James W. Rodgers (August 3, 1910 – March 30, 1960) was an American who was sentenced to death by the state of Utah for the murder of miner Charles Merrifield in 1957. In his final statement before his execution in 1960, Rodgers requested a bulletproof vest. His execution by firing squad would be the last to be carried out in the United States before capital punishment was halted by the U.S. Supreme Court. The death penalty was reinstated in 1976 and the first person executed in Utah subsequent to that date was Gary Gilmore in 1977.

Background

Rodgers was born on August 3, 1910 in Lubbock, Texas, and was the eldest of five brothers and six sisters. His education was interrupted during the eighth grade. At the age of twelve, he left his family's household, where his father forced the children to work. By the age of sixteen, he became involved in a bootlegging operation and was injured in the legs by machine gun fire. Rodgers eventually became involved in armed robbery, spending over twenty years in incarceration at various prisons.

Death of Charles Merrifield

In 1957, Rodgers came from New Mexico to work as a part-time security guard with the Continental Uranium Company at its Rattlesnake uranium mine near La Sal, Utah. Following an altercation on June 19 of that year, James W. Rodgers shot miner Charles Merrifield, who died of multiple gunshot wounds to the head, arm, and torso. The two had been arguing over how to properly grease a scoop shovel.

Rodgers drove off in his truck, but was quickly apprehended in Colorado and turned over to the Grand County Jail in San Juan County, Utah. He claimed that he had been repeatedly threatened and thought Merrifield was going to "beat him up." Rodgers said that he "challenged Merrifield with a gun" and shot him when Merrifield attacked him with a large wrench.

Murder trial

Rodgers was arraigned at the San Juan County Courthouse in Monticello, Utah on June 26, 1957, and was formally charged with murder. Rodgers claimed that he was suffering from syphilis and pleaded "guilty by reason of insanity". During the trial, Rodgers asserted that he had killed Merrifield in self-defense. However, Merrifield was determined to have been shot by Rodgers' .38-caliber handgun while at the controls of the large shovel at the mine. Upon being convicted and sentenced to death, Rodgers was given the choice of execution by firing squad or hanging; he chose to be shot. Rodgers said that he was not worried because he would succumb to syphilis before his execution. However, he did not test positive for the disease under medical examination. Rodgers filed three appeals, including one to the Supreme Court of Utah, all of which were denied.

Rodgers was sent to death row at Utah State Prison, where he was considered a model prisoner and wrote of his "deepest gratitude for the many favors and the kindness" during his 2 years as an inmate. He made no request for a special last meal nor other favors before his execution.

Execution

On the morning of March 30, 1960, Rodgers was driven to the execution site on a clay flat about a mile (1.6 km) from the prison while accompanied by San Juan County Sheriff Seth Wright and a prison chaplain. When asked for a final statement, Rodgers continued to insist that he was innocent and said, "I done told you my last request ... a bulletproof vest." He was dressed in denim and offered a coat, to which he replied, "Don't worry, I'll be where it's warm soon." Rogers was strapped to a wooden chair inside a 20-foot (6.1 m) canvas enclosure. The firing squad, concealed in a smaller burlap enclosure about 23 feet (7.0 m) away, consisted of five volunteers who were paid $75 each. One of the marksmen was provided a .30-30 rifle that was loaded with a blank, so that none of them would be certain who fired the lethal shots. Rodgers was executed at 6:16 a.m., the time of sunrise.

Rodgers' body was claimed for burial in California by his mother, who had last visited him ten days before the execution. Rodgers would be the last person to die by firing squad in the United States for over 17 years, until Gary Gilmore became the first to be executed after the reinstatement of capital punishment by the U.S. Supreme Court decision of Gregg v. Georgia.

I gave him a nice burial even tho [sic] I am a widow with $90.00 per month to pay for it. I could not see him buried in Potter's field ... I know his soul is in heaven with God and I will meet him someday ...

—Letter to the prison chaplain from the mother of James W. Rodgers, 1960

Wikipedia.org

Robert H. Ruggeri, A. Reed Reynolds, Moab, for appellant.

E.R. Callister, Jr., Atty. Gen., Jack L. Crellin, Asst. Atty. Gen., for respondent.

HENRIOD, Justice.

Appeal from a jury verdict finding defendant guilty of first degree murder. Affirmed.

No contention is made that defendant did not shoot and kill one Charles Merrifield, a fellow employee, while they were working at the Rattlesnake mine in San Juan County, Utah.

A complaint was filed in the Monticello City Court charging defendant with murder without designating the degree. After a hearing at which defendant was represented by counsel, he was bound over to the District Court where he was charged in an information with murder in the first degree. Counsel moved to quash the information on the ground defendant had been denied his constitutional right to a preliminary hearing^[1] on the charge of first degree murder. He contended that the legislature, in dividing murder into degrees, had created separate and distinct offenses. Defendant also contends that the jury verdict was unsupported, in that the evidence consisted only of uncontradicted testimony to the effect that defendant was insane at the time of the killing.

As to the contention that the evidence, without contradiction, supported defendant's plea of insanity, we cannot agree. An examination of the record discloses a sharp conflict in the testimony of the expert witnesses, albeit defendant's witnesses were numerically superior. Such circumstance, however, is not controlling, the matter of determining sanity or insanity beyond a reasonable doubt being a jury function, where the evidence flows in two or more directions. No good purpose would be served to detail here the comparative but inconsistent testimony of the medical men, except to point out that there was defense testimony to the effect that defendant was suffering from an organic disorder that affected his mental processes such as to have caused an irresistible impulse to kill, while there was testimony for the state that refuted any such contention.

As to the claim that dividing murder into degrees created separate offenses requiring separate charges, we believe and hold that charging one with murder, as that offense is defined generally under our statutes^[2] includes any of the degrees into which it has been divided by the legislature^[3] and that doing so is not vulnerable to constitutional objections raised,^[4] where details are obtainable by demand for a bill of particulars.^[5] We are not called upon to construe other portions of Title 77-21-47, U.C.A. 1953.

We agree with the language of the Iowa case of State v. Martin,^[6] quoting from State v. Phillips,^[7] that:

"There is, under our law, but one crime called murder. The so-called degrees of this offense do not constitute distinct crimes, but gradations of the same crime, devised for the purpose of permitting punishment to be varied according to the circumstances of greater or less enormity characterizing the criminal act."

In our recent case of State v. Hutchinson,^[8] we determined that a charge of perjury would be sufficient if no degree were designated. We see no reason to conclude differently where the offense charged is murder, and we hold that a similar charge as to the latter is sufficient.

A case in point factually, statutorily and with respect to constitutional objections is State v. Roy,^[9] a New Mexico case, whose reasoning and conclusions anent charging the offense of murder we espouse, referring the reader to that case for the wealth of authority cited therein in support of the conclusions both there and here.

McDONOUGH, C.J., and CROCKETT, WADE and WORTHEN, JJ., concur.

22622William T. Thurman and Charles Welch, Jr., Salt Lake City, for petitioner.

Walter L. Budge, Atty. Gen., Vernon B. Romney and Raymond W. Gee, Asst. Attys. Gen., of State of Utah, for respondent.

CHRISTENSON, District Judge.

The above-named petitioner with the assistance of Court-appointed counsel has now been afforded fair and full opportunity to present by second amended petition such reasons as may exist for the issuance by this Court of a writ of habeas corpus to prevent his execution by state authority.

The American system of justice as implemented by the Fourteenth Amendment will not send a convicted person to his death without according him such opportunity of alleging before a federal court and, if legally sufficient allegations be made, of proving at a proper hearing that his trial was not in accordance with due process and thus violative of the federal constitution. United States ex rel. Darcy v. Handy, 3 Cir., 1955, 224 F.2d 504, affirmed 351 U.S. 454, 76 S.Ct. 965, 100 L.Ed. 1331. But if on considered application for the writ the grounds assigned, even though assumed to be true as alleged, are insufficient on their face to invoke the jurisdiction of a federal court to grant relief, the application should be denied. Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830; Gay v. Graham, 10 Cir., 1959, 269 F.2d 482; Taylor v. Hudspeth, 10 Cir., 1940, 113 F.2d 825, and cases cited therein.

It thus becomes necessary to pass upon the legal sufficiency of the second amended application of petitioner to require a hearing on the facts or, indeed, to authorize the Court to further stay the state proceeding. This is especially so since counsel have now reported that their investigation is completed and that whatever legal cause may exist for the issuance of a writ has been set forth. Certain previously advanced theories with regard to the use of perjured testimony have been abandoned apparently because they have not been borne out; but in any event, failure to show that any such use was with the knowledge of the prosecution would have rendered the claim insufficient in any event. Gay v. Graham, supra.

The grounds relied upon are four in number and they will be dealt with in the order alleged in the second amended petition:

1. It is asserted that the Seventh Judicial District Court in and for San Juan County, State of Utah, in rendering and issuing the verdict, judgment, order and execution and commitment was without jurisdiction so to do. This allegation is a mere conclusion of law unsupported by any averment of fact and,228 in and of itself, is insufficient to invoke the power of this Court to make a finding on which to predicate the granting of a writ. Moreover, a review of the files and records of the Seventh Judicial District Court in said cause, which counsel have submitted to me by stipulation, convinces me that there is no substance to the asserted lack of jurisdiction.

2. It is further alleged that in voir dire examination of prospective jurors by the trial court there was no affirmative showing that their citizenship, residence, taxpayers' status and ability to use the English language were such as to qualify them pursuant to Utah Code Annotated 1953, 78-46-8, 9. Considering the known practice in various courts of the State of Utah and in this court of examining the jury venire concerning statutory qualifications on a single occasion at the beginning of the term or session and not as a part of any particular proceeding, it could hardly be expected that voir dire examination of jurors with reference to the specific case would include detailed interrogation concerning statutory qualifications more appropriate at another time. Be this as it may, there is no assertion in the application for a writ that the jurors actually did not possess the statutory qualifications or that they were not examined at some other time; only that the record of this particular trial does not affirmatively demonstrate their statutory qualifications. There is no indication that there was any challenge during the trial individually or to the array on this ground. Clearly no constitutional question is presented here, and any related legal or procedural problem would be peculiarly within the province of the Supreme Court of the State of Utah, which already has denied application for a writ on the same ground.

3. It is next asserted that the defendant was denied a fair trial by reason of the disclosure on voir dire examination that one of the jurors had spoken to the presiding judge prior to the trial concerning this case. The record further shows, however, that the able trial judge made further inquiry which brought out that the juror was his friend and business partner, that their discussion had been limited to the circumstance that the charges made had to be tried, that no facts or details were mentioned, and that the discussion would not in any way influence the verdict of the prospective juror. Everything now asserted concerning the contact and attitude of the juror was fairly disclosed in open court to the defendant, his counsel and all parties concerned. The juror thereafter was accepted without challenge. No complaint was made during the trial or in post-judgment motions, and there is no suggestion now but that a just and fair disclosure had been made by the juror on voir dire examination. The case of United States ex rel. Darcy v. Handy, supra, illustrates a questionable situation involving possible influence of a jury by a judge and demonstrates that even in a borderline case involving definite irregularity it does not necessarily follow that the constitutional rights of an accused are involved. In situations such as the one now before us, where no irregularity is indicated and where any inferable intendments might be as well in favor of the accused as against him, there is no substance to this claimed ground for the issuance of a writ.

4. The final claim in the second amended petition is that Court-appointed defense counsel at the trial before the state court failed to assert the claim of self-defense and failed to have the defendant, James W. Rodgers, take the stand as a witness in his own behalf, although that defense was known to his counsel; and that had petitioner been allowed to present his defense to the jury, the result may well have been different.

