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HUDSON v. LOCKHART

August 29, 1986

Jimmy Lee Hudson, Petitioner
v.
A. L. Lockhart, Director, Arkansas Department of Correction, Respondent



The opinion of the court was delivered by: FORSTER

PROPOSED FINDINGS AND RECOMMENDATIONS

 Filed October 28, 1986

 Forster, Magistrate.

 The Petitioner, Jimmy Lee Hudson, is an inmate presently housed at the Diagnostic Unit of the Arkansas Department of Correction, serving a life sentence resulting from his 1983 conviction on charges of aggravated robbery. On July 18, 1984, Petitioner filed a petition seeking habeas relief from his state conviction and sentence, pursuant to 28 U.S.C. ยง 2254, alleging that (1) his 6th Amendment rights were violated because his trial counsel was ineffective; (2) his 14th Amendment due process rights were violated because the evidence used to convict him was insufficient; and (3) that his right to an impartial jury selected from a cross section of the community was violated because no blacks were seated on the jury panel which heard his case. On December 30, 1985, Petitioner filed a second habeas petition setting forth identical claims, but omitting the improper jury claim. These cases were consolidated for hearing and are now before the Court for disposition.

 I. FACTS

 Petitioner was convicted of aggravated robbery, along with co-defendant Jaster Lee Marbley, in a joint trial before a jury in the Circuit Court of Jefferson County, Arkansas, on February 24, 1983. Both were represented by the same attorney. Both were sentenced to life imprisonment.

 The robbery resulting in Petitioner's conviction took place at the Flamingo Liquor Store on University Drive in Pine Bluff, Arkansas. It is undisputed that Petitioner was at the Flamingo Liquor Store at approximately 4:00 p.m. on December 15, 1982, just moments before the store was robbed. Petitioner states in his pleadings that he purchased wine and was leaving the store when he met Marbley in the doorway but that he took no part in the robbery. Virginia Noble, the store clerk on duty at the time of the robbery, corroborated this statement in her testimony:

 
Then Jaster came in as Jimmie was leaving out the door. Jimmie stood to the side as Jaster came in, and waited for a few minutes like he was waiting for Jaster to say something, but they never did make any communication together right at that time. So when Jimmie left out, I look off at the television and when I looked back around, well, this is when I looked in the barrel of this shotgun. . . . (T.111-112)

 On cross examination of Ms. Noble, the following exchange took place concerning Petitioner's involvement in the robbery:

 
Q: Well, did he participate in the robbery?
 
A: No, he didn't. (T.122)

 Ms. Noble's eye witness testimony was the only direct evidence presented at the trial. As the statements quoted above by Ms. Noble show, Petitioner was not implicated in the commission of the robbery by the direct evidence presented. The essence of the direct evidence is that Jaster Lee Marbley, the co-defendant, entered the liquor store as Petitioner was leaving; and that after Petitioner left, Marbley pointed a sawed-off shotgun at Ms. Noble and told her to give him the money in the cash register. (T.112) Ms. Noble testified that she knew Marbley from coming in the store regularly. (T.112) In fact, Ms. Noble testified that she knew both men, Petitioner and Marbley, from coming into the store "practically every day". (T.110) Ms. Noble testified that after she gave him the money, Marbley left the store, took off running toward the Mad Butcher (a grocery store about one block south of the liquor store on the same street) and then detoured toward Lake Pine Bluff. (T.112) Then the following exchange took place:

 
Q: Now, this is Jaster Marbley that you are talking about that you saw headed in the Mad Butcher's direction?
 
A: Right.
 
Q: Jimmie Hudson, did you see where he was?
 
A: No, I didn't see him any more.
 
Q: You don't know where he was?
 
A: No. (T.114-115)

 The evidence presented to show that Petitioner participated in the robbery was circumstantial. Virginia Noble, the store clerk, testified that Petitioner and Marbley had been in the store together to buy liquor earlier that day. (T.111) Cynthia Marbley, the co-defendant's niece, testified that she saw Petitioner at Marbley's apartment, where she also lived, with a sawed-off shotgun two or three days before the robbery. (T.161-162) Carl Leonard, the manager of the apartment complex where Marbley lived, testified that Petitioner and Marbley were together at Leonard's office between 10:00 a.m. and 11:00 a.m. on the day of the robbery and that Petitioner had "a couple of shotgun shells." (T.168-169) Leonard said Petitioner tried to sell the shotgun shells to him. (T.171) Leonard testified that he did not see Petitioner anymore that day; but that he did see Marbley in an intoxicated state around 5:00 p.m. at Ben Mar Apartments (where Marbley lived) shortly before the police came to arrest him. (T.169) Floyd Fuller, who lived on University Drive near the scene of the robbery, testified that Petitioner came to Fuller's house between 4:00 p.m. and 4:30 p.m. on the day of the robbery and that Petitioner had two shotgun shells. (T.199) Fuller also testified that the shells Petitioner had on the day of the robbery did not appear to be the same shells that the State introduced at trial. (T.199-200) Fuller testified that Petitioner played with Fuller's small child, who had started crying; that Petitioner then left to go to the liquor store to buy some liquor and took the baby with him. Petitioner was arrested shortly thereafter at the Flamingo Liquor Store, the scene of the robbery, with a baby in his arms. (T.193)

 Cross-examination of Melvin Smith, one of the arresting officers, went, in part, as follows:

 
Q: You arrested Hudson there at the liquor store, didn't you?
 
A: Yes, sir, I did.
 
Q: The exact place that had been robbed apparently?
 
A: That's correct.
 
Q: And he was there holding ...

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