120 F.3d 1366 (11th Cir. 1997), 94-8735, Cargill v. Turpin

Docket Nº:94-8735.
Citation:120 F.3d 1366
Party Name:David Loomus CARGILL, Petitioner-Appellant, v. Tony TURPIN, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellee.
Case Date:August 21, 1997
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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120 F.3d 1366 (11th Cir. 1997)

David Loomus CARGILL, Petitioner-Appellant,


Tony TURPIN, Warden, Georgia Diagnostic and Classification

Center, Respondent-Appellee.

No. 94-8735.

United States Court of Appeals, Eleventh Circuit

August 21, 1997

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Phillip S. McKinney, Rogers & Hardin, Atlanta, GA, Eli J. Richardson, Conyers, GA, for Petitioner-Appellant.

Paula K. Smith, Assistant Attorney General, Georgia Department of Law, Atlanta, GA, for Respondent-Appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before HATCHETT, Chief Judge, DUBINA, Circuit Judge, and KRAVITCH, Senior Circuit Judge.

HATCHETT, Chief Judge:

The appellant, David Cargill, a Georgia state prisoner convicted of two counts of murder and two counts of armed robbery, appeals the denial of his habeas corpus petition challenging his convictions and death sentences. We affirm.


On the evening of Tuesday, January 22, l985, police discovered the dead bodies of Cheryl Williams and her husband, Danny, on the floor of the Premium Oil Service Station on River Road in Bibb City, Georgia. 2 The Williamses had each sustained two gunshots to the head while lying on the floor; Cheryl Williams was shot from a distance of less than two feet. The assailants stole approximately $480 from the service station and a knife from Danny Williams. 3

During the previous week, on Wednesday, January 16, 1985, John McCollum's pickup truck, a green, 1969 model with a gray right-front fender and a dog box in the bed, was stolen in Opelika, Alabama. On the night of January 22, witnesses saw the truck near the

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Premium Oil Service Station. On the weekend prior to the murders, Katherine Brown saw Cargill and his brother, Thomas Cargill (commonly known and hereinafter referred to as "Tommy"), in possession of the truck. Cargill's then-wife, Brenda Mathis, identified McCollum's truck in a photograph as the one that Cargill possessed at the time of the murders. 4 Mathis also testified that Cargill had given her some items which, it turns out, belonged to McCollum and were in his truck at the time it was stolen. 5 Another witness, Hoyt Ledford, saw Cargill and Tommy on the day of the crimes in possession of a truck fitting the description of McCollum's vehicle. 6

On several occasions prior to the murders, Mathis heard her husband talk about the "big crime" or "the big one," and state that he "wouldn't leave any witnesses" because "[d]ead people don't talk." Travis Allred, who had been Cargill's next-door neighbor, testified that Cargill once asked him whether he wanted to earn some extra money. According to Allred, Cargill related, " 'Well, I've been scoping out this place on River Road and I want to rob it and I know where the safe is and everything, but if the people there, you know, identify me that they would'--that he would have to kill the people."

According to Mathis, on the morning of January 22, Tommy arrived at her and Cargill's apartment, and Cargill told him to return after dark. Tommy left in McCollum's truck. In the evening, Tommy returned, telling Cargill that "[t]he girl" or "the girls" "are there alone," and that he "had just went by there." Cargill then placed his handgun (which he had previously given to Mathis for safekeeping) in his pocket and told Tommy, "Good. Let's go."

According to Mathis, Cargill returned to their apartment between approximately 9:00 and 10:00 p.m. that evening. Although he did not have any money when he left, he returned with a large box of fried chicken and other food. 7 While Mathis, Cargill and her son ate, she noticed blood on Cargill's shirt sleeve. After looking to see if anyone was watching him, Cargill rubbed some chocolate pudding into the blood stain. During dinner, a report about the armed robbery appeared on television. According to Mathis, "David said, he laughed--well, not laughed but 'Aha, they must not have got anything.' " After dinner, Cargill went to take a bath, telling Mathis "not to mess with" his clothes. Mathis, however, gave Cargill the shirt into which he had rubbed the pudding, telling him to wash it out. Cargill washed out the shirt while in the bathtub. Later that evening, Cargill gave Mathis between $150 and $175 and told her that if anyone asked about the money, she should state that she received it from her former husband for child support. Later in the week, Mathis and Cargill watched another television news report concerning the crimes. After the report stated that there were witnesses to the murders, Cargill laughed and said, "No, there wasn't any witnesses."

On the Saturday night after the crimes, January 26, Cargill, Mathis and Richard Whitley went to a nightclub. While there, Walter Holler approached Cargill, propped his arm on Cargill's shoulder and said, "How about it, David?" According to Holler, Cargill responded, "Get out of my face. I killed two. One more wouldn't matter." Cargill, Mathis and Whitley stayed at the club until it closed at 2:00 a.m. Sunday. While returning home, Cargill complained about Clinton Layfield "running his mouth" about Cargill purchasing a gun from him. The group drove to

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Layfield's apartment, and Cargill set the residence on fire. The next day, January 28, a television news program reported a possible connection between the fire and the murders; Mathis communicated this information to Cargill. In response, Cargill informed Mathis that he was going out to get some coffee. When Cargill did not return, Mathis went to Tommy's residence to find Cargill or discover his whereabouts. Tommy, however, would not tell Mathis where Cargill was; eventually Mathis threatened to go to the police. According to Mathis, Tommy said, "I know where David is. He's fine. Don't go to the police. It will just make things worse for us. We've got enough on us." Mathis did not see Cargill again until after his arrest.

Police recovered McCollum's truck, abandoned and with its interior burned, on January 24. On February 10, police found a pistol later identified as the murder weapon hidden under a doghouse in the backyard of Ledford's residence. The pistol was in a plastic bag and had no fingerprints. Layfield testified that he had sold the pistol to Cargill. During the transaction, Cargill told Layfield not to mention the pistol to anyone and indicated that he intended to shoot someone with it.

Police arrested Cargill on February 13, 1985, at a motel in Columbus, Georgia, and twice informed him of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). About forty-five minutes after the arrest, Columbus Police Department Detectives Rudolph Lovell and Eugene Allmond commenced an interrogation of Cargill at police headquarters. Before doing so, however, Allmond again read Cargill his Miranda rights. Lovell showed Cargill photographs of the Williamses both before and after they were murdered. Allmond discussed McCollum's stolen truck, the murder weapon and items of clothing the police believed Cargill wore on the night of the murders. Lovell then recounted Mathis's version of events to Cargill. After bringing Mathis into the interrogation room, Lovell asked her if the information he had just recited was true and whether she would testify to it in court. Mathis answered in the affirmative.

After Mathis left the room, Allmond told Cargill that his brother Tommy had implicated him as the murderer of the Williamses. According to Allmond, Cargill responded, "All of you sons-of-a-bitches are alike. The only time [he] would've said anything to you is if you beat hell out of him. I don't care what you say, I don't know what you're talking about and I'll ... deny it to my dying day. Fuck you." At this point, Allmond left the room, and Lovell took over the interrogation. Lovell played for Cargill a tape-recorded message from Tommy, which related the following:

Uh, David, this is Tommy. I wanted you to know I didn't want to tell them all this stuff, but I got to thinking about all of it and I've done some serious thinking. Right now, buddy, you're the only hope I got. They've got me charged with it. The only way they can clear me with it is for you to tell them that you done it. I don't know if you'll do that or not, but I'd appreciate it if you would. It's hard for me to ask you to do something like this after I done went and told on you and all, but right now you're the only hope I've got, buddy.

David, I want you to think about something. I know you don't have a family and all, but I've got a little girl and one day I want to get out and see her; but as it stands, unless you tell them, there ain't no way I'll ever be able to do that, buddy. I don't know if you love your old lady and that little boy or not, but I wouldn't take nothing in the world for mine.

After playing the message, detectives brought Tommy into the interrogation room. According to Lovell, Cargill asked his brother whether the police had hurt him. Tommy replied, "No, they haven't laid a hand on me." Cargill then asked Tommy whether the police had informed him about Whitley's suicide. 8 Tommy said that they had. Tommy

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then told his brother, "I've got a little girl" and "I'd like for you to tell them how this really happened. If you don't tell them you're the one that shot them, I'm--I feel like I'm going to the electric chair." Thereafter, Tommy was escorted from the interrogation room.

According to Lovell, Cargill sat in silence for about ten seconds. Cargill then stated, "Tommy didn't know what was going to happen at that station." Lovell responded, "You mean Tommy knew there'd be an armed robbery but didn't...

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