Livingston v. Johnson
| Decision Date | 27 February 1997 |
| Docket Number | No. 95-20758,95-20758 |
| Citation | 107 F.3d 297 |
| Parties | Charlie LIVINGSTON, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Lynn Bernard Lamberty, Kansas City, MO, for petitioner-appellant.
Laura Bayouth Popps, Asst. Atty. Gen., Office of the Atty. Gen. for the State of Texas, Austin, TX, for respondent-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before DUHE, WIENER, and STEWART, Circuit Judges.
Charlie Livingston ("Livingston"), a Texas death-row inmate, appeals the district court's dismissal of his petition for a writ of habeas corpus under 28 U.S.C. § 2254 and requests a certificate of probable cause ("CPC") from this Court to appeal the district court's decision. We treat Livingston's request for CPC as a request for Certificate of Appealability ("COA"). Livingston insists that his conviction and death sentence are rendered unconstitutional by a list of alleged errors, including ineffective assistance of counsel, the district court's refusal to hold an evidentiary hearing, suggestive pretrial identification procedures, and various defects in the jury instructions. After a careful review of the applicable law, we conclude that the district
court did not err in rejecting Livingston's contentions. We therefore refuse to issue a CPC (now COA) and dismiss the appeal.
At approximately 8:00 p.m. on the evening of August 10, 1983, Janet Caldwell left her home and drove to the Weingarten's grocery store located at West 43rd Street and Oak Forest Drive in Houston, Texas. She parked her black Chevrolet pickup truck in the parking lot on the west side of the store. After she finished shopping, Caldwell left the store carrying two bags of groceries and a purse, and walked through the parking lot to her truck. She was shot and killed in the parking lot moments later. Several eyewitnesses testified to events they observed that night.
Ernest Warren saw Caldwell as she was leaving the store between 8:00 and 8:45 p.m. that night.
Lynne Coleman had pulled into the Weingarten's parking lot and was parked in front and to the left of Caldwell's truck when she observed the arms of two people struggling and heard a gunshot.
Joe Cunningham was shopping at Weingarten's at approximately 8:30 p.m. He shopped for about thirty minutes, left the store, and was placing his groceries in his car when he heard a woman screaming. He looked up and saw a struggle between a black male and a white female with light brown hair. He took a few steps in the direction of the people struggling and then whistled and yelled at them to try to stop the altercation. Then, Cunningham saw the black male push away from the female, or shove her back, and then pull out a pistol and shoot the woman. Immediately thereafter, the black man spun around, fell forward on one knee, and then took off toward the west of the parking lot. Cunningham noticed that the man was wearing a white cloth over his face and dark clothing with white letters on the front of his shirt. The man had a gun and a purse when he ran from the scene. About ten minutes later, a police car pulled up to the scene with a black male seated in the back. The man was wearing dark clothes with white lettering on the front of his shirt and was sweating profusely. At trial, Cunningham identified Livingston as the man who was in the back of the police car and, based on his appearance and clothing, the man in the police car looked like the same person who had done the shooting.
Raul and Flor Monzon were in a car crossing the intersection of Oak Forest Drive and West 43rd Street when Flor heard a woman scream and a gunshot. Raul pulled the car into a Gulf Service Station across the street from the Weingarten's parking. They observed a black man running through the parking lot toward a dumpster. The man was wearing a white mask and was carrying a gun and a lady's purse. He was wearing dark clothing with white lettering on the front of his shirt.
Donald Austin was walking toward the entrance of Weingarten's when he heard a scream. Austin turned around, saw nothing unusual, and proceeded walking. Then, he heard another scream, turned around, and ran toward the sound of the scream. As he ran, he heard a gunshot or shots and saw the flash of a gun as it was fired. He saw a black man wearing dark clothes with lettering on the back of his shirt. The black man ran around the back of a truck toward Oak Forest Drive, tripped, appeared to drop something at a dumpster, and then turned north on Oak Forest Drive.
