Code v. Montgomery
| Decision Date | 27 February 1984 |
| Docket Number | No. 82-8360,82-8360 |
| Parties | Joseph CODE, Petitioner-Appellant, v. Charles M. MONTGOMERY and Arthur K. Bolton, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Jane Nothmann (court appointed), Troutman, Sanders, Lockerman & Ashmore, Atlanta, Ga., for petitioner-appellant.
Mary Beth Westmoreland, Asst. Atty. Gen., Atlanta, Ga., for respondents-appellees.
Appeal from the United States District Court for the Middle District of Georgia.
Before TJOFLAT, FAY and ANDERSON, Circuit Judges.
In these habeas corpus proceedings, the petitioner, Joseph Code, claims that his state court conviction for armed robbery is invalid because (1) his trial attorney rendered ineffective assistance of counsel, in violation of the sixth and fourteenth amendments, and (2) the procedures the prosecutor employed to obtain petitioner's in-court identification as the perpetrator of the armed robbery were unnecessarily suggestive, in violation of the due process clause of the fourteenth amendment. The district court denied these claims without an evidentiary hearing. We affirm the district court as to petitioner's due process claim, because the transcript of petitioner's trial indicates that his identification was reliable. We remand petitioner's ineffective assistance of counsel claim to the district court for an evidentiary hearing, however, because critical factual issues underlying that claim have not been resolved.
On April 1, 1974, four men robbed Doc Gibson at his home in Decatur County, Georgia. The robbery occurred late in the afternoon. The robbers, armed with a shotgun, forced their way into Gibson's residence, subdued Gibson's wife, Chris, and daughter, Diane, and tied them up in an upstairs bedroom. Gibson arrived at the house a short time later. When he entered the front door, one of the men shot and wounded him. The men demanded his money, and he took one of them to the safe in his garage and gave him its contents. With that, the men left. A few days later, the police apprehended two of the robbers, Sammy Bell and Warren Smith, and charged them with the Gibson robbery. They were subsequently tried and convicted.
On October 11, 1976, petitioner was arrested in Macon, Georgia, charged with forgery, and detained in jail. Before he could obtain admission to bail the Sheriff of Decatur County served him with an arrest warrant for the Gibson robbery. On December 4, 1976, the Sheriff took petitioner into custody and transferred him to the Decatur County jail at Bainbridge, Georgia. On December 6, he was arraigned on the armed robbery charge, and his trial was scheduled for Monday, December 13. Petitioner asked that a lawyer be appointed to defend him because he was indigent and could not afford a lawyer. The court granted his request and appointed George W. Stacy to represent him.
Stacy's first, and only, pretrial contact with petitioner took place on Friday, December 10, at the Decatur County jail. 1 The meeting lasted about forty minutes. Petitioner told Stacy that he was innocent of the charge and, moreover, that he had an alibi; on the afternoon of the robbery he was working in Macon, as the desk clerk at the Central Hotel. He told Stacy that his girlfriend and two hotel employees could verify this, and asked Stacy to contact them. He also asked Stacy to call his mother, who lived in Macon and knew how to locate his girlfriend. Petitioner claims that Stacy refused to communicate with any of these witnesses or to subpoena them for trial. Stacy claims, as he testified later during petitioner's state habeas corpus proceedings, that he made a diligent attempt to subpoena petitioner's alibi witnesses, but was unable to determine their whereabouts so that subpoenas could be served. In any event, when petitioner's trial commenced none of these witnesses were present in court.
The record does not contain a transcript of the proceedings that took place on the first day of trial prior to the swearing in of the prosecution's first witness; the testimony petitioner gave at his state habeas hearing is the only account we have of the proceedings before the first witness was sworn. According to petitioner, before his trial commenced he asked Stacy to move the court for a continuance, so that he could prepare petitioner's defense and subpoena the alibi witnesses from Macon, but Stacy refused to move for a continuance. Petitioner claims that he then asked the court for a continuance, but was unsuccessful. Thereafter, the trial began.
The State called five witnesses to the stand: the Gibsons, Doc, Chris and Diane, one of the robbers, Sammy Bell, and the investigating police officer. The Gibsons described the robbery in detail. Doc and Diane Gibson identified petitioner as one of the robbers; Chris Gibson was unable to make an identification. Sammy Bell fully corroborated the Gibsons' description of the events, and identified petitioner as one of his accomplices. The investigating officer testified briefly to the investigation of the crime.
