Maxwell v. Stephens Brief of Respondent in Opposition

    IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1965

No. 429

W illiam  L. M axw ell  --------------- ----------------------------  Petitioner

D an  D. S teph en s , S u perin tenden t o f  the
Arkansas State Penitentiary ----------------- Respondent

ON PETITION FOR W RIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT

BRIEF OF RESPONDENT IN OPPOSITION

B ruce B en n ett

Attorney General 
State of Arkansas

J ack  L. L essenberry 
807 West Third 
Little Rock, Arkansas

Counsel for Respondent

PARAGON PRINTING CO ., LITTLE ROCK



I N D E X

Opinions Below _______________________________________________  1

Jurisdiction ___________________________________________________ 2

Statement _____________________________________________________ 2

Argument -------------------------------------------------------------------------------- 6

I. The Validity of Procuring Petitioner’s Coat
In Absence of a Search Warrant ___________________  6

II. The Constitutionality and Application of the
Death Penalty For The Crime of Rape ____________  12

A. The Alternate Penalties for the Crime of 
Rape in Arkansas are Constitutional and
Have Been Properly Enforced ___________________  12

B. The Arkansas Statutory Penalties for the 
Crime of Rape are not Violative of the
Eighth Amendment ______________________________  18

III. The Selection and Composition of the Petit
Jury Panel ___________________________________________  21

CITATIONS

Cases:

Akins v. Texas, 325 U.S. 398 (1945) ------------------------------------------  25

Anderson v. State, 200 Ark. 516, 139 S.W. 2d 396 (1940) :_____  24

Avery v. Georgia, 234 U.S. 559 ------------------------------------------------  26

Bailey v. Henslee, 287 F. 2d 936 (8th Cir. 1961) -------------------------- 22

Beauharnais v. Illinois, 343 U.S. 250 (1951) --------------------------------  18

Black v. State, 215 Ark. 618 ---------------------------------------------------------  17

Boyd v. United States, 116 U.S. 627 -------------------------- ---------------  10

Brown v. Allen, 344 U.S. 433 -------------- --------- ---------------------------  16,23

Buchanan v. State, 214 Ark. 835, 218 S.W. 2d 700 (1948) ---------  24

Page



INDEX — (Continued)

Carter v. Texas, 177 U.S. 442 (1900) -----------------------------------

Cassell v. Texas, 339 U.S. 282 (1950) ---------- ----------------------

Collins v. Walker, 329 F. 2d 100 (5th Cir. 1964) ----------------

Commonwealth v. Tucker, 76 N.E. 127, 189 Mass. 457 ---------

Dorsey v. State, 219 Ark. 101 -------------------------------------------

Fay v. Noia, 372 U.S. 391 (1963) ----------------------------------------

Gibson v. Mississippi, 162 U.S. 565 (1896) ----------------------

Gray v. Commonwealth, 249 S.W. 769, 198 Ky. 610 (1923)

Hamm v. State, 214 Ark. 171, 214 S.W. 2d 917 (1948) -----

Hamm v. Virginia State Board of Elections,
230 F. Supp. 156 (E. D. Va. 1964) ----------------------------

Haraway v. State, 203 Ark. 912 -----------------------------------

Hickinbotham v. State, 227 Ark. 1032, 303 S.W. 2d 565

Irvin v. State, 66 So. 2d 288 -----------------------------------------

Jackson v. Denno, 378 U.S. 368 (1964) ----------------------------

Kelley v. State, 133 Ark. 261, 202 S.W. 49, 54 (1918) -----

Mapp v. Ohio, 367 U.S. 643 -----------------------------------------

Martin v. Texas, 200 U.S. 316 (1906) ----------------------------

Maxwell v. State, 233 Ark. 700, 370 S.W. 2d 113 (1963) ... 

Maxwell v. Stephens, 229 F. Supp. 205 (E. D. Ark. 1964)

Mitchell v. State, 233 Ark. 578, 346 S.W. 201 --------------

Moore v. Henslee, 276 F. 2d 876 (8th Cir. 1960) --------------

Moore v. State, 229 Ark. 335 ----------------------------------------

Pace v. Alabama, 106 U.S. 583 ----------------------------------------

Payne v. State, 226 Ark. 910 ----------------------------------------

24

25 

25 

11 

17

26,27

23

11

15

22

17

16 

11 

19 

13 

10 

25 

16 

16 

16

. 17,25 

17 

16 

17

Page



INDEX — (Continued)

Reece v. Georgia, 350 U,S. 85 (1955) --------------------- ---- ---------------  28

Rudolph v. Alabama, 375 U.S. 889 (1963) _______________________  19

Sutton v. Settle, 302 F. 2d 286 (8th Cir. 1962) ___________________  22

Tancil v. Woolls, 379 U.S. 19 __________________________________  23

Tarrace v. Florida, 188 U.S. 519 (1903) ___________________ __ _ 24

Thomas v. Florida, 92 So. 2d 621 ------------------------------------------------  16

United States ex rel. Goldsby v. Harpole, 263 F. 2d 71
(5th Cir. 1959) _____________________________________________  26

United States v. Roberts, 223 F. Supp. 49 (E. D. Ark. 1963)
332 F. 2d 892 (8th Cir. 1964) _____________________________  10

Wallace v. State, 180 Ark. 627, 22 S.W. 2d 395 (1929) ___________ 19

Walton v. State, 232 Ark. 86, 334 S.W. 2d 657 (1960) ___________  17

Virginia v. Rives, 100 U.S. 313 (1879) --------------------------------------- 25

Yick Wo v. Hopkins, 118 U.S. 356 (1885) _______________________  13

United States Constitution

United States Constitution, Eighth Amendment -------- ,------------- 18,19

United States Constitution, Fourteenth Amendment ------------  21

Arkansas Constitution

Arkansas Constitution, Article II, Sec. 3 ----------------------------------  13

Arkansas Constitution, Amendment 51 Sec. 17 ----------------- 24

State Statutes

Act 126, Acts of Arkansas 1965 ------------------------------------------------  24

Arkansas Statutes Annotated, Sec. 3-118 (1947) ----------------------  23

Page

Section 3-227 (b) 23



INDEX — (Continued)

Page

Sec. 22-310 ____________________________________________________  25

Sec. 39-101 ____________________________________________________  23

Sec. 39-206 ____________________________________________ ________  23

Sec. 39-208 _______________________ -_____________________________  23

Sec. 41-3403 ____________________________________________________ 13

Sec. 43-215 ____    13

Sec. 43-2153 ___________________________________________________  13

Sec. 43-2204 _______________    19



IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1965

No. 429

W illiam  L. M axw ell  ________________________  Petitioner

v.

