, his pur-
pose being to lay in a week’s grocery
supply and to tell an officer friend about
his young daughter’s unhappy experi-
ence with Jack Armstrong. But Leavett
was to be disappointed. The friend was-
n’t in, as a matter of fact, county
headquarters was all but deserted.

Shortly before noon that Saturday
two more persons, Lester Simpson, a
young farmer living 16 miles northwest
of Oklahoma City, and his 14-year-
old son, Warren, had vanished from the
highway in exactly the same manner
Attorney Ray Evans had disappeared
the preceding Tuesday. All across
central Oklahoma, every available of-
ficer had joined in the search for Evans
and the Simpsons. Highway police
were watching for a dark Chevrolet
sports sedan which Lester Simpson had
been driving when he vanished.

Simpson had been another person
who believed in giving his neighbor a
lift-and in his book every man was
his neighbor.

At lunchtime on that 23rd day of No-
vember, he and Warren had left the
place where they were working and had
started for their home several miles
away. A number of persons had seen
them leave. A woman, driving alone
along the highway Simpson would take
homeward, had noticed a stranger lean-
ing against a mailbox, a small hand-
bag at his feet, obviously looking for
a ride. Ordinarily she would have given
him a lift. However, that day, with
her radio tuned to a newscast describ-
ing a man hunt for Chester Comer,
she had hurried past and at the next
turn in the road, had met the Simpson
car, headed in the direction from which
she had just come.

No one saw it stop and pick up the
wayfarer. No one saw which way it
went. It vanished without a trace.

ba Dretrins

This was the story Jim Leavett picked
up in Pauls Valley. Men gathered in the
streets to discuss it and excitement
ran high in the little southern Oklahoma
town. Evans’ car, found almost on their
doorstep, meant that the murderer had
been near and might return.

Leavett didn’t confide in the lone
deputy he found in the sheriff’s of-
fice. In the face of something like
this, his problem could wait. Not until
he was halfway home did it occur to
him that Jack Armstrong had been
driving a Ford very much like the one
he’d heard described as belonging to
Evans. Could Armstrong be involved
in these kidnappings? Were Chester
Comer and Jack Armstrong one and the
same person? Remembering his daugh-
ter’s harrowing experience, Leavett
turned cold at the thought. He mulled
it over, and by the time he got to a
telephone, he had made up his mind.

He got the deputy on the line. “Tell
the sheriff to come see me as soon as
ever he can,” he said excitedly. “I live
10 miles south of Blanchard. He can
find me. I’ve got something to tell
him about the Evans car; something
he ought to know.”

Seymour received the word late that
afternoon when he came in, cold and
tired to the bone. The weather had
changed. A chill rain was blowing out
of the north.

He sighed. He would have to go, of
course, and 35 miles was a long way
at the close of an 18-hour-day. He
tilted back in his chair. “Anything
new in the last hour or so?”

“Nothing but rumors. Buzzards hov-
ering over the woods south of Ada. Men
resembling Comer seen in a dozen
places, always under suspicious cir-
cumstances. The usual thing-imagina-
tion working overtime, like the chap
being so sure the man he saw slumped
in the car, while Comer changed a
tire, was dead. How do you figure
that, Claud?”

“He could have been, of course,”
the sheriff replied thoughtfully. “On the
other hand, Evans was plenty smart.
He’d try to play it safe by obeying or-
ders. I think he was killed later; walked
in the woods somewhere and was
shot, judging by the conditions of his
shoes. Funny thing, removing those
shoes. I wonder why? And these Simp-
sons! Wouldn’t you think, with all
this, folks would stop picking up hitch-
hikers!”

Wearily he got to his feet and set-

tled his damp topcoat about his shoul-
ders. “I’ll eat a bite, then go see
what’s on this fellow Leavett’s mind.
And while I’m over that way, I'll
drop in on Stevens again. | figure
he’s told all he knows, but he might
remember something new. Anyway,
this is my first chance to check on the
girl who fled from the car Comer was
driving when it went into the ditch.”

Charles Stevens had more than ideas.
Seymour found him greatly disturbed.
“Chester was up to meanness,” he
said bitterly. “I should have known it
by the way he kept that car locked.
He wouldn’t let me near it. He’s done
something to Lucille, Sheriff. 1 know
he has.”

Seymour eyed him curiously. “Why
so sure? I thought you’d about decid-
ed she was all right.”

“I’m sure because of what he did to
Elizabeth-and her just a little girl!” was
the blunt reply.

The sheriff stiffened. “What did he
do?”

“Tried to attack her, that’s what!
And I didn’t even know she was out
with him. Out with a murderer! It
was an awful experience. Crazy, that’s
what he is! Sex crazy! If I ever get
my hands on him-.”

“Easy, Charley. Tell me about it.”

Stevens passed roughened hands over
his receding hairline. “It was yesterday
afternoon, a little after you left,” he
began. “Elizabeth came running in with
her clothes half torn off, crying and
scared nearly to death. Chester had
got her in the car-for a ride, he said,

TRIPLE EXECUTION

States. in 32

ion’s last triple
. -California’s gas
AU Ente cn

Banuteets oe
J in the electric chair on Feb.

$1

Pon Mareb (995°


SATURDAY, JULY 30, 1994 ¢ 3B

| RALLY CRY — George White of Montgomery, Ala.,
clutches an American flag pinned with a patch of black

attire $ ogasaue we

erie eee

ce:

Arkansas Democrat-Gazette/Morris Richardson II

cloth during a demonstration opposing the death penal-
ty Friday on the steps of the state Capitol.

Death penalty foes rally at Capitol

Protesters want state to call off triple execution

BY JIM BROOKS
Democrat-Gazette Staff Writer

About a hundred opponents
_ of the death penalty rallied Fri-
| day afternoon on the steps of
| the state Capitol, less than a
| week before the scheduled ex-
| ecution of three men in
| Arkansas.
| It would be the first triple ex-
| ecution in the United States in
; More than 50 years.
| Some of the protesters are in
| Little Rock this weekend for the
' annual meeting of the National
| Coalition to Abolish the Death
; Penalty. The NCADP confer-
| ence was scheduled nearly
| eight months ago, before the ex-

ecution was scheduled.
' Anews conference was held
_ on the Capitol steps as dele-
‘gates from the convention

marched to the Capitol from the

_ Holiday Inn City Center, where

the conference is being held.
The group joined members
of Amnesty International and
the NAACP, who held their own
rally minutes earlier. Those two
groups also were protesting the

~ death penalty and the sched- — -

uled executions next week.

Herb Rule, chairman of
Arkansas Coalition Against the
Death Penalty, invited the na-
tional coalition to hold its con-
vention in the state and com-
mented on the timing of the
gathering.

“It’s really ridiculous, as well
as sad, that Arkansas is going to
execute three people in one
night next week,” Rule said.

Derryl Richley, Hoyt Clines
and James Holmes are sched-
uled to die Aug. 3 for their roles
in the 1981 murder of Rogers
businessman Don Lehman.

Ernest James of Louisiana

also spoke at the news confer-
ence. James, whose sister was
killed more than two years ago,
is a member of a group called
Murder Victims’ Families for
Reconciliation.

“Without a doubt, it was the
most difficult thing I’ll ever -
have to go through,” James said.
“When it first happened, I was
very angry. I wanted the person
that did it to fry. _

“But by killing the individ-
ual that killed my sister, it won’t
bring her back,” he said. “It
won’t make me whole.”

’ Some of the marchers held
Signs saying “Tell Jim Guy Tuck-
er to Stop State Killing,” “The
U.S. Death Penalty is Racist”
and “Inmates are People Too.”
After taking their place on the
Capitol steps, the death penalty
opponents were addressed by
their leaders.

First triple execution
in state step nearer;
Tucker studies case

BY MIKE TRIMBLE
Democrat-Gazette State Reporter

The state Post Prison Trans-
fer Board said Friday that Der-
ryl Richley and Hoyt Franklin
Clines should die by injection
Wednesday at the state Correc-
tion Department’s Tucker Unit
in Jefferson County.

The board’s action sets the
stage for Arkansas’s first triple
execution. Richley, Clines and
James Williams Holmes are
scheduled to be executed
Wednesday for the 1981 murder
and robbery of Rogers contrac-
tor Don Lehman. Holmes has not
applied for clemency. The
board’s recommendations were
delivered Friday afternoon to
Gov. Jim Guy Tucker’s office, but
Max Parker, the governor’s press
secretary, said Tucker would not
review them today.

It is the governor who makes
the final decisions on clemency
applications. The board’s rec-
ommendations are not binding.

A federal appeals court has
struck down the death sentence
of a fourth defendant, Michael
Ray Orndorf, and the state has
sentenced him to life in prison
without the possibility of parole.

A petition by Richley for a
stay of execution was denied
Wednesday by U.S. District Judge
Henry Woods of Little Rock. A
similar petition by Clines was de-
nied earlier, and his appeal to
the 8th U.S. Circuit Court of Ap-
peals at St. Louis was denied Fri-
day by a three-judge panel.

The board voted without de-
bate Friday afternoon to recom-
mend that the executions of
Richley and Clines go on as
scheduled. Friday morning they
had heard from both inmates in a
hearing at the Tucker Unit.
Clines asked the board for mercy;
Richley was defiant, saying that
if wasn’t to get a new trial, he
wanted the state to “kill me and

get this comedy over with.” ~

Reading from a prepared state-
ment, Richley said he had no hope
of getting a favorable recommen-
dation from the board, and that the
hearing was a mere formality. ©

“We all know you have no in-
tention of recommending
clemency,” Richley told the
board, “and the governor has no
intention of signing it. A triple
execution is a sure vote-getter.”

Richley said he deserved a
new trial, but he didn’t want.a
commutation of his death sen-
tence to life without parole.

“Thirteen years in this back-
ward prison system is more than
enough,” he said. “Don’t dome
any favors. Kill me and get this
comedy over with.” att

Clines, in contrast to Richley,
was contrite before the board, and
begged for mercy. “I have always
wanted to express my remorse,”
he said in a halting voice. ;

While he admitted taking part
in the brutal robbery that re-
sulted in Lehman’s death, Clines
said he was not aware that a.rob-
bery was going to be committed
when he began drinking with
three other men on the day-the
robbery took place in 1981.

“I’ve never denied being in-
volved,” he said. “I do deny
killing anyone.” ve

Clines was never accused of
firing the three shots that killed
Lehman, but under Arkansas
law, accomplices in crimes that
result in homicides are deemed
as culpable as those who actual-
ly did the killing.

a

CLINES, Hoyt, HOLMES, William

RICHLEY, Darryt, whs, BI AR® (Benton)
9

August 3, 1994.

eR ER Re
ry

Home of Donald Lehman in Fayetteville, Ark. was scene of robbery and bloody murder. Four men wearing ski masks forced
_way into house, shot Lehman dead, beat his wife, manhandled his daughter, then ransacked residence, looting $1,200 cash |

Four masked intruders had burst into the victim's
home. Someone beat and shot him to death.

He . But when police hauled them into a courtroom,

| all four suspects sang the same song ...

“WE'RE ROBBERS,
BUT KILL SOMEBODY?
s NOTUSI”

48 Official Detective

x

a

F PLE Da ny f \ Ry ok 7 His oP 4 ae Es
SSP RETO PENGE.) YH. DEUIAWC cay hae Seed Mares  ANRE MER TOME CRBS RY SONI “ROR we val aE

OFFICIAL DETECTIVE, April, 1982.

by Pi
Spec
OFFICIAL

HE CE
the Le
more t

the culminati:
ing, planning,
a swimming
and stately «
front yard. T)
that circled tl
distant from i:
than a mile fr
It had been cc
1980 and on
Lehmans ha
Fayetteville,
just seven mo

Don Lehma:
tor who also
at times. He’
had his wife
Vicki, 24. He
had donated b
must be extr
given more th

Loud knoc
about 9:40 p.1
Vicki from th.
the front door

Don Lehma
there. Vicki w
him. He said
voice spoke t
est Lehman
the door, the:
closed. But it
four men wea

All ofthe me
terrified famil
jumped on top
him with a h
Then another
Lehman.

The husban:
iantly to prote
and to save hir
ers. He was s|
peatedly aroun
the chain. A s
gushed from |
resisted and fo

Staggering
room where he
he called out
screaming, “Gi

While Lehm:
three men, the
Vicki Lehman
ing a gun on h
hair of the hea
Vicki had some
money in her be
him, but he onl:
money! Where’

The masked
helpless girl, t
‘out of her sce

ski masks forced
iting $1,200 cash

’

Ss

PRN
(ua

> by PHILLIP BRENT 7

Special Investigator for *-
OFFICIAL DETECTIVE STORIES

HE CEDAR-stoné-brick home of

the Lehman family was much >

more than just a house. It was
the culmination of fifteen years of work-
ing, planning, saving, dreaming. It had
a swimming pool in the back yard
and stately oaks added ‘grace to the
front yard. There was a long driveway
that circled the house. It was isolated,
distant from its nearest neighbor, more

‘than a mile from the nearest highway. _

It had been completed in the spring of
1980 and on January 8, 1981, the
Lehmans had been living in their

Fayetteville, Arkansas dream home

just seven months.
Don Lehman was a building contrac-
tor who also handled mobile homes
at times. He’d gone to bed at 9,'as
had his wife Virginia and daughter

Vicki, 24. He had told his wife that he

had donated blood that day and said he
must be extra tired because he had
given more than he could spare.

Loud knocking on the front door
about 9:40 p.m. roused both Don and
Vicki from their beds. They met near
the front door.

Don Lehman asked: twice who was
there. Vicki was standing right behind
him. He said, “Who do you want?” A
voice spoke the name of the young-
est Lehman daughter. He unlocked
the door, then tried to shove it back
closed. But it was pushed open and
four men wearing ski masks broke in.

All of the men had guns pointed at the
terrified family. Then one of the men
jumped on top of Don Lehman and beat
him with a heavy motorcycle chain.
Then another man jumped on top of

‘Lehman.

The husband and father fought val-
iantly to protect his family and home
and to save himself against the intrud-
ers. He was slashed viciously and re-
peatedly around the face and head with
the chain..A shot rang out and blood
gushed from Lehman’s chest. Still he
resisted and fought.

Staggering toward the master bed-

room where he kept a small hantfgun, -

he called out a warning to his wife,
screaming, “Ginny, get my gun!”
While Lehman was being pursued by
three men, the fourth man had thrown
Vicki Lehman to the floor and was hold-
ing a gun on her. Grabbing her by the
hair of the head, he demanded money.
Vicki had some Christmas and birthday
money in her bedroom. She gave it all to
him, but he only snarled, “Aw, this ain’t
money! Where’s some real money?”
The masked intruder grabbed the
helpless girl, twisting her hair almost
out. of her scalp. Then another shot

Prosecutor David Clinger (facing camera) is shown here briefing news reporters
on progress in the murder investigation and the hunt for the quartet of killers

rang out from the master bedroom.
Don Lehman was. lying across the
king-sized water bed, his legs hanging
off the side of the bed. The killers had
caught the already mortally wounded

man. One shot him again in the stomach

as another held a gun against his
forehead snarling, “This one ought to
finish the son of a bitch.” The killer
coldbloodedly blew Don Lehman’s
brains out before the horrified eyes
of his wife and daughter.

Ginny Lehman was huddled in the
corner of the room, hysterical, where
she had been thrown by the bandits. She
had heard her husband’s warning cry
and seen(him come flying through the
bedroom door,chest covered with blood,
head and face battered. She had tried to
grab the small handgun from the
drawer of the nightstand by the bed. But
the masked thieves had thrown her into
the corner and taken the gun. Her
wounded and beaten husband had made
it to the bed but the assailants had
caught him there and completed their
murderous task.

_Then they looted, ransacking drawers
and closets, scattering clothes and pap-
ers. Then one yelled, “Hey, look at

all these hundred-dollar bills!” The.

thief ripped off his mask and Vicki
Lehman got a look at the face of her
father’s killer.

Vicki begged her assailants to let her
call an ambulance. Their answer was to
rip the phone from the wall.

The four men\kept ransacking the
house, taking several valuable guns
from the living room cabinet. When
they left, Vicki crawled to the living
room window and looked out. She saw

the killers leave in a dirty brown car
with square tail lights. Then she ran to
a neighbor’s house and called an ambu-
lance.

Ginny Lehman had sufficiently reco-
vered from the blows struck by the kil-
lers to stagger from the bedroom to the
front yard. Her daughter Vicki was
nowhere in sight, and she was ready to
panic.

, Still dazed she remembered another
phone in another daughter’s bedroom
that was on a different line from the one
that had been ripped out by the killers.

She called Benton County Sheriff Don
Rystrom. “They have killed my hus-
band and kidnaped and killed my
daughter,” she sobbed. A moment after
she hung up, her battered daughter re-
turned from the neighbors.

The two women reentered the bed-
room where Don Lehman lay. They
gently raised his head, calling his name.
But he couldn’t respond. Don Lehman
had died defending his home and fam-
ily.

Sheriff Rystrom, Detectives Don
Townsend and Bill Sherwood followed
the bloody trail from the living room
and found the grieving women in the
bedroom.

Bruce Jense, an emergency medical
technician, arrived moments later. He
regretfully told officers, “I can find no
vital signs: His head is badly beaten, so
badly beaten I can’t tell if there is a
bullet wound in his head. But there are
two bullet wounds in his body.” The
body was sent to the office of Dr. Fahmy
Malak, State Medical Examiner.

Rystrom secured the area and turned
the investigation over to Sherwood and

Official Detective 49

ete ree

a rg pn

Police are shown here with two of the four. suspects, Hoyt Clines (I.) and William Holmes (dark jacket)

Townsend. Vicki and Vrginia Lehman
were treated at the scene by an
emergency medical team. They refused
to go to a hospital. Both women were
eager to help catch the slayers and
wanted. to give details to the police
while they were fresh in their minds,

Mother and daughter agreed on sev- .

eral points and gave investigators a
fairly detailed description of the
slayers.

One man was described as about 6
feet tall, weighing around 160 pounds,
wearing square, wire-rimmed glasses.
Another was described as about 5 feet,
10. inches tall, much heavier at 230
pounds. The third assailant had
shoulder-length dirty blond hair and a
blond beard. The fourth was the smal-
lest of the quartet, only about 5 feet, 4
inches tall, and he weighed around 125
pounds.

All the men had been wearing jeans,
dark coats, ski masks, and tennis shoes.

The man who had dragged Vicki
through the house by her hair was the
tall man.with the glasses. She told offic-
ers, “I thought for sure he was going to
kill me or rape me. The: fat one with
blond hair was the one who beat my
father with the chain,” she told Det.
Townsend.

Vicki worked for hours with a police
artist to compose a sketch of the killer
who had pulled up his face mask to
count the money. Finally she agreed
with the artist’s concept, “That’s the

man, one of them that killed my daddy.”

50 Official Detective

»

x

The investigators found an empty
gun case, the size that holds a small
hand gun, on the bedroom floor. They
also found a motorcycle chain belt in
front of the empty gun cabinet. Don
Lehman’s small péarl handled pistol

‘was missing.

Ginny Lehman explained the unusu-
ally large sum of money that had been
stolen. “Don sold a mobile home today,
and got $1,200 for a down payment. It
was after the bank closed so he brought
the money home. We don’t usually keep
that kind of money here.” No one could
explain how the killers knew that the
large sum of money was in the house, if
indeed they did know it. ,

' As fingerprint crews dusted jthe pre-

‘ mises, other officers carefully searched

the spacious grounds that surrounded
the victim’s home. One footprint was
found near the entrance. The shoe im-
print looked like one made by a tennis
shoe, rather than a heavy boot or shoe.
A plaster cast was made and sent to
Berwin Monroe, Trace Evidence Ex-
aminer, in Little Rock.

Vicki recalled three guns, “two of
them alike,” so plans were made to can-
vass gun shops and pawn shops begin:
ning early the next morning.

Newspapers ran the artist’s shasals

‘and television stations flashed the

photo all the following day. News media
saturated the area with details of the
sensational crime.

- On January 10th, Vicki Lehman re-
ceived a phone call from a woman who

didn’t want to give her name. The
anonymous caller said, “I saw that
picture in the paper. I think I might
know who it is.” Vicki persuaded the
reluctant informer to contact: Detective
Townsend. The.woman told the detec-,
tive, “I saw them that night. They come
to my house about 7:30 p.m. I opened the
door and there stood these four guys in
ski masks. One stuck a gun in my face
and said, “Stick ’em up!” I tell you it
scared the hell out of me. Then they
laughed and I recognized one of them
and I realized it was a joke.”

She said that one of the men was a
good friend of her husband; the other
three were casual acquaintances.

“They stayed and played cards and
drank beer for a couple of hours. There
was some talk about a robbery, but I
didn’t take it seriously.” One of the men
had a chain, which he slung around his
head.

The woman’s husband added details
about the “robbery” talk. “One of the
guys asked another one what he would
do if someone fought him. He said that
he’d shoot him.” The man said he was
invited to go along on the robbery but
declined.

The four men left about 9:30 p.m. Don
Lehman was dead by 10 p.m.

The couple identified the four men, all
state residents. Their friend’s name
was Mike Orndorff, 22, who lived in

- Gravette; James William Holmes, 24,

and Hoyt Clines 24, both of Rogers, and

Darryl] Richley, 30, who lived at Fayet-

a Ue

——————

Darr)

teville. Their p
closely resemblec
and Virginia Let

Pickup orders
men.

Then a phone «
teville Police De
mant was a land]
you because I th
something that 1
to do with that r
happened last ni

“T_ have a smal
and I thought n
think too much of
over and checkec

“I seen a whol
had just heard al
so I come back ho
landlady told th:

The officer obt:
and drove imme
and knocked on
long-haired, be:
rimmed glasses,
The officer iden:
asked to enter.

The tenant sa
son.” He told tl
come to search
were no guns in
son was not so \
searched, and th:
when he opened
half a dozen gu

Anderson anc
companions wer:
partment. The g


_ Arkansas executes three murderers

Lawyer: It’s like
cattle slaughter

VARNER, Ark. (AP) — Three
killers who chased down a man,
held him on his bed and shot him
in front of his wife were put to
death by injection in the nation’s
first triple execution in 32 years.

Hoyt Clines, Darryl Richley
and James Holmes died within
hours of each other Wednesday.
Each declined to make a final
statement.

Richley’s attorney, Mark Cam-
biano, called the process ‘inhu-

1e€

‘You just lead them in there
like cattle, slaughter them and
get on with business,” he said.

Clines, 37, was strapped to a
surney at 7 p.m. Asked if he had

Associated Press

to hogs at the slaughter, will
exponentially increase the level
of fear, uncertainty and psycho-
logical stress that someone con-
demned normally experiences in
the usual course of death,” the
men said in their appeal.

The state says multiple execu-
tions reduce overtime and stress
on employees.

Correction Department
spokesman Alan Ables said the
guards and volunteer execution-
ers did their job efficiently.

“‘There’s a lot of tension
involved with the people
involved to do it correctly,”
Ables said. “They wish to do a
good job at what they do.”

The only delay cccurred
because Holmes won a tem-
porary stay earlier Wednesday.

A three-judge panel of the 8th
U.S. Circuit Court of Appeals
granted Holmes a stay on the
basis of his appeal claiming his

trial lawyer was ineffective. But
three hours later, the full 8th
Circuit voted 8-3 to lift the Stay,
and the Supreme Court declined
to issue one.

any last words, he® looked
straight up and said: “Nope.”
After being injected with the
drugs, Clines blinked his eyes
several times, then closed them

Grieving cousins

Donnie Johnson and Elizabeth Johnson, cousins of Hoyt Clines, grieve
outside Cummins Prison in Varner, Ark., Wednesday shortly before Clines
was executed with two other men for the 1981 slaying of a businessman.

tor good and was pronounced
dead at 7:11 p.m.

Fifty-eight minutes later,
Richley, 43, died on the same
gurney. Asked if he had any last
words, he said: “No.”

Holmes, 37, followed Richley

to the death chamber of the
Cummins Unit prison within an
hour and was pronounced dead
at 9:24 p.m. After asking Assis-
tant Warden Clifford Terry to
call him by his first name, he
also declined to make a final
statement.

The prison had planned to
allow 45 to 60 minutes between
executions — enough time to
carry the bodies out in bags,
wipe down the gurney and
change the needle before the
next man was brought in.

The three were originally to
have been executed in the order
of their prison serial numbers —
Clines SK886, Holmes SK887,
Richley SK888. But prison offi-

co hay i \
) Ce eer fare 0 ¢ CA.

The Times

_Thursday, August 4, 1994 A7

cials dropped Holmes to third
while the Supreme Court consid-
ered his final appeal.

Richley was taken by surprise
when prison guards arrived with
handcuffs to take him to his exe-
cution, Cambiano said.

“He had a letter from his
brother he was going to read. He
didn’t have time to read it. He
had a letter he was going to
write to some of his relatives. He
had some religious affairs to
take care of,” he said.

Shortly before the parade of
executions began, the U.S.
Supreme Court denied a joint
appeal by all three men.

“This scheduled mass execu-
tion, by reducing human beings

Holmes, Clines and Richley
were convicted of killing busi-
nessman Don Lehman during a
1981 robbery.