Jerry Thompson was working at the Gulf Station on Oak Forest Drive when he heard screams and a gunshot. Then, he saw a black man back away from a pickup truck, run toward the station, and hide behind a dumpster. Thompson observed that the man was wearing dark clothes with something white over his face. The man was carrying a purse and a gun, which he pointed at Thompson and his co-worker, Donald McDaniel. The man then crossed the street, went behind the Gulf Station, and then ran north on Oak Forest Drive into a residential subdivision.
Lavern Morton went to Weingarten's between 8:00 p.m. and 9:00 p.m. After buying groceries, Morton heard two screams and shots when he was leaving the store. He Several other eyewitnesses either identified Livingston in court as the shooter or identified him as the shooter when he was brought to the crime scene on the night of the murder, or both. 1
looked in the direction of the screams and saw a struggle between a black man and a white woman. The black man ran west, turned north on Oak Forest Drive, stopped at a dumpster to drop something, and then turned north on Oak Forest and ran out of sight. At trial, Morton positively identified Livingston as the man he saw struggling with Caldwell.
Houston police officers James Curtis and Margie Curtis were on patrol on West 43rd Street when they stopped to check with officer David Cook who was conducting a routine traffic stop. An unknown man drove up and informed the officers that a shooting had occurred in the Weingarten parking lot. The officers left immediately for the scene of the crime. Upon arriving at the scene, the Curtises noticed a black man in the dimly lit area behind the Weingarten store. When the man saw the police car, he began walking in the opposite direction. The officers pulled up to the man, got out of the police car, and approached him. James Curtis asked the man if he knew anything about the shooting at Weingarten's. The man denied any knowledge about the shooting and claimed that he had been shopping inside Weingarten's. The man was not carrying any groceries; he was sweating profusely, and his pants were ripped from his knee to his crotch. James Curtis asked the man for identification, to which the man replied that he had forgotten his wallet. At trial, both officers identified the man as Livingston.
James Curtis asked Livingston if he would accompany the officers to the scene while they investigated the shooting. Livingston agreed, and after a quick pat search he was placed in the back of the police car. The officers drove to the Weingarten parking lot. Upon arriving at the scene, Margie Curtis exited the car and approached officer Cook. At that moment, Cook was broadcasting a description of the suspect over police radio. Margie Curtis informed Cook that they had a man in the back of the patrol car that matched the description. Several eyewitnesses viewed Livingston in the back of the patrol car and identified him as the shooter. The officers arrested Livingston and read him his Miranda rights. A set of car keys was found in Livingston's pocket and the officers found his car parked behind the Gulf Service Station.
Officer Troy Blando arrived at the scene and observed the victim lying on the parking lot face up with a gunshot wound to her throat. He observed a spent 9mm cartridge casing near Caldwell's body and a purse flap beneath her body. Blando found the remainder of the victim's purse near the dumpster at the west end of the parking lot. Blando also found a piece of white cloth covering a 9mm pistol under a bush. Additional investigation by Blando uncovered four footprints in the soil leading away from the crime scene near where the police stopped Livingston. A cast was made of one of the footprints and compared with Livingston's tennis shoes. At trial, Wesley Sheldon, a fingerprint examiner, testified that there was a high probability that Livingston's shoes made the imprint.
The officers took Livingston to the police department and attempted to run a trace metal test on his hands and chest. Livingston resisted vehemently and had to be physically restrained from rubbing his hands together. Officer J.K. Jones conducted the test and observed a purplish black pattern on Livingston's right hand. Due to an accident, however, the lights were temporarily turned off. Livingston took the opportunity to spit on his hands and chest, thereby ruining the trace metal test.
A lineup was conducted just after midnight. Livingston occupied the center position of five persons. He was the stockiest of all the participants and was the only one wearing clothes similar to the ones worn by the assailant. Flor Monzon, Lawrence Morton, and Walter Koivula 2 all positively identified Officer R.D. Anderson interviewed Livingston. He claimed to have ripped his pants at work and denied any involvement in the murder. Later, Livingston confessed to the murder, but neither side introduced the confession at trial. On August 10, 1983, Livingston was charged with the capital murder of Janet Caldwell. Counsel for Livingston sought a suppression hearing alleging that the showup and lineup were unduly suggestive and that, during both, Livingston lacked the presence of counsel. Following the hearing, the...
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