Dan D. S teph en s , Superintendent o f  the
Arkansas State Penitentiary -----------------  Respondent

ON PETITION FOR W RIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT

BRIEF OF RESPONDENT IN OPPOSITION

OPINIONS BELOW

Both the majority and dissenting opinions of the 
United States Court of Appeals for the Eight Circuit, the 
Memorandum rendered by the United States District 
Court for the Eastern District of Arkansas, and the unan­
imous opinion of the Supreme Court of Arkansas have 
all been properly noted in the petition for writ of certio­
rari and have been set forth verbatim in the appendix 
which accompanies the petition.



2

JURISDICTION

The authority of which petitioner relies to invoke the 
jurisdiction of this Court is also contained in the petition.

STATEMENT

The petitioner, William L. Maxwell, is a condemned 
prisoner in the Arkansas State Penitentiary who was 
charged by felony information for the crime of rape of 
Stella Spoon during the early morning of November 3, 
1961, in Hot Springs, Arkansas. Although the guilt of 
the petitioner is not in controversy here, a brief review 
of that tragic event is pertinent to the consideration of 
other issues in the petition.

The trial record sustains the perpetration of a most 
vicious and heinous crime. The victim, a rather frail 
woman, lived with her aged and crippled father in a 
sparsely populated area of Hot Springs. After she had 
retired for the evening, she was aroused by a noise from 
the front of the house. As she entered the living room 
a small night lamp in her father’s adjoining bedroom 
alerted her to the presence of a person outside of the 
window". She immediately turned on a ceiling light re­
vealing the petitioner cutting the window screen. The 
petitioner attempted to conceal his identity by pulling 
a stocking over his face, but this effort was unsuccessful 
and the stocking fell from his head. Miss Spoon im­
mediately ordered the intruder to leave and dialed “ op­
erator”  on her telephone to summons the police. By this 
time petitioner had entered the room through the window 
and knocked the young woman to the floor. Miss Spoon



3

did not have the opportunity to give any information, 
but the operator heard her screams for help and im­
mediately made telephonic connection with the police. 
The address was subsequently determined and assistence 
was dispatched.

When the victim’s father attempted to intervene to 
protect his daughter, petitioner threatened his life and 
brutally struck the elderly man rendering him totally 
helpless. When the police arrived, Mr. Spoon was found 
bleeding, incoherent, and afraid to open the house to the 
officers.

Before the officers had reached the house, petitioner 
had forcibly taken the young woman to a vacant lot where 
he overcame her stubborn resistance and savagely con­
summated sexual intercourse. Terrorized and shocked, 
the prosecutrix found her way to a street where searching 
police discovered her wet, barefooted and almost nude. 
The officers took her directly to a hospital and she was 
immediately examined by a physician. She was re­
quired to remain in the hospital for three days to recover 
from the injuries petitioner had inflicted upon her.

During the ordeal, the assailant had stated that his 
name was Willie Washington. Miss Spoon reported this 
information to the police and two persons, Willie Wash­
ington, Senior and Junior were brought to the hospital 
and were released when she declined to identify either. 
A Negro policeman, Officer Pettis, was brought to assist 
the investigation. After further description and failure 
to identify other suspects, Officer Pettis recalled seeing 
the petitioner earlier that evening with young Willie 
Washington. On the basis of what had become a rather 
detailed description of the assailant together with con­
firming the presence of petitioner near the area where the



4

crimes were committed earlier in the night, it was ordered 
that petitioner be brought to the hospital.

On these instructions, a policeman in a patrol car went 
to the Maxwell home where petitioner was then residing 
with his parents. Mrs. Maxwell, petitioner’s mother, an­
swered the officer’s knock and, upon inquiry, went to de­
termine if her son was in the house. She returned to tell 
the officer that he was in bed and invited the officer into 
the house and directed him to the room where Maxwell 
was staying with his two younger brothers, aged fourteen 
and nineteen. When the officer came into the bedroom 
with his flashlight he cast the light on Maxwell who was 
feigning sleep. Maxwell was aroused and advised that 
he was wanted downtown or at the hospital. Without 
asking why and not indicating any desire not to accom­
pany the officer, Maxwell approached the closet as if to 
secure some clothing. At this time the policeman told 
Maxwell to dress in the clothes that were still wet and on 
a chair next to the bed. The petitioner complied with­
out any protest. After Maxwell was taken to the hos­
pital and identified by Miss Spoon, he was then confined 
in the city jail. Later in the day he was transferred to 
the Hot Springs County Jail in an adjoining county where 
he stayed over the weekend. The following Monday peti­
tioner was brought back to Hot Springs, arraigned and 
placed in the county jail to await trial.

The trial judge appointed two local lawyers for the 
defense of petitioner, but these attorneys were discharged 
when petitioner employed private counsel. A continu­
ance of the trial was granted and several motions were 
presented to the trial court. The trial was scheduled by 
agreement. Numerous witnesses testified including two 
experts from the Federal Bureau of Investigation and, 
although petitioner had confessed to the crime on two sep­



5

arate occasions, neither statement was used in the prose­
cution of the ease.

The crime was proved by overwhelming evidence. 
The jury returned a verdict of guilty without a recommen­
dation of leniency and petitioner was sentenced to death. 
The conviction was affirmed by the Supreme Court of 
Arkansas and rehearing denied. No application was 
made for certiorari to this Court. A  petition for habeas 
corpus was filed in the United States District Court four 
days before the scheduled execution. The execution was 
stayed and a full hearing was conducted on all issues 
raised by petitioner.

