Payne v. Rees, s. 82-5557

• Decision Date: 27 June 1984
• Docket Number: Nos. 82-5557,82-5558,s. 82-5557
• Citation: 738 F.2d 118
• Parties: Thomas Robert PAYNE, Jr., Petitioner-Appellant, Cross Appellee, v. John REES, Warden; Steven L. Beshear, Attorney General, Respondents- Appellees, Cross Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 118

738 F.2d 118

Thomas Robert PAYNE, Jr., Petitioner-Appellant, Cross Appellee, v. John REES, Warden; Steven L. Beshear, Attorney General Respondents- Appellees, Cross Appellants.

Nos. 82-5557, 82-5558.

United States Court of Appeals Sixth Circuit.

Argued June 9, 1983.

Decided June 27, 1984.

Jan R. Waddell (argued), Louisville, Ky., for petitioner-appellant, cross appellee.

David Armstrong, Atty. Gen. of Ky., Frankfort, Ky., Paul E. Reilender, Jr., Asst. Atty. Gen. (argued), for respondents-appellees, cross appellants.

Before KENNEDY and WELLFORD, Circuit Judges, and McRAE, District Judge ^*.

WELLFORD, Circuit Judge.

The district court in this habeas corpus application denied relief from petitioner Payne's Kentucky convictions for rape and for detaining a female, but granted relief from a second conviction for detaining a female. Both parties appeal from the district court's rulings which were adverse to their contentions at the hearing. Petitioner is a very tall young black man who was a well known athlete in Kentucky. He was indicted in May 1972 for raping Myra Thompson on September 4, 1971. Miss Thompson complained to the Louisville police that she had been raped by a tall black man, aged about 20 years, and promptly was given a physical examination at the Louisville General Hospital. The examining physician found no evidence of male sperm in the vagina, nor of her assailant's skin beneath her nails, although she claimed to have scratched him in the face during the attack, nor could he locate foreign pubic hair on her person. Thompson could not identify Payne from a series of mug shots the morning following the rape, and was later able to make an identification only after seeing Payne's picture in the sports section of the newspaper, and after seeing basketball team photographs in which Payne was the tallest person and in the center of the photographs. The Thompson rape indictment also contained a count for detaining Catherine M. Craven against her will with intent to have carnal knowledge on September 9, 1971.

On September 10, 1971, Delores Duggins Horn reported to the Louisville police department that she had been detained ¹ by a very tall, athletic, black male. At trial she testified that she had had a conversation with her assailant in a brightly lit area beside her car. She had a second conversation with him when he came to her apartment door. After the assailant grabbed her arm, she screamed and he ran. When police officers investigated the incident, they showed Ms. Horn a single newspaper photograph which showed the petitioner and his professional basketball agent, a caucasian. Police indicated they had a suspect in Ms. Horn's case by telling her "they had cases with the same similarity," and that petitioner was a "suspect in these cases also." Ms. Horn identified petitioner, but not positively, and requested the opportunity to see him in person, but the police did not arrange a line-up.

On August 20, 1971, Nancy Monath reported to the Louisville Police Department that she had been attacked by a young tall "colored male ..., light complected." Petitioner was taller than her estimate of height, heavier, and his skin was a dark brown. Several months after she was attacked, Ms. Monath received a telephone call and was told there was a "suspect" in her case. Ms. Monath was not requested to identify a suspect, however, until nearly six years later.

In May of 1977, the State's prosecutor asked Ms. Monath to come to his office to see if she could identify photographs of a suspect in her case. The prosecutor showed Ms. Monath three pictures, all of which were of petitioner, whom she identified as her attacker.

