751 F.2d 1535 (11th Cir. 1985), 83-7535, Stoner v. Graddick

Docket Nº:83-7535.
Citation:751 F.2d 1535
Party Name:J.B. STONER, Petitioner-Appellant, v. Charles GRADDICK, Attorney General of Alabama; and Freddie Smith, Commissioner of the Alabama Department of Corrections, Respondents-Appellees.
Case Date:January 16, 1985
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1535

751 F.2d 1535 (11th Cir. 1985)

J.B. STONER, Petitioner-Appellant,

v.

Charles GRADDICK, Attorney General of Alabama; and Freddie

Smith, Commissioner of the Alabama Department of

Corrections, Respondents-Appellees.

No. 83-7535.

United States Court of Appeals, Eleventh Circuit

January 16, 1985

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[Copyrighted Material Omitted]

Page 1537

L.C. Chrietzberg, Decatur, Ga., for petitioner-appellant.

Joseph G.L. Marston, III, Asst. Atty. Gen., Montgomery, Ala., for respondents-appellees.

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

Before KRAVITCH, HATCHETT and ANDERSON, Circuit Judges.

PER CURIAM:

J.B. Stoner appeals an order of the United States District Court for the Middle District of Alabama denying his petition for writ of habeas corpus under 28 U.S.C.A. Sec. 2254 (West 1977).

On June 29, 1958, a bomb exploded near the Bethel Baptist Church in a residential area of Birmingham, Alabama. The bomb damaged the church and nearby residences, but caused no injuries. In September, 1977, over 19 years later, the State of Alabama extradicted Stoner from Georgia and indicted him for unlawfully setting off or exploding dynamite dangerously near a dwelling house. In 1980, Stoner was tried by a jury, found guilty, and sentenced to 10 years imprisonment. Stoner appealed his conviction to the Alabama Court of Criminal Appeals, which affirmed. Stoner v. State, 418 So.2d 171 (Ala.Crim.App.1982). The Alabama and United States Supreme Courts denied certiorari. Stoner v. State, 418 So.2d 171 (Ala.Crim.App.), cert. denied, 418 So.2d 184 (Ala.1982), cert. denied, 459 U.S. 1128, 103 S.Ct. 764, 74 L.Ed.2d 978 (1983).

Stoner then filed this petition for writ of habeas corpus on June 2, 1983. The district court denied the petition in a written order dated September 15, 1983. Record, Vol. 5 at 1061. On appeal, Stoner claims that (1) he was prejudiced by pre-indictment delay, (2) there was insufficient evidence to support his conviction, (3) prosecutorial misconduct requires reversal, and (4) the statute of limitations was unconstitutionally applied to his case. We affirm.

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FACTS

Stoner was convicted principally on the basis of testimony of Lt. Tom Cook, a retired Birmingham police officer. We summarize his testimony as follows. On direct examination, Cook testified that he met with Stoner in Birmingham on June 21, 1958, approximately a week before the bombing. Also present were Birmingham police captain G.L. Pattie and police informer Hugh Morris. Cook and Pattie were working undercover under the direction of Police Commissioner "Bull" Connor. The police detectives told Stoner that they were Birmingham steel workers interested in the white supremacy movement. Captain Pattie told Stoner that he and Cook were interested in arranging a bombing similar to an attempted bombing of a Jewish Synagogue in Birmingham the previous April. Pattie emphasized that they wanted the bombing to be successful, unlike the Synagogue bombing, which had been a "dud."

Cook testified that Stoner responded that he had some "boys" who were experts in bombing. Stoner said he could handle any type of bombing for $2,000. The police detectives and Stoner discussed several possible targets for a bombing, including the Bethel Baptist Church. Stoner said he was familiar with the location and layout of the church, and had been by to see it. 1 He also said his "boys" already had a bomb made up. Stoner described the bomb. No agreement was made to bomb the church or any other target, however. The meeting ended when Cook told Stoner that if they were able to raise $2,000 and decide on a target, they would notify him.

Cook further testified that eight days later on June 29, 1958, the Bethel Baptist Church was bombed. On July 12, 1958, Cook, Pattie, Morris, and Stoner met a second time in Birmingham. Cook testified that Stoner opened the meeting by declaring that his "boys" had done the job and wanted their money. Pattie and Cook responded that they had not agreed to bomb the church, had not raised any money to bomb the church, and in fact did not believe Stoner was responsible for the bombing. The officers suggested that the church members themselves had set off the bomb to gain sympathy. Stoner replied that "we four know they didn't do it and the blacks know they didn't do it." Record, Vol. 3 at 623. Stoner explained that because Cook and Pattie had been concerned about getting someone who could do a good job, he had decided to go ahead and show them the type of job he and his "boys" could do. Stoner said he had not been at the church himself but that his "boys" had come back to Georgia, where Stoner lived, and told him what had happened. Cook testified that Stoner accurately described where the bomb had been placed and the type of bomb used. The description of the bomb used matched Stoner's earlier description of the bomb his "boys" had assembled.

Cook testified that Stoner then asked Cook and Pattie to give him at least half of the $2,000. Stoner said he would do another bombing for the other half. Cook and Pattie refused because they had no money and had not authorized the bombing.

On cross-examination, Cook testified that the elimination of Bethel Church's pastor, Reverend Fred Shuttlesworth, had been discussed at the first meeting. He also testified that Pattie and Cook told Stoner at the first meeting that they hoped for a total destruction of the church. Cook also admitted that before Stoner said anything at the second meeting, Pattie told Stoner that Stoner had put Pattie and Cook in a "bad position" by bombing the church: Pattie told Stoner that Pattie's "contacts" thought that Pattie and Cook were trying to rook them out of $2,000, and that Pattie's contacts thought the members of the church had bombed it themselves. Cook also testified that after the second meeting Stoner never again asked for money for the bombing.

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Stoner's testimony presented a different version of events. Stoner testified that in June 1958 Hugh Morris came to Georgia, where Stoner lived, and asked Stoner to bomb the Bethel Baptist Church in Birmingham. Morris purported to be representing a group in Birmingham that would pay for the bombing. Shortly thereafter, Morris came to Georgia a second time and asked Stoner to come to Alabama to discuss the bombing. Stoner testified that he went to Montgomery soon after that for a different purpose. In Montgomery, Morris again approached Stoner and asked him to accompany Morris to Birmingham to meet with two men who had money to pay for a bombing. Stoner agreed to go and met with Cook, Pattie, and Morris in Birmingham. Stoner testified that Cook and Pattie told him they wanted Reverend Shuttlesworth's church bombed. If that failed to drive Shuttlesworth out of Alabama, they wanted Shuttlesworth eliminated. Stoner testified that Cook and Pattie told him that they would contact him when they had money for the bombing.

Stoner testified that after the meeting Hugh Morris drove him by the Bethel Church. Stoner said that was the first time he had seen the church. Stoner also said that he had driven by the church on the eve of trial in 1980 and that it did not appear to be the same church Hugh Morris had driven him by in 1958.

Stoner further testified that several weeks after the first meeting with Cook and Pattie, Morris called him and asked him to come to Birmingham again to speak with Cook and Pattie. Stoner drove over to Birmingham from his home in Georgia accompanied by a friend, Richard Bowling. In Birmingham, Stoner again met with Cook, Pattie, and Morris. Stoner testified that at the second meeting, Cook, Pattie, and Morris first told Stoner that black church members had themselves bombed the church. Morris then told Stoner that the Birmingham police had furnished Morris with a black informant, who Morris had paid $500 to bomb the church. Stoner testified that at this second meeting, Cook and Pattie discussed paying Stoner $5,000 to $10,000 to assassinate Reverend Shuttlesworth. No agreement was reached, however, and Stoner was never paid any money.

Stoner testified that shortly after the second meeting, he and Richard Bowling met with Hugh Morris. At that time, Bowling accused Morris of trying to entrap Stoner. Stoner testified that he also knew that Morris was trying to entrap him, because of his beliefs in white supremacy and segregation. Stoner testified that he met with Morris, Cook and Pattie in order to expose their efforts to entrap him. Stoner testified that he had in fact exposed their efforts in speeches before white organizations throughout the South ever since, but offered no specific evidence to that effect. Stoner denied having anything to do with the bombing of the Bethel Church.

Finally, Stoner testified that he had never advocated violence, publicly or privately, against any segment of society. Rather, he said, he advocated legal and political action to further his goal of white supremacy.

On cross-examination, Stoner denied telling Cook and Pattie that he could arrange a bombing. He denied making, at the first meeting with Cook and Pattie, any of the incriminating statements attributed to him by Cook. Stoner testified that at the first meeting he was aware that Cook, Pