728 F.2d 1322 (11th Cir. 1984), 83-8097, Collins v. Francis

Docket Nº:83-8097.
Citation:728 F.2d 1322
Party Name:Roger COLLINS, Petitioner-Appellant, v. Robert O. FRANCIS, Warden, Ga. Diagnostic and Classification Center, Respondent-Appellee.
Case Date:March 15, 1984
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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728 F.2d 1322 (11th Cir. 1984)

Roger COLLINS, Petitioner-Appellant,

v.

Robert O. FRANCIS, Warden, Ga. Diagnostic and Classification

Center, Respondent-Appellee.

No. 83-8097.

United States Court of Appeals, Eleventh Circuit

March 15, 1984

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Christine A. Freeman, Ralph Goldberg, Atlanta, Ga., for petitioner-appellant.

Janice G. Hildenbrand, William B. Hill, Jr., Asst. Attys. Gen., Atlanta, Ga., for respondent-appellee.

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

Before TJOFLAT and HILL, Circuit Judges, and SIMPSON, Senior Circuit Judge.

PER CURIAM:

Roger Collins was convicted in the Superior Court of Houston County, Georgia, of rape and murder. He was sentenced to fifteen years imprisonment for the rape and to death for the murder. After exhausting his state remedies, Collins petitioned the district court to issue a writ of habeas corpus setting aside his convictions and death sentence on several constitutional grounds. The district court denied his petition, and we affirm.

I.

The events leading up to this appeal began on the evening of August 6, 1977. Collins, a black male eighteen years old, and two friends, William Durham, Collins' mother's boyfriend, and J.C. Styles, Durham's cousin, were attending a neighborhood barbecue in Warner Robins, Georgia.

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The three men were drinking beer and liquor. At about midnight, they ran out of liquor and set out in Collins' car in search of more. On their way, they saw Delores Lester, who at some point had been sexually intimate with each of the three men, emerge from a car. They stopped and asked her to have sexual relations with them. She declined their invitation. They then offered to give her a ride home, and she got into the car. The four drove around for a while and eventually stopped at a convenience store for beer and gas. From there they drove to a pecan orchard on the outskirts of Warner Robins. As they arrived at the orchard, Delores Lester, apparently fearing the worst, protested that she "had claps" and was "two months pregnant." The men removed the back seat of the car and placed it on the ground. Delores Lester disrobed, and the three men raped her. Collins was first. As Collins performed the act, Durham told Styles that he was going to kill Lester. He boasted that he had killed other people, including a woman he had "done like this." 1 After Collins finished, Delores Lester started screaming "why me?" Durham pulled a knife and told her that if she did not keep quiet he would "rip her damn heart out." Durham and Styles then raped her. When they had finished, Durham took her by one hand and led her up a road further into the orchard. He had his knife in the other hand. Collins took the car jack out of the trunk of the car and followed them. Styles remained by the car. A few moments later he heard about three "licks" being struck. After a brief period of silence, Durham and Collins returned, Durham carrying the jack. They had blood on their shoes, perhaps on their clothes as well. The three men replaced the car seat, gathered Delores Lester's clothes, and left. On their drive back to town, Collins discarded the car jack along the side of the road and disposed of Lester's clothes in a dumpster. They arrived in Warner Robins at 2:30 a.m. and split up.

Styles decided to go to the police. He went to the Warner Robins police department at 10:00 that morning and reported the events we have described. The police immediately turned the case over to the Houston County Sheriff's Office. By that afternoon, Sheriff's deputies had Collins and Durham in custody and had given them their Miranda rights. Both remained silent. At about 5:30 p.m. that day Collins was again advised of his rights, but he refused to talk. After a visit from his mother a short time later, Collins decided to cooperate. The Sheriff's chief deputy, Willie Talton, and one of his investigators, Lieutenant Harry Enckler, advised Collins of his Miranda rights, and Collins made a statement (First Statement). The officers recorded it on tape; they took no notes. Collins admitted raping and killing Delores Lester. The next day Collins was arraigned before a magistrate. At that time he asked for an attorney. An attorney was appointed at some later date, perhaps as late as September 1. Meanwhile, the sheriff's office discovered that the tape recorder had failed to record Collins' First Statement, so on August 12 Chief Deputy Talton and Lieutenant Enckler decided to reinterrogate Collins. They informed Collins that the tape recorder had failed to record his First Statement and asked him if they could tape it again. Collins consented. The officers then read him his rights and recorded another statement (Second Statement). This statement was less incriminating than the first one. Collins admitted having intercourse with Delores Lester but did not describe it as rape, and he stated that his role in the murder was minimal. He said that he had told Delores that he would not harm her, but that Durham had then struck and killed her. While Collins did admit carrying the murder weapon, the car jack, and giving it to Durham, he said that he did so at Durham's direction.

Collins and Durham were indicted by the Houston County grand jury for rape and malice murder. They were tried separately, Collins' trial occurring first, on November 15, 1977. Styles was not indicted; he was granted immunity and became a prosecution

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witness. Before the trial began, the court held a Jackson-Denno hearing on Collins' motion to suppress his two statements. The judge found that Collins had given both statements voluntarily, after being advised of and waiving his Miranda rights.

In the guilt phase of Collins' trial, the State's theory of the case was that Collins had killed Delores Lester. The prosecutor presented the testimony of several law enforcement officers who had investigated the case, including Chief Deputy Talton and Lieutenant Enckler, several crime lab experts, a pathologist, the clerk at the convenience store where Collins and the others had stopped on the night of the crime, and Styles. The State, having found the car jack that Collins had discarded, introduced it into evidence. The pathologist and the crime lab experts established that it was the murder weapon and bore Collins' right thumbprint. Talton and Enckler introduced the two statements Collins had given them. They testified from memory as to the contents of the First Statement, explaining that the tape recorder they had used to record it had malfunctioned and that a tape of the statement was therefore unavailable. They established the contents of the Second Statement by presenting a transcript of the tape recording thereof. Styles, testifying later, corroborated the First Statement: Collins, Durham, and Styles raped Delores Lester; Durham and Collins took her into the pecan orchard and killed her with the jack Collins had taken from the car. Styles also repeated the comments Durham had made--about others he had killed--while Collins was having intercourse with the victim, and some remarks Collins had made in the car as the three men drove back to town. According to Styles, Collins had said, intermittently, laughing and joking, "hey man you didn't think I was going to hit her up 'side the head too", that "he had killed so many peoples that he can't remember how many," and that "he knocked hell out of Johnny, Johnny down at the liquor store." Finally, Styles testified that Durham had warned him that if he went to the police Durham would "put him into everything me and Roger [Collins] done."

After presenting this evidence, the State rested. Collins presented no defense. In closing, the prosecutor argued that Collins had committed the murder; the defense countered that Durham, not Collins, had killed Delores Lester. The jury found Collins guilty of both rape and malice murder. The sentencing phase of the trial on the malice murder charge followed. The proceeding was brief. The State presented no evidence, and Collins was the only defense witness. He admitted being present at the scene of the crime, but denied killing Delores Lester, stating again that Durham had performed the deed. Collins said little else in mitigation. The jury, finding that Lester's murder was attended by aggravating circumstances, 2 recommended the death penalty. On November 17, 1977, the trial judge, bound by the jury's recommendation, sentenced Collins to death. (He sentenced Collins to fifteen years imprisonment on the rape charge.) The Georgia Supreme Court, on direct appeal, affirmed Collins' convictions and his death sentence. Collins v. State, 243 Ga. 291, 253 S.E.2d 729 (1979). The United States Supreme Court, on certiorari, remanded the death sentence to the Georgia Supreme Court for further consideration in light of Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). Collins v. Georgia, 446 U.S. 961, 100 S.Ct. 2936, 64 L.Ed.2d 820 (1980). The Georgia Supreme Court reaffirmed the death sentence. Collins v. State, 246 Ga. 261, 271 S.E.2d 352 (1980). The United States Supreme Court declined further review, denying certiorari on January 12, 1981. Collins v. Georgia, 449 U.S. 1103, 101 S.Ct. 900, 66 L.Ed.2d 829 (1981).

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On March 16, 1981, Collins filed a petition for a writ of habeas corpus in the Superior Court of Butts County, Georgia. That court denied the petition on August 20, 1981, and the Georgia Supreme Court refused to grant a certificate of probable cause to appeal. The United States Supreme Court denied Collins' petition for a writ of certiorari on April 26, 1982, and on June 24, 1982, denied his...

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