Lehman was beaten with a
motorcycle chain and shot in the
chest and head by four maskeJ
men who forced their way into
his home, chased him down and
held him on a bed in the master
bedroom. His wife was on the
bedroom floor at the time

The death sentence of a fourth
man convicted in the murder
was reduced to life in prison
after a court ruled that hyp-
nosis-induced testimony from
Lehman’s daughter may have
affected his sentencing.

There have now been 249 exe-
cutions since the Supreme Court
in 1976 allowed capital punish-
ment to resume.


gees

3

bime
A

Sit OF #:2

UNIVER

882 277 SOUTH WESTERN REPORTER (Ark.

CANADY et al. v. STATE. (No. 83.)
(Supreme Court of Arkansas. Dec. 21, 1925.)

{. Criminal law @==1092(13)—Bill of excep-
tions must be signed by trial judge and filed
with clerk.

Bill of exceptions must bear signature of
trial judge and filing mark of clerk, and instru-
ment purporting to be bill of exceptions, cer-
tified by court stenographer, will not be con-
sidered such.

2. Criminal law @=1144(13, 14) — Presump-
tions, where no bill of exceptions filed, stated.
Where defendants, found guilty of murder,
appealed, but neglected to file bill of exceptions,
held, there was a presumption that verdict was
supported by sufficient evidence, and that is-
sues were properly submitted to jury.

Appeal from Circuit Court, Ouachita Coun-
ty; L. S. Britt, Judge.

John Canady and others were convicted of
murder in the first degree, and appeal. Af-
firmed.

H. W. Applegate, Atty. Gen., and John L.
Carter and Darden Moose, Asst. Attys. Gen.,
for the State.

PER CURIAM. Appellants, John Canady,
Ishman Jones, Cephas Johnson, and Clint
Mason, were arrested and committed to jail
in Ouachita county under a charge of murder
in the first degree, said to have been com-
mitted by shooting and killing J. M. Moore.
The circuit judge called a special term of
the circuit court of that county, to be held
on September 14, 1925, while appellants were
still confined in jail, and a special grand
jury was summoned and impaneled to consid-
er the charge against appellants. Separate
indictments against each of them were re-
turned by the grand jury, charging the crime
of murder in the first degree. Neither of
the appellants was able to employ counsel,
and the court appointed attorneys for each
of them, and by order of the court, entered
upon express consent of appellants’ attor-
neys, the four cases were consolidated and
tried together; separate verdicts being ren-
dered against each of the appellants, finding
him guilty of murder in the first degree, as
charged in the indictment. Judgment of sen-
tence was rendered aghinst each, and, after
the motion for a new trial was overruled,
each of the appellants prosecuted an appeal
to this court.

[1] The motion was overruled on. Septem-
ber 23, 1925, and appellants were allowed 50
days from that date within which to present
and file their bill of exceptions, The tran-
script was lodged here on November 14, and
the appeal was granted by one of the Jus-
tices of this court, but the transcript does
not contain any bill of exceptions signed by

the trial judge and filed with the clerk.
What purports to be a bill of exceptions is
in the transcript certified by the court ste-
nographer, but has not been signed by the
trial judge, nor does it bear the filing mark
of the clerk. No brief has been filed on be-
half of either of the appellants, and we have
nothing before us, except the transcript of
the papers on file, including the indictments
and the motion for a new trial, and the rec-
ord entries of the proceedings below.

There is no error appearing anywhere in
the proceedings. The special term of the
circuit court was called in accordance with
the law on that subject, the grand jury was
regularly impaneled, the indictments were
duly returned in proper form, charging each
of the appellants with the offense of murder
in the first degree, and the trial before the
jury was conducted in due form, so far as
appears from the record.

[2] Appellants consented for the four cases
to. be tried together, and the verdict against
each was returned by a jury of his own se
lection. We must indulge the presumption,
in the absence of a bill of exceptions, that
the verdict was supported by sufficient evi-
dence, and that the issues were properly sub-
mitted to the jury.

The judgment against each of the appel-
lants is therefore affirmed.

—

GREAT SOUTHERN FRATERNAL UNION
v. GUNTHROP. (No. 78.)

(Supreme Court of Arkansas. Dec. 21, 1925.)

{. Evidence ¢=!7— Judicial notice taken of
matters in calendar.
Judicial notice will be taken that the last
day of third week of January, 1923, was the
20th.

2. Insurance ¢==730—Tender held unavailing If
left without acceptance.

When insurance company, after receiving
dues on benefit certificate, tendered amount back
to insured, and, upon refusal to accept, left it at
his home, tender was unavailing.

3. Insurance @=>819(2)—Evidence held sufi-
cient to support finding that dues on benefit
certificate were paid in time.

In an action by beneficiary on benefit cet
tificate, where testimony conflicted as to date
of payment of dues, testimony held legally suf-
ficient to support finding that payment was mace
in time.

Appeal from Circuit Court, Pulaski Coun-
ty; Richard M. Mann, Judze.

Action by Fannie Gunthrop against the
Great Southern Fraternal Union. Judgment
for plaintiff, and defendant appeals. af

firmed.

@=—>For other cases sce same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

penser 2

Ark.) CITY OF LITTLE ROCK y. PFEIFER §83
(277 S.W.)

Thos. J. Price, of Little Rock, for appel-
lant.

Pittard & Brickhouse, of Little Rock, for
appellee.

SMITH, J. William Gunthrop held a ben-
efit certificate in the appellant insurance com-
pany for the sum of $300, on which there
were monthly dues of $1.15, payable on the
first of each month, with a period of 20 days’
grace in which to make payments. The con-
stitution and by-laws of the order provided
that these payments must be made within the
time limited, otherwise the certificate should
lapse and cease to be an enforceable obliga-
tion on the part of the insurance company.
Appellee was the wife of Gunthrop and the
beneficiary named in the certificate, and up-
on the death of her husband she made proof
of his death and demanded payment of the
certificate. When payment was refused, she
brought this suit and recovered judgment
for the amount of the certificate, and the in-
surance company has appealed.

The only question involved here is one of
fact, this question being whether the pay-
ment due to be made in January, 1923, was
made in apt time.

It is not denied that the payment was made,
and to an agent of the company authorized
to receive payments ordinarily, but it is in-
sisted that the agent who received the pay-
ment in question had no authority to re-
ceive it for the following reason: The con-
stitution and by-laws of the order, which
were made a part of the benefit certificate,
provided that the payments must be made
within the period of grace, and that if not
so made within that time payments made
thereafter should not operate to continue the
policy in force, if the insured was sick at
the time of making the payment. It is un-
disputed that the insured was in bad health
when the payment was made, but it is in-
sisted that the payment was made within the
period of grace.

[1] Appellee testified that the payment
was made in the third week of the month of
January, and in this she is corroborated by
a neighbor woman who was present when the
payment was made. By an examination of
the calendar for the year 1923, we make ac-
tual our judicial knowledge that the last
day of the third week of January, 1923, was
the 20th, and a payment made at any time
during that week would have been in time to
prevent the policy from lapsing. Witnesses
on behalf of the appellant company testified
the payment was not made until the 23d of
the month, and was returned promptly when
the insured's condition was discovered. This
conflict in the testimony presented an issue
which was conclusively settled by the finding
of the court sitting as a jury.

[2] Appellee admitted the tender was
made, but she also testified that she refused

to receive it, although she admitted that the
premium was left at her home. This she
could not prevent, and this tender is un-
availing.

{3] The cause was heard by the court sit-
ting as a jury, and a gencral finding in favor
of the plaintiff was made. The testimony is
legally suflicient° to support the finding that
the payment was made within the period of
grace, and, this being true, the condition of
appellant’s health at that time is unimpor-
tant.

The judgment of the court below is there-
fore correct, and is affirmed.

(169 Ark. 1027)

CITY OF LITTLE ROCK et al. v. PFEIFER
et al. (No. 37.)

(Supreme Court of Arkansas. Dee. 7, 1925.)

{. Municipal corporations G=60!—Zening or-
dinance held valid.

Acts 1924, 8d Extra. Sess. No. 6, authoriz-
ing zoning regulations by cities. and ordinance
of city of Little Rock pursuant thereto, regulat-
ing erection of gasoline and oil filling stations,
automobile repair garages, store buildings, or
any other building for business purposes, in
what is known as residence district of city, held
valid.

2. Municipal corporations @—=625 — Property
owner, aggrieved by unreasonable bullding re-
striction, entitled to remedy in equity, regard-
less of provision therefor.

An unreasonable and arbitrary building re-
striction, constituting abuse of discretion by city
council, is void, and aggrieved owner of prop-
erty is entitled to remedy in court of equity, re-
gardless of whether provision is made for such
remedy in statute or ordinance.

3. Municipal corporations 62! — Evidence
held to show that locality involved was bus!-
ness district within meaning of zoning ordi-
nance.

Evidence held to show that locality involved
was a business district within the meaning of
zoning ordinance.

4. Municipal corporations ¢=-60!I—Owners of
property adjacent to business district cannot
be prevented from using it as ordinary busi-
ness property.

When a business district has been rightly
established, owners of property adjacent there-
to cannot be restricted so as to prevent them
from using it as ordinary business property not
hurtful to adjacent residence property, except
as it makes such property less desirable for res-
idence uses.

Appeal from Pulaski Chancery Court; Jno.
FE. Martineau, Chancellor.

Suit by Harry Pfeifer and others against
the City of Little Rock and others. Decree
for plaintiffs, and defendants appeal. Af-
firmed.

€=—>F or other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes

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_ Beaver Dam Drainage Dist., 145 Ark. 51,

492 245 SOUTIIWESTERN REPORTER (Ark.

felt aggrieved at his assessment might, with-
in 20 days after the approval of the special
act, show cause, in the chancery court of
Greene county, against said assessments.
The act provided that if such showing was
not made within the 20 days limited the as-
sessments should become final and incon-
testable. It was alleged in the answers that
this special act was passed without notice to
the landowners, and that its passage was
procured by false representations to the Gen-
eral Assembly concerning its purposes and
provisions. It was also alleged that the as-
sessments so approved and confirmed by the
General Assembly were arbitrary and con-
fiscatory, in that they were greater than the
value of the lands at the time said assess-
ments were confirmed, and larger than the
value of the lands will be or would be after
the improvement proposed and contemplated
by the confirmation was fully completed, and
that the effect of said assessments was to
destroy the value of the land.

A demurrer to the answers was sustained,
and a decree rendered condemning the land
to be sold.

[1] The authority of the Legislature to as-
sess betterments in improvement districts
has been repeatedly recognized, and the Leg-
islature may validate assessments made by
other agencies. Sudberry v. Graves, 83 Ark.
344, 103 S. W. 728; Moore v. Board of Direc-
tors, 98 Ark. 1138, 185 S. W! 819; Gibson v.
Spikes, 143 Ark. 270, 220 S. W. 56; Burr v.

223 S. W. 362,

It is true the assessments had not been
approved by the county court. But that
fact did not deprive the Legislature of its
power to approve and confirm them. McCord
y. Welch, 147 Ark. 362, 227 S. W. 765; Payne
y. Road Imp. Vist. No. 1 of Howard County,
149 Ark. 491, 232 S. W. 913.

[2] The allegation that the landowner had
no notice of the pendency of the special act
cannot be considered by us, for the reason
that this court has many times held that all
questions relating to the sufficiency and form
and proof of notice of intention to apply to
the General Assembly to pass a special act
are matters addressed solely to the Legisla-
ture. Gibson v. Spikes, supra.

(3, 4] It is argued that, although the Leg-
{slature may make an assessment of benefits
in an improvement district, or may validate
such an assessment made by some other
agency, the Legislature eannot do so arbi-
trarily and capriciously; and it is insisted
that the allegations of the answer are such
as to require the courts to review an assess-
ment having legislative confirmation. It ap
pears, however, that the act gave landowners
20 days in which to show cause against any
particular assessment; and this court has
held that an act giving 20 days for that pur-

pose constituted due process of law. St. I.
I. M. & S. R. Co. v. Drainage Dist., 138 Ar’.
131, 211 S. W. 168. The special act provided
a forum in which the assessments might be
attacked and gave time for that purpose, and
the law is, as announced in numerous ded-
sions of this court, that the method provided
by statute for attacking the validity of an
assessment of benefits is exclusive and must
be pursued within the time and manner pro
vided by the statute, and that a collatera!
attack upon such an assessment, which has
become final because of the failure to attack
it within the time and manner provided by
the law, will not lie unless the assessment
is void on its face. Pierce yv. Drainage Dist.
No. 17 (Ark.) 244 S, W. 342, and cases there
cited.

[5] Another attack on the special act. con-
firming the assessment of benefits is that it
made no provision for the assessment of dam-
ages in favor of landowners whose lands
were taken in the construction of the ditch
In answer to this attack it may be said that
the case presents no question of the assef-
tion of a claim for damages against the im
provement district. The relief prayed is that
the payment of delinquent assessments be
enforced, and this was the relief granted by
the decree appealed from.

[6] The allegation that the passage 0
the act was obtained in a fraudulent and sur
reptitious manner is disposed of by the opin
ion in the case of Little Rock vy. North Littl
Rock, 72 Ark. 195, 79 S. W. 785, where it #5
said:

“Tt is equally clear that we cannot inquir
into the motives of the Legislature in pas*
ing the act nor into the means by which ther
were induced to enact it. The allegation ©
the complaint, that the passage of the act wt
obtained in a fraudulent and surreptitions mat
ner, cannot be considered, for we have no rig*!
to inquire into or consider such matters. I
courts should enter upon such inquiries, *
annul laws because they seem to be unw®™
or impolitic, or because improper influence w**
brought to bear upon the Legislature to *
cure their pussage, no one could rely upon aty
law until it had been submitted to the court
for their approval. The adoption of such 4
rule would invest the courts with legislati**
as well as judicial powers, and would be clear
ly in violation of the provision of our Cor
stitution, which declares that one departmé?
of the government shall not exercise the po*
ers conferred upon another and different de
partment,”

See, also, the annotated case of Atchiso®
T. & 8. F. Ry. Co. y. State, 28 Okl. 94, 13
Pac, 921, 40 L. R. A. (N. S.) 1.

No valid defense against the assessme@
having been shown, a decree directing the
sale of the lands for nonpayment th
was properly entered and is aflirmed.

%

fe

Ark.) BULLEN
(245
56 Ark. 148)

BULLEN et al. v. STATE. (No. 24.)

(Supreme Court of Arkansas. Dec. 4, 1922.)

1. Homicide @-—2314 — Verdict of murder as
charged without fixing penalty is valid.
A verdict of first degree murder is valid
under statute, though simply pronouncing de-
fendant guilty as charged, without fixing pen-
alty.

2. Homicide @=2>354 — Court may pronounce
death sentence upon verdict of guilty as
charged, not fixing penalty.

Where, in a prosecution for first degree
murder, the court instructs it will impose death
penalty in absence of jury’s reduction of pen-
alty to life imprisonment, and the verdict is
merely “guilty of murder in the first degree as
charged,” a death sentence is valid.

3. Indictment and information @=>128—-Indict-
ment may allege different modes of killing in
different counts.

Where murder may have been committed in
¢iferent modes, these may be alleged in differ-
ent counts,

4. Indictment and information ¢=132(4)—
State need not elect which count it relies
upon where different modes of killing are al-
leged.

Though the indictment alleges different
modes and means of killing, the state need not
elect upon which count it relies.

5. Criminal law @==520(1), 522(1)—Confes-
sions of guilt must not be induced by hope of
gain or torture of fear.

Confessions of guilt, to be admissible, must
be free from taint of official inducement, pro-

ag either from hope of gain or torture of
ear,

8. Criminal law @=>671—Jury should be with-
drawn while hearing evidence upon question
whether confession proceeded from official in-
ducement.

The approved practice is to withdraw the
hry while hearing evidence upon the question
Shether confessions of guilt proceeded from
*ficial inducement.

7. Criminal law @=>1168(2)—Presence of jury
held not prejudicial to defendants during
examination of witnesses upon inducements
Concerning so-called confessions, where wit-
hesses wero not indicted and their testimony
Proved admissible.

In a prosecution for murder, there was no

Prejudice to defendants because the jury was

tot withdrawn during testimony concerning ad-

Senility of so-called confessions, where hei-
> of the two witnesses testifying was in-

cted, and no inducements had been held out
to them, and one, though arrested as an accom-
Plice, testified because his relatives told him
to tell the truth, and the other stated his tes-
Tony was given under threats made by de-

v. STATE 493
8. W.)

8. Criminal law ¢=>1064(4)—Exception to ad-
misston of testimony, not brought forward in
motion for new trial, not considered on ap-
peal.

An exception to admission of testimony, not
brought forward in motion for new trial, will
not be considered on appeal.

9. Homicide ¢==338(1)—Defendants held not
prejudiced by admission of deceased’s wife
that she and her husband were friendly.

Defendants prosecuted for murder held
not prejudiced by testimony on direct examina-
tion of deceased’s wife, that she and her hus-
band were friendly, where she was not present
at the crime, nor involved in it.

10. Criminal law @=>424(1), 516—Testimony of
witness concerning defendant’s statements
immediately after crime held admissible as
being testimony of confession in presence of
codefendants.

Where witness saw codefendants shoot de-
ceased on his house porch and then drag him
into the house after one defendant had secured
an ax, and thereafter, from the front of the
house, heard chopping, witness could state a
defendant told him defendants cut off deceas-
ed’s arms and legs, since this was not testi-
mony of declarations of coconspirators after
commission of crime and end of conspiracy. but
testimony in nature of a confession by defend-
ant in the presence of codefendants.

If. Witnesses ¢€=240(2) —Leading questions
on direct examination permissible,
It is always within the court’s discretion
to permit leading questions on direct examina-
tion.

{2. Criminal law €=-424(1)—Subsequent acts
of coconspirator not admissible to show guilt
of others.

When the object of the conspiracy has been
accomplished, subsequent acts and declarations
of one coconspirator are not admissible to show
guilt of the others,

13. Criminal law @=—=>424(5) — Matters wit-
nessod at crime not inadmissible under rule
not admitting subsequent acts of one conspir-
ator to show guilt of others.

Matters of personal observation at time of
crime are not acts or declarations of a cocon-
spirator, inadmissible under the rule that sub-
sequent acts of one conspirator are inadmissi-
ble to show guilt of the others, but are ad-
missible as narrative of things within witness’
personal knowledge.

14. Witnesses @=>337(5) — Defendants taking
stand in their own behalf may be cross-exam-
ined concerning other crimes committed by
them.

Defendants taking the stand in their own
behalf may, to test credibility, be cross-examin-
ed concerning other crimes committed by them.

15. Criminal law ¢==829(18) — Where court
submits question of reasonable doubt, no in-
struction necessary that jury must have con-
viction to moral certainty in order to convict.

Where the court fairly submitted the ques-
tion of reasonable doubt in a prosecution for

fendant,

——.

murder, it was not required to charge “that the

@=>For other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes

wer

ee eer ee

Botivwow ars

:

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1
d MASON, Clint, blacks,
Th Pea Lsha ana MAS ; Dk
7 Gane, Jann, Onion, Sepree, J0NBS, Tatan and mah, lant, tleekee
CaNDY, John, pee le SP (Quachita Co.
sn a ~ 2 n as a,
2uted Ar As
electroc

Six Now Scheduled to Be Elec. |

| trocuted During Next
| al ‘of Seven in
Deatif Cells, _ '
Isham Jones, John Cuuuuy, Cling ;
Masoy and Ceph * Uuachita :
COUNLY negroes Who ure being heig at;
the Penitentiary sentence |
for the murder or J. M. Muore, aged |
| | Quachita count Merchaug, Will. be
| PPxecuied on Frulay, Ee ruary 12

ion fixing this date for the

Poeal on the |

Stunt ty Governor .
erral until the 1S days allow for |
tling a Motion for rebeaving bad laps :

Seven NEWER Are now being hold!
C waile” Under deuth Sentence, ;
ix of them are t Cxecuced |
| dyring February,

Jee Walker und Roy Edmond, Un. {
Rm county, are under death sentence |
Pr the wurder yf . udaon, |
Wealthy by Dorade vil aud lumber

Weeks agu, and the date yf |

© that the exe. |
WY negrucy Nay be j
Q6 the time allowed j
i them for filing an @ppeal in the sy.
| Preme court has not yet expireg, They

| Were Convicted last week

8 Martin Davia,

have been
Orning, but who
r

by the *XeCutive hpi.
ay morning, were-


912. Ark.

And again the Court stated:

“x * * the Court explained to
the Commissioners that the absence of
Negroes on the panel was significant
to the Court, particularly in view of

the fact that we were to try the Hamm
case, and I instructed them to take
special precaution and to make spe-
cial effort to place a substantial num-
ber of Negroes on the additional spe-
cial list, reminding them that those
special jurors, of course, would have
to meet the same qualifications as the
Court had previously laid down for the
selection of jurors.”

Thus, the Trial Judge took every precau-
tion to see that there were Negroes on the
trial jury list in this case; and the rec-
ord—instead of showing studied evasion—
shows a deliberate attempt by the Trial
Court in this case to fully comply with the
rulings of the United States Supreme
Court, which condemn racial exclusion.
We, therefore, find no merit in this claim
of studied evasion.

IV. The Confession. Appellant says:

“The Court erred in admitting the con-
fession of the appellant, and the confes-
sions of three other co-defendants charged
with the commission of the crime of which
appellant was convicted.” Really, there
are three points argued under this one
topic; and we shall discuss each.

[5,6] First, we consider the question
of whether there was sufficient evidence to
submit to the jury the question as to wheth-
er the confession was voluntary. The
burden is on the State to prove that the
confession was voluntary. Love v. State,
22 Ark. 336; Smith v. State, 74 Ark. 397,
85 S.W. 1123; and Cush v. State, 180 Ark,
448, 21 S.W.2d 616. And in determining
whether a confession is voluntary the
Court should look to the whole situation
and surroundings of the accused. Dewein
v. State, 114 Ark. 472, 170 S.W. 582;
Brown v. State, 198 Ark. 920, 132 S.W.2d
15.

315 SOUTH WESTERN REPORTER, 2d SERIES

[7,8] When the State sought to intro-
duce the appellant’s confession the hearing
was recessed to the Judge’s chambers for
the Trial Judge to see if there was suf-
ficient evidence of voluntariness to submit
the issue to the jury. Such is in accord-

ance with our frequently stated procedure. —

Charles v. State, 198 Ark. 1154, 133 S.W.2d
26; Brown vy. State, 198 Ark. 920, 132
S.W.2d 15; Hendrix v. State, 200 Ark.
973, 141 S.W.2d 852; Nolan and Guthrie
v. State, 205 Ark. 103, 167 S.W.2d 503. The
Trial Judge correctly ruled that there was
sufficient evidence offered to take the case
to the jury on the voluntariness of the
confession; and thereupon the hearing was
resumed before the jury.

It was shown that the defendant, James
Moore, and the three others thought to be
implicated in the murder of M. R. Hamm,
were taken into custody about 4:30 or 5:00
p.m. the afternoon of May 15th at a store
near. Texarkana; that the Prosecuting At-
torney’s office was at Arkadelphia,’ a dis-
tance of about eighty miles from Texar-
kana; that Moore and the other three ac-
cused persons were advised that they would
be taken to Arkadelphia to the Prosecuting
Attorney, and then to the State Penitenti-
ary at Cummings Farm; that the only stop
made from Texarkana to Arkadelphia was
at Hope (thirty-three miles from Texar-
kana) for the purpose of placing a tele-
phone call to the Prosecuting Attorney’s
office; that in going from Texarkana to
Arkadelphia the four prisoners were on the
back seat of the car and three officers were
on the front seat of the car; that the
prisoners slept a considerable portion of
the trip from Texarkana to Arkadelphia;
that they reached the Prosecuting Attor-
ney’s office in Arkadelphia about 8:00 p.m.;
that in the Prosecuting Attorney’s office
the prisoners were served with food; that
the prisoners’ were questioned separately
and sometimes together; that Moore was
advised that he did not have to make any
statement; that Moore’s statement was
made frecly and voluntarily; that the
statement was signed by him; that the

sini bit aan

aan Bis oats ea eG.

teal

other pris
their state:
oners wer:
tentiary at
ing.

The Cor
statements,
answers ti
the statem,
words. Th
Scared and,
not volunt;,
was never
also he adi
words used
So, under t!
in the rec
question of
the confess:

[9,10] 7
under this ;
that the ot:
Moore’s pai
Mr. Hamm.
four of the
robbery and
shown that
other prison:
ence and no,
In fact, he 1
to be true. ‘
by the other
tending to in
admissible t.
in Martin y.
293, wherein

8. There are .
and 170 AT.
of confessi.
are there lis

9. This Section:
is made wit :
peace office »
fendant shi!
fore the mo
the county i:
and the grou
made shall }
and, if the o
was made is
mitted in a

315 S.W.20

910 Ark.

for continuance was not because of the
television itself, but because a radio news-
cast on the night’ of July 9th had stated
what was to be done; and appellant’s at-
torney wanted the trial continued to sce
whether the radio announcement on the
night of July 9th had adversely affected
his client.