The doctrine of self-defense, was in fact, included in the court's instructions to the jury which are part of the record before me. Among other things, the jury was told that the defendant had invoked the right of self-defense and that there was no burden upon his part to establish that he did act in self-defense but that he would be entitled to acquittal if from all 229 the facts and evidence the jury had a reasonable doubt as to whether he did or did not act in self-defense. No complaint was made to the trial court or to the Supreme Court of the State on appeal to the form or substance of these instructions, which appear proper. Moreover, a review of the transcript indicates that there was received in evidence testimony from other parties who had heard the defendant following the shooting claim that he acted in self-defense, so that the defendant's claims in this respect were before the jury as a matter of evidence also without the defendant's being subjected to the risk of taking the stand. Hence, the defendant's failure to take the stand and the decision of his counsel not to call him are understandable in the light of the foregoing circumstances and in view of the fact that primary reliance was placed upon the defense of insanity.

The two defenses might have been considered somewhat inconsistent, especially if the defendant had been called upon to reconcile them by his own testimony. Both appear to have been presented in the best possible light without his encountering the risk of being called to the stand. There is no claim that there was any overreaching on the part of counsel or that the defendant himself wanted to take the stand. Such decisions of counsel or a defendant made for tactical or other supposed advantage do not give rise to a constitutional question even though they ultimately fail to result in a satisfactory verdict. See Pierce v. Hudspeth, 10 Cir., 1942, 126 F. 2d 337.

Counsel appointed by the Court to represent an accused are presumed to be competent and the burden is upon the applicant to show to the contrary. Tilghman v. Hunter, 10 Cir., 1948, 167 F.2d 661; Starkweather v. Greenholtz, D.C.D.Neb., 1959, 173 F.Supp. 671, appeal dismissed, 8 Cir., 1959, 267 F.2d 858, certiorari denied 360 U.S. 921, 79 S. Ct. 1442, 3 L.Ed.2d 1537.

Apart from the insufficiency of the second amended petition to charge any violation of the defendant's constitutional rights, an examination of the record in the trial court is convincing that the defendant did have the effective assistance of competent counsel, as well as a fair trial. So, too, before this Court the petitioner has had the conscientious services of assigned counsel.

A further objection to the sufficiency of the second amended petition would be that it does not disclose that the petitioner has completely exhausted his state remedies. It is true that heretofore he has unsuccessfully sought a writ of habeas corpus from the Supreme Court of the State of Utah, but he has not applied for, or been refused, certiorari before the Supreme Court of the United States with reference to the latter ruling. This, too, is an essential step in the exhaustion of state remedies in such cases as the present one where prior appeals and applications did not involve the same points relied upon in the later application. Darr v. Burford, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761; see also Ex parte Sullivan, D.C.D.Utah, Cent.D., 1952, 107 F.Supp. 514; Application of Sullivan, D.C.D.Utah, Cent.D., 1954, 126 F.Supp. 564, reversed on other grounds, State of Utah v. Sullivan, 10 Cir., 1955, 227 F.2d 511, certiorari denied Braasch v. State of Utah, 350 U.S. 973, 76 S.Ct. 449, 100 L.Ed. 844.

I am not basing my action today upon this ground, for if this were the only reason I might well retain jurisdiction to permit subsequent application for certiorari to the Supreme Court of the United States (see Ex parte Sullivan, supra). On the contrary I premise it upon the fundamental and dispositive conclusion that even though state remedies had been exhausted completely, there would still be no basis for the granting of a writ of habeas corpus by this Court. See Thomas v. State of Arizona, 356 U.S. 390, 78 S.Ct. 885, 2 L.Ed.2d 863.

The second amended petition accordingly is hereby dismissed, the writ of habeas corpus and other relief applied for by petitioner are denied and the stay of execution hereinbefore issued is terminated effective upon the expiration of ten 30days from date hereof, within which period said stay to continue in effect in order to allow petitioner reasonable opportunity to seek review of this decision from the appellate court if he be so advised.