The basis of the petition before the district court re­
mains much the same as those presented in this petition 
for certiorari. In essence, petitioner challenges the cir­
cumstances incident to the procurement of his blue coat; 
the application of the death penalty for the crime of rape 
in Arkansas; the prerogative of a trial jury to not recom­
mend leniency upon the rendition of a verdict of guilty of 
rape; and, the selection and composition of the petit jury 
panel in Garland County.

The statement contained in petitioner’s brief is, for 
the most part, a fair resume of the circumstances surround­
ing the issues involved in this litigation. There are, how­
ever, several gross misrepresentations of testimony and 
facts which are consistent with petitioner’s theory of the 
case. Rather than dwell upon those matters, in interest 
of brevity, appropriate remarks are noted at the applicable 
points of discussion in this brief. To foster continuity 
and the consideration of the issues presented by petitioner, 
the organization of the petition and the manner of refer­
ence is utilized to the several volumes of records now com­
piled in this prolonged and frequently considered case.



6

ARGUMENT

It is submitted that the petition for writ of certiorari 
does not disclose any substantial issue of law which war­
rants review by this Court. The several records in this 
case fail to support the conclusion that petitioner was de­
prived of any right made available by the Constitution of 
the United States. The respondent is benefited by the 
lengthy opinion of the Arkansas Supreme Court affirming 
the petitioners conviction and the studious decision of the 
district court denying the writ of habeas corpus. That 
ruling was affirmed on appeal by the United States Court 
of Appeals for the Eighth Circuit. All of those decisions 
are eminently correct and are in concert, as applied to 
the facts disclosed in this case, with the several pronounce­
ments of this Court.

i

The Validity of Procuring Petitioner’s Coat in Absence 
of a Search Warrant.

It is asserted initially by petitioner that certiorari 
should be granted to determine the legality of search of 
petitioner’s home in his absence, without a warrant, under 
a purported consent of his mother (p.18 of Petition). 
This argument is based upon a false premise. Both the 
district court and the court of appeals concluded that peti­
tioner was living with his mother and father completely 
gratus and possessed no proprietorship in the room. 
These circumstances were carefully developed during the 
hearing in the district court.

It is against this background that petitioner seeks to 
invoke the provisions of the Fourth Amendment. A l­
though the language has been often repeated and is



7

familiar, in view of petitioner’s attack, it is well to note 
the specific terms of protection before proceeding further. 
It is provided:

“ The right of the people to be secure in their 
persons, houses, papers, and effects, against unrea­
sonable searches and seizures, shall not be violated

In support of his position, petitioner relies on certain 
alleged uncontroverted facts in connection with his ap­
prehension and the subsequent procurement of the blue 
coat. As mentioned previously, either petitioner has been 
somewhat careless summarizing these events, or perhaps 
was overzealous in seeking support of his theory of the 
case. Even though respondent prefers the latter expla­
nation, some clarification still must be offered to insure 
proper perspective and consideration of the issue.

The crime occurred near 3:00 a.m. on November 3, 
1961. This was the approximate time recorded on the
police radio log when Miss Spoon’s screams were heard 
over the telephone (Ark. 250-251).

Since petitioner has abandoned his challenge of his 
arrest, it will suffice to say that pursuant to informa­
tion and instruction, Officer Childress proceeded to the 
Maxwell home and learned that the petitioner was there. 
The officer was directed to the bedroom where the peti­
tioner was found in bed. Upon advising petitioner that 
he was to be taken downtown, petitioner was directed to 
put on some wet clothes hanging near the bed. (D.C. 
267) At this time Maxwell attempted to go to the closet 
to secure other clothes when the officer repeated the re­
quest. Without objection, Maxwell put on the damp 
clothes, but either purposely or inadvertently failed to 
get the blue coat that he had been wearing that night.



8

After petitioner had been identified at the hospital, 
it was discovered that the blue coat was missing. A l­
though there is some deviation in the estimates of time, 
the coat was secured by the police officers near 5:00 a.m. 
(D.C. 243).

The circumstances of the second visit to the Maxwell 
house were touched briefly in the state court trial, but 
were described in detail at the hearing before the district 
court. One officer, Lt. Crane, testified before the trial 
jury as to the manner in which petitioner’s coat was se­
cured and that Mrs. Maxwell had consented to the search 
without objection (Ark. 333-334). His explanation that 
the entry was invited was uncontradicted, not withstand­
ing the fact that Mrs. Maxwell attended the trial and was 
present when this testimony was related ( Ark. 334), It 
is also imperative to remember that petitioner was sleep­
ing in a room with two brothers, ages 14 and 19 (D.C. 143). 
If the actions of the investigating officers were contrary, 
petitioner was well fortified with several witnesses to 
contradict this testimony.

It should be obvious that no magistrate was available 
at the time the coat was obtained from petitioner’s mother. 
Moreover, a judge or justice would not be available for 
perhaps four more hours. This would conservatively de­
lay the time of recovery of the coat after issuance of a 
search warrant to 9:30 or 10:00 that morning. During 
this interim, there was a continuing danger that petition­
er’s family may have realized the importance of the article 
of clothing and would have either hidden or destroyed it. 
It will be recalled that petitioner had run afoul of the law 
numerous times. Although his family, was originally 
cooperative with the law enforcement officials, it appeared 
clear to the police, as it should to this Court, that there 
would be an inclination of the family to aid the petitioner



9

in his time of need even to the extend of destroying valu­
able evidence. This prospect cannot be ignored.

It is contended by appellant that his mother did not 
voluntarily consent to the officers entering the house and 
obtaining the coat. This assertion rests upon her com­
ment that she was “afraid” not to let the officers in the 
house (D.C. 138). The facts of this case are, as observed 
by the district judge, that the officers knocked on the 
door, identified themselves, made a request for the speci­
fic article of clothing and were shown to the closet by ap­
pellant’s mother (D.C. 143, 138, 242, Ark. 333-334). The 
record is replete that the officers were courteous and re­
quested but one article. Mrs. Maxwell cooperated with 
the officers in every way (D.C. 138). She had no reason 
to refuse their entrance into the home. Although her 
husband was at work, Mrs. Maxwell was a mature woman 
of 38 years who had lived in the community for a long 
period of time. It cannot be presumed that she did not 
know a search warrant was necessary to enter the house 
if she demanded it. Her testimony before the district 
court indicates that she permitted the entry in respect for, 
rather than fear of, the police officers.

It is insisted by petitioner that the peculiar facts pre­
sented in this case present an important question of fed­
eral law which remains unsettled (p.22 of Petition). It 
is in this respect, the petitioner states that there is prob­
ably no issue more frequently litigated than the validity 
of a consent to a warrantless search.

In all deference, if consent is frequently controversial, 
it is a result of unique circumstances or a matter requir­
ing resolution of conflicting testimony. In any event, it 
is submitted that neither the law nor the facts in the case 
before the Court contain any new or perplexing problems.



10

Each of the three decisions supporting the conviction 
relied upon well established rules within the guidelines as 
provided by this and many other courts while exhaustive­
ly reviewing the contentions of error. It was unnecessary 
for any of the courts below to tread upon an unmarked 
avenue of law. When bared of the phrases laboriously 
repeated by petitioner, the facts in this case are remark­
ably clear and uncontradicted. The officers visited the 
house on three occasions. The purpose of the first was 
to take petitioner to the hospital for identification. As 
related previously, the second presence of police officers 
was to secure a blue coat. The third was to obtain a 
convenient change of clothes for petitioner’s use.

The incident of securing the blue coat can hardly be 
termed a “ search”  within the general connotation of the 
term. As observed by the district court petitioner’s 
mother, Mrs. Maxwell, in all candor refused to deny that 
she gave the officers permission to enter the house and 
go to her son’s room. Under these circumstances, the 
majority of the court of appeals remarked that it might 
be viewed as if the officers never entered the house, but 
that petitioner’s mother brought the coat to them.

It is conceded that the rules of the federal courts 
implementing the Fourth Amendment of the United States 
Constitution have been made applicable to the states 
under the due process clause of the Fourteenth Amend­
ment. Mapp v. Ohio, 367 U.S. 643. It is also agreed 
that illegally obtained evidence cannot be used to aid 
criminal prosecution. Boyd v. United States, 116 U.S. 
627. But a valid search may be made of the accused 
and the premises in conjunction with a lawful arrest.

A  permitted search is proper and valid. United States 
v. Roberts, 223 F. Supp. 49 (E.D. Ark. 1963), 332 F. 2d



11

892 (8th Cir. 1964); Commonwealth v. Tucker, 76 N.E. 
127, 189 Mass. 457, 7 LRA (N.S.) 1056.

A valiant effort is made by petitioner to the end that 
bis mother needed his permission to give the police officers 
the coat. The basis of this argument is that the Fourth 
Amendment should be extended to offer protection in 
these circumstances. Again, the authority is contra­
dictory to this theory. Irvin v. Stale, 66 So. 2d 288, 
cert. den. 346 U.S. 927.

It is undisputed that, although appellant had reached 
his majority, he still resided with his parents as their 
son, sharing a room with two brothers (U.S. 141, 147). 
Cf. Gray v. Commomvealth, 249 S.W. 769, 198 Ky. 610 
(1923).

The circuit court of appeals, on review, was cognizant 
that the district court had applied the proper standards 
to reach the decision. There was no real disparity of case 
authority used in the separate opinions of the circuit 
court of appeals, but only a reaching of adverse factual 
findings.

The only criticism voiced by the dissenting circuit 
judge was that, in his view, the facts had established 
implied coercion. In reaching a contrary conclusion, 
the majority did not rely on a conflicting concept of 
law.

Hence, in this context, the argument for or against 
implied coercion was totally and essentially a resolution 
of factual considerations. Appelate courts have tra­
ditionally been hesitant to substitute their conclusions 
from a printed record in place of the hearing judge who 
had the benefit of seeing, hearing and experiencing that 
atmosphere of the hearing.



12

Thus, this case does not present new, unusual or con­
flicting concepts of law. On certiorari, this Court would 
only be satisfied that there was substantial evidence to 
support the conclusions of fact announced by the district 
court. There is, of course, one alternative. This would 
be to ignore the prior holdings of this Court and rule that 
there can be no valid consent to a search as a matter of 
law no matter what the circumstances.

This may seem to be, at first blush, a rather strong 
appraisal of what must be accomplished by granting cer­
tiorari. This conclusion is, however, inescapable.

i i

The Constitutionality and Application of the Death
Penalty for the Crime of Rape.

A. The Alternate Penalties for the Crime of Rape 
in Arkansas Are Constitutional and Have Been 
Properly Enforced.

The second principal topic contained in the petition 
is devoted to a condemnation of the alternative penalties 
of either a death or life imprisonment for those found 
guilty of the crime of rape. It is stated by petitioner 
that there are perhaps seventeen states that still retain 
capital punishment for rape and with one exception, all 
of these juridictions may he properly described as south­
ern or border states (p.33 of Petition). It might also 
be observed that those same states identified by peti­
tioner comprise the so-called “ Bible Belt” . So much 
for irrelevant geography.

To be sure, a statute imposing a greater punishment 
on one race than another would not only contravene the



13

Fourteenth Amendment to the Constitution of the United 
States, but would also offend the Constitution of Arkansas 
as well. Ark. Const., Art II, § 3. Since 1842 this 
jurisdiction, as well as many other states, has provided 
that the death penalty may be imposed, as in common 
law, for those found guilty of the crime of rape. (Ark. 
Stat. Ann. § 41-3403 (1947). In 1915, the General As­
sembly gave the jury the prerogative to assess either a 
life or a death sentence. Ark. Stat. Ann. § 43-215 (1947). 
If the jury does not render a verdict of life imprisonment, 
the death penalty is mandatory. Ark. Stat. Ann. § 43- 
2153 (1947). Kelley v. State, 133 Ark. 261, 202 S.W. 
49, 54 (1918). Cognizant that there is no statutory dis­
tinction of the race of the defendant, the petitioner ap­
parently concedes that there is no deprivation of due 
process by law in Arkansas, but a statute may be im­
properly applied even though valid on its face. Yick 
Wo v. Hopkins, 118 U.S. 356 (1885).

A substantial portion of petitioner’s argument is 
devoted to a recitation of certain statistics of the number 
of persons executed for rape in the United States between 
1930 and 1962. It is submitted by respondent that the 
compilations are not in the least persuasive and have no 
relation to this case. Parenthetically, it is noted that 
the percentage of Negroes executed for the crime of rape 
in Arkansas is proportionately smaller than the average 
of the. other reported jurisdictions. It may be agreed 
that the states represented in Table 2 at page 35 of pe­
titioner’s brief have had substantially larger Negro pop­
ulations than the balance of the other several states. 
Hence, no genuine comparison can be made with the 
entire United States.

Although respondent did not intend to assert that 
there is a higher crime rate among Negroes, the comments



14

of petitioner on the subject demand a response. The 
figures submitted by petitioner reflect that Negroes make 
up 89.5% of those persons executed for the crime of rape. 
The only conclusion which may be reached is that the 
incidence of rape by Negroes is substantially greater than 
that of whites. At the hearing on the petition for habeas 
corpus before the district court, petitioner was permitted 
to submit statistics from three counties in Arkansajs. 
These figures were quite revealing, although no definite 
findings can be established. In Pulaski County, the 
charges of rape are almost balanced, eleven whites and 
ten Negroes, but non-whites make up less than 22% of 
the total population. Thus, the ratio of rape by Negroes 
is more than twice that by whites. In Jefferson County 
the crime by race is approximately proportionate. In 
Garland County, where the trial was conducted, there 
have been six white men and three Negroes accused of 
rape in the last ten years, but Negroes comprised less 
than 11% of the total population in Garland County (See 
1960 Reports of the Bureau of Census). It is impera­
tive to remember that in Garland County, there has 
never been a capital sentence for rape and only two men, 
one white and the other an Indian, have been sentenced to 
death for murder.

There is some criticism directed at the district judge 
by petitioner because the number of counties for inquiry 
was restricted, but no objection to this ruling was entered 
by petitioner (U.S. 313, 314).

The petitioner then quotes Senator Trumbull’s re­
marks made during the consideration of the Civil Rights 
Act of 1866 (p. 38 of Petition). In all deference to the 
knowledge of the late Senator Trumbull there have been 
significant developments in the past one hundred years.



15

In the last fourteen years two white men and two 
Negroes have been executed for rape in Arkansas. This 
hardly smacks of disparity. Just how many Negroes 
have been found not guilty or guilty of lesser offenses 
that were not appealed cannot be determined. There 
is at least one reported case where a Negro found guilty 
of raping a white woman was given a life sentence. 
Hamm v. State, 214 Ark. 171, 214 S.W. 2d 917 (1948). 
In the words of the district judge, it is ironic that at 
the time petitioner was scheduled to die, a white man 
convicted of rape was executed. Fields v. State, 235 
Ark. 986, 363 S.W. 2d 905 (1963).

Respondent agrees with petitioner that any conclusion 
of improper application of the death penalty must be 
gleaned from the facts evident in the case under consid­
eration. In the final analysis, fair trials and justice 
are the concern of the courts, not statistics.

The statistical data completely ignores the evidence 
in each case which justified and compelled the highest 
penalty. It is remarkable that petitioner has not been 
so bold to say that the death penalty was not justified 
here.

Undisputedly, the petitioner has a burden of showing 
unconstitutional application of the death penalty. The 
jury discrimination cases are most analogous to the attack 
made here. Conceding arguendo that there may have 
been unconstitutional application of the death penalty 
and other crimes during the era of Senator Trumbull in 
1866, this alone lends no discredit to future convictions. 
So, if it was proven that there had been jury discrimina­
tion in the past, but none shown in the panel under con­
sideration, the contention would be summarily rejected.



18

It was aptly stated in Brown v. Allen, 344 U.S. 433 at 
479 that: “ Former errors cannot invalidate future
trials.”

The quantum proof required to demonstrate unlawful 
application must be “  . . .  shown by cogent evidence that 
the officers knowingly permitted others . . .  ”  to receive 
the death penalty. To reiterate the records here are 
void of such a conclusion. Hickinbotham v. State, 227 
Ark. 1032, 303 S.W. 2d 565.

Although the contention raised by petitioner is unique 
it is not without precedent. It should suffice to note 
that all authorities discovered by respondent is opposed 
to the proposition. Maxwell v. Stephens, 229 F. Supp. 
205 (E.D. Ark. 1964); Maxtvell v. State, 233 Ark. 
700, 370 S.W. 2d 113 (1963); Mitchell v. State, 233 Ark. 
578, 346 S.W. 2d 201; Thomas v. Florida, 92 So. 2d 621, 
cert. den. 354 U.S. 925; Pace v. Alabama, 106 U.S. 583.

The argument of petitioner, if accepted, would have 
ludicrous results. He would have this Court reverse 
convictions not on the basis of each case, hut solely upon 
questionable history. The hazards are numerous. The 
question of a woman under a death sentence would demand 
reversal, according to petitioner, for the lack of statistics 
alone. A  dual system of justice and punishment would be 
created: immunity for Negroes while Caucasians would
be required to remain subject to the death penalty. Thus, 
petitioner would reverse the situation that he complains 
to be unconstitutional.

Petitioner asks that this Court grant certiorari to 
confirm petitioner’s attempt to apply the “ prima facie”



17

evidence principle (p. 38 of Petition). This seems hardly 
necessary since the records are totally void of any evidence 
that petitioner’s trial jury improperly applied the death 
penalty.

Obviously doubtful of the firmness of his position, 
petitioner then recklessly accuses and ridicules the crim­
inal administration of justice in Arkansas (p. 39 of Pe­
tition). In reference to the “ continuing system of dis­
criminatory administration of justice,”  respondent in­
vites attention to Walton v. State, 232 Ark. 86, 334 S.W. 
2d 657 (1960), where the Arkansas Supreme Court ignored 
the Negro attorney’s nine-sentence brief, and found error 
on its own initiative, reversing the Negro defendant’s 
murder conviction. Remarks are then directed by pe­
titioner to Arkansas’ long-time practice of systematic jury 
exclusion with citation to the only two cases in Arkansas 
where a federal court concluded racial discrimination, and 
surprisingly enough these two cases came from one 
county. There have been many affirmations by the 
federal judiciary of constitutional jury selection in Ar­
kansas. Dorsey v. State, 219 Ark. 101, cert, den., 342 
U.S. 851; Uaraway v. State, 203 Ark. 912, cert, den., 317 
IJ.8. 648; Black v. State, 215 Ark. 618, cert, den., 338 
U.S. 956; Moore v. Henslee, 276 F. 2d 876 (8th Cir. 1960); 
Moore v. State, 229 Ark. 335, cert, den., 358 U.S. 946; 
Payne v. State, 226 Ark. 910 reversed on other grounds, 
356 U.S. 560.

The lack of substance to the contentions of the pe­
titioner have been revealed. In view of the law and the 
facts discerned in these records, there is no merit to the 
allegations of the petitioner.



IS

B. The Arkansas Statutory Penalties for the Grime 
of Rape Are Not Violative of the Eighth Amend­
ment.

At sub-topic II. B. of the petition it is asserted that 
the Courts of Appeals for both the Eighth and Fourth Cir­
cuits have invited the consideration of the United States 
Supreme Court to determine if the imposition of the death 
penalty for the crime of rape is violative of the Eighth 
Amendment to the Constitution of the United States, (p. 
44 of Petition). Respondent disputes the correctness of
this conclusion. It is offered rather, that “ . . . what­
ever personal attitudes lower federal court judges as in­
dividuals might have toward capitol punishment for rape 
. . .” those personal convictions are restrained in favor 
of the long existent expressions of the legislatures of the 
several states.

In view of the precise separation of the branches of 
government provided by the United States Constitution 
and the authority vested in the states, federal and state 
judges have properly refrained from exercising their in­
dividual moral considerations. The courts refuse to 
question the expediency of an enactment under review for 
the responsibility rests on the wisdom and conscience of 
the legislative bodies. E.g. Beauharnais v. Illinois, 343 
U.S. 250 (1951). This established rule of abstinence 
should be particularly applicable in an area so well forti­
fied against invasion, judicial or otherwise, as the punish­
ment of crimes. Never before has an argument been 
made that punishments for crimes must necessarily be 
consistent in every jurisdiction of this Nation.

It is apparently conceded by petitioner that the brutal 
circumstances found in this case would satisfy even the



19

criticism voiced by the dissenting justices in Rudolph v. 
Alabama, 375 U.S. 889 (1963). The challenge then does 
not rest on the basis that the sentence was not “ consistent 
with civilized standards”  but if the submission of punish­
ment to the jury without directions or guides is per se 
unusual within the prohibition of the Eighth Amend­
ment.

It is argued by petitioner that the trial jury was not 
invited to consider the extent of physical harm to his 
victim, the moral heinousness of the act, the prospect of 
reformation, or the deterrent effect of a death sentence. 
It is further stated by petitioner that the jury -was per­
mitted to choose between life and death for any reason 
or perhaps as a whim (pp. 44, 45 of Petition). A  more 
critical indictment of the jury system cannot be imagined. 
The identical argument would be as persuasive in oppo­
sition to a punishment which offers a jury any latitude 
in severity. A trial judge is not required to give the 
reasons or matters considered in support of a minimum 
sentence as opposed to a greater sentence. The sanctity 
of jury deliberations has been recognized as a requisite 
in the American system of jurisprudence. See Ark. 
Stat. Ann. § 43-2204 (1947), Wallace v. State, 180 Ark. 
627, 22 S.W. 2d 395 (1929). And the criticism voiced 
by petitioner does not reach a vital aspect of the decision 
as decided in Jackson v. Denno, 378 U.S. 368 (1964). 
Moreover, no request was made by petitioner that the jury 
was to make special findings or render a special verdict. 
The jury was only asked, with the permission of the 
petitioner, to determine his guilt and sentence.

It may be presumed with confidence that all of the 
subjects mentioned by petitioner, such as the extent of 
physical harm, mercy, the sufficiency of punishment, etc., 
were argued to the jury by the attorneys. The finding



20

of guilt cannot, in all candor, be suspected to have been 
without reason or as a whim. It is futile for petitioner 
to suggest that during the lengthy trial the jury had not 
been furnished substantial quantities of compelling evi­
dence of the physical harm suffered by the prosecutrix 
and every detail of the crime. It is certainly doubtful 
that an instruction was required to enlighten the jury as 
to the “ moral heinousness”  of the crime when the very 
nature of rape is adverse to the most fundamental concept 
of civilization.

Lest it be forgot, the victim of petitioner’s brutal 
and vicious assault was deprived of her constitutional and 
God given rights. Anything more precious to the ag­
grieved woman cannot be imagined. Most should agree 
that Miss Spoon should enjoy security in her home with 
her father, that her body should not be violated, her father 
mercilessly beaten, her life threatened, or terrorized. 
This case does not present the opposition of carefully 
balanced constitutional rights, but demands, for the sake 
of justice, that the death penalty be imposed.

It is too easy for petitioner to contend that his 
sentence is unusual, purposeless and wanton, as to be 
unbelieveable under the circumstances. A death sentence 
for rape can hardly be described as either unusual or 
wanton. To do so would ignore the history of perhaps 
the most villainous and highest of crimes. It is true 
that penologists and criminologists as well as law enforce­
ment officers possess a divergence of views as to the bene­
fits to be derived from the existence of a death penalty and 
the purposes that may be served.

If, however, it can be validly concluded that punish­
ment by fine or imprisonment acts as a deterrent to the



21

commission of crimes, then most assuredly the existence 
of the death penalty also presents a substantial restraint.

Finally, even though the United States Department 
of Justice may desire the abolition of the death penalty, 
as indicated by footnote 41 on page 45 of the Petition, 
it is significant that the matter was properly addressed 
to the Congress.

h i

The Selection and Composition of the Petit Jury Panel.

The final argument contained in the petition for writ 
of certiorari urges that the statutory procedure for the 
selection of petit juries in Arkansas together with the 
method that the jury commissioners employed to assimilate 
the jury panel, is violative to the Fourteenth Amendment 
to the Constitution of the United States. This conten­
tion was rejected by both the district court and the unain- 
mous opinion of the Eighth Circuit Court of Appeals.

Initially, it is imperative to note that the question, as 
presented in the petition for certiorari, is not identifiable 
with the assertion originally phrased in the petition for 
habeas corpus. Specifically, the petition alleged:

“ . . . That the poll tax books used by the
jury commissioners in selecting the persons to 
serve as jurors for the term in which petitioner was 
tried designate the color and race of persons eligible 
to be called for jury duty; . . . and it has been
the practice over the years for the jury commission­
ers to use poll tax books of Garland County, Arkan­
sas, which designate the race and color of eligible 
persons to serve as jurors in making the selection



22

and designation of perspective jurors, all in viola­
tion of the Constitution and laws of the United 
States.”

Thus, there was no direct challenge of the statutory 
requirements of Arkansas to designate the race of each 
elector, but only to the use of records which contained 
identification of race. Furthermore, no issue of invalidity 
was made in petitioner’s argument to the district court 
and little mention was made on appeal before the Eighth 
Circuit Court. Be that as it may, neither of the courts 
below recognized petitioner’s vague assertions as a direct 
attack on the constitutionality of the Arkansas statutes.

It seems all too clear that until the petition for cer­
tiorari, the criticism launched against racial identifica­
tion on poll tax records was more in the traditional vein 
as but one of an aggragate of circumstances which might 
conclude consideration of race during the selection of the 
jury panel. E.g. Bailey v. Henslee, 287 F. 2d 936 (8 Cir. 
1961), cert. den. 368 US. 877. What seems to have hap­
pened is that prompted by the comment of the court of 
appeals concerning the constitutionality of the race iden­
tification statute led petitioner to manufacture this as an 
issue for certiorari when in fact petitioner failed to follow 
proper procedure to initially assert and save the matter 
for review. Considering the status of these records, this 
Court should follow its long established rule and refuse to 
inquire into matters which were not properly submitted 
to the lower courts for adjudication. Cf. Sutton v. Settle, 
302 F. 2d 286 (8 Cir. 1962), cert. den. 372 U.S. 930.

An attempt is made to show that the Arkansas stat­
ute requiring racial identification is unconstitutional on
the basis of Hamm v. Virginia State Board of Elections,



23

230 F. Supp. 156 (EJD. Va. 1964) a ff ’d sub nom. Tancil v. 
Woolls, 379 U.S. 19. There, it was stated:

“ Of course, the designation of race, just like 
sex or religious denomination, may in certain rec­
ords serve a useful purpose, and the procurement 
and compilation of such information by State au­
thorities cannot be outlawed per se. For example, 
the securing and chronicling of racial data for 
identification or statistical use violates no consti­
tutional privilege. If the purpose is legitimate, 
the reason justifiable, then no infringement results. 
The infirmity of the provisions just mentioned 
lies in their mandate of separation of names by 
race.”

With this language foremost, the statutes in controversy 
must be reviewed.

The jury commissioners are required to select those 
individuals who meet the statutory qualifications. Ark. 
Stat. Ann. §§39-101, 39-206, and 39-208 (1947). In Arkan­
sas, only qualified electors may serve as jurors. Ark. 
Stat. Ann. §3-104.2 (1947). An elector must possess a 
current poll tax. Amend. VIII, Ark. Const., Art. I ll, §1. 
Similar requirements have met approval. Gibson v. 
Mississippi, 162 U.S. 565 (1896) ; Brown v. Alien, supra, 
344 U.S. at 474, and 472 footnote 22.

The poll tax books are required to note the designa­
tion of the elector’s race. Ark. Stat. Ann. §3-227(b) 
(1947). The list of poll tax payers are compiled as a poll 
tax book, published and distributed to the election judges 
by the county board of election commissioners. Ark. Stat. 
Ann. §3-118 (1947). There is no separation of names by 
race or different colored papers as discovered in Hamm.

A perusal of the previously noted statutes makes it 
abundantly clear that, consistent with most requirements



24

of voter registration, a person must give information, 
among other things, of his color. The obvious purpose of 
requiring this and other data is to assure a conclusive 
means of identification of the particular person and his 
eligibility to vote. The interest of the State is legitimate 
and justifiable. The practice of identifying persons by 
color has won approval by usage in almost every conceiv­
able means of compilation.

It might be noted, parenthetically, particularly in 
view of the disturbance expressed in the past, that the poll 
tax as a requisite for voting and jury service has been 
abolished in Arkansas. Ark. Const. Amend. 51, §17. 
Temporary remedial legislation was required to be adopted. 
Act 126, Acts of Arkansas 1965, approved March 1, 1965.

Conceding arguendo that a valid question exists as 
to the use of poll tax records which contain racial identi­
fication, the court of appeals properly applied and followed 
the many pronouncements of this Court in disposing of 
the subject. The conclusion was clearly measured by 
the applicable standards and is consistent with the spirit 
of constitutional jury selection.

Jury duty has been described by the Supreme Court 
of Arkansas as a right incident of citizenship, subject to 
statutory regulations. Buchanan v. State, 214 Ark. 835, 
218 S.W. 2d 700 (1948). It is incumbent on every court 
to guard the constitutional guarantee of a fair trial by 
jury. Anderson v. State, 200 Ark. 516, 139 S.W. 2d 396 
(1940). It is presumed that a jury meets all constitu­
tional requirements and the burden of establishing the 
discrimination is upon the accused. Tarrance v. Florida, 
188 U.S. 519 (1903). The mere allegation of discrimina­
tion without supporting evidence is insufficient. Carter



25

v. Texas, 177 U.S. 442 (1900). A jury is not required to 
have proportional representation of all groups of the 
community in order to assure equal protection of law. 
Virginia v. Rives, 100 U.S. 313 (1879). Inequality or 
disproportionment of the number of Negroes finally se­
lected as veniremen does not in itself constitute discrimi­
nation. Aldus v. Texas, 325 U.S. 398 (1945). While a 
defendant has no right, constitutional or otherwise, to 
even have his race represented on a particular panel pro­
portional racial limitation as such is forbidden. Cassell 
v. Texas, 339 U.S. 282 (1950). Simply stated, the race of 
the veniremen has no bearing and should not be considered 
by the jury commissioners. Martin v. Texas, 200 U.S. 
316 (1906).

Of the three jury commissioners, one was a Negro 
and the other two were white. Of. Moore v. Eenslee, 
276 F. 2d 876 (8th Cir. 1960). The jury commission has 
been so composed in Garland County for many years 
(U.S. 47). The panel in question had been selected ap­
proximately two months before the crime was committed. 
Of. Collins v. Walker, 329 F. 2d 100 (5 Cir. 1964), re­
hearing denied, 335 F. 2d 417. A delay in trial date 
of only two or three weeks would have placed the trial 
of the case in a new term of court with a new panel of 
jurors. See Ark. Stat. Ann. § 22-310 (1947) for term 
of Garland County Circuit Court.

Traditionally, the cases involving discrimination in 
jury selection have been illustrated most dramatically by 
resorting to a statistical analysis showing the proportion 
of Negroes serving on the juries as opposed to those 
eligible for jury service. This tactic possesses a valua­
ble convincing quality. Here, petitioner did not choose 
to employ such an approach or appraisal for the record



26

discloses that there was a greater proportion of Negroes 
participation on the jury panel than the Negro population 
of Garland County. Maxwell v. Stephens, supra, 229 
F. Supp. at 215.

The petitioner suggests that there is judicial authority 
that any racial identification would, in itself, condemn the 
jury list and relies extensively on the case of Avery  v. 
Georgia, 234 IJ.8. 559. This is, at the very least, mis­
leading. Even a cursory study of that decision reveals 
that discrimination was concluded only after a finding 
that there was both a device of racial designation and 
discriminatory results. On the other hand, in Brown v. 
Allen, 344 U.S. at 480, there was a device of racial identi­
fication, but in the absence of finding actual discrim­
ination, the conviction was affirmed.

The efforts of the jury commission confirm their 
honest dedication to the selection of a proper and valid 
jury panel. The anemic efforts of petitioner to show 
otherwise is unavailing.

Considering the status of the record, at the very least 
a serious question of waiver is presented. The facts and 
the law would both dictate that waiver of the opportunity 
to challenge the petit jury had been established. Not­
withstanding that the selection and composition of the 
petit jury panel was entirely valid, it is urged that 
waiver also deserves a place of prominence in the consid­
eration of this issue.

As a pure legal concept, waiver hv a criminal defend­
ant is difficult to prove under the rule of United States 
ex rel Goldsby v. Harpole, 263 F. 2d 71 (5th Cir. 1959) 
cert. den. 361 U.S. 838, as enlarged by Fay v. Noia, 372 
U.S. 391 (1963). In practice, proof of waiver is almost



27

beyond the realm of possibility. One significant im­
pediment is the rule of privileged communication. Ark. 
Stat. Ann. § 28-601 (1947). Another obstacle peculiar 
to this case is the substitution and replacement of the 
trial attorney by the appellate attorneys.

Still, this record sustains an excellent example of 
waiver which meets and satisfies both the spirit and the 
letter of Fay v. Noia. It was'shown that the trial at­
torney for petitioner was infinitely aware of the procedure 
and the traditional grounds for moving to quash a petit 
jury panel on account of racial discrimination (U.S. 274- 
278). The attorney made a dedicated effort to discover 
any substantial basis to challenge the panel (U.S. 278- 
281, 298-303). After his exhaustive investigation, peti­
tioner’s trial attorney discussed the composition of the 
petit jury panel with the petitioner’s parents and dis­
cussed the entire preparation of the trial with the peti­
tioner and his parents (U.S. 291-292). The trial attorney 
for petitioner stated on cross examination that he did 
discuss the jury with petitioner, but did not confer with 
him in regard to a motion to quash (U.S. 297-298). Of 
course, petitioner denied that his attorney ever mentioned 
the jury panel to him (U.S. 305). From the record, it 
can be fairly surmised that the jury panel was a prime 
subject of conversation not only with the parents, but 
with petitioner himself. The petitioner and his family 
were personally acquainted with a substantial number 
of the petit jurors (U.S. 293-294). The use of the panel 
was apparently one of the tactics that petitioner em­
ployed in the trial (U.S. 284).

There can be no contention in this case that there is 
a hesitancy to challenge juries in Arkansas. On the 
contrary, this tactic appears to be quite popular in this 
jurisdiction, and is employed frequently by both white



28

and Negro attorneys. Thus, this case is significantly 
different from United States ex rel Goldsby v. Harpole> 
supra.

It is sincerely urged, notwithstanding the abundance 
of evidence sustaining a valid and constitutional jury 
panel, that this Court confirm that appellant waived the 
right to object to his trial jury. The petition cannot be 
described as an uneducated or unsophisticated defendant. 
He made average grades (B ’s, C ’s and D ’s) to high 
school when he quit for some reason, but continued his 
education in the service (U.S. 160, 161, 166, 185). More­
over, he had been educated in criminal procedure by 
experience (U.S. 197, 198). It should be appropriate 
to paraphrase the often quoted language that testimony 
of nonwaiver expressed in general terms is insufficient 
to rebut. Reece v. Georgia, 350 U.S. 85 (1955). To 
conclude otherwise, would be an effective barrier which 
could never be overcome.



29

CONCLUSION

The petitioner has failed entirely to substantiate any 
issue of his petition and has been unable to demonstrate 
that the opinion of the court below is contrary to the 
pronouncements of this Court. Furthermore, it is sin­
cerely urged that petitioner has not shown any new or 
unique circumstances which merit consideration. The 
petition for writ of certiorari should be denied.

Respectfully submitted,

B ruce B en n ett  

Attorney General 
State of Arkansas

J ack  L . L essenberby 

807 W est Third 
L ittle  Rock, Arkansas 

Counsel for Respondent

Nov. 5, 1965