[3] The Prosecuting Attorney, the De-
fense Attorney, and the Trial Court ar-
ranged some sort of pickup camera outside
the courtroom. The motion for continu-
ance is not an effort by the defendant’s
attorney to recede from that agreement:
rather it is a motion for continuance to see
if the announcement of the facts of the
agreement had adversely affected his
clicnt.5 We fail to see how the radio an-
nouncement could be a cause for contin-
uance. The statutes (Ark.Stats. § 43-1705
et seq.) and construing cases specify the
essential content and showing that must be
made in a motion for continuance; and no
such content or showing was here made.

III. Motion To Quash The Panel Of
Petit Jurors. This presents the claim of ra-
cial exclusion of trial jurors in Miller
County, Arkansas. The motion to quash
recites, inter alia:

“That at all times material herein it
has been, was and still is the custom
in Miller County, Arkansas, to use
white persons exclusively for regular _
Petit Jury service in any and all cases
including the trials of felonies, and in
selecting the current jury and the

ings, distract the witness in giving his
testimony, degrade the court, and create
misconeeptions with respect thereto in
the mind of the public and should not
be permitted. Providing that this re-
striction shall not apply to the broadcast-
ing or televising, under the supervision --
of the court, of such portions of natural-
izntion proceedings (other than the in-
terrogation of applicants) as are de-
signed and earried out exclusively as a
ceremony for the purpose of publicly
demonstrating in an impressive manner
the essential dignity and the serious na-
ture of naturalization.” We find no

315 SOUTH WESTERN REPORTER, 2d SERIES

supplement thereto the Jury Commis-
sioners substantially followed the said
customs in naming only white persons
to the said jury panel. The defendants
allege that no Negroes are now serving
on the present panel of petit jurors, and
that they have been systematically ex-
cluded from serving solely because they
are Negroes, and that this action con-
stitutes discrimination and a denial to
them of equal protection of the laws of
the United States of America as guar-
anteed by Section One of the Four-
teenth Amendment to the Constitution
of the United States of America.”

A lengthy hearing was held on this mo-
tion covering seventy pages of the trans-
script.6 The evidence reflects that for sev-
eral years prior to November, 1953 no Ne-
groes had been selected on the trial jury by
the Jury Commissioners, with the excep-
tion of the June 1951 term, when four Ne-
grocs were selected. There are two terms
of the Miller Circuit Court each year, be-
ing the terms of June and November. The
record as to Negroes selected by the Jury
Commissioners for trial jury service from
November 1953 to date of this trial is as
follows:

Number of Negroes

Selected
November, 1953 3
June, 1954 1
November, 1954 2
June, 1955 5
November, 1955 3
June, 1956 9
November, 1956 None
June, 1957 10

change in that Canon.- In 11 Ark.Law
Review, p. 174 there is a case note about
photographing court proceedings, which
article contains a review of many of the
ceases. Also there is a discussion about
Canon No. 35 in the American Bar As-
sociation Journal for May 1957, Vol. 43,
p. 419.

5. Sce annotation in 39 A.L.R.2d 1342 on
continuance because of hostile sentiment.

6. There is an annotation in 1 A.L.R.2d
1291 entitled: ‘Proof as to exclusion of
or discrimination against eligible class or
race in respect to jury in criminal case.”

Si bn Malan Se BE i Be tae et gt se iat IE EE 5

eS

MES pS ESS

i Rt ge iin

eat ihn ae

ee

hiiaee:

The defenda

term of the (
had been sek
The record do
Negroes in M:
for jury servi
total number
would not indi:
for jury servi

[4] The is

gards the calli
vice in Miller
been either a
studied vasion
in considerab|
State, 213 Ar!
and we there
systematic ex

eK Ok

record reflec
lected for

term of the
March, 1947,
term of the
from which |
this appeal.

cent terms, 1
appellant’s

were selecti
any alleged
previous y
abandoned «:
this case—a:
no doubt in
of the U. S.
State of Tes
1159, 86 LI
ferred to gr.
—is also ge:
we hold thai
ciently repel:
systematic «
are now cal!

In the case a
called for jury

; 7. In Washing:

210 S.W.2d 3:
were 30,980 >
Arkansas, 21
were qualific:.


amis-

said
rsons
dants
rving
s, and
y ex-
- they
‘con-
ial to
ws of
vliar-
l‘our-
ution

”
l.

his mo-
» trans-
for sev-
no Ne-

jury by

o terms
ear, be-
r. The
he Jury
ee from
al is as

Negroes

ed
Pan

k. Law
vbout
which
of the
about
ir As-
ol, 43,

‘42 on
iment.

-@
102

uss or
case.”

MOORE vy, STATE Ark. 91]
Cite as 315 S.W.2d 907

The defendant was tried at the June, 1957
term of the Court, at which ten Negroes
had been selected for trial jury service.
The record does not disclose the number of
Negroes in Miller County who are qualified

for jury service, and census figures of the.

total number of Negroes in the County
would not indicate how many were qualified
for jury service.?

[4] The issue here is whether, as re-
gards the calling of Negroes for jury ser-
vice in Miller County, Arkansas, there has
been either a systematic exclusion or a
studied vasion. We went into this issue
in considerable detail in Washington v.
State,- 213 Ark. 218, 210 S.W.2d 307, 309;
and we there said, as regards the claim of
systematic exclusion in Jefferson County:

“x * * in the case at bar the
record reflects that Negroes were se-
-lected for jury service at a special
term of the Jefferson Circuit Court in
March, 1947, and again at the regular
term of the court in October, 1947,
from which last-mentioned term comes
this appeal. Thus, at the two most re-
cent terms, including the one in which
appellant’s trial occurred, Negroes
were sclected for jury service. So,
any alleged systematic exclusion of
previous years certainly had been
abandoned at the time of the trial of
this case—and this abandonment was
no doubt in keeping with the holding
of the U. S. Supreme Court in Hill v.
State of Texas, 316 U.S. 400, 62 S.Ct.
1159, 86 L.Ed. 1559, That case re-
ferred to grand juries, but—a fortion
—is also germane to petit juries. So,
we hold that the evidence here suff-
ciently repels any inference of present
systematic exclusion, since Negroes
are now called for jury service.”

In the case at bar, Negroes have been
called for jury service in Miller County,

7. In Washington vy. State, 218 Ark, 218,
210 S.W.2d 807, it was shown that there
were 35,980 Negroes in Jefferson County,
Arkansas, and that only 8,000 of these
were quulified electors, which is one of

Arkansas since 1953; so certainly no sys-
tematic exclusion has been shown. .

As regards appcellant’s claim of studied
evasion, we likewise conclude that the proof
offered fails to substantiate such claims.
In Washington vy. State, supra, we said on
the claim of studied evasion:

“The fact that the jury commission-
ers selected Negroes for the panel sat-
isfics the burden placed on the State
under the holding in Patton v. State
of Mississippi, supra [332 U.S. 463, 68
S.Ct. 184, 92 L.Ed. 76]: and the bur-
den then devolved on. the appellant to
show that the jury commissioners
practiced ‘evasion. There is no such
proof in the record.”

Here, the record reflects that the Trial

Judge positively instructed the Jury Com-

missioners to have Negroes on the trial
jury list that was to be called to try this
case. On june 19, 1957 when there was a
preliminary hearing on the motion to quash
the jury panel, the record reflects:

“* * * said motion is held - in
abeyance after announcement by the
Court of intention to have additional .
jurors sclected. Whereupon the State
of Arkansas elects to put James M.
Moore to trial first, to which there are
no objections, and this cause is con-
tinued until July 10th, 1957 to afford
the Court opportunity to select addi-
tional Jurors.”

Then, at the hearing on the motion to
quash the panel, the Trial Court stated:

“As a matter of fact, the Court in-
structed the Clerk in preparing that
list, to put all the Negro jurors at the
top of the list in order that there
might be full opportunity, if found
qualified and if not challenged either
by peremptory challenge or cause, for
them to serve.”

the requirements for being a qualified ju-
ror.. So total census figures shed no light
on the qualifications for jury service un-
der our statute. ;

RSs oes

bok
At-
dis-
are

ac-
vuld
ling’
nti-

fice
that
itely
was

MOORE v. STATE Ark. 913
Cite as 815 S.W.2d 907

other prisoners likewise made and signed
their statements; and that all of the pris-
oners were then taken to the State Peni-
tentiary at Cummings arm for safckcep-
ing.

The Court Reporter who took down the
statements, testified that Moore gave direct
answers to the questions asked, and that
the statement he signed was in his own
words. The defendant testified that he was
scared and, therefore, the confession was
not voluntary.8 But he admitted that he
was never threatened or struck or beaten;
also he admitted that there were no harsh
words used by the Prosecuting Attorney.
So, under the evidence as stated, and other
in the record, we conclude that it was a
question of fact for the jury as to whether
the confession was voluntary.

[9,10] The second objection argued
under this: topic relates to the statements
that the other prisoners made regarding
Moore’s participation in the homicide of
Mr. Hamm, There was testimony that all
four of the prisoners participated in the
robbery and murder of Mr. Hamm. It was
shown that the statements made by the
other prisoners were made in Moore’s pres-
ence and not denied by him in any way.
In fact, he tacitly admitted the statements
to be true. This evidence of the statements
by the other prisoners in Moore’s presence
tending to implicate him in the crime was
admissible testimony under our holding
in Martin v. State, 177 Ark. 379, 6 S.W.2d
293, wherein we said: “* * * it is a

8. There are annotations in 85 A.L.R. 870
and 170 A.L.R. 567 on the voluntariness
of confessions. Many Arkansas cases
are there listed.

9. This Section reads: ‘Where an arrest
is made without a warrant, whether by a
peace officer or private person, the de-
fendant shall be forthwith carried be-
fore the most convenient magistrate of
the county in which the arrest is made,
and the grounds on which the arrest was
made shall be stated to the magistrate,
and, if the offense for which the arrest
wis made is charged to have been com-
mitted in a different county from that

315 S.W.2d—58

general rule that the statements of one ac-
complice made in the presence and hearing
of another which are not contradicted by
him are admissible in evidence against him
as an admission on his part for his failure
to contradict them. Polk v. State, 45 Ark.
165; Ford v. State, 34 Ark. [649], 654.”

In 20 Am.Jur. 428, “Evidence”, § 493, the
general rule is stated:

“The rule precluding the use of the
confessions of co-conspirators and
codefendants as evidence against those
not making the confessions is limited to
confessions made in the absence of
such other defendants. A confession
of a coconspirator or codefendant made
in the presence of the accused and as-
sented to by him, impliedly or tacitly
by his silence or conduct, is admissible
against him, upon the same principles
which permit the introduction of evi-
dence that the defendant stood silent
when accused of crime, but it must
appear that he did assent to the confes-
sion.”

We, therefore, conclude that there was
no error in the Court’s ruling on the point
here involved.

The third and final point in regard to
the confession of Moore is that his state-
ment was obtained without taking him be-
fore a magistrate, as provided in § 43-601
Ark.Stats.9 It is conceded by the State that
after Moore was taken in custody on the
afternoon of May 15th he was immediatcly

in which the arrest was made, and the
magistrate believes, from the statements
made to him on oath, ‘that there are
sufficient grounds for an examination, he
shall, by his written order, commit the de-
fendant to a peace officer, to be conveyed
by him before a magistrate of the coun-
ty in which the offense is charged to
have been committed; or, if the offense
is a misdemeanor only, the: defendant
may give bail before the magistrate for
appearing before a court or magistrate
having jurisdiction to try the offense,
on a day to be fixed by the magistrate
and named in the bail-bond.”


“peasy 20%

80 IRON MEN

However, by the time the prisoners were arranged on the
platform of the gallows, the sheriff was his usual self. He
pulled the trap level of the gallows in a calm and method-

ical manner.

Enforcing the law often proved to be grim business for
Bud McConnell. One day a huge Negro ran amuck and
raped the wife of one of the town’s leading citizens. Bud was
successtul in quickly apprehending the fellow, but he mis-
judged the volatile and unpredictable nature of a mob that
quickly formed. Clarksville’s mob was as mindless as any
large crowd bent on a vague idea of revenge. As usual, a
few loud-voiced men, crazed with excitement, set the pace,
and the jail was stormed. Bud McConnell was trussed up like
a mummy, and the cell door was opened. The prisoner was
carried bodily to the rear of the jail and hung from the limb
of a small tree.

On another occasion, a miner in the coal mining com-
munity of Spadra, near Clarksville, was involved in an alter-
cation. Reporting to the scene, Sheriff McConnell noticed
the miner was holding a loaded and cocked shotgun. Mc-
Connell asked the fellow to hand over the weapon.

“You'll have to come and get it,” grated the miner.

“All right,” McConnell answered calmly, “but you had
better hand it over.” |

When the sheriff started toward the miner, he leveled the
shotgun, and Bud dropped him instantly with a precisely
aimed shot.

Despite the grimness of law enforcement, McConnell man-
aged to keep his excellent sense of humor. J. R. Tolbert was
one of the few citizens of Clarksville who grasped the fact
that the brusque, efficient Johnson County sheriff harbored
a deep love of wit and humor. As editors, they often ex-
changed ideas of community problems and possible solu-
tions. On subjects of law enforcement, Tolbert often men-
tioned his son’s affinity for posse work. :

“Paden will work in the orchard,” mused Tolbert, “but I

godt, lg?

THE IRON LAW OF JOHNSON COUNTY 81

have an idea that he simply likes to be out in the open,
rather than expressing anv regard for a young peach tree.”

Bud McConnell laughed. “You did a fine job raising that
bov. He’s a perfect gentleman, serious about anvthing he
undertakes to do. But there is as much Old Nick in him as
there is in you and me. Reckon that is whv I thought he
would make a good posseman. It takes a well-rounded man
to make a first-class lawman.”

Tolbert nodded, pleased with the compliment. He re-
membered Bud McConnell’s lecture when Paden, bored

_ with being a teacher, broached him for a job as a posseman.

“Son.” McConnell had barked, “I am more interested in
why a man wants to be a lawman than in hearing how good
he thinks he will be on the job. What's vour reason?”

Paden’s level, blue-eyed stare had matched Bud's fierce
gaze.

“A lawman is a necessary part of a community, especially
in a community that can go bad unless there is a good man
with a badge to stop it.”

McConnell was satisfied. He took a liking for the muscu-
lar young man with the thick Georgia drawl.

“We'll see how you work out. There is no place for a bully
with a badge in Johnson County. But, if vou don't get re-
sults from a reasonable request, use your best judgment. I
will insist on crack shooting if you have to shoot. See that
you get plenty of practice.”

McConnell received considerable ribbing from loafers on
the courthouse square concerning his choice of a “polite
schoolteacher” for posse work. Bud, however, had made it a
point to personally observe his new “student” on the job.

“Cool as a cucumber,” was Bud’s verdict.

Following McConnell’s advice, Paden bought as much
ammunition for his new six-shooter as his meager school-

teaching salary permitted. He practiced with determination -

and soon Bud Ledbetter took an interest. Paden became his
boon companion and apt pupil. By the time Bud McConnell

a

78 IRON MEN

the mountain and livestock forage would still be sparse.

Several boxes of ammunition were added to the mule’s bur-
den. |

The Johnson County Herald followed the adventures of

_ the lawmen as closely as was possible for J. R. Tolbert’s son

Paden was the young posseman with Powers and Ledbetter.
Clarksville citizens read the Herald accounts of the man-
hunt with zest for three weeks. The lawmen followed the
trail of the bandits on a zig zag course back and forth across
the ridges of the Ozark Mountains. The trail often crossed
itself, until finally, the pursuers sighted their quarry. The
ragged and unkempt outlaws gave up in disgust. :

“Hell,” grumbled one weary gunman, “those bastards
would of chased us to Kingdom Come.”

Jailed at Ozark, Arkansas, the county seat of Franklin
County, the public defender was successful in requesting a
change of venue. The trial was held in Johnson County,
which was a mistake for the welfare of the outlaws, for
they were sentenced to hang for the murder of Conductor
Cain.

The wounded gunman, now fully recovered, would make
a total of four who would march to the gallows. The little
indoors gallows of the Johnson County courthouse in Clarks-
ville was deemed to be too slow for the task at hand. Bud
McConnell ordered a special gallows erected near the rail-
road depot in the southeast part of the town. The temporary
gibbet was designed to accommodate its candidates quickly
and efficiently.

The date for the hanging of the Franklin County outlaws
was set June 22, 1883, but a few days prior to the big event,
a state-wide convention of county sheriffs was scheduled in
Little Rock. During the convention, Bud McConnell was one
of the speakers. While addressing the assembly he mentioned
that he would shortly hang four condemned men. Noting
the round of applause that. greeted his remarks, he ex-
tended an invitation to the entire body of lawmen to come

THE [RON LAW OF JOHNSON COUNTY 793

to Clarksville and witness how Johnson County “enforced
the law.” Forty-two sheriffs accepted his offer.

T. Hartman, the former conductor on the Little Rock-
Fort Smith train, had been promoted to the post of super-
intendent. Sheriff McConnell’s sweeping invitation to con-
vention attendants received quite a play in the Little Rock
newspapers, and Hartman sent a message to McConnell’s
hotel; the railroad company could provide a special coach
for such an interesting trip. Bud accepted the offer.

The special coach was attached to the train bound for
Clarksville; soon the small army of sheriffs was assembled
at the spanking new gibbet. Bud McConnell took charge of
the situation. He ordered the undertaker’s wagon to be
pulled away at a discreet distance from the gallows. He
then requested the town’s three physicians to mount the
steps to the platform and called for a minister. One of
Bud’s deputies informed him that a preacher was over in the
jail with the condemned men. Bud tilted his black Stetson
to the back of his head and fired up a cheroot. He leaned
against the pillar of the gallows to wait for his deputies to

arrive with the four prisoners.

A member of the train crew walked up and handed Sheriff
McConnell a large envelope. As the man walked away, Bud
straightened up and tore the envelope open. It was a state-
ment, signed by Superintendent Hartman, for the use of the
special coach. The amount of the hill was $125—the exact
amount the railroad company had asked for the use of its
train nine years ago, when Bud had commandeered it.

For a moment Bud’s big mustache quivered as his heavy
jaw clamped the cheroot in his mouth. Then he removed
the cheroot and let out a great, booming laugh.

The visiting sheriffs were startled, they could see nothing
comical in a situation where four men were about to die,
and the townspeople in the big crowd were puzzled. They
knew that their sheriff was not given to humor when per-
forming certain official tasks.

ee

History of

Crawford County,
Arkansas

oe

4

‘sesueyiy SOTTTASHdeTO 38 peSuey

GA0H ‘NOSNHOL ‘sewer *NOSUTANTH

By ‘
Miss Clara B. Eno

*€9Q9t fee oune uo

GIVNOG°W pus f‘sower pue

Published By
THE PRESS-ARGUS
Van Buren, Arkansas

TIe feoauoy ¢

‘

466... HISTORY OF CRAWFORD COUNTY

rifled more or less, mostly more. It was unsafe to reside
without the corporate limits of Van Buren, and the city
became a great camp of destitution; home-made goods
became necessary and the books of the city miller, H. C.
Hyman show page after page of flour orders to the desti-

tute, so lately in affluence. The forest and field again .

became the home of deer and other wild animals, no
schools, churches, courts, mails, newspapers, nothing but
stern hardihood fear and anxiety, and scarcely the bare
necessities of life.” cag

The White Sulphur Springs Of Crawford County

We the undersigned practicing physicians of Van
Buren, Crawford County, would call the attention of the
press and the public abroad to the following matter of
interest to that class of people, invalids and others. who
seek for mineral waters in the interest of health and
recreation.

For more than thirty years past the “Pennywit”

White Sulphur Springs, so called, situated about four- .

teen miles north of Van Buren, have been visited by per-
sons from this and adjacent counties in pursuit of health
while the present summer this number has been aug-
mented. The locality in question is in the center of one
of the oldest and thickly settled portions of our county
and lies but little below the average altitude of the
Ozark Mountains, and free of the malarial influences as
compared with the lower levels. >

We regard this White Sulphur water as being of a
similar character to that of the far famed White Sulphur
Springs of Virginia. There is also a spring of black sul-
phur water, so-called as well as one of a chalybeate
character, in which the bicarbonate or iron is largely
predominent, and all of them gush forth from the earth
in free and unremitting streams, within a few rods only
of each other, running separately a short distance then
uniting in a rippling brooklet flowing gently down along
a grassy valley, and it has been only from the difficulty
of procuring easy transportation that the health resort
has not been more widely known and appreciated.

MISCELLANEOUS 467

We are glad to know that these springs and land
adjacent them to have been secured by Major Jos. Han-
son of the St. Louis and Western railroad company and
that a townsite has been surveyed and the necessary
hotels and other conveniences for visitors, so we are

_ told, to be in process of completion. The public here

a{ter will have little difficulty in reaching this important
point through a system of railroads of which Van Buren

is the center. ; :
’ The nights at these springs are cool in the summer

.months, which is a great consideration with southern

people, while the winters in this latitude being prover- ~
bially mild, the place is well suited to those from the
north who seek a southern climate in quest of health and
comfort.

Prof. Dale Owens, State Geologist, made an analysis
of this white sulphur water, many years ago, from which
it will be seen that the combination of its elements is all
that can be desired. We submit such analysis: !

Bi-Carb Lime.

Bi-Carb Magnesia.

Chloride Sodium.

Chloride Magnesium.

Trace of Sulphate Soda.
Trace of Sulphate Magnesia.

Trace of free Sulphated Hydrogen.
; J. A. DIBBRELL, M. D.

C. F. BROWN, M. D.
A. M. BOURLAND, M. D.
L. C. WHITE. M. D.
‘VAN BUREN ARGUS, AUGUST 17, 1881.
On.account of age and torn it was impossible to make
cut some of the words. Copist.

Attempted Train Robbery in 1883
The attempt to rob the train on the Little Rock and
Fort Smith Railroad March 17, 1883, near Mulberry, was
the sensation for many days and was widely published
throughout the country. There were some angles that

never have been told.

1072 707 FEDERAL SUPPLEMENT

for one convicted of capital murder was
death he replied that it would have to be
considered after weighing the evidence.
Moreover, in response to a question by the
court Woods stated that he could consider
either life without parole or death and base
his decision on the evidence.

Accordingly, the court finds that the trial
court’s rulings are supported by the record,
that the Witherspoon rule was not violated
and that this claim for habeas relief must

be denied.

V. PEREMPTORY CHALLENGES

[9] The trial court limited the petition-
ers to a total of twelve peremptory chal-
lenges pursuant to  Ark.Stat.Ann.
§ 43-1929 (Repl.1977) (now codified at Ark.
Code Ann. § 16-33-307 (1987)), which pro-
vides that when several defendants are
tried jointly a challenge by one shall be the
challenge by all. The petitioners argue
that, had they been tried separately, each
would have been entitled to twelve peremp-
tory challenges, and that because they
were limited to a total of twelve in the joint
proceeding they have been denied equal
protection of the laws under the Four-
teenth Amendment. This argument is
without merit.

({10] First, there is no constitutional
right to peremptory challenge. Stilson v.
United States, 250 US. 583, 40 S.Ct. 28, 63
L.Ed. 1154 (1919). All that is guaranteed
by the constitution is the right to an impar-

taal jury. /d.; U.S. Const.Amend. VI. This.

the petitioners received. Second, since it is
fot argued that persons tried jointly com-
Pree a auxpect class, and there is not at
eeue © fundamental right guaranteed by
Ue semeutution, this court must analyze

Vee petitioners’ claim under the rational

Someone *tandard of i :
review. Harris v.
Mion Gn

ed

the same reason, the petitioners’ argument
that the state rule is arbitrary and irration-
al in violation of the due process clause of
the Fourteenth Amendment must also fail.
See, e.g. Tarter v, James, 667 F.2d 964
(11th Cir.1982) (statute allocating peremp-
tory challenges on basis of county popula-

tion rationally related to state’s purpose). -

This claim for relief is, therefore, denied.

VI. INEFFECTIVE ASSISTANCE OF
COUNSEL |

Petitioner Clines alleges that his counsel
at trial was ineffective because (a) on cross-
examination of a state witness he elicited
testimony that Clines had been involved in
another crime the night before the Lehman
incident, (b) he failed to timely object to
introduction of a co-defendant’s out of
court statement which implicated Clines as
the one who beat and/or killed Don Leh-
man, and (c) he failed to object to the
introduction of Clines’ tennis shoe into evi-

dence. Analyzing these claims under the |

standard set forth in Strickland v. Wash-
ington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984), the court finds that
Clines was not denied his Sixth Amendment
right to effective assistance of counsel and

_ that this claim for relief must be denied.

To prevail on a claim of ineffective as-
sistance of counsel the petitioner must es-
tablish that counsel’s conduct so under-
mined the proper functioning of the adver-
sarial process that the trial cannot be relied
on as having produced a just result. Jd. at
686, 104 S.Ct. at 2063. In order to do so he
must show first that the defense was preju-
diced. To be prejudicial the errors of the
petitioner’s counsel must give rise to a
reasonable probability that, in the absence
of error, the result of the proceeding would
have been different. Jd. at 694, 104 S.Ct.
at 2068. And to be deficient the counsel’s
performance must fall below an objective
standard of reasonableness when all cir-
cumstances are considered. Jd. at 687-88,
104 S.Ct. at 2064-65. The petitioner must
overcome the presumption that the chal-
lenged action might be considered sound
trial strategy, and the reasonableness of
counsel’s actions may be determined or

oa prem ke

. a ee enema


1074

in this opinion, with the exception of Clines’
claim of ineffective assistance, were prop-
erly before it. Because of the role - this
court plays in the administration of justice
it cannot permit the state to execute three
of four co-defendants sentenced to death
following an unconstitutional proceeding.
It is not the court’s concern whether
Clines, Orndorff and Richley wish to die at
the hand of the state. Rather, it is the
court’s concern that if the state chooses to
execute one convicted of a crime, it do so in
a manner that comports with the Constitu-
tion of the United States. This the state
has not done.

The petitioners’ reliance on Gilmore v.
Utah, 429 U.S. 1012,-97 S.Ct. 436, 50 L.Ed.
2d 632 (1976) is misplaced. In that case the
Supreme Court held only that it had no
jurisdiction to hear an appeal of Gilmore’s
death sentence brought by a next friend
where there had been no showing that Gil-
more was unable to seek relief on his own
behalf. In the instant case the court does
have jurisdiction by virtue of Holmes’ peti-
tion for habeas relief. Because Clines,

Orndorff and Richley were Holmes’ co-de-"

fendants in a joint trial, a finding by this
court that the joint trial was conducted in
an unconstitutional manner must inure to
their benefit whether they sought to gain
such relief or not.

X. CONCLUSION

For the foregoing reasons IT IS HERE-
BY ORDERED that the writ shall issue in
120 days unless the petitioners are given a
new trial or, in the alternative, their sen-
tences of death commuted to life without
parole. .

© EKEY NUMBER SYSTEM

avms

707 FEDERAL SUPPLEMENT

Elizabeth H. DOLE, Secretary of
Labor, United States Department
of Labor, Plaintiff,

v.

_Ray TRUSTY, Lavada Trusty, and Randy
“Trusty, Individually, and Ray Trusty
Hauling, Inc., also known as Ray
Trusty Hauling, Defendants.

Civ. No. 88-2085.

"United States District Court,
W.D. Arkansas,
Fort Smith Division.

March 2, 1989.

Secretary of Labor brought action
against truck drivers’ employer to enforce

overtime and record-keeping provisions of —

Fair Labor Standards Act. The District
Court, Morris Sheppard Arnold, J., held
that: (1) agreement in advance to rate of
pay, to be determined at end of week, vio-
lated Act; (2) agreement to flat hourly rate
with bonus to be paid, if trucks were prop-
erly cleaned, in amount necessary to insure
that truck drivers’ pay would not fall below
previous illegal per-trip pay, violated Act;
(3) employer’s violation of Act was not
“willful” so as to bring violation within
extended statute of limitations; and (4) Sec-
retary of Labor was not entitled to award
of liquidated damages.

So ordered.

1. Labor Relations <—1281

Paying truck drivers fixed sum for
each trip, or partial trip, irrespective of
number of hours consumed by trips, violat-
ed overtime payment provisions of Fair La-
bor Standards Act. Fair Labor Standards
Act of 1938, § Tal), 29 US.C.A.
§ 207(a\(1).

2. Labor Relations €-1262

Fair Labor Standards Act does not pro-
hibit all private ordering responses to its
overtime provisions; once job-rate scheme
of compensation has been entered into in
ignorance of implications of wage-hour loss
for that arrangement, mode of compensa-

one ae

ey Oe a oe
.


-_T . ’

1426 998 FEDERAL REPORTER, 2d SERIES

Those rights include the right to be treated
on the same basis as the majority sharehold-
er. Had Congress intended to allow minori-
ty shareholders to be forced to accept cash
while allowing the majority to receive stock,
it would have done so expressly. As it did
not do so, I join the Eleventh Circuit in its
belief that Congress would not have sanc-
tioned such a merger and that “without ex-
press statutory authority, the Comptroller
has no authority to approve a merger [that]
requires holders of stock of equal standing to
take different forms of consideration.” Lew-
is, 911 F.2d at 1561. Consequently, I dis-
sent.

w
° g KEY NUMBER SYSTEM
T ;

Michael Ray ORNDORFF, Appellant,
ae
A.L. LOCKHART, Director, Arkansas

Department of Correction,
Appellee.

James William HOLMES, Appellant,
v.
A.L. LOCKHART, Director, Arkansas

Department of Correction,
Appellee.

Hoyt Franklin CLINES, Appellant,
Vv.

A.L. LOCKHART, Director, Arkansas
Department of Correction,
Appellee.

Darryl RICHLEY, Appellant,

Vv.

A.L. LOCKHART, Director, Arkansas
Department of Correction,
Appellee.

Nos. 91-3510 and 91-3512 to 91-3514.

United States Court of Appeals,
Eighth Circuit.

Submitted June 8, 1992.
Decided July 15, 1993.

Following affirmance of capital murder
convictions, 280 Ark. 77, 656 S.W.2d 684, and

denial of postconviction relief, 282 Ark. 541,
669 S.W.2d 883, petitions for habeas corpus
relief were filed. The United States District
Court for the Eastern District of Arkansas,
Henry Woods, J., 707 F.Supp. 1062, granted
relief in part. Appeals were taken. The
Court of Appeals, 906 F.2d 1230, affirmed in
part, vacated in part, and remanded. On
remand, the District Court denied habeas
corpus petitions. Petitioners appealed. The
Court of Appeals, Henley, Senior Circuit
Judge, held: that petitioners’ inability to
cross-examine eyewitness as to discrepancies
between her prehypnotic and posthypnotic
statements was harmless error as to capital
sentences of three defendants and was not
harmless error as to capital sentence of other
defendant.

Affirmed in part, reversed in part, and
remanded.

Richard S. Arnold, Chief Judge, con-
curred in part and dissented in part and filed
opinion.

1. Habeas Corpus ©=452

Rule announced by Supreme Court in
Brecht v. Abrahamson, that correct constitu-
tional harmless error standard in most habe-
as corpus cases is whether error had sub-
stantial and injurious effect or influence in
determining jury’s verdict, did not apply to
appeal of habeas corpus denial, but standard,
that beneficiary of constitutional error must
prove beyond a reasonable doubt that error
did not contribute to verdict, was applicable;
state courts did not have opportunity to re-
view error. 28 U.S.C.A. § 2254.

2. Habeas Corpus 481

In context of confrontation clause viola-
tion, correct inquiry was whether, assuming
that damaging potential of cross-examination
were fully realized, reviewing court might
nonetheless say that error was harmless be-

yond a reasonable doubt. U.S.C.A. Const.
Amend. 6.

3. Habeas Corpus 489.1

In determining whether constitutionally
improper presumption was harmless, review-

et


ORNDORFF v. LOCKHART

1073

Cite as 707 F.Supp. 1062 (E.D.Ark. 1988)

substantially influenced by the petitioner’s
own statements or actions. Jd. at 691, 104
S.Ct. at 2066.

{11] As to Clines’ first claim, that coun-
sel elicited damaging testimony from a
state witness, the court need not reach the
prejudice component of the Strickland test
because counsel’s strategy was not unrea-
sonable. In his deposition, Clines’ trial
counsel stated that he had asked Clines
about his involvement in prior crimes with
the other three defendants. He said that
Clines “categorically denied any involve-
ment at all” and that “he made excuses,
alibis, swore to us that he was not involved
in anything” the state witness was testify-
ing to. The alleged damaging questions
were asked because counsel was “relying
on what Clines had told [him]’ and, on that
basis, he made a “judgment call.” The
court finds counsel’s actions to be objec-
tively reasonable.

[12] Clines admits in his brief that the
prejudice resulting from the other two al-
leged errors was “very small” or “may or
may not. have been strong.” The court
agrees with this assessment. The admis-
sion of Clines’ tennis shoe into evidence
had virtually no bearing on the outcome of
the trial as there was overwhelming evi-
dence which placed Clines at the scene of
the crime. The out of court statement of
petitioner Richley, that Clines was the one
who removed his mask and beat Lehman
with a chain, was likewise not prejudicial
because Vicki Lehman had previously iden-
tified Clines as that man. She helped a
police artist sketch Clines and she later
identified him in a line-up. Moreover, state
witness Tammy Baker established that
Clines had possession of a chain shortly
before he went to the Lehman home, and
the state medical examiner testified that

Lehman had been struck with a link type
instrument.

Vil. THE DEATH QUALIFIED JURY

In Lockhart v. McCree, 476 U.S. 162, 106
S.Ct. 1758, 90 L.Ed.2d 137 (1986), the Su-
preme Court ruled that death qualifica-
tion—the removal of jurors whose opposi-
tion to the death penalty is so strong that it

would prevent or substantially impair the
performance of their duties as jurors—does
not violate the “fair cross section” or “im-

partiality” guarantees of the Sixth Amend- -

ment. This case fully disposes of the peti-
tioners’ argument that death qualification
is unconstitutional and that claim for relief
is, accordingly, denied.

VIII. PECUNIARY GAIN AS AN ELE-
MENT OF THE: UNDERLYING
OFFENSE AND AS AN “AGGRA-
VATING CIRCUMSTANCE” TO

JUSTIFY A PENALTY OF DEATH

In Lowenfield v. Phelps, 484 U.S. 281,
108 S.Ct. 546, 98 L.Ed.2d 568 (1988), the
Supreme Court fully explored the “double
counting”
Eighth Amendment violation where an “ag-
gravating circumstance” used to justify the
death penalty duplicates an element of the
underlying offense. This case is disposi-
tive of the issue as raised by the petitioners
and, accordingly, this claim for relief is
denied.

IX. VOLUNTARY WITHDRAWAL OF
ISSUES RAISED

[13] At the habeas hearing both peti-
tioners Clines and Orndorff testified,
against advice of counsel, that they would

like to withdraw any issues which, if decid- -

ed in their favor, could result at best in the
reduction of their sentences to life without
parole. And more recently, petitioner Rich-

ley has filed a pro se motion to dismiss his:

petition in its entirety. Counsel for each of
the three have asked the court to order
psychiatric examinations before ruling on
the merits of the petitioners’ requests—
which if granted would result in the peti-
tioners’ executions. For the reasons that
follow the court deems it unnecessary to
order the examinations or to rule on the

_ requests to withdraw the petitions.

The state trial was a joint proceeding
involving all four of the petitioners as co-
defendants. And the court has ruled,
above, that the trial was constitutionally
defective. Because petitioner Holmes has
not asked to withdraw his petition the court
finds that all issues heretofore addressed

issue and held that there is no

s
ee
tenet anne


MEDIA

DOZING THROUGH
THOSE EXECUTIONS

NEWS ACCORDING TO SMITH:
Three men were executed by the state of
Arkansas Aug. 3, one after the other,
between 7 and 9:15 p.m. It was the first
time in 32 years that any State has put
three people to death on a single day.
The last factory-styl8 execution in Ar-
kansas was 1939,

The three major network affiliates in
central Arkansas led their news shows
with the executions. KATV, Channel es
devoted almost 8 minutes, covering the
executions, protests, and reactions by
family and others. The Cable News Net-
work led with the story Wednesday
night. National Public Radio's All
Things Considered reported on the ex-
ecutions, both leading up to them and
after. The New York Times late edition
carried the story on Page 1, as did nine
of Arkansas’s top 10 dailies—The
Texarkana Gazette, Southwest Times
Record in Fort Smith, the Jonesboro
Sun, the Pine Bluff Commercial, the

Sentinel Record in Hot Springs, the
Morning News in Springdale, the North-
west Arkansas Morning News in Rogers,
the Northwest Arkansas Times in
Fayetteville, and the El Dorado News-
Times.

So where did the
State's largest daily news-
Paper, the Arkansas
Democrat-Gazette, play
the story? What, you
mean you missed it? It
was right there, on 3B.
With three thumbnail pic-
tures of the deceased,
Darryl Richley, Hoyt Clines and James
Holmes. .

Why is state-sanctioned killing a non-
story at the Democrat-Gazette? Because
its editor, Griffin Smith jr., just wasn't
moved by it, and he doesn’t think his
readers gave a damn either.

“There’s an enormous yawn in Arkan-
Sas about this,” Smith said when we

I have been reading in the Times about

Smith jr wasn’t
moved, and °
doesn't think his
readers gave a
damn either,

helped, that they are evil. What no one seems

called to ask why his newspaper gave
the deed short shrift. Richley, Clines
and Holmes’ last day was a “middlin’
Story,” Smith said, involving no sur-

' prises. “When everything goes off as _

it’s supposed to go off why is that
news?”

Front-page play for the executions
would have betrayed a bias, Smith Said,
while asking us to believe 3B play. did
not. To report there that what the law
decreed would happen did happen
would “project doubt,” he said, “under-
cytting the other institu-
tions in our society.”

Though Smith recog-
nizes there is public de-
bate over the issue, he
said it wasn’t the
newspaper’s job to re-
flect it. “Why shouldn't
they have been executed?
That's what the court
said” should happen, he said.

Smith wasn’t unsettled by the fact
that his was the only major newspaper
in Arkansas to run the Story in a second
section, behind news thata city director
in Maumelle won't seek re-election.
The seeming accord between other
newspapers that the carrying out of the
executions was significant was just

‘BULGING MAILBAGS

ARKANSAS TIMES « AUGUST 11, 1994

“herd journalism,” he said.

Besides, he noted, he’s not the only
editor who finds triple executions so-
porific. The Dallas Morning News ran
a story on the execution of a killer in
White Rock “on page 44A,” he said.

It may have. But it ran the article
about Arkansas’s executions on Page
1A.

O00

IN THE WILDERNESS: Fortunately,
Smith jr. can’t stifle D-G columnist
John Brummett, whose Sunday col-
umn provided the sud details of Robert
Richley’s last hours. Richley’s ap-
pointment with death, originally sched-
uled to be the last of the three, was
moved up when inmate James Holmes
won a temporary stay. That much was
reported in the D-G's news columns.
What it didn’t report was that Richley
wasn’t told of the change until troop-
ers in riot gear showed up to escort him
to the death chamber. He didn't getto
respond to a letter he'd just received
from his brother. Or meet with his
lawyer a final time, so anxious was the
State to kill him. “I'll tell him goodbye
for you,” a guard told his shocked
lawyer.

Whata yawn, Smith jr. would have
said. ray

executions and that Mara Leveritt says she
does not want to be a part of it. That execu-
tions don’t deter crime. I don’t think execu-
tions should be used to deter crime but to
exact justice for acapital murder by someone
who can never be rehabilitated and is a men-
ace to society.

Tomorrow will be five years since my
husband was murdered at age 47 by two
young men who were looking for a car and
some money. They shot him six times, ran
over him with his own car three times and
threw him into the river. They then went joy
riding with their girlfriend. They were not
allowed to get the death penalty because they
were young, poor, black, abused and one had
a learning disability. A prosecutor’s son had
a learning disability and he was graduating
from high school.

They are judged by 12 people who are not
peers. Most people cannot in their own minds
accept that some people, even young people,
are so morally corrupt that they cannot be

to accept anymore is that murder is murder
and there are no excuses for it,

The law is so bound to favor the criminal
that the victim is a forgotten person in all of
this.

Last Saturday nightmy oldest daughter got
married. I gave her away because her father is
not here. Every happy occasion is always
overlaid with sadness for his absence. The
families of victims live forever with this
empty space, not from disease or accident but
because someone made the choice to throw
away their own lives and make the choice for
someone else,

I not only favor the death penalty but I
think two years should be the limit for ap-
peals. I think a person should get all his
appeals in order one time, not this constant
Searching fora flaw in the trial ora flaw in this
or that, but justice for a horrible crime.

Elaine Colclasure
Little Rock

ov. Jum Guy Tucker's
G mailbox was bulging
during the days loading up

to last weck’s triple execu-
tion. More than 1,500

outside the United States,
most products of acampaign
by members of Amnesty In-
ternational. All opposed the
executions. And how did the

people wrote
letters, sent
faxes orcalled
to express an
opinion. The
tally:

In Arkan- }
sas, the gover- [
norheardfrom
230 people.
They favored theexecutions
3-to-1.

Tucker received more
than 1,000 letters from

governor re-
spond to them?

He didn't.
Only correspon-
dents in Arkan-
sas gotreturn let-
ters. They were
thanked for their
interest. And
i they received a
thorough explanation of how
carefully every capital case
is reviewed before an execu-
tion is carried out.


. +++ ARKANSAS TIMES © AUGUST 11,1994 15

cO
Dd

VER STORY

SPENCER TIREY

It’s sad,’ a guard said

as the executions neared.
‘You feel 1t in your gut.’

BY MARA LEVERITT

fthe Arkansas Democrat-Gazette
had been publishing in Palestine
at the time of Christ, it presum-
ably would have reported the
historic tiple execution at Mount
Calvary with about as much in-
difference as it reported the one
last week at Cummins prison
farm in Arkansas.

The state daily buried news of the triple
execution, the first in modern U.S. history,
on the third page of its B section.

Other papers, including The New York
Times, the Los Angeles Times, and the
Dallas Morning News, as well as CNN and
adozen television stations, saw more import

inthe scrial executions. On Wednesday night,
Aug. 3, all had reporters at Cummins, and

. played the event as significant, not just for

Arkansas, but for the nation.

Even given that level of interest, not all
the media understood exactly why these
three Arkansas inmates had been ordered to
die together. It was the novel tripleness of
the event that drew them, single and even
double executions no longer being news

“This is grin,” Tom Rosential of the L.A
Times said once, as he stood up from his lap-
top computer to stroll around the prison’s
visitation room where the media were se-
questered. “What I think—what I'm saying

EXECUTIONS—Continued on next page

REACTIONS TO THE

erry Coleman, inmate’s attorney:

“I felt like retching. I cannot get the

picture of him on that gurney out of

my mind. I will not watch an execu-
tion again.”

Virginia Lehman, widow of the mur-
der victim: “My opinion is that they got
what they deserved. They didn't give my
husband asplit-secondchance. They didn't
have any mercy on him.”

Don Townsend, Benton County
sheriffs officer who investigated the
murder and witnessed the executions:
“It was a solemn type of thing, a feeling
that the case was concluded. There are
some cases and some individuals that this
is what ultimately has to happen. Once the
lethal injection has been done, they’re not
going to hurt anyone else.”

Mark Cambiano, inmate’s attorney:

DEATHS

“T definitely favor televised executions.
They say the death penalty’s adeterrent. If
that’s true, if you had televised execu-
tions, it would be much more of a deter-
rent than secreting them away in a hole. I
think people would have to think about
what itis we're doing.”

W.C. “Dub” Brassell, sheriff of
Jefferson County, also a witness:
“Frankly, I think it was too easy. I think

there should be other ways to put them to
death where they would suffer a little
more, like the electric chair oreven hang-
ing. I guess I'm hard-core.”

John Leporto, lay minister to death
row: “If a man does kill, he should be
put in prison for the rest of his life. But
while he’s there he should be treated like
a human—not for his sake, but for ours.
Because if we treat these people hu-
manely, that means we have compas-
sion. This would be a hell of a world if
we didn’t have compassion.”

a


16 ARKANSAS TIMES ¢ AUGUST. 11, 1994

COVER STORY

EXECUTIONS

Continued from previous page

in my story—is that executions are so ac-
cepted now we're looking for efficiency.”

Proficiency, as prison officials would
Say, Certainly was a goal. In May, Arkansas
became the first state in decades to conduct
(wo executions in one night. Prison spokes-
man Alan Ables said at the time the deci-
sion reduced the costs and stress that ac-
company executions, such bringing in state
roopers, training the executioners, and
putting the institution on a heightened state
of alert.

But, in this case, there was never any
doubt that if the executions did come off,
they would be carried out together. Hoyt
Clines, Bill Holmes and Darryl Richley were
charged, along with a fourth man, Michael
Ray Orndorff, in the 1981 slaying of Rogers
businessman Don Lehman. Despite pleas
from their lawyers that we men be tried
individually, the four were tried and con-
victed together.

Because of that, prosecutors and prison
officials have understood for the past 13
years that these executions likely would also
proceed as the cases had: as one. The case's
history made it all the more surprising then,
when earlier this year a court of appeals

found an error in the trial of Orndorff, lead- °

ing to his removal from death row.

Thus, on Monday of last week, only three
of the four menconvicted of killing Lehman
were taken to the so-called “quiet cells” at
Cummins, a few feet from the death cham-
ber. There they were placed under 24-hour
observation. Guards were required to record
their movements in three separate journals
known as the “death watch logs.”

The logs’ entries are often bizarre, with
notauons for every time the inmates re-
quested cigarettes, ate, or asked to have the
channel on the television changed.

During a visit with family members, the
log notes that Clines handed over to them
several personal effects, including a Bible
and the governor's proclamation ordering
his death. At 4:58 p.m. on the day of Clines’
scheduled execution, a guard asked him
“was he going to take a shower.” The log
notes, “Inmate Clines said for what.”

According to the logs, all the men were
offered Valium several times a day: only
Richley accepted. None of the men ate much
of their last meals. Anentry on Richley’s log
observes: “Inmate returns porter house
steak—none eaten.”

Other entries are maddeningly incom-
plete. One for Holmes noted: ‘Warden Reed
calls and asks me to inform inmate that the
two books he requested are not in the unit
library.’ No mention of what Holmes wanted
to read in his last 48 hours on earth.

More typical was this: “Inmate Holmes
takes a piss.” Or this: “Inmate sitting on
bunk, smoking a cigarette, staring at the
wall.”

Or this, at 12:49 p.m. on the day of the

‘ aan)
Mt
e

AT THE GATES: Some of

executions: “Warden Terry tell inmate
Holmes the things they are going to do to
him when they take him inside of the Death
Chamber, like tie him down.”

The sun was lowering across the Arkan-
sas delta that afternoon, when word arrived
that a three-judge panel of the 8th U.S.
Circuit of Appeals had ordered a last-minute
stay for Holmes. The Arkansas attomey
general's office appealed for the full court to
meet and render an opinion.

Ables told the assembled reporters that
the development might mean that Richley's
execution, which was scheduled to be last.
might be moved up. Clines was scheduled to
go first.

Shortly before 7 p.m., word arrived that
the appeals court had overturned the Stay.
Holmes’ lawyers were now pressing their
appeal to the U.S. Supreme Court.

For reporters, locked behind the gates and
barred from the execution chamber, the ritual
became one of waiting. Prison officials put
out trays of cinnamon rolls and sandwiches

“HE BLINKED HIS
EYES A FEW
TIMES,” A
REPORTER FOR
THE ASSOCIATED
PRESS RELATED.
“THEN HE KIND
OF BLEW OUT.

“ah +
he death-penalty of

4

ponents wore T-shirts reading,

with beige fillings matching the paint in the
room. In another room, from which report-
ers were also barred, prison officials and
lawyers for the attorney general's office also
had trays of food, but the tradition here is a
little fancier; deli meats arrayed on .party
trays.

An hour anda half before Clines was to be
taken to the death chamber, Ables told the
reporters to decide which two of them would
witness each of the executions. The move
was, one said later, like tossing a stinking
bone to a bunch of dogs and watching them
fight over it.

In theory, the witnesses are limited by the
lack of space in the windowed room that
opens into the death chamber. But the policy
of having even two reporters witness the
execution and then recount what they saw so
all the media can report it flies squarely in
the face of state law.

Arkansas Code 16-90-504, entitled “Pub-
lishing of Execution Details Prohibited,”
states: ““No newspaper or person shall print

“Don't kill for me.”

Pesee 5 ee

or publish the details of the execution of |
criminals under this Act. Only the fact that |
the criminal was executed shall be printed or
published.”

In its scantiness, the Arkansas Democrat-
Gazette's coverage was almost in compli-
ance. The accounts that follow here, how-
ever, are in violation of that lav—though.
arguably, they are protected by the First
Amendment to the U.S. Constitution

Once begun, the executions proceedec
like clockwork. At6:47 p.m. the guard watch-
ing Clines wrote in the log: “Inmate Clines
Quiet Cell 10 door opened.” At 6:48 he
wrote: “Death chamber door closed.”

Moments before. Clines had told his law-
yers, Jerry Coleman and Debbie Sallings.
not to worry, that he was ready to dic
Coleman recalled. “he told his family and
Debbie not to cry.

“Then all of these guys looking like a
SWAT team came in and lead him to the
chamber. You feel like you're in the middle
of a damn foreign filin.”

aes

He

killed.

OFF THE ROW: Hoyt Clines, Darryl Richley and Bill Holmes, in the order they were


ARKANSAS'TIMES * AUGUST 11. 1994. 17

At the same time, 14 people
were being marched into the
nearby witness room. At ex-
actly 7 p.m. the curtain in that
room was pulled, giving them
their first look at the death
chamber.

They saw Clines on a
gumey, immobilized by straps
at his legs, his chest, and his
head. His arms were out- . fi
stretched, crucifixion-style,
and strapped to a board run-
ning beneath his back andhori- =
zontal to the gurney. An IV #
snaked upward from the sheet 6
covering his left arm.

(_— ad ‘$ Ear
An assistant warden asked - MULTI-MEDIA: Reporters were kept in a room about 75 yards from

rh Ae —- thes apt ye eer an

THEM DIE.”’’

happy face on the date of Aug.
3 along with the words “Lib-
eration Day.”

He also left his friends there
a sealed envelope to be opened
at the hour of his execution.
Insid@ was a poem he'd writ-
ten. Itbegan, Do you know what
it means to swallow a

Clin-s if he wanted to make * “the execution chamber.

st remarks. He said, ©
’ The assistant warden, speaking to
unseen executioners through a micro-
phone in a headset he wore, ordered the
release of the lethal fluid.

Behind a wall, two volunteers from the
Arkansas Departmentof Correction, pressed
identical buttons. One of them started the
deadly flow of sodium pentothal, pavulon,
and potas. ..1: chloride into Clines’ blood-
streain.

“He blinked his eyes a few times,” a
teporter for the Associated Press related.
“Then he kind of blew out. He looked straight
up, then he closed his eyes and never re-
opened them. By 7:06, I saw no signs of
life.”

“No one showed inuch emotion,” Linda
Hicks, of the Benton County Daily Record,
said. “I kept !ooking for some sign of emo-
tion, a tear to fall, something—but although
some people squirmed a little in their seats,
it was mostly to get a better view. I thought,
‘I'd hate to die and nobody show any emo-
uion.”

Like all the reporters from Northwest
Arkansas, Hicks knew the prosecutor and
two of the investigators on the crime, all of
whom were on hand to witness the execu-
tions. She also knew the victim’s family.

As the executions began, Virginia
Lehman, the widow of the slain man, was at
her home in Rogers, watching the news on
television with her daughters, one of whom
had been in the house with her the night of
the killing. “It wasn'ta happy time,” she said
later. “But yet, as we heard it, we felt that
justice had been done.

“The thing that really bothers me is that
Don was such a good, giving person. He’d
give you the shirt off his back. If they had
just told him that they were there to rob him
or that they wanted some money or they
wanted his guns and stuff, he would have
given it to them. But they didn’t give hima
chance.

“I feel that anybody whohas lived through
what we went through that night would feel
as strongly about the death penalty and see-
ing justice done as we do.”

Because of questions still hanging about

Holmes’ appeal, the execution of Richley,
which was to have been at 9 p.m., was
moved ahead to 8. Richley was not advised
of the change.

‘When you’ re scheduled to die you psych
yourself up for a certain time,” Mark
Cambiano, Richley’s lawyer, complained
bitterly after the execution. “These are your
last hours on earth, and you pretty much
figure out what you're going to do with
them.”

Cambiano had been with Richley when,
“Without any warning, at 10 till 8, the goon
squad came in und lined up in the hallway.
There were at least a half dozen of them.

“They march in wearing riot gear, with
those clear, Plexiglas shields and helmets
with face masks down. It looks like they're
ready for a full-fledged riot, and all they're
there for is to escort one scrawny fellow in
handcuffs and leg irons less than 15 feet to
the death chamber.

“When they all lined up, I figured they
were going to get Holmes. But then [Assis-
tant Director David] Guntharp came in. He
said, ‘Are you the attorney? Come with me,
please.’ He led me down a hall and out a
door. He said, ‘There's been a change of
plans. I'm not here for Holmes, I’m here for
Richley.’

“T said, ‘I need to talk to him. I haven't
said my last goodbyes.” He said, ‘I'll tell him
you said goodbye.” The next time I saw
Darryl, I was in the witness room and he was
strapped on the gumey.”

John Leporto, a Catholic lay minister
visiting the men, said that earlier, when he'd
talked to Richley, “he had tears in his eyes.”
Butas the guards led Richley away, Leporto
related, “I said, ‘God bless you, son.’ He
turned back to me and winked.”

Richley’s execution began at 8:03 p.in.
By 8:08, witnesses reported, three fingers on
his right hand had turned “noticeably blue.”
At 8:09 the coroner pronounced Richley
dead.

He had asked that his personal effects be
transferred to a friend, another prisoner on
Arkansas death row. Among them was a
calendar on which Richley had drawn a

"*

scream... ?

Afterward, Leeanna Walker
of the Northwest Arkansas
Morning News would report that as the
media witnesses were being driven to the
chamber, the radio in the van was playing
the old song “Spiritin the Sky.” “I thought it
was ironic,” she said. :

Walker also noted that while looking at
Richley, she could also see reflected in the
glass the face of David Clinger, the pros-
ecuting attorney who won Richley’sconvic-
tion. Walker described the look on Clinger’s
face as “not a look of victory but one of
resolution.”

“IT’S AN UNUSUAL
FEELING TO GO IN
THERE AND SEE
SOMEONE ALIVE
AND THEN TO SEE

Two down, one to go.

At 8:25, word came that
the U.S. Supreme Court had
declined Holmes’ appeal. Fis
execution began at 9:11. But
Holmes took longer than the
others to die.

One witness reported that
the others “almost seemed bored at times.”
At 9:14 Holmes had “‘a sort of pinkish face.
but then the color left and he became ashen.
His hand began to turn blue.”

At 9:24 the Jefferson County coroner
pronounced Holmes dead. “It’s an unusual
feeling,” the AP reporter said afterward, “to
go in there and see someone alive and then
to see them die.”

Leporto, the lay minister, also witnessed
Holmes’ execution. He left the prison fecl-
ing disgusted,

“I don’t believe anyone has the right to
kill anyone,” Leporto said. “I don’t believe
they had the right to kill Don Lehman. And
I don’t believe we had the right to kill them.”

Having read three death announcements
in one night, Alan Ables acknowledged he
planned totake the nextday off to go fishing.
“There's a lot of tension in these things,” he
said. “We at the Department of Correction
are responsible for carrying out the will of
the people. We try to do that professionally
and with some decorum.” ak


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BOONE v. STATE

Ark, 89

Cite as 327 S.W.2d 87

“And there followed in concluding the
first appearance before the jury in the
jury room:

““By Member of the Jury: The way
this started, we were all unanimous on
guilty. Now, if we can’t arrive at the
penalty, is that a hung jury?

““By the Court: Yes, sir, that is a
hung jury. The mere fact that it would
be a hung jury should not influence any
member of this group in what your deci-
sion would be. Do not worry about that.
I don’t mind trying lawsuits; that is my
job. If it is a hung jury it would have
to be tried again. That doesn’t go into
the merits of it. You decide those two
questions strictly on the law and the evi-
dence, and whatever the answer to that
is, you satisfy your own conscience and
the court will be satisfied and happy. If
you need further information, gentlemen,
let me know.’

“And, again the court and reporter re-
turned to the jury room to find that the
jury was deliberating on the matter of
punishment, and here follows the unusual

question:

““By Mr. Gardner: We have taken
another vote after quite a bit of discus-
sion, and we are eleven to one. We have
finally come to the conclusion that we
will be in agreement if we can find out
what the maximum penalty would be. Is
that possible? Everybody will be in agree-
ment if the law could tell us what the
maximum penalty is, Is it life imprison-
ment, or the second choice with the elec-
tric chair? Do you understand what we
are trying to get at?

I don’t believe—

“op

3y the Court:

““By Mr. Rowland: The maximum
penalty. There is some doubt in a few—
at Ieast one person’s mind—which woitd
be worse, life or death.

““By the Court: That is a matter for
you to decide.

““By Mr. Gardner:
state that.
327 S.W.2d—6%

The law doesn’t

““By the Court: No, no, sir, the law
doesn’t'say. The law simply says that the
penalty shall be life imprisonment in the
event of a finding of guilty, or the penalty
shall be death in the event of a finding
of guilty. It leaves it to the jurors to
decide which of those penalties shall be in-
flicted’

“And there followed the question:

““By Member of Jury: Judge, if you
please, the question is which is the more
severe punishment, life imprisonment, or
death? That is the question, if you can
answer that question.

““By the Court: I can answer you in
my own mind. I don’t know that the
law books, offhand, say. That is a novel
question.

erp

sy Member of the Jury:
what we are faced with.

That is

““By the Court: I wouldn’t hesitate to
answer it, if I had an opportunity to
confer with counsel. Anything that tran-
spires between the jury and the court has
to be known by the defendant or his
counsel, and let me check that please.’

“And, now we come to the report of the
return of the court for the last jury room
conference, by agreement of counsel for
the State and the defendant, which ended
as the point of no return:

““By the Court: After conferring with
counsel, the court reporter will read 2
bricf statement which the court prepared
with the agreement of counsel in answer
to the question propounded a minute ago.

““By the Court Reporter: (Reading)
Gentlemen of the Jury, you have asked
the court to tell you at this state of your
deliberations which is considered in law
to be the most severe penalty. Whether it
is death by electrocution, or whether it is
life imprisonment. Our statutes provide
that every person convicted of murder
in the first degree shall suffer death or
life imprisonment. It is for you, the jury,
to say which of these two penalties should
be inflicted, the severity of either of those

Peter


BOONE, BYRD, BOYD AND MOORE, blacks, electrocuted Arkansas (Miller Co.)

on May 13 and May 20, 1960.
BOONE v. STATE Ark, 87
Cite as 827 S.W.2d 87

Lowery’s eyes. The preponderance of the
evidence shows that in May, 1955, while on
the job he was struck in the eye with a
large clod of dirt, and although he did not
at that time require the services of a doc-
tor, he did receive first aid and as a result
of the injury he was off from work for
about a day anda half. The preponderance
of the evidence also shows that on May
1, 1956, while on the job, and while operat-
ing a cutting torch, he got two pieces of

¢ot metal in his eye. At this time a doctor

removed the metal from the eye. On June
22nd, after having got the metal in his eye
on May lst, he complained of not being
able to see out of the injured eye. The
appellant sent him to Dr. James L. Smith,
an eye specialist in Little Rock. Dr. Smith
determined that Lowery had lost the sight
of the eye. Later, in connection with the
claim for compensation by Lowery, Dr.

th testified that in his opinion the loss
us sight was due to an injury, but that the
injury occurred a long time prior to May,
1955, when, according to the evidence,
claimant was struck in the eye with the
clod of dirt while at work. Dr. Smith stat-
ed his reasons supporting his opinion, but
the Commission did not accept that theory.
Lowery testified positively while at work
in May, 1955, he was struck in the eye with
a clod of dirt. . He named the time and
place and pointed out an employee of ap-
cellant sitting in the courtroom as the per-
son who threw the clod.

Apparently there is no serious dispute

about his having got two pieces of hot.

metal in his eye while at work on May l,
1956. On June 22, 1956, he complained for
the first time of not being able to see out
of the eye, and he testified that he had been
unable to see out of his eye since that date.

[2] Taking all the evidence into con-
sideration, we cannot say there is no sub-
stantial evidence to support the finding
that Lowery lost the sight of his eye from

injury received in due course of em-
vuyment.

Affirmed,

Rogers BOONE, Appellant,
v.
STATE of Arkansas, Appellee.
No. 4938.

Supreme Court of Arkansas, .

sept. 14, 1959,

Defendant was convicted in the Cir-
cuit Court, Miller County, Lyle Brown,
J., of murder in the first degree, and he
appealed. The Supreme Court, Holt, J.,
held that by agreeing to trial judge’s en-
tering jury room, defendant waived his
right to challenge such action, unless it
Was prejudicial to his rights.

Affirmed.

1. Constitutional Law C265
Indictment and information €=2(1)

Arkansas Constitution amendment,
permitting defendant to be prosecuted on

information for first degree murder, was:

not repugnant to Fourtcenth Amendment
of federal Constitution. Const. Amend.
No. 21; U.S.C.A.Const. Amend. 14.

2. Criminal Law ©C=868

By agrecing to trial judge’s entering
jury room, defendant waived his right
to challenge such action, unless it was
prejudicial to his rights. Ark.Stats. §
43-2139.

3. Criminal Law €=736(2)
Homicide C=253(1)

In homicide prosecution, issue as to
whether defendant’s confession was vol-
untary was properly submitted to jury;
and evidence, even independent of con-
fession, was sufficient to sustain first de-
gree murder verdict. Ark.Stats. § 43-2115.

a

W. Harold Flowers, Pine Bluff, for ap-
pellant.


Cay aes dotae i
hy Ws we ae
a

88 Ark,

Bruce Bennett, Atty. Gen., by Thorp
Thomas, Asst. Atty. Gen., for appellee.

HOLT,:. Justice:

On an information charging the crime
of murder in the first degree, appellant,
Rogers Boone, a Negro, was found guilty
of the murder of M. R. Hamm, a white
man 76 years of age, and his punishment
fixed at death. This appeal followed.

For reversal appellant relies on the
following points: “(1) The court erred in
overruling appellant’s motion to quash the
information. (2) The conduct of the trial
court in communicating with the jury by
entering: the jury room without the de-

’ fendant or his counsel was improper, and

constitutes reversible error. (3) The al-
leged confession of appellant, and amend-
ed statements, were illegally admitted into
the evidence.”

[1] Appellant, in apt time, filed motion
to quash the information alleging that
Amendment 21 of the Arkansas Constitu-
tion violated the provisions of Amendment
Fourteen of the Constitution of the United
States. This identical question has been
settled against appellant’s contention by
this court in Washington v. State, 213
Ark. 218, 210 S.W.2d 307, 308, wherein
we said: “* * * appellant claims that
prosecuting him by information is vio-
lative of his rights under both the State
and Federal Constitutions. Amendment 21
of the State Constitution reads: “That all
offenses heretofore required to be prose-
cuted by indictment may be prosecuted
either by indictment by a grand jury or
information filed by the Prosecuting At-

torney.’

“This amendment has been upheld by
this court against such attack as is here
made, in numerous cases, some of which
are: Penton v. State, 194 Ark. 503, 109
SW.2d 131 and Smith v. State, 194 Ark,
1041, 110 S.W.2d 24. The United States
Supreme Court has repeatedly held that a

327 SOUTH WESTERN REPORTER, 2d SERIES

State can—if it so desires—provide for a
prosecution by information instead of by
indictment. * * * Appellant quotes
from, and relics on, the dissenting opin-
ion of Mr. Justice Black in Adamson v.
People of State of California, 332 U.S.
46, 67 S.Ct. 1672, 91 L.Ed. 1903. But we
must follow the majority in that case,
rather than the minority. We therefore
conclude that the trial court was correct
in refusing to quash the information.”

Il

[2] Next appellant says that, “The
trial court, in communicating with the
jury by entering the jury room without
the defendant or his counse! was im-
proper and constitutes reversible error.”
We do not agree. The record reflects that
while the jury was deliberating on the
case, it appeared that some of the jurors
were having difficulty in deciding whether
appellant should be sentenced to life im-
prisonment or death and, says appellant,
“Upon being informed of a request for
permission to ask the court a question,
and upon agreement of counsel for the
State and appellant, the court and the
reporter went into the jury room”, where-
upon the following occurred:

“‘By Mr. Rowland: Judge, you may not
be able to answer this question, and I
will withdraw it if you can’t. There
might be one thing that would help here.
In a life sentence, do you know approxi-
mately the average time served when a
man receives a life sentence?

“ “By the Court: No—
“‘By Mr. Rowland: That might help.

“By the Court: I can’t answer that. In
response to that question, gentlemen, if
will say this. Do not concern yourselves
with that question. If you say life, as far
as you are concerned, it is life. If clem-
ency is later shown, it will have to be
shown by the executive branch of the
government, and not by you, and you

should really not consider that phase of it
ae a

* And
first app
jury roor

«By
this start.
guilty.

penalty, is

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hung jury
be a hun:
member o1
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you need
let me kno

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punishment,
question:

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another yo
sion, and w
finally com.
will be in
what the m
that possible
ment if the
maximum px
ment, or the
tric chair?
are trying t:

““By the

““By Mr,
penalty. Th
at least one
be worse, life

“ ‘By the (
you to decide

““By Mr.
state that.

327 S.W.

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ch his life in

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iii icin aan staat

Could science remove that. “something within” such a de-
praved and murderous type as Lonnie Dixon? >

Jack Buster was a religious fanatic. He raved to me in
his cell, screaming passages from his Bible and declaiming
on the murder he was convicted of committing. He had. re-
moved a man whose soul was black and who refused to walk
in the light of God, said Buster. Such was his interpreta-.
tion of a dozen biblical injunctions. In one ‘passage of ‘the
Bible he remembered the phrase “slay utterly,” and he be-
lieved himself to be God’s own messenger sent into the world
to take care of this celestial slaying. Furthermore, he insisted
to me, if he walked to the ‘electric chair the act would be
tantamount to suicide. As a suicide he could not himself take:
his place in the Kingdom of God. Someone would have to
carry him. :

But Jack Buster walked to the chair after all. Twenty-four
hours before his execution, terror rebalanced his mind. His
religious ravings ceased. He was.a broken, sobbing man,
sitting huddled on his cot, staring stupidly about like one
just awakening from a dream, =

I believe a psychiatrist could have awakened Jack Buster -

a few years sooner—before he had committed murder.

The first Negro I saw go’ to the chair was in 1925, and
since then I’ve observed a dozen or more. There is something
strangely moving in the |
actions of the colored con-
demned.

Negroes are always emo-
tional and excited in the
last’ few days. They die
with exalted religious
phrases on their lips, ap-
parently having found sol-
ace in some inner _ belief.
Or they die in bitter, ugly
silence, hate in their. eyes
and their attitude for the
witnesses who stand in
front of the .chair.

These witnesses are a
study in themselves. The
law requires that at least
twelve men shall witness
an execution. The peni-
tentiary warden is always
besieged with requests for _
a “ticket to the death
house” as soon as a man
is sentenced to die. Usual-
ly thirty or forty manage
to crowd into the. execu-
tion chamber in addition to those whose duties force them to
be there. Among the witnesses at the Arkansas penitentiary
T’ve seen several women. pes

I never saw a woman get sick and faint as men often do.
They stare fixedly at the condemned men. [I’ve seen them
lick all the rouge off their lips. They seldom look away until
the last jolt has gone through the, body. On the other hand,
men often look down at their feet at the, last moment. I’ve
seen men tremble as if they were waiting for the juice
themselves.

The citizen who thinks he would like to join the witness
group at an electrocution will do well to bear in mind. the
brutal facts. Most people think a charge of electricity hits
the man in the chair and that’s all there is to it. But the wit-
nesses stand there and watch the human thing in the chair
while the: juice shocks it once, twice, three times and some-
times more. In the most successful of executions the wit-
nesses watch the proceedings for five and sometimes ten
minutes until a doctor can’t find a murmur in his stethoscope.
But they aren’t all “successful.”

“Burning” a man is criminalese for electrocuting him, and
is not supposed to have a literal meaning. Nevertheless, in the

ARKANSAS D

been improved by new buildings.
while the far end contained the

Kbove is the death house at Arkansas’ prison, which has recently

\

‘Arkansas: penitentiary ten years ago, James Wells literally
was burned. a )' :

“No official executioner was on the payroll to pull the switch
at James Wells’ execution. The state advertised for one and
offered $100 for the service. A commercial salesman who
saidthis wife was about to becgme a mother and he needed
the money, applied for the job. To finance the advent of life
the salesman was willing to cause death, He claimed a work-
ing knowledge ‘of elettricity. “He tinkered with the prison’s
own, dynamo, which was constructed to generate the necessary
lethal: charge: without interfering with the regular power
circuits, | sith

Finally the salesman announced that everything was ready.
~ At-daylight James Wells was led, shuddering and moaning, to

the chair. His head was shaved and he wore the black suit
with one trouser leg split to the knee, which the prison furn-
jshed as his burial garment. ‘The salesman fixed the electrodes,
adjusted the leather mask, saw to it that the sponge within the
headset was wet. Then he stepped to the switch and threw it
into the ‘copper sockets.

. What happened after that was pure horror.
|. Fifteen minutes later the salesman was still throwing the

switch in between trips to the faulty dynamo. More than a

dozen of the two score witnesses had fainted. Others were
wretchedly sick where they
stood. James Wells was
literally burned to death
when. the doctor finally
pressed his stethoscope
against the charred chest
for the last time.

Another ef my assign-
ments I cannot recall with-
out a grimace was the
chilly morning at the peni-
tentiary when I saw four
men electrocuted in suc-
cession. So terrifying was
this’ that when it was over
I asked my newspaper to
assign someone else to the
death house beat. The re-
quest was refused.

The four doomed men
were Duncan Richardson,
F. G. Bullen, William De
Bord and Ben Richardson.
Gang killers who began a
crime career by pilfering
ice cream at the hill-billy
_ church _ sociables in the
Ozarks, the quartet rose ‘to bigger crimes until they reddened
their hands in murder. A jury condemned them to the chair.

But there was but one such throne for the king of criminals
in the Arkansas penitentiary. The four must die, one right
after another. Duncan Richardson went first.

He left his cell with a swagger and a jaunty cigarette be-
tween his lips. He paused at the entrance to the death cell
and the swagger left him. His shoulders sagged, the cigarette
dropped to the floor. Along the corridor wall were four
open coffins, ready and waiting.

There is nothing so realistic as an open coffin to a man who
expects shortly to occupy one. Four. open coffins increase the
object lesson just four times. ‘They had to carry Duncan to
the chair.

It was all over in five minutes. The body was carried into
the corridor and gently placed in No. 1 coffin. The dead Dun-
can wore the inevitable black suit, and a kindly jailer arranged
it so that the slit in the trouser leg didn’t show. But he looked
anything but peaceful lying there. The electric shock had
fixed his facial muscles into a permanent mask of terror.

F. G. Bullen walked along the corridor next. He sniffed
the air as he approached the death cell. (Continued on page 59)

43

EATH HOUSE

Arrow indicates door to chair room,
prison power plant and dynamo.


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The Hot Seat

(Continued from page 43)

Like a steer at the door of a slaughter
house he’ sniffed, and there was that in his
nostrils which could never be mistaken. He
blanched. He. paused at the door of the
death cell just as his predecessor had done.
Then his eyes swept the coffifis, one oc-
cupied, three empty. He lunged head for-
ward through the door and fell prone be-
fore the chair. They lifted him to the
throne, and seven minutes later No. 2
coffin was occupied.

A benign but shaken priest warned Wil-

‘liam De Bord to close his eyes as he

walked down the corridor and offered to
guide him through the door to the “hot
seat.” But De Bord saw the coffins from
afar. His legs seemed to go suddenly dis-

jointed and they carried him the rest of

the way.

A sagging audience was in the death cell.

A sweating electrician was at the switch.
A warden who had aged fifteen years in
thirty minutes caught the glance of a prison
official who was standing guard over the
caskets in the corridor. The warden
stepped quickly from the death cell to see
what was the matter, just as Ben Rich-
ardson, the last man té go, braced himself
and-prepared to leave his cell. ;
. In the corridor the casket guard nodded
to No. 2 coffin. “He's still alive,” gasped
the man, pointing to the form of: F. G.
Bullen. “I seen him move.”

BEN RICHARDSON was hustled back
to his cell. He had seen the coffins,
but he thought the sudden decision to de-
lay his execution might mean a reprieve.
Someone explained to him, and he fainted.
They took Bullen from his coffin and
back into the chamber of horrors. They
strapped his inert body in the chair, and
the full letter of the law was applied a
couple of times more until a harassed doctor
announced that life was unquestionably
extinct. ;

Then came Ben Richardson down the
corridor on his own power. He opened his
eyes as wide as he could get them in spite
of the priest’s injunctions, and when he saw
the coffins his scream was echoed by every
trembling criminal in that penitentiary.

In all the executions I have witnessed,
I’ve seen a condemned man smile only,
once.

Herbert Sease was to die for a particu-
larly heinous crime. The witnesses were

hard-boiled as they waited for the prisoner

INSIDE DETECTIVE

to be brought in. I knew from long ex-
perience that every man in the place would
soften when the. switch was thrown. But
in the meantime they scowled and looked
as though they were glad to be there and
see blind justice done.

Sease’s tread was firm when he walked
down the corridor. He refused the priest’s
arm, and when he reached the death cell
door he announced so that all could hear:
“I’m immune to electricity, you damned
‘fools! No use putting me in there.” He
nodded his shaven head contemptuously
towards the chair. “You're wasting your
time and mine.”

When the electrodes were in place ‘he
looked’ up at the executioner who was
about to evar the crown of leather on his
head. “I tell you'I’m immune,” he. re-

ted. “I’m an electric dynamo myself,-

simply generate counter power and your
juice is useless.” He-smiled at the group
of white faced witnesses. “I’m immune,”
he said happily.

One witness who felt his stomach mus-
cles getting cramped and‘who was a re-
ligious man withal, broke the rules of the
death cell and gasped: “Make your peace
with God, you fool! You are about-to die.”

The mask was slipping into place. The
prisoner had time only for a single four-
letter’ word of contempt. Then he braced
himself in the chair. :

hen the third shock came, and Sease
proved not immune, the witness who had
spoken ‘found his own tongue again.

“I told you so,” he murmured, and
swayed drunkenly where he stood.

I’ve seen thirty-four men die; I’ve talked
with them as they- waited for death. I’ve
seen their steps falter on that last inter-
minable mile. I’ve witnessed bungled exe-
cutions that were sheer barbarism.

And even those executions which ran ac-
cording to schedule, I have not liked. No
doubt most of the victims deserved to die,
but is not there some better way?

I cannot help thinking that even the six-
man firing squad—one swift bullet and five
blanks—is a cleaner way to take a man’s
life. At least it gives the condemned a
chance to be a man, even to the end, in-
stead of a piece of carrion strapped into
that horrible instrument of society called
the electric chair.

Eprtor’s Note: The sentiments ex- }

pressed by Mr. Wirges in this article are
his own and do not necessarily represent
the attitude of this magazine. Do you
agree with him? Instpe Derective in-
wites readers to send comments to The
Editor at 149 Madison Ave., New York
City. *

State of New York }
County of New York ess

—

to wit:

Ave., New York,
New York, N. Y

individual member, must be given.) Dell Publishin;
T

if any, contain notsonly the list of stockholders ard

STATEMENT OF THE OWNERSHIP, MANAGEMENT, CIRCULATION, ETC., REQUIRED BY THE
: ACTS OF CONGRESS OF AUGUST 24, 1912, AND MARCH 3, 1933 er

Of INSIDE DETECTIVE, published monthly at New York, N. Y. for October 1, 1938.

= ‘

Before me, a Notary Public in and for the State and County aforesaid, personally appeared Helen Meyer,
who, having been duly sworn according to law, deposes and says that she is the Business Manager of the
INSIDE DETECTIVE and that the following is, to the best of her
of the ownership, management (and if a daily paper, the circulation), etc., of the aforesaid publication for
the date shown in the above caption, required by the Act of August 24, 1912, as amended b:
March 3, 1933, embodied in section 537, Postal Laws and Regulations, printed on the reverse of this form,

1. That the names and addresses of the publisher, editor, open sk J editor, and business ‘managers are:
Publisher, Exposed Publishing Co., 149 Madison Ave., New York, N. Y.; Edii
N. Y.; Managing Editor, None; Business Manager, Helen Meyer, 149 Madison Avenue,

2. That the owner is: (If owned by a corporation, its name and address must be stated and also immediately
thereunder the names and addresses of stockholders owning or holding one per cent or more of total amount of
stock, If not owned by a corporation, the names and addresses of the individual owners must be given. If
owned by a firm, company, or other unincorporated semen, its name and address, as well as those of. each

ork, :

. Delacorte, Jr., 149 Madison Ave., New York, N. Y.; Margarita Delacorte, 149 Madison Ave, New York, N. Y.

3. That the known bondholders, mortgagees, and other security holders owning or holding 1 per cent or more
of total amount of bonds, mortgages, or other securities are: (If there are none, so state.) one.

4, That the two paragraphs next above, giving the names of the owners, stockhold
security holders as they appear upon the books of the
company but also, in cases where the stockholder or security holder appear upon the books of the company
as trustee or in any other fiduciary relation, the name of the person or corporation for whom such trustee is
acting, is given; also that the said two paragraphs contain statements ee
belief as to the circumstances and conditions under which stockholders and security holders who do not appear
upon the books of the company as trustees, hold stock and securities 1h a capacity other than that of a bona
fide owner; and this affiant. has no reason to believe that any other person, association, or corporation. has any
interest direct or indirect in the said stock, bonds, or other securities than as so stated by her.

knowledge and belief, a true statement
y the Act of

itor, W. Swanberg, 149 Madison

Inc., 149 Madison Ave., New York, N. Y.; George

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59

4 Fay Si on gg Pipi Ye Sy aA na. Post = ans gee é
on Se Sead ids oe: yt aes i | EEL
7 A, P ie ete Sie iS rae «

portent
ees

pee Ay dae Po,
CL ey’ f lfe/,

A LETTER FROM IONG Aco

The following letter was sent to us by ir, Paul C, Hays, our menber
from Poplar Hiuff , Missouri, He has the original in his. possession and
he provides the following notes, _ :

*

Notes ty Paul C, ! Hegre ‘iy Dearest Sister" is my great-grandmothe: ,

. Virginia (Bunting) Rebinson, the wife of Willian Evans Robinson and ‘Samie"

was her sister, Gamella Adolphea Bunting, who later married Robert Marcus
Wrighte featly was a Slave» .

When Sesmel, Adolphus Biaxting died in 18:6 ne left 31 slaves to his
wife, When their daughter, Virginia fry. greategrandmether and the recip-
iens’ of the Lotter) was married in 1 559, she received seven of the sie
aves from her mother, I presume that Hank. * end Jack were among the seven,
I mew mgr great-grandnother end uere to read.to hec- and I met another
me of the seven,at her funeral 4 31925, who had remained ee to her all

nrough the years,’

ie 1 ‘ . _ DB ote yn
Peofiderwshitol waedia teh
«
&

Soulesbory, Tean, May 6,1861

Ou er oye > 44
Ky Decrest Sligwie
° t 9 * one ‘t
iri WG Poa ot pe ne . ‘ (; code}
I. veces vr moat afiectionate grid welcone apist (epistle) last
‘ ee mh ss co a poe PAD sia e 7 “ -
mich end ner 1s Emore gavcrised in ag life as I wes to Soar of Hank's

benavLlor, m dory you have td Leese nim but T should want him Ieng ir

ha is guilty, ei yea sald I < oat #2 be there to ses fight the nats

nig ie dons think I shovld liks to be there to fight 7 QELS and nats to
i : Yr to i :

yorila hove up hands full if T had even:

fa
53
f3- oy

ag he 3 ene: Widiade AVL sy “Woe
. I have not match news to ‘tell rou tat Iwill try and interest
you es beast FT can for times gota very 21 here excet war we can heare
: bet war all the time, end hard tines fixe Baas dit wa have very
tressing times ‘Tawe —y Still moreso at rey heave goten up
ay aa 2 ni — 2 Pe t; or } <4 » in 4+, *-
ee yy EU Oat m1 i I Untruc Oey ave ape na ney wine
a ws) hare 4-.
wr ey 3 stand | to take ail the men away afd 4 eve none ab home to
f, § aan “e * - a « a - F x
hing S foe genes ard ehiidar aN t wish they would take nl the nige
‘ by %

gers & ex “64 shea for T thank we will hawe an Inserecbion here 68 wel
as in pee nses and that beffcre Long from the sines of the timss, Gimrgie
T will not write any more tris evening as it is getting late ond I will
finish to morrow, ”

Ginnie as I tcld you l ich ai finish todsr I will follfill my pro.
ise, Sister Gulia aid Mr. Fearct case to see us this mosning and 1s sp-

fhe
Mee. ef) Trecsby

Bai PE IRRNS  L POLE ET PRE ASE AS WBE AR

oe
eat ear

Site abe AIO sc Nes PENI NAD SE DES AAT EIR LL AEG ATR PRL IS LED ON

te

ce

PO eth oe


e ' — wen ee ae

. . = r ¥ : peta :. See beden so, nia da nilleneie oe was som atl 1a Smee

a ep eas Bis , : ie bettas dnl cmt eet SE hatha ne aie anee contin nat CF bt i lh el ee NS ry
ee ane aw Lacie ae at ais Baten, 1 hd 2 AAR eS PR Oe cnenomy marten ote Some

,

ing

‘weang the day with us, Cinnie I wiSn you was here to help mg gather gt.
rewberries we have a good many he |

A
a

ee

% 3 Pod on . > ay t Le x . s 4 4
Ws heard from. Brother David the other dey and He Said he was .cijay-

tee Rte CL

ing himself finely byt tf he. staid there tong BS wkd be burat ‘as bad se
& Arkansas housier he satd fou mst write to him and dack your Letters
to Randolph, Tenn, in cere of Geptain Handcoske, .

Ginnie Mails health ig verp bad indead ‘she is in a great cea of
troubles ebout Brother Davia belng gone and shout you boing out there by . 7
your self and can never heave fran you hardiy, Ma sears she wenutd ba beh.
‘ter satisfied if you end Wilite would come “back bors wtih there ta -
peace maid and she sais you ooght to take’ Jaok ta! ;
She sais there is a great many assed that is
‘the way with hin. end YOU ouch to hale Sot wit
crasy afraid that he ds-in is but t-éo hope he

Gimnie we are all well at eresent,
all the mews, and I will close as I want t
offace and I haven't got mute tide 4p neet!
love to you and Willie end gain. you must atite .t Dike
cuse all the bed writing end con's 7 YG ‘suyene sae ne :

your devots:

Miss Ginnte if you please tell Jac! hes of houdy for ms 3
rather send houcy to him than to eend fairwell, that he msb be a deazsy
soy to his mistress and master end no doubt they will be to him

and to rewimber his Mawmie and-think of what! whe told! hua Leet and keep
ut of bad company and stay right at-home and not be led astray by’ fools’
if I should ever hear of.yew ag I-have: of: Yank: 44° MOULd kil) me dead anc
rad rather be dead than to hear of sutch a thing as thab and I hope yon
lave bettar sence, your poore old: Mammie and. Meddie’ Ls mighty old -and
rou ought to think of them end-not try to kiL1 th by your behavior,
fiss Ginnie If you please'read this to jack your sei? from your ow Lips
ind tell him for the Loard sake te think of ma, = ° | : an:

a

' | Your poors eld Mamie Emily
‘is is just as Aunt Enily told ne thse wirds,  .

Samie

°

‘innie write soon and tell us all the news,

S- a

Note: Ginnie lived at Hickory Plains, /rkansas)

oy


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Wednesday January 8 10:29 PM EST

Arkansas’ Triple Execution Delayed by Stay

VARNER, Ark. (Reuter) - The U.S. Supreme Court delayed the execution of convicted murderer
Kurt Wainwright late Wednesday, interrupting what was scheduled to be only the second triple
execution since the United States restored the death penalty in 1976.

Supreme Court Justice Clarence Thomas asked Arkansas Gov. Mike Huckabee to stay
Wainwright's execution "for a time" while members of the Eighth Circuit Court of Appeals were
polled on whether to hear a final appeal in the case.

The stay came just moments before Wainwright was to be executed. He was already strapped to
the gumey awaiting a lethal injection when the telephone call announcing the temporary reprieve
was made.

Two other men -- Earl Denton, 47, and Paul Ruiz, 49 -- were both earlier put to death at the
Cummins Unit prison in southern Arkansas and Wainwright's death was to have completed the
triple execution.

It was not clear how long the members of the appeals court would take to decide on whether an
appeal should be heard. but the death warrant was due to expire at 1 a.m. EST.

Wainwright was sentenced to death for the 1988 murder of a convenience store worker, while
Denton and Ruiz were executed for the 1977 murders of an Arkansas marshal and a park ranger.

Help

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Copyright © 1996 Reuters Limited. All rights reserved. Republication or redissemination of the
contents of this screen are expressly prohibited without the written consent of Reuters Limited

Questions or Comments


TRIPLE
EXECUTION
ORDERED IN
ARKANSAS!!!

Seeking to tie the shameful
record they set in 1994 for the
most people executed in a day
by a single state (post-
Furman), the State of
Arkansas has announced its
intention to kill Paul Ruiz, Earl

Van Denton and Kirt
Wainwright on January 8th.
While one would hope

such an important decision
would not have been made
hurriedly, Governor Jim Mike
Huckabee’s staff certainly
seems less than clear about the
reason for this publicly
premeditated multiple
homicide.

Recently and aide to the
governor told the New York
Times that the idea was to
minimize the stress inflicted on
prison staff as the reason for
performing the triple

execution. “Better to have one
night of tension in the prison
than three” he said.

However,

when

*Originally Printed in the December Issue.

The National Execution Alert is a publication of the National Coalition to Abolish the Death Penalty January “9

pressed one of the governor’s

official spokespersons credited
it to mere bureaucratic
coincidence. “All three

inmates came back from the
Supreme Court with their
appeals denied at the same
time, and that’s their reason
their executions were
scheduled together.”
Whatever the “official”
reason, Arkansas’ return to
multiple executions cannot be
tolerated. It smacks of the sort
of yearning for homicidal
efficiency that prompted the
Germans to switch from Death
Squads to Gas Chambers.
Moreover, as Justice Stevens,
recognized in Woodson vy.
North Carolina, “People

should not be treated as a
faceless, undifferentiated
mass.” Abolition Now!!!

Abolition Forever!!!

Kirt Wainright
January 8-- Arkansas

As an 19 year-old
indigent African American,
Kirt Douglas already had at
least two strikes against him
when he was hauled in to a
county court room _ near
Prescott, Alabama on 1988

charges of
convenience

killing a
store clerk.
Arkansas, a state where people
of color make up over half of
those on death row, provided
him with a third-- an ineffective
court-appointed attorney.

After a trial in which
the State repeatedly asked
improper questions and
otherwise sought to
inappropriately bias the jurors,
Kirt was found guilty and
sentenced to death.

The prosecutor
unsuccessfully attempted to
introduce evidence linking Kirt
to the notorious Bloods street
gang. Nonetheless, he
proceeded to ask a series of
questions (which an appellate
court later found to be
improper) designed _to
convince the jury that the
killing was  gang-related.
Throughout the questioning
the prosecutor displayed a
copy of the Bloods handbook”.
On the cover was a picture of a
blood stained knife.

In 1994, a US District
Court judge found that not
only was the line of
questioning uncalled for, but
that there was no evidence the
crime was gang related.


2 Execution Alert

To further develop a
presumption of guilt among the
trial jurors, the State had Kirt
accompanied by a sheriff and
police officer at all times--
even while he was on the
witness stand. Moreover, the
prosecutor deliberately sat the
victim’s family near the jury
box.

The prosecutor’s case
was bolstered by a spurned
lover who lied to the court. A
key material witness for the
prosecution, Octavia Gamble
denied ever being intimately
involved with the accused. She
was prosecuted for perjury and
found guilty. The appeals
court conceded that her
dishonesty cast doubt on the
prosecutor’s case; nonetheless,
they refused to commute Kirt’s
death sentence. |

Kirt has consistently
maintained his claim of
innocence. Evidence gathered
by the authorities at the time of
his arrest supports his claim-- a
ballistics test employed to
determine whether or not a
suspect has recently discharged
a firearm came back negative
for Kirt. On the other hand, a
similar test performed on the
man who Kirt identified as the
killer came back positive.
What is more, the residue was
distributed in a way that
suggested it was the result of
having fired a gun personally
and not second-hand

*Originally Printed in the December Issue.

contamination.

The jury never this
evidence because Kirt’s state-
appointed counsel never called
the defense’s ballistic expert to
the stand.

The US District Court
found the combination of the
prosecutor’s misconduct and
the defense _—attorney’s
incompetence to be compelling
enough to overturn his
sentence. However, higher
courts have disagreed.

Barring intervention by
the Governor, Kirt will die
January eighth-- a man of
questionable guilt and
undisputable misfortune.

Paul Ruiz and

Earl Van Denton
January 8 -- Arkansas
Found guilty of killing
two people -- a park ranger
and law enforcement officer --
in Arkansas in 1977 after
escaping from prison in
Oklahoma, the state of
Arkansas has been waiting to
kill Paul Ruiz and Earl Van
Denton for over 20 years.
Recently, the appeals
courts announced they would
no longer restrain the State
from exacting its vengeance --
not because the injustices
committed during the duo’s
re-trial and sentencing had
been remedied, rather because
legal procedure barred them

January 1997

from doing so.

During Paul and Earl’s
re-trial, authorities mislead the
jurors-- instructing them to
find the defendants guilty of

capital homicide if they
believed the killings had been
convinced in the furtherance of
robbery or in the process of
kidnaping.

However, Arkansas law
requires the jury to agree not
only that a_ killing was
committed in the process of
another felony, but also reach a
consensus as to what that other
felony was. Given the multiple
theories of guilt authorities
offered the panel, it is very
unlikely that such a consensus
existed.

Thus, the appeals court
conceded that the State had
violated Paul and Earl’s 14th
Amendment right to due
process. Nonetheless, the
court said that it was unable to
rule on the issue because the
complaint had not been raised
in previous appeals.

Earl’s attorney says it’s
not for his client’s lack of
effort.

Shortly before they
were scheduled to appear in
court for their first round of
habeas appeals, Earl and Paul
wrote the court a letter saying
that their court-appointed:

attorney (a known substance
abuser who was deeply in debt
and busy fending off attempts


3 Execution Alert

to charge him with felony §
larceny) had abandoned them
and was refusing to raise
important issues about
constitutional violations that
occurred during the guilt-phase
of their trial.

The court acknow-
ledged receiving the letter, but
refused to appoint . another
lawyer to the case. |

The issues were never
raised in the appeal.

Thus, the State of
Arkansas can technically say
that these two men whose
constitutional rights it violated
in the pursuit of justice
received a fair trial; and the
judge who knows their killing
should be stopped finds his |
hands bound by the legacy of
judicially-appointed drunk.

PLEASE CONTACT:

- Governor Jim Mike Huckabee
205 State Capitol

Little Rock, AR 72201

(501) 682-2345 Phone

(501) 682-1382 Fax

Parole Board

1421 East 9th Street

Little Rock, AK 72202
Arkansas Democrat-Gazette
Capitol Avenue & Scott Street
PO Box 271

Little rock, AR 222203

(501) 372-3908 Fax
Arkansas Times

201 East Markham

POB 34010

Little rock, AR 72201

(501) 375-3623 Fax

*Originally Printed in the Di


——
—
1062 707 FEDERAL SUPPLEMENT
APPENDIX—Continued
(Note: Regulations for all fish other than walleye and muskellunge have been deleted.)
' Open season Individual
Kind of fish Methods (both dates daily bag Maximum or
and locality permitted inclusive) limit or TO minimum size limits
(b) Walleye.
1. All waters Hook and line First Saturday 5 No size limits
in May to March 1
2. Lakes 500 Spearing Year round TQ Maximum of 20
acres or — subject to or until TQ inches; each
larger s. NR 13.17 _ is reached fisher may take
one fish. 20-24
inches per day
3. Lakes 500 Traps, seine Year round TQ Males only during
acres or  fyke net or or until TQ spawning season.
larger dip net is reached. Maximum of 18
subject to inches thereafter.
s. NR 13.16 .
4. Lakes 500 Setline, set First Saturday TQ No size limits
acres or or bank pole in May to March 1
larger subject to or until TQ is
s. NR 13.15 — reached.
(e) Muskel- os
lunge.
1. All waters Hook and line Third Saturday 1 per Minimum size lim-
in May to day it ;
March 1 32 inches.
2. Lakes 500 Spearing Year round . 1Q 40 inch maximum
acres or subject to - or until TQ size limit
larger s. NR 13.17 _ is reached.
3. Lakes 500 Nets other Year round TQ 40 inch maximum
acres or _ than gill nets or until TQ size limit
larger incidental is reached.
to fishing
other species
4. Lakes Gill nets June 1 to 1 per 40 inch maximum
1000 subject to March 1 day size limit
acres or ss. NR 13.18
larger

Ww
° : KEY NUMBER SYSTEM
T

Michael Ray ORNDORFF, James Wil-
liam Holmes, Hoyt Franklin Clines,

Daryl V. Richley, Peti

Vv.

tioners,

A.L. LOCKHART, Director, Arkansas
Department of Corrections,
Respondent.
Nos. PB-C-84-300 to PB-C-84-303.
United States District Court,

E.D. Arkansas,

Pine Bluff Division:

July 29, 1988.
Petitioners were convicted in the Ben-

ton County Circuit Court, William H. En-

field, J., of capital murder and were sen-
tenced to death. Petitioners appealed.
The Supreme Court, 280 Ark. 77, 656 S.W.
2d 684, affirmed. Petitioners sought habe-
as corpus relief. The District Court, Henry
Woods, J., held that: (1) prosecutor’s fail-
ure to disclose hypnosis of witness to re-
fresh her memory during investigation vio-
lated confrontation clause and due process;
(2) denial of motion for separate trials did
not violate due process; and (3) death sen-
tence by jury from which two prospective
jurors were excused for cause and from
which another juror was not excused did
not violate due process. .

main


on™

ORNDORFF y. LOCKHART 1231
Cite as 906 F.2d 1230 (8th Cir. 1990)

tencing proceeding or reducing sentence to
life without parole.

4, Habeas Corpus 791

In habeas case, no less than any other,
remedy must be commensurate with harm.

5. Habeas Corpus ¢848

Where habeas petitioners, in their joint
reply brief, took position that was incon-
sistent with their positions in district court,
petitioners’ district court arguments would
be deemed abandoned, which rendered
moot respondent’s challenge to petitioners’
district court positions.

Gerald A. Coleman, West Memphis, Ark.,
for appellants.

Jack Gillean, Little Rock, Ark., for appel-
lees.

Before BOWMAN, Circuit" Judge,
HENLEY, Senior Circuit Judge, and
WOLLMAN, Circuit Judge.

BOWMAN, Circuit Judge.

Michael Ray Orndorff, James William
Holmes, Hoyt Franklin Clines, and Darryl]
V. Richley (petitioners) appeal, and A. L.
Lockhart cross-appeals, from the judgment
of the District Court! granting petitioners
partial habeas corpus relief. We affirm in

part, vacate in part, and remand for fur-
ther proceedings.

In October 1981 petitioners were found
guilty of the murder of Don Lehman in
Rogers, Arkansas and were sentenced. to
death. The convictions were affirmed on
direct appeal, Clines v. State, 280 Ark. 77,
656 S.W.2d 684 (1983), cert. denied, 465
US. 1051, 104 S.Ct. 1828, 79 L.Ed.2d 723
(1984), and post-conviction relief was de-
nied, Clines v. State, 282 Ark. 541, 669
S.W.2d 883 (1984). Petitioners filed peti-
tions for habeas corpus relief in the Dis-
trict Court pursuant to 28 U.S.C. § 2254
(1988) in June 1984, and the cases were
consolidated for joint disposition. After
conducting an evidentiary hearing, the Dis-
trict Court issued a thorough memorandum

1. The Honorable Henry Woods, United States
District Judge for the Eastern District of Arkan-

and order from which the parties now ap-
peal.

Although petitioners raised a number of
grounds for habeas relief in the District
Court, the principal issue below, and the
ground upon which the District Court
granted relief, concerned the state trial
court’s admission into evidence of the testi-
mony of Vickie Lehman, the victim’s
daughter and a key prosecution witness.
Unbeknownst to petitioners or to their trial
counsel, Vickie and her mother Virginia
Lehman had been placed under hypnosis by
one Gene Peters roughly one month after
the murder at the behest of the prosecutor.
As the District Court found:

During the sessions Peters would try to
get his subjects to revisualize and relive
the events of January 8 [1981] and, fol
lowing each session, he and the Lehmans
would report to the prosecutor’s office.
Peters took notes of each session but no
electronic recording devices were used.
His notes were never turned over to the
prosecutor and have since been de-
stroyed. Neither Peters [nJor the prose-
cutor have any record of the questions
asked and the responses given.

Orndorff v. Lockhart, 707 F.Supp. 1062,
1066 (E.D.Ark.1988). Petitioners’ attor-
neys did not learn that Vickie Lehman had
been hypnotized prior to trial until after
they had filed the direct appeal in the Ar-
kansas Supreme Court. Jd.

The District Court ruled that the prose-
cutor’s failure. to apprise opposing counsel
that Vickie Lehman had undergone hypno-
sis violated the Confrontation Clause of the
Sixth Amendment and the Due Process
Clause of the Fourteenth Amendment, and
that the use of her testimony at trial was
not harmless error. In fashioning its reme-
dy, however, the District Court permitted
the state, as an alternative to retrying peti-
tioners, to commute their death sentences
to life imprisonment without the possibility
of parole. Petitioners appeal from this rul-
ing, claiming that the District Court erred

Sas.

atime 5 matin erbpantnanarmpagaine a


1232 906 FEDERAL REPORTER, 2d SERIES

in permitting the state the option of com-
mutation. Lockhart concedes that the use

of Vickie Lehman’s testimony without dis- -

closure of her hypnosis. was constitutional
error, but cross-appeals from the District
Court’s finding that the error was not
harmless.

[1] Given the scope of the cross-appeal,
we assume without deciding that the Dis-
trict Court was correct in holding that the
use of Vickie Lehman’s post-hypnotic testi-
mony violated the Confrontation Clause.
In the District Court, petitioners sought to
establish that the use of this testimony was
not harmless error by demonstrating that
Vickie Lehman’s trial testimony differed
significantly from statements she had giv-
en the police shortly after the crime oc-
curred; the state sought to show that any
variations were not material and that the
error was therefore harmless. At issue
were some 137 instances of such variations.
Our difficulty with the District Court’s
treatment of the hypnosis issue stems from
the fact that, although it purported to
make a harmless-error inquiry, the District
Court did not analyze these variations but
rather held that the prosecutor’s failure to
disclose that Vickie Lehman. had been hyp-
notized was “inherently prejudicial.” _Orn-
dorff, 707 F.Supp. at 1069. The District
Court reasoned that Vickie Lehman’s testi-
mony at trial was “inherently prejudicial”

because post-hypnotic testimony may, gen- .

erally speaking, appear more credible than
ordinary testimony since the witness,
through hypnosis, may gain a heightened
conviction that what he or she believes to
be the truth actually represents reality.
See id. We believe this resolution of the
harmless error inquiry to be unsound.

{2] Assuming that the prosecutor’s non-
disclosure of Vickie Lehman’s hypnosis ran
afoul of the Confrontation Clause, that er-
ror is not harmful simply because the jury
might have found her testimony less credi-
ble had defense counsel been able to probe
the issue of her hypnosis on cross-examina-

2. For example, in Byrd v. Armontrout, 880 F.2d
1 (8th Cir.1989), we stated that any error with
regard to the admission of post-hypnosis testi-
mony fell short of constitutional magnitude
where the record showed that the hypnosis did

tion.. The fact that defense counsel was
denied use of a legitimate means of cross-
examining an adverse witness is not in and
of itself grounds for disturbing a guilty
verdict. See Delaware v. Van Arsdall,

475 U.S. 673, 680-81, 106 S.Ct. 1481, 1435--

36, 89 L.Ed.2d 674 (1986). The District
Court’s view of the matter, we believe,
amounts to the contrary view, since it
premises a finding of harmful error on
little more than the (presumptively) en-
hanced credibility of Vickie Lehman’s testi-
mony and defense counsel’s inability to
counteract it. As the Supreme Court stat-
ed in Van Arsdall:
The correct inquiry is whether, assuming
that the damaging potential of the cross-
examination were fully realized, a re-
viewing court might nonetheless say that
the error was harmless beyond a reason-
able doubt. Whether such an error is
harmless in a particular case depends
upon a host of factors ... includ{ing] the
importance of the witness’ testimony in
the prosecution’s case, whether the testi-
mony was cumulative, the presence or
absence of evidence corroborating. or con-
tradicting the testimony of the witness
on material points, the extent of cross-ex-
amination otherwise permitted, and, of
course, the overall strength of the prose-
_ cution’s case. 475 U.S. at 684, 106 S.Ct.
at 1438 (citations omitted).

We believe that the inquiry into the issue
of harmless error in this case must begin
with a comparison of Vicki Lehman’s pre-
hypnosis statements with her trial testimo-
ny in light of Van Arsdall. The District

Court should make this comparison with an -

eye toward sorting those things about
which Vicki Lehman could testify without
aid of hypnosis (that is, from actual memo-
ry) from those things about which she
could testify only after being hypnotized.

Unless this sorting process reveals signifi- .

cant variations, the error should be deemed
harmless.”

{3] We therefore vacate the judgment
of the District Court in part and remand

not affect the witness's testimony on any major
point. 880 F.2d at 10, n. 10. We made this
observation despite defendant's contention that
the witness's belief in her post-hypnosis testimo-
ny had been enhanced by the hypnosis. See

ee

_pfactinieresatiein 0 O

’
a -


‘ie a ae Luar le ie

Ee Te

ORNDORFF v. LOCKHART 1233
Cite as 906 F.2d 1230 (8th Cir. 1990)

the matter to the District Court for further
proceedings. The District Court already
has determined that, beyond a reasonable
doubt, the error here (if indeed there was
harmful error) affected only the penalty
phase of the trial, not the jury verdict
finding petitioners guilty as charged.

The court’s review of the entire record
does reveal, beyond a reasonable doubt,
that the petitioners were responsible for
the robbery homicide for which they
were tried. Their activities in prepara-
tion for the armed break-in and the
events which later lead to their apprehen-
sion were fully documented through the
testimony of thirty four prosecution wit-
nesses. However, even though there is
no question of their guilt for the crimes
charged, the court is unable to say with
confidence that the jury would have rec-
ommended the death penalty for each
and every petitioner had defense counsel
been informed of Vicki Lehman’s hypno-
sis. Critical portions of her testimony
may have been disregarded by the jury
had they known of the effects of hypno-
sis, or the trial court may have deemed
some testimony inadmissible altogether.
Cf. Little v. Armontrout, [835 F.2d 1240
(8th Cir.1987)], supra (trial court’s refus-
al to appoint an expert in hypnosis for an
indigent defendant violated due process
and rendered the trial fundamentally
{un fair).

Orndorff v. Lockhart, 707 F.Supp. at 1070.
Having reviewed the record, we are thor-
oughly satisfied, as was the District Court,
that the harmful error here (if any) goes
only to the imposition of the death penalty

Byrd, 686 F.Supp. 743, 771 (E.D.Mo.1988). Sim-
ilarly, in Williams v. Armontrout, 877 F.2d 1376
(8th Cir.1989), cert. denied, — U.S. ——, 110
S.Ct. 1140, 107 L.Ed.2d 1044 (1990), we conclud-
ed that even though hypnosis had rendered a
witness's in-court identification of the defendant
unreliable, habeas relief was not warranted be-
cause this identification “did not contribute to
the conviction.” Jd. at 1380-81.

3. Having adjudicated the issue of the use of
Vickie Lehman's testimony within the context of
the Confrontation Clause, we need not consider
whether the use of her testimony offends due
process, as resolution of the due process claim
would not affect in any way our disposition of
this appeal.

and not to the jury verdict finding petition-
ers guilty of capital felony murder. The
evidence of petitioners’ guilt, even without
Vicki Lehman’s testimony, is overwhelm-
ing.

{4,5] Lockhart argues that, because the
District Court found error affecting only
the penalty phase of the trial, the court
erred in ordering that the writ of habeas
corpus issue unless the state either retries
petitioners or commutes their death sen-
tences to life without parole. We agree.
In a habeas case, no less than any other,
the remedy must be commensurate with
the harm. Accordingly, if in light of this
opinion the District Court finds on remand
that the use of Vicki Lehman’s testimony
was not harmless error insofar as its effect
upon the jury’s recommendation that peti-
tioners receive the death penalty is con-
cerned, the court’s order granting habeas
relief should give the state the option of
either conducting a new sentencing pro-
ceeding or reducing the sentences to life
without parole. See Pickens v. Lockhart,
714 F.2d 1455, 1469 (8th Cir.1983).4

We have considered petitioners’ addition-
al claims of error and find them to be
without merit.

For the foregoing reasons, the judgment
of the District Court is affirmed in part,
vacated in part, and the matter remanded
for further proceedings consistent with this
opinion.

O eXEY NUMBER SYSTEM

4qynms

4. In its cross-appeal the state also argues that
the District Court erred in granting habeas relief
to defendants Orndorff and Clines because they
had requested the District Court not to consider
any claim that would result only in the commu-
tation of their death sentences to life imprison-
ment without parole, and to defendant Richley,
who had moved the District Court to dismiss his
habeas petition. However, in the joint reply
brief filed by all four petitioners, they argue
that the District Court did not err in granting
habeas relief to all of them. We take this to
constitute an abandonment by Orndorff, Clines,
and Richley of the positions they took in this
regard in the District Court, which abandon-
ment renders the issue moot and thus not prop-
erly before us in this appeal.


—a

ws

The teenager testified that she left be a robbery:

the room for a few minutes, and when
she returned she saw several guns in
the living room. “Then we went over toa
guy’s house and tried to sell him the
guns but he wouldn’t take them. So we
put them back in the car trunk and went
back to Richley’s house. Right after that
was when the cops came and picked us

up,” the young witness said, con-

cluding her testimony.

Richley’s attorney attempted to dis- -

credit the young woman’s testimony by
pointing out that she was presently
serving time for the armed robbery of a
Rogers service station in December,

-1980. He also forced her to admit that

she had worked as a prostitute in
California.

Next to testify was the man whom
Richley had tried to sell the stolen guns
to. He said, “Richley told me all about
the killing the day after it happened. He
had a bunch of guns he wanted me to
help him get rid of. I told him I wasn’t
interested.

“Anyway, he said him and three other
guys went to this rich guy’s house, wear-
ing ski masks and knocked on the door.
When the guy opened the door a little
bit, they busted in.

“One of the guys jumped on him
(Lehman) and started beating on him
with the chain. But the guy got away.
He run toward the bedroom so he shot
him. He said he had to shoot him again
twice to finally ‘kill the son of a bitch.’
Said he shot him twice or three times.
Shot him in the head the last time.”

Detective Gene Drake, as the next
witness, displayed six rifles and a hand-
gun identified as those stolen from
Lehman’s home.

Berwin Monroe, Trace Evidence
Examiner, showed how a plaster cast
taken of.a footprint near the entrance of
the Lehman home matched a tennis
shoe taken from Clines’ apartment.
Monroe said, “Such tests are not conclu-
sive but indicate a ‘high degree of prob-
ability’ that Clines was at the murder

- scene that night.”

Holmes’ girlfriend testified: “I have
lived with Jimmy for about seven years.
We have three kids.”

She recounted the events of the night
of January 8th. “Jimmy left home about
dusk and got back about 10:30 p.m. Dar-
ryl with him. Darryl come in the
kitchen arid told. me, “I just shot and
killed:'a man.’

After presenting 30 witnesses. and
180 pieces of evidence, the prosecution
rested.

The four accused slayers had said
they would not testify. Three were jolted
when William Jimmy Holmes aed
tedly took the stand.

Holmes faced the jury re said, “I

‘didn’t plan no robbing and I sure didn’ t
plan no killing. WhenI met them atthe .

house, I didn’t realize there was gonna
62 Official Detective

— RRR

a

Was Agent a Girl-Killer?

“When we busted in, I was the one
who grabbed the girl and dragged her

» around. I was looking at her and think-

ing about something else when I heard
the shots from the bedroom. ‘Two, I
think.

“Trunin the bedroom and saw the guy
on the bed with blood all over him, The
woman was layin’ in/the corner of the
room, kinda knocked out. The guys was
tearing things up, looking for money
and stuff. I didn’t see nobody get no-

thing but Clines. Clines was carrying a.

gun and a belt. I don’t know who shot
Lehman because I was with the girl. It
had to be Clines or Richley. Mike didn’t
have a gun and I never shot mine. I don’t
know how my gun got to be the murder
weapon.” *

. None of the defense attorneys pre-
sented any witnesses except family

‘

members who pleaded for the lives of,

the four men.

Circuit. Judge William Enfield told
the jury that although the’ four defen- ’
dants were being tried in a group, their
guilt or innocence should be’considered
separately.

Sixty-one minutes after they left the
courtroom, the jury returned and pro-
nounced the verdict in unison: Guilty!

Four hours after their second retire-
ment for deliberation of sentencing,
they returned. Only the foreman spoke
this time as the four convicted murder-
ers ‘stood, silent and expressionless, to
hear the ‘foreman say: “Death by elec-
trocution.” —

-The jury also recommended two life
sentences for the aggravated robbery of

Virginia and Vicki Lehman.
An appeal is automatic in a capital
murder case. kek

had apparently had reservations about
Maung Naing, for she had never told
anyone that she had had intimate rela-
tions with him. In fact, she had told a
number of her friends in the Boxberg
subdivision that she had terminated her
relationship with him completely.
There were reports that Maung Naing
had been seen entering: her building,
however, and some of the neighbors
were convinced that he had spent the
night in her apartment. Being a Bur-

mese, he was conspicuous, to say the .

least, and his relationship to Sigrid had
aroused a certain amount of curiosity.

Inasmuch as Maung Naing had lived
in Bonn and had connections there, In-
spector Wagner telephoned police

; headquarters i in that city to ask if they
‘could help in locating him.

The Bonn police replied that they
were looking for him themselves!
’ When the startled inspector inquired
why, the Bonn police officer told him
that it was too long and complicated a
story ‘to relate over the telephone; ‘in-
stead, he would send the complete file.

He was as good as his word and, from
the photocopies of these records, it be-
came, apparent that Maung Naing or
Stanley Maung or'Stanley Tahn was a
very remarkable and unusual person,
whether he was responsible for the
murder of Sigrid Koczian or not.
- In fact, not only did Naing have an

- extensive police record, but he also had

a prison record; he’d been sentenced to
one year’s imprisonment for swindle in
London, at the headquarters of the com-
puter firm that employed him. It
seemed that he had attempted to make

- unauthorized use of the computer to im-

prove his personal bank balance.
_ No sooner was Naing convicted and
lodged in the PEeaP however, than he

(from page 12)

informed the British authorities that he
had extensive contacts with a narcotics

. ring operating out of Southeast Asia. He
was, said Naing, prepared to betray his "

associates in return for his freedom.

He got it. After conferences with En-
glish, American and German narcotics
agents, he was flown to Germany and
put up in an plush hotel in the expen-
sive, residential town of Bad Godesberg,
where the diplomats attached to the
embassies in Bonn lived.

Not only were Maung Naing’s hotel
bills paid by the German Narcotics Di-
vision, but he also received generous
pocket money. As the authorities were
to discover later, he did not need it. As-
suring the hotel personnel that he was
working with the German Police—
something which they already
knew—he was able to cash over $3,000
worth of checks drawn on an English
bank.

The checks were real enough, as was
the bank; unfortunately, there was no
money in Maung Naing’s account. The
checks were returned to the owner of the
hotel together with a' thousand-dollar
bank-charge bills.

The hotel owner promptly went to the
police and filed charges, but it was too
late. Maung Naing had already left
three weeks earlier, having lost his good
job with the narcotics division because
he had told everyone he met that he had
it. The police found this conduct unsuit-
able for an undercover agent.

In the meantime, Maung Naing
moved on to another expensive hotel in
Bonn, where he ordered arrangements’
for a reception for 400 persons. The ban-
quet hall was prepared, the food and

_wine were ready, but , on the evening of

the ‘reception, Maung Naing. was the
only person to show up. Looking at the

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CLI

NIT

ANU 7 Hoyt t

James William &
(Benton) April

RICH
be
4

1994,

HLEY, Darryl, whites, LI AR®

5 edad Sian

‘by WAYNE T. WALKER

iF was the kind of a night you
were glad to be home and
climb into a nice warm bed.

About 9 p.m. that Thursday,

January 8, 1981, Mr. and Mrs.
Don Lehman, with their 24-
year-old daughter, Vickie, ar-
rived at their rural Rogers,
Arkansas, home after eating
out. All began preparing for
bed as soon as they were in-
side. a)

Nirginia Lehman was already in bed
watching television, and her husband
was”seated on the edge when the front
doorbell rang. It was 9:40 p.m. She
nudged her husband and he went to see
about the late visitor.

Coming from different parts of ‘the
house, Lehman and Vickie met at the
front door. ‘‘Who is it?’ Lehman called
through the door before he unlocked it:

' When he received no answer, Lehman
repeated the question again. Someone
outside answered, ‘‘David.’’

The building contractor must have

thought it was someone he knew, for he '

slid the bolt back and unlocked the door.
It was thrust open, knocking him down,
and four masked figures came bursting
into the home — all armed. A large man
began hitting Lehman with a chain as he
struggled to his feet.

A gun was pointed at Vicki and she
was ordered, **Get on the floor, if you

+ don’t want some of-the same.”’

Her father continued to fight his way

_ down. the hall-way toward the master

bedroom. He yelled frantically to his
wife, ‘‘Jenny, get my gun.”’
Meanwhile, Mrs. Lehman had heard
the commotion at the. front door, like a
“‘herd of buffalo’’ coming into the
house. Frightened, she jumped out of bed

and ran into a closet. Then, realizing she
‘needed ‘to call the sheriff’s office or

someone, she ran to the telephone and
tried to get the operator.
‘Normally, the couple didn’t keep large
sums of money in the house, but that
night there. happened to be $1,200 in a
nightstand drawer next to the bed, along
with a pistol! She was seated on the bed,
still trying to get the operator on the
phone, when amidst all the noise and

Condemned to die in the electric
chair, Michael Orndorff (front),
Darryl Richley (center) and Hoyt
Clines (right rear) leave court.

Wey >

STARTLING DETECTIVE,
September, 1982

. Meni

Holdir
wo
looke

ee ee


jacket)

ve her name. The
said, “I saw that
er. I think I might
Vicki persuaded the
to contact: Detective
man told the detec-,
iat night. They come
’:30 p.m. I opened the
od these four guys in
ick a gun in my face
‘m up!” I tell you it
it of me. Then they
ognized one of them
as a joke.”
ie of the men was a
husband; the other
acquaintances.
id played cards and
vuple of hours. There
out a robbery, but I
usly.” One of the men
i he slung around his

isband added details
y” talk. “One of the
‘r one what he would
‘ht him. He said that
‘he man said he was
z on the robbery but

t about 9:30 p.m. Don
by 10 p.m.

ified the four men, all
‘heir friend’s name
ff, 22, who lived in

William Holmes, 24,

4, both of Rogers, and

), who lived at Fayet-

: ‘ { : Rey
nt . posal SEMA dd bOI NS (he Re Pa) Sa ieee

Darryl Richley (1) and Mike Orndorff (dark suit) were also rounded up by the hard-working investigators

teville. Their physical descriptions
closely resembled those given by Vicki
and Virginia Lehman.

Pickup orders went out on the four
men.

Then a phone call came to the Fayet-

_ teville Police Department. The infor-

mant was a landlady who said, “I called
you because I think I may have seen
something that might have something

_ to do with that robbin’ and killin’ that

happened last night.

“Ihave a small apartment I rent out
and I thought my renter, who I don’t
think too much of, was leaving, so I went
over and checked on the furnishings.

“T seen a whole bunch of guns and I
had just heard about poor Mr. Lehman,
so I come back home and called you,” the
landlady told the officer.

The officer obtained a search warrant
and drove immediately to the address

_ and knocked on the door. A tall

long-haired, bearded, wearing horn-
rimmed glasses, answered his’ knock.
The officer identified himself and was
asked to enter.

The tenant said, “I’m David Ander-
son.” He told the officer he was, wel-

come to search the apartment. There

were no guns in the apartment. Ander-
son was not so willing to have his car
searched, and the officer discovered why
when he opened the trunk. There were
half a dozen guns and rifles inside.
Anderson and two teenaged female
companions were taken to the police de-

partment. The girls were thoroughly in-

Nets

terrogated, released and told not to
leave town.,.It took only a short time to
prove that the name, David Anderson,
was an alias. The-suspect’s real name
was Darryl Vernon Richley.

The car was inpounded, thoroughly
searched, fingerprints ljfted. The au-
tomobile was an old model, dark brown,
very dirty, with square tail lights.

Hoyt Clines was picked up at his
apartment almost immediately. He
hadn’t been home very long. Until 9
a.m. January ‘7th, he had been in the
Springdale city jail.Several items found
in his apartment were impounded. One
item was a pair of muddy tennis shoes.
Another was a,.22 caliber pistorl.

Mike Orndorff and Jim Holmes were
apprehended and: brought. to au-
thorities. —

On Monday, January 12th, the four
mén were brought before Municipal
Judge Stephen Sawyer. At the request

‘of Prosecutor David Clinger and Lt.

Townsend, the probable cause affidavit

was not placed i in.court records and its

contents were not revealed. The reason
given for this was for the protection of
informants.

The four detendnitas were arraigned
on January 28rd and each was charged

with capital felony murder: and two

counts of aggravated robbery. The four
men were to be tried together. Each pled
innocent and arrangements were made
for: each to have legal representation.
The men were ordered held without
bail.

Prosecuting Attorney David Clinger
announced‘that he was planning to
ask for the death penalty. Trial was set
for the fall term of court. :

All through the summer the team of
investigators worked to assemble their
case. And the whole state waited to hear
the story behind the brutal slaying of
one of the county’s leading citizens.

A suitable jury proved to be hard to
select.

A panel of 67 prospects produced only
11 jurors. Twenty-five more persons
were called and finally, after two weeks
and two days, the seven-man, five-
woman jury, plus two alternates, was
selected and seated.

Security was especially tight in the
courtroom. Everyone who entered was
searched by guards with metal detec-
tors. Authorities apparently expected
trouble.

During jury selection, the defendants
casually chatted with friends and rela-
tives during breaks. But when the trial
began, this practice was stopped as a
security measure. Sheriffs deputies
said they could not allow contact close
enough that a weapon could be passed.

The four defendants were neatly
dressed in suits, short hair cuts, and
were beardless.

First witnesses to testify were Don
Lehman’s survivors, his wife and
daughter.

Virginia Lehman testified how she
had huddled terrified in the corner of

(Continued on page 60)
Official Detective 51

ak |

nee aT eee ee

he

spouses had shot Lucien Monette.

All of this, however, was pure as-
sumption. The police did not have a
shred of evidence that would even be
considered in a court of law. What's
more, any precipitate move would al-
most certainly destroy their chances of
putting together a case. As for physical
evidence, the death weapon would do
nicely. -

All they had to do was find it.

“Pentenier must have gotten rid of it
by now,” Sgt. Narbonne said dejectedly.
“By this time it is at the bottom of the
bay.” :

The inspector disagreed. “I don’t be-

said. “Pentenier is a mechanic, a man

ical. I don’t believe he could bring him-
self to throw away a brand new gun that.
had only been used once. He has hidden
it somewhere, and if we can find out
where he hid it—without alarming him

have our physical evidence.

“Start by having your men go around
to the gun shops again with Pentenier’s
picture.”

The inspector was right on the money
this time, and before the end of the af-
ternoon, a detective had found the
gunsmith who was ready to swear that
he had sold a 7.65 millimeter automatic
pistol to Martin Pentenier on the very
same day that Lucien Monette had been
shot to death with a similar weapon!

‘With the evidence of Pentenier’s
purchase of the weapon in hand, Insp.
Fourbot conferred with the state pro-
secutor, and together they went to a
, judge and obtained a search warrant
authorizing them to search the pre-
mises occupied by the Pentenier family.

Any fears the police might have had
that the mechanic had disposed of the
murder weapon were quickly set.to rest.
Minutes after the detectives invaded
the house, they found the 7.65 millimter
automatic pistol in the drawer of the

tin and Josette Pentenier.

Martin Pentenier had been ready to
confess for a long time, as it turned out.
“I was surprised that you didn’t arrest
me sooner,” he told Sgt. Narbonne. He
paused and shook his head slowly, as if
reflecting on all that had happened.

“T had such good reasons for killing
Lucien Monette,” he said, “but you
didn’t seem to suspect me. I have a fam-
ily to support, so I thought I might just
as well let sleeping dogs lie.”

“That is one thing the Criminal In-
vestigations Department is not permit-
ted to do,” the inspector said ta him.
You were not the only one who had good
reasons to kill Lucien Monette.”

According to the confession dictated
and signed by Martin Pentenier,
Monette had appeared on his doorstep
on the morning of January 3ist, de-

60 Official Detective

|

lieve he would have gotten rid of it,” he _

with deep respect for anything mechan- -

so that he really does get rid of it, we'll

night table beside the bed used by Mar-—

manding to see Madame Pentenier, who
had walked out on him in December.
Pentenier told him she was not at home,
but that even if she had been home, he
would not permit him to see her.
Monette flew into a fury, He shouted

‘at Pentenier that he was not man

enough to satisfy a passionate woman |
like Josette, and he demanded that she
return to him at once.

“Tf she does not return within the next

forty-eight hours, I will kill you like an

insect!” he shrieked at Pentenier.

The threatened husband slammed
the door in his face, but he took the
threat seriously, fully believing that
Monette was capable of killing him. He

‘arranged to obtain the pistol, and that

afternoon as he was crossing the park-
ing square on: the way to the garage
where he worked, Pentenier saw
Monette standing beside his car.

“] thought that now was the time to
settle everything,” he said in his state-
ment. “I walked up to him and, without

saying anything, I put the pistol against
his chest and pulled the trigger three
times. Then I put it back in my pocket
and went on to the garage. The whole
thing took only a few seconds.

“T am sorry to have killed him, but a
man must protect his family.”

' Martin Pentenier found almost univ-
ersal agreement with that sentiment. A .
magistrate released him on his own rec-
ognizance pending trial. That charge of
murder was filed against him as a for-
mality, but off the record, even officials
in the prosecutor’s office told Pentenier
he had nothing to worry about. And
when in October he was finally brought
to trial, it was all over in a couple of
hours.

Martin Pentenier was found guilty of
the shooting of Lucien Monette in self
defense and the defense of his family.
This is a guilty verdict which carries no
penalty, and Monsieur Pentenier was
released forthwith.

Giles de |
this blo
Speak!—

aad

“Kill Somebody? Not Us!” (from page 51)

the bedroom as her husband’s spilled
blood turned their dream home into a
nightmare. ;

Vicki’s voice cracked as she recalled
the hour she feared rape ‘and murder
and the eyes of the man who stood over
her with the gun. “Those horrible
eyes—I’ll never forget those horr-
ible eyes,” she said emotionally.

Dr. Fahmy Malak, State Medical
Examiner, testified that Don Lehman
was shot three times. ‘Two of the
wounds were of a fatality nature,” the
dark-haired Egyptian doctor testified.

“The first wound pierced his lung,
heart, and aorta. This wound would
have most certainly proved fatal.”

-He added that Lehman could have
survived about two minutes, long
enough to walk from the living room to
the bedroom, after receiving the chest
wound,

The second shot pierced the de-
ceased’s forehead and brain, and the
bullet disintegrated, doing a great
amount of damage to both sides of the
brain. This was a contact wound, the
muzzle of the gun touching the skin.

The third shot was to the abdomen,
piercing his large intestine. Dr. Malak
added, “The victim was already dead or
dying when the third shot was fired.”

The victim also suffered abrasions on

. the left side of his chest and head, “ap-
pearing as tracks, linkage like a chain.”

-Malak also stated he removed two
small-caliber bullets intact from the
body wounds, and three pieces of a
small-caliber bullets were sent to the
Arkansas Crime Lab..

Robert Phillips, ballistics expert at

the crime lab, later testified that two 22

their gri

The cold facts
any horror shov
this hair-raising
most fascinati:
criminals that e
red headlines in
Meet Webster
Holmes. He's a!
can see from th:
his undergroun:
Now, here’s the
Belle Gunness,
enjoyed slicing
husbands and -
with a pretty sr
murdering her
them.

caliber bullets that were removed from
Lehman’s body matched a revolver
found in the home of James Holmes.
Pawn shop records showed that Holmes
had bought a gun, R.G. Model 23, on
November 4, 1980.

A pawnshop owner also testified that
he sold Darryl Richley an R.G. .22
caliber pistol on November 7, 1980. “He
later repawned the gun, but picked it up
December 4th,” the shop owner tes-
tified.

But Richley didn’t keep the gun long. prog enc
A second pawnshop owner testified that bors’ children.

child found am

dogs. But now
i; amusements. ‘
neighbor, ‘‘cur
nic. (Martha's
tenced to dea’
forms ...andg

the same gun was pawned to him on -
December 26th, but redeemed De-
cember 31st. Records at the shops
showed the gun to have the same serial
number. *

One of the juveniles, a 15-year-old - should have dc
girl who had been picked up with Of course, you
Dillinger, and

Richley in Fayetteville took the witness
stand. Looking much older than her
years, she testified, “I moved in with
Darryl six hours after I met him, when I

man with the o
mouth, and tr
Scarface Al Cc
personally ear

was thirteen. We've lived together for eel i
over two years.” of his manicur
She also knew Holmes and Orndorff, isu ace
but had not met Clines until January head into pd
8th. About the events of that night, she personal, you
related, “We picked up Mike (Orndorff) wnt me
and went bowling. They dropped me off Get the pictur:
at Mike’s house real early, then left and houseparty 0°
came back about ten p.m.” ever cared to |
‘ Clines and Holmes were with Richley year alt
and Orndorff when they returned, she keep you ont

criminal sits

went on. “They acted real strange. amen.

When they came in they walked.

straight to the bedroom and changed You'll nee
their shirts. They stayed in there about you've heard
twenty minutes whispering. I'tried to dreamed exis

accounts of

listen and they told me to get lost.”


GA - st. PeteRsaurc TIMES ™@ THURSDAY, JUNE 28, 1984

? cLgbe2 AUT -DOTICG’ **° rh: a < | a nbawiet : td
aE eae Jue; ~6—_—Csate fall. The four are Michael Orndorff, 25, it anietass :
4 scheduled to die'in Arkansas ____. James William Holmes, 28, of Rogers; Darrel Richley;*

: Re et. OT
Fr iday win 3 sta Bt eRe tion, ; was = 93; of Fayetteville, ‘end Hoyt Franklin Clines, 28, of.
U.S. Disc dae Henry ? on mh BE 2 Rogers. Soee gp
"postponed Fiday's scheeilea focut srisnof ft rae
Arkansas tit / prisoners tonvicted of beating 9 and 2
killing a marin front o f hig wife andl ch cies The stay [ae
of execution was patient after mae eee

Marshall Carlisle of Fayetteville, an Inlettotney4 mn” 7
the men, filed Separate sets of motions of appbal 2

while robbing him of cash and several guns. Officials
said a hearing on the judge‘ SS ees not likely before

Tepvuy SLOLISA BSue_gy estq:
r = oe o< . , ¥ —— =? rte e he F¥¥
ox ‘Ti ae THEIL IGWMACIE , Ei sbbssie Ree. | AAT]
anu" © ai 4 We Pu - 7 a & ;

j ay ee SG # es ere: g, “SE ESS F —_— fe eis (3: 4 4
eat ae Peel ete t Scns "3? anon t teed thf, £12 a dh EUR. GEVsi :
$43 MESS gy | AMS Pee S PERS beg : : +

, . , = Nees re reese aa
Pe Pe e « Cy i rey tye PEsiFy 6f3i ait :
(OSs Ws 3 : IGE f | a 2+ ey b UE sail i.
ed +?) ‘ Fi aad € ?~ :e ‘:
? o~ ot ¢- %
Mine 3 \ : ai
. ie % > cwee p> WESs eo SM Pye ees
+ COngSIME” WEL (0 mG echonsrs biege
: .
%
a?
ca
g

¥

_ said.

3 convicted in area murder.

may be next t
The Associated Press 5/18/94

LITTLE ROCK — Three men con- eg
victed of breaking into a house in
Rogers and killing one of the resi- fay
dents during a robbery are the most ff
likely Arkansas inmates to be put to (aw
death next, and they might be exe- BaxE
cuted on the same night, an official FaN

After last week's execution of two
men convicted of separate murders, Cli
Correction Department spokesman ¥!/NeS

Alan Ables said the state was considering

another multiple execution date. It was the
first time a state had executed more than one
inmate on the same day since before capital
punishment resumed in the United States in
1977.

The death row inmates closest to exhaust-

‘ing their appeals are Hoyt Clines, Darryl

Richley and James Holmes, said Olan
Reeves. the state's senior assistant attorney

o be executed

Richley
general.

Clines, 37; Richley, 43; and Holmes. 37.
were convicted of capital murder in the Jan.
8, 1981, killing of Donald Lehman of Rogers.
They were convicted of donning masks:
breaking into Lehman's home: beating him
with a bicycle chain before shooting him to
death in front of his family; and stealing

( See Who's next? / A6

Who’s next?

(J Continued from A1

money, jewelry and other valu-
ables.

__ A federal appeals court reduced
the death sentence for a fourth
man convicted in the case, Michael
Ray Orndorff, to life in prison with-
out parole. The 8th U.S. Circuit
Court of Appeals sent Orndorffs
case back for resentencing alter
determining that the prosecution's
failure to disclose that the use of
hypnosis on witness Vicki Lehman,
the victim's daughter, might have
contributed to the jury's decision to
give him the death penalty.

She testified that the men pulled
her through the house by her hair
and forced her to tell them where
valuables were hidden.

Attorney Gerald Coleman of
West Memphis, who represents
Clines, said lawyers for the con-
demned men plan to petition the
U.S. Supreme Court for a rehear-
ing this week. Friday is the dead-
line for them to ask for a rehearing.

But Coleman conceded that the
Supreme Court rarely agrees to
rehear cases.

The cases of Clines, Richley and
Holmes have gone to the Supreme
Court twice since U.S. District
Judge Henry Woods granted them
a stay of execution a decade ago.

————

LW

s/f

Ml AYUSIES


4 inmates
face death
after ruling |

New trial is denied

By George Wells
Gazette Staff

Four death row inmates whose
sentences once were overturned
are facing the death chamber
again.

U.S. District Judge Henry
Woods dismissed their petition for
a new trial Tuesday saying that
testimony by a witness was essen-
tially the same before and after she
was hypnotized.

The inmates are Michael Ray
Orndorff, 33, of Gravett; Darryl V,
Richley, 40, of Fayetteville: and.
James William Holmes, 34, and
Hoyt Franklin Clines, 34, both of
Rogers. :

They were convicted of the Jan,
8, 1981, slaying of Rogers business-
man Don Lehman in his home.

A key witness at the trial was
Lehman’s daughter, who identified
the assailants. It later was learned
that the prosecuting attorney had
arranged for her to be hypnotized
before the trial to try to enhance
her memory.

Woods ruled July 29, 1988, that
the death sentences should be re-°
duced to life or the men should be -
retried because their lawyers were
not told about the hypnosis before |
the trial. ! :

The 8th U.S. Circuit Court of
Appeals in St. Louis overruled
Woods in June 1990, saying that
the sentences should be set aside
only if the daughter's testimony

_ was significantly different from
statements she gave to investiga-
tors before she was hypnotized.

ARKANSAS


Execution Stay Lifted
For 3 Arkansas Killers

Little Rock — A judge lifted a stay
of execution for three Arkansas in-
mates yesterday, making a triple
execution in the state a virtual cer-
tainty.

signment, but it’s one we might
have to carry out,” said Alan Ables,
spokesman for the Arkansas De-
partment of Correction. a

a

The judge lifted the stay after
the U.S. Court of Appeals refused
to entertain another petition from
the condemned men. Arkansas of-
ficials said there is essentially no

chance that the inmates will be

able to persuade the U.S. Supreme
Court to intervene because it has
twice rejected their appeals. __.

Hoyt Clines, 37; James ~W.
Holmes, $7; Darryl V. Richley, 43;
and Michael R. Orndorff, 35, were
sentenced to death for the murder
of a prosperous Arkansas business-

man in 1983. ParrDry

all THR

ARKANSAS

LITTLE ROCK — Hoyt Clines,
37, Darryl Richley, 43, and James
Holmes, 37, convicted in the ’81
murder of Donald Lehman, will all
die by injection Aug. 3, Gov. Tuck-
er said. The state’s last triple exe-
cution was in °39. :

“It wouldn’t be a pleasant as- |

&

; A28 The Sacramento Bee Final e Friday, July 8, 1994

i)

NATIONAL
DIGEST

BV est Lawns ot

‘ Arkansas plans
i triple execution

: J ATTLE ROCK, Ark: = Ar-
ékansas plans to put three

killers to death on the same day

* next month in the first triple ex-
ecutjon by a state since capital
punishment resumed in the
United States in 1977.

Gev. Jim’Guy Tucker on
Wednesday set Aug. 3 as the
date for executing Hoyt Clines,
37, Darryl Richley, 43, and
James Holmes, 37, by injection.
They, were convicted of killing a
manduring a 1981 break-in.

(te prison spokesman ‘Alan

{Said multiple’ executions

i“save money and reduce

$ on prison employees.
pkansas’ last triple execution

san 1939.

_8A+ THURSDAY, JULY 7, 1994 - USA TODAY

SLES

“aE 8 ‘

a ie

f A Is”

~ > é

: Arkansas Plans Triple Execution

“LITTLE ROCK, Ark.—Arkansas plans to put three killers to _
death on the same day next month in the first triple execution by a
state since capital punishment resumed in the United States in
1977. te: 3 ee

Gov. Jim Guy Tucker on Wednesday set Aug. 3 as the date for
executing Hoyt Clines,'37, Darryl Richley, 43, and James Holmes,
87, by injection. They were convicted of shooting Donald Lehman
to death in a 1981 break-in at his home.

State prison spokesman Alan Ables said multiple executions

- would save money and reduce stress on prison employees.

. — Associated Press

ee


ee Te EE ed ee TRA dis. * oer
ik habaes walk hadith che op nigeegied Sr aie ad ath

‘MOORE v. STATE Ark. 847
Cite as 299 S.W.2d 858

tice promptly refused when he found out
. what kind of work it was. The attorneys

he aeRO OSS i het is

i ti a insane BE ices aa itebictigis eat

sisi,

t
}

then contacted the Texarkana Employ-
ment Office, and, again, were unable to
obtain anyone who would do the work.
Here is the statement that Mr. Dennis K.
Williams, court-appointed counsel, made
to the Court in regard to the petition for
change of venue:

“My name is Dennis K. Williams,
and I am one of the attorneys ap-
pointed to represent these defendants};
and in the very early stages there, I
suggested to the Court and also to the
Prosecuting Attorney’s office that we
were going to try to get a change of
venue, and during that time, why, I
tried to contact people, too, that would
make a survey of the county to find
out the feeling of the people, and I
was able to get one party that said he
would do it. And as late as last
Thursday, why, that party said he had
made a survey of the county and that
all that he contacted said the ‘niggers’
ought to be burned or hung; and that
party was also to come to my office this
past Saturday morning, and in no event
later than Monday morning, and I have
not even seen the gentleman. I saw
him Friday up here at the Courthouse,
but I have not seen him since.

“Another man that I contacted said
he would give me his answer Thurs-
day morning—this past Thursday
morning—and he met us up here at the
Courthouse, and we four attorneys
talked with him in the library, and
told him what we would need and all,
and that afternoon, why, he called me
and said that he had talked with his
wife, and his wife said he couldn’t have
any part to do with it. |

“As Mr. Johnson stated, some of
these people, and my good friends, said
they would not mind helping me, but
this was a horse of a different color,
and they refused to partake in it. And
as a last resort, we thought we would

advertise in the paper and I believe I
can state kind of the sum and substance
of the ad; I wanted credible persons to
make a survey of Miller County on a
controversial issue, and we didn’t even
sign that; we gave Mr. Van Johnson’s
room number in the State National
Bank, and as he has told you about the
number of people that have called; and
it was impossible for us to get people
whom I think to be credible persons
to make a survey of the county at this
time, and I believe if public opinion
subsides some in a few months, we
might be able to get this, I know
there has been diligence on the part of
us attorneys. We have conferences
on the average of sometimes one and
two times a day. I mean conferences
where we were all together, and tele-
phone calls that have been made.
Hardly a day goes by that I don’t call
one of them or they don’t call me
about this matter. We have just had
difficulty; in fact, we have not been
able so far to get anybody to make a
survey of the county for us.”

This is not the ordinary case of paid
counsel for a defendant making a state-
ment as to inability to comply with the
Statute. We have here the case of court-
appointed counsel informing the Court that
the sentiment in the county was of such
a fever that people were unwilling to make

a survey, even when offered employment. |

These four fine lawyers, officers of the
Court, did everything they could to comply
with the formalities of the Statute; and
the change of venue should have been
granted because the feeling in the county
was so strong that the defendants had to
be kept out of the county for safekeeping ;
and no person in the county was willing
to come into the Court and testify as to
the feelings of the populace of Miller
County. It is putting form before sub-
stance to say that the petition for change
of venue should have been refused because
the legal formalities were not complied
with.

fa

848 Ark.

I submit that the case of Hildreth v.
State, 214. Ark. 710, 217 S.W.2d 622, 623,
points the way to the necessity of a change
of venue in the case at bar. In the Hildreth
case, in speaking of the compliance with
the Statute, § 43-1502 regarding two elec-
tors, we said: _

“The statute is evidently bascd on
the premise that the accused is entitled
to a change of venue when hostile
public sentiment makes an impartial
hearing impossible. It would be pa-
tently illogical to grant the petition
when affidavits are obtainable, but to
refuse relief when public feeling is so
antagonistic that the affidavits cannot
be had.”

In the case at bar the public sentiment,
as shown by the court-appointed counsel,
was so antagonistic that people refused to
make the affidavits or make the survey.
Therefore, I submit that the change of
venue should have been granted. It is for
this reason alone that I vote to reverse the
conviction.

HARRIS, Chief Justice (dissenting).

While it forms no part of the reasons
for this dissent, I should like to first ex-
press my disapproval of the law as estab-
lished in the case of Alford v. State, 223
Ark. 330, 266 S.W.2d 804. I consider that
no better evidence can be presented to in-
dicate one’s intentions in a particular in-
stance, than to establish the same or simi-
lar acts upon other occasions evidencing
the same intention. I think this particular-
ly true in crimes involving sex, as the lust
of the perpetrator of a sex crime is only
temporarily satiated after the crime 1s con-
summated. The urge that prompted the
dastardly act will come again and again,

and will be acted upon under what is deem-__

ed to be proper conditions and circum-

stances.

However, I recognize that the rule an-
nounced in the Alford case is the estab-

2999 SOUTH WESTERN REPORTER, 2d SERIES

lished law in this state until overruled, and
my dissent in the case at bar is based upon
the fact that I consider the evidence of
the Fenwick robbery to be admissible de-

spite the rule in Alford v. State, supra. ,

Quoting from the Alford case, which in
turn quotes from an earlier case, State v.
Dulaney, 87 Ark. 17, 112 S.W. 158, 160,
“Generally speaking, evidence of other
crimes is competent to prove the specific
crime charged when it tends to establish
(1) motive; (2) intent; (3) the absence
of mistake or accident; (4) a common
scheme or plan embracing the commission
of two or more crimes so related to each
other that proof of one tends to establish
the others; (5) the identity of the person
charged with the commission of the crime
on trial.” ;

The information in this case charged
defendants with the crime of murder in
the first degree, committed while perpetrat-
ing the crime of robbery. Under said in-
formation, it was necessary that the State
prove that defendants robbed or attempted
to rob the deceased. The most forceful
evidence presented by the State was the
confession of each of the defendants that
they robbed Hamm. This, of course, stand-
ing alone and uncorroborated, was insuff-
cient to establish that fact. It was there-
fore necessary that the State offer addi-
tional proof of the robbery. The evidence
corroborating the robbery is thin indeed.
Hamm’s empty pocketbook was found near
the scene of the crime, and his wife testi-
fied that he left home for the purpose of
going to town to pay the light bill and get
some medicine, but she did not testify that
he had any money in his pocketbook. There
is practically no evidence in the record,
with the exccption of the confessions, that
Hamm was robbed, or that the assault on
him was made by the defendants in an
attempt to rob him.

The testimony of Fenwick established
that within a few days (five) of the death


850 Ark, .

closely connected with its burning. This
testimony, under proper instructions from
the Court, was permitted to go to the jury
solely for the purpose of determining ap-
pellant’s motive, scheme, design or intent,
and we think was properly admitted.”

Again, in the case of Davis v. State, 182
Ark. 123, 30 S.W.2d 830, 831, Davis was
convicted of the crime of murder, and sen-
tenced to death. The evidence showed that
he and two others went to the place of busi-
ness of J. J. Weed, a merchant in North
Little Rock, and while engaged in an at-
tempt to rob Weed, killed him. A certain
Joe Lee testified that on the same night,
and within a few blocks of Weed’s place
of business, he was held up by three men
and robbed. He identified Davis as par-
ticipating. This testimony was admitted
over the objections of the defendant. The
Court admonished the jury that the testi-
mony could be considered only for the pur-
pose of identification and upon the ques-
tionof “* * * intent in entering Weed’s
place of business * * *” Quoting from
the late Justice Smith: “The indictment
alleged that Weed was killed in an attempt
to rob him, and it was this unlawful intent
which rendered it unnecessary for the state
to prove that deliberation and premedita-
tion which would otherwise be required to
establish the crime of murder in the first
degree. * * * Jt was essential for the
state to show that appellants were im
Weed’s place of business for the pur-
pose of committing the crime of robbery.
* %* *” (Emphasis  supplicd.) “The
testimony was therefore competent to show
the business in which appellants were’ en-

gaged that night and the probable purpose |

for which they went to Weed’s place of
business soon thereafter.”

The fact that the offense admitted in evi-
dence occurred subsequent to the crime for
which appellants are being tricd is of no
effect. Scrape v. State, 189 Ark. 221, 71
S.W.2d 460, 461.
seems to be on “all fours” with the case
at bar, and I find absolutely no distinction
in the evidence that was admitted there
of a similar offense, and the evidence which

This case, incidentally,

299 SOUTH WESTERN REPORTER, 2d SERIES

was herein admitted, and which the ma- ,
jority say constituted
Scrape was convicted of the crime of rob- ,
bery of a filling station in Little Rock,
which occurred on November 9, 1933, Dur-
ing the trial, and over objections, L. R.
Biggs, operator of another filling station
in Little Rock, was permitted to testify
that appellant and two others had attempt-
ed to rob him on November 10, the day fol-
lowing the date of the robbery for which he
was on trial. In this connection the Court
gave to the jury, over appellant’s objections
and exceptions, the following instruction:
“The defendant is being tried alone for
the crime of robbery. The State has at-
tempted to show by testimony that this
defendant engaged in an attempted crime
of robbery on the night following the date
of the crime for which he is now being tried
is alleged to have been committed. If you
should believe from the evidence that the
defendant did attempt to commit robbery
on the night following the alleged crime
for which he is being tried, it might be
considered by you as showing, if it does
so show, a scheme and a design on the part
of the defendant in the commission of
crime, and for no other purpose; and even
though you should believe him guilty of
attempted robbery committed on the day
following the day of the robbery for which
he is now being tried, yet that would not

reversible error.

be sufficient to warrant his conviction on
the charge for which he is now being tried
unless you believe he was guilty on this
particular charge beyond every reasonable
doubt.” This instruction was approved by
this Court, and in the language of Justice
McHaney: “* * * we have many times
held that evidence of similar crimes closely
connected with the crime charged is ad-
missible, not only to show knowledge or
intent, but to show a_ system, plan, or
scheme of conduct on the part of the ac-
cused. * * *”

The majority do not attempt to reconcile
the present holding with the Scrape case
other than to say that it was a “conspicuous
departure from the general rule”, an iso-
lated case, and actually occurred because

overruled, and
is based upon
e lence of
admissible de-
State, supra.
ase, which in
case, State v.
.W. 158, 160,
ice of other
e the specific
s to establish
) the absence
‘) a common
'e commission:
lated to each
s to establish
of the person
of the crime

»

case charged
‘f murder in
‘tle perpetrat-
der said in-
hat the State
or attempted
ost forceful
‘ate was the
a Se that
OWE, stand-
was insuffi-
't was there-
offer addi-
he evidence
thin indeed.
found near
5 wife testi-
purpose of
bill and get
testify that
ook, There
the record,
‘ssions, that

’ assault on
fants in an

established
f the death

San a Ste pada: ae Zs

eee

a

eae SE

MOORE v. STATE Ark. 849
Cite as 299 S.W.2d 838 :

of Hamm,! two of the defendants (Rogers
Boone and James Boyd) pulled up where
he was waiting for a bus, and said, “Let’s
go to Hope.” He accordingly got in with
them. “The biggest boy suggested that we
stop for a nature case, and we all got out,
and when we started to get back in, he
reached and came out with a claw hammer
and said ‘We ain’t going to Hope, but
you’re going to Hell right quick’.” Fen-
wick stated that he was struck and hit with
the claw hammer, and fell down. The two
men then took his wrist watch and pocket-
book. About that time, one of the defend-
ants saw someone coming and started off,
but the other said “Wait, I’ve got to kill
this old son-of-a-bitch yet,” and kept hitting
at him until his companion started driving
away. Then he ran and caught the truck.

This evidence, in my opinion, was cer-
tainly admissible against these two defend-
ants as being directly related to the issue
of intent; in other words, it is “independ-
ently relevant” to the main issue—relevant
in that it is evidence to prove a material
point in the case at bar, e. g., that defend-
ants killed Hamm while committing or at-
tempting to commit the crime of robbery.
Of course, the evidence would not be ad-
missible simply to show that they were
evil men. In the Alford case, upon which
the majority rely, the ravished witness was
still alive, and present in Court testifying
that she had been raped. ‘Therefore, as
set out in that opinion, there was no need
of further evidence to show Alford’s in-
tent, for no one would contend that he in-
tended something other than rape.. I would
likewise agree that if: Hamm were alive
and testifying he had been robbed by the
defendants, evidence of the Fenwick rob-
bery would be inadmissible under the rule
herein discussed. But, to the contrary, the

tf. It was while the officers were question-
ing these two defendants about the en-
wick robbery that they learned of the
robbery of Ilamm, and were taken by
Boone and Loyd to the location where
Hamm had been beaten and left.

2. I emphatically disagree with the major-
ity that the fact a man is missing for five
909 SW .2d-—54

victim is dead, and so cannot appear and
testify as to what happened, and I repeat,
there is no substantial evidence® (other

than confessions) to establish that the de--

ceased was killed while the defendants were
perpetrating the crime of robbery.

The information does not allege, nor is
there any evidence in the record to estab-
lish that defendants had a grudge against
deceased, or had previously planned to kill
him, and the State’s first degree murder
allegation must accordingly be sustained
by proof of the robbery. The Court cau-
tioned the jury that this evidence could
only be used against the two defendants
involved, and further, that it was only
relevant as showing a general scheme or
design. Such evidence has frequently been
admitted for such a purpose. In Casteel
v. State, 205 Ark. 82, 167 S.W.2d 634, the
defendant was tried for the crime of arson,
it being alleged that he did “feloniously
aid, abet, assist, and advise and encourage
the burning of a * * * Pontiac auto-
mobile * * * property of Morris Hen-
son, Bert Casteel and Porter Wilson
I‘inance Company * * *”, Among
grounds for reversal, appellant urged that
the trial court erred in permitting testi-
mony relating to previous transactions of
insurance on other automobiles in which
appellant was interested, and which had
been burned. Quoting from the opinion:
“Finally, appellant urges that the trial court
erred in permitting witnesses, J. O. Langley
and Rellis Garrett, to testify as to trans-
actions of insurance on other automobiles,
and as to the alleged burning of these cars.
The testimony is to the effect that this tes-
timony: concerned other automobiles, in
which appellant was interested, which were
insured and burned within a period of time
shortly before the one in question here, and

days, his body found on a route not nor-
mally taken in going home, and his empty
purse found on the side of the road two-
tenths of a mile from the body, is such
evidence, standing alone, as would war-
rant a jury in concluding that that in-
dividual had been robbed.

RET M MC Re NT yet seni

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