Petitioner was the only defense witness. His testimony was brief; he simply denied having committed the robbery. Petitioner did not offer an alibi, and neither Stacy, on direct examination, nor the prosecutor, on cross-examination, asked him where he was on the day in question. The jury, apparently rejecting petitioner's plea of innocence, found him guilty as charged.
Petitioner appealed his conviction to the Georgia Supreme Court, contending that the evidence was insufficient to support the jury's verdict, and that the trial judge erred in refusing to charge the jury that the testimony of an accomplice should be viewed with skepticism. His conviction was affirmed. Code v. State, 239 Ga. 644, 238 S.E.2d 430 (1977). Petitioner, proceeding pro se, then petitioned the Superior Court of Wayne County, Georgia, for a writ of habeas corpus. While his petition was pending, he escaped from custody, and his petition was dismissed. Following his recapture, he petitioned the district court for a writ of habeas corpus, but the court dismissed his petition for failure to exhaust his state remedies. Petitioner returned to state court, this time seeking habeas relief in the Superior Court of Tattnall County, Georgia. He claimed that his conviction was invalid because (1) he had been denied his sixth and fourteenth amendment right to the effective assistance of counsel, and (2) his identification at trial was tainted and violated due process because (a) he was not afforded a pretrial lineup and (b) the prosecutor's identification procedure at trial was unduly suggestive. 2
The court convened an evidentiary hearing to consider these claims. Petitioner, appearing without counsel, presented his case, and testified. The thrust of his testimony was that his attorney, Stacy, had refused to contact his alibi witnesses--his girlfriend and his two fellow employees at the Central Hotel--who, petitioner insisted, would have testified that he was working at the hotel at the time of the robbery. The State countered with Stacy's testimony, presented in the form of written interrogatories and answers. Stacy's position was that he attempted to contact petitioner's alibi witnesses by telephoning his mother, as petitioner had suggested, but she could not tell him how to locate them.
The Superior Court, concluding that Stacy's performance satisfied the Constitution and that petitioner's in-court identification was not tainted, denied habeas relief. Petitioner sought appellate review, but the Georgia Supreme Court refused to issue a certificate of probable cause to appeal.
Petitioner then instituted these habeas corpus proceedings in the district court, presenting the same claims he had presented to the Superior Court of Tattnall County and an additional unexhausted claim, that the delay between the robbery and his arrest and trial violated his constitutional right to a speedy trial. He requested an evidentiary hearing. The court denied his request, concluding that an evidentiary hearing was unnecessary to resolve any of petitioner's claims. The court held that a hearing was not needed to determine petitioner's ineffective assistance of counsel claim because the state habeas hearing was full and fair, the state court found the dispositive facts, and no constitutional violation was shown. A hearing was not necessary on petitioner's in-trial identification claim because the record of petitioner's criminal trial demonstrated conclusively that petitioner's identification was not tainted. As for petitioner's speedy trial claim, the court concluded that it was meritless and required no hearing. Petitioner appeals. At oral argument, his counsel abandoned as frivolous petitioner's admittedly unexhausted speedy trial claim. 3 We thus address his two exhausted claims, dealing first with his in-court identification.
Petitioner contends that his in-court identification was unconstitutionally tainted because of a combination of factors: (1) the prosecution failed to conduct a pretrial lineup; (2) petitioner was taken to the courtroom and placed at the defendant's table while the prosecution witnesses were present; (3) the prosecutor educed petitioner's identifications in a suggestive manner as petitioner sat at the defense table; and (4) the prosecution's witnesses were not sequestered. The state habeas court made no findings of fact in connection with petitioner's claim that the procedures employed by the prosecution to obtain petitioner's identification were unnecessarily suggestive. The court stated only:
The evidence submitted by the testimony of the Petitioner does not show that [sic] the in-court identification to be unnecessarily suggestive and conductive [sic] to permit an irreparable mistaken identification especially since three of the four witnesses, including a co-defendant, identified the Petitioner as being the perpetrator of the armed robbery.
Since the...
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