Payne was not indicted for the Horn and Monath offenses of detaining females until May of 1977. On September 10, 1971, Payne was questioned by Louisville police relating to the Thompson complaint, but released even while publicity about him indicated he was about to go to Georgia to sign a lucrative professional basketball contract. After arriving in Georgia for a basketball career, Payne was arrested and incarcerated there for crimes committed in that state. He was tried and convicted in Georgia, and his appellate brief in this court indicates that at the time of the first Kentucky indictment he was already incarcerated in Atlanta on pending criminal charges there. ² Kentucky promptly placed a detainer against Payne after the May, 1972 indictment, but Payne resisted a later effort to return him to Kentucky for trial, being aware of the charges made against him on the indictments. Payne made his first action, through retained counsel, to dismiss the Kentucky May, 1972 indictment a few weeks after Kentucky moved to acquire custody of him in February of 1973. ³ Payne was returned to Kentucky's custody in March of 1977. Over Payne's objection, the cases, involving four sexual offenses against females, were consolidated for trial. Payne's counsel also moved to dismiss the second indictment on grounds of lack of speedy prosecution, and this motion was similarly overruled. Payne was tried in September of 1977, and convicted, on three of the four counts. (Craven was hospitalized and unable to appear, and the charge involving her was continued, then subsequently dismissed at the initiation of Kentucky.) Each of the females involved made an in-court identification of Payne during the trial. Payne appealed his convictions belatedly to the Kentucky Supreme Court, raising three issues:

1) denial of his right to speedy trial;

2) prejudicial pre-indictment delay; and

3) improper and prejudicial joinder of the offenses.

The Kentucky Supreme Court considered all these issues on appeal, and then affirmed each conviction.

In November of 1980, Payne for the first time on appeal, through substituted counsel, attempted to raise and have a hearing before the Kentucky Supreme Court, on the issue of impermissible pre-trial identification procedures. The following month the Kentucky Supreme Court denied Payne's motion for a second direct appeal from his convictions. The following February, 1981, Payne filed a motion in the state trial court seeking to vacate his sentence on the ground of improperly suggestive identification procedures by the police. The motion was dismissed on procedural grounds; no appeal ensued from this adverse action. In July, 1981, petitioner filed a second motion to vacate his sentence on the identification issue, and, for the first time following trial, alleged insufficiency of proof. This second motion was also dismissed on grounds that the issues should have been raised on direct appeal. A notice of appeal, unfortunately to the wrong state appellate court, was then filed and dismissed for being in the wrong court; an effort to correct this deficiency was held to be untimely for purposes of an appeal. A petition for writ of habeas corpus asserting the first three issues presented on direct appeal to the Kentucky Supreme Court, plus the second two additional grounds for relief attempted to be asserted by motion to vacate sentence, was filed in the federal district court at Louisville. ⁴

The trial judge found that Payne had "failed to bring to the Supreme Court's attention specific decisions bearing on the due process aspects of improper identification procedures." ⁵ He noted that this oversight or omission was attempted to be corrected, unsuccessfully, through the means of what Payne entitled a "Petition for a Second Direct Appeal," which he filed with the Kentucky Supreme Court.

We first consider the speedy trial and related issue of preindictment delay which concededly were appropriately before the district court having been presented to and exhausted in the state court. The district court considered and weighed the applicable factors as set out in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The first and most obvious element of the claim was the long delay between May, 1972, and February, 1976, the period between issuance of the indictment and the demand that Payne be returned to Kentucky for trial on two separate charges. The district judge was aware of the admonition in Barker:

A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.

407 U.S. at 531, 92 S.Ct. at 2192 (footnote omitted).

While the delay on the Thompson charge was sufficient to trigger an inquiry under the Barker rationale, "the passage of a fixed period of time does not create a presumption of prejudice" as a necessary consequence. Cain v. Smith, 686 F.2d 374, 381 (6th Cir.1982). ⁶ The more than five year pre-indictment delay in the Horn and Monath matters, however, creates a different problem. Petitioner concedes that even this lengthy pre-indictment delay "does not constitute a violation of speedy trial provisions of the Sixth Amendment." (Appellant's Brief at 41). The question, rather, is whether fundamental due process rights were violated to defendant's demonstrated prejudice. United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). Petitioner also concedes, as he must, that "loss of memory has been held an insufficient reason to establish prejudice to the accused and 'substantial prejudice' must be shown by an accused before the appellate courts even consider the reason for inordinate delay. United States v. Townley, 665 F.2d 579 (5th Cir.) [cert. denied 456 U.S 1010, 102 S.Ct. 2305, 73 L.Ed.2d 1307 (1982) ]." (Appellant's Brief at 4) See also United States v. Barket, 530 F.2d 189, 196 (8th Cir.1976); United States v. Avalos, 541 F.2d 1100 (5th Cir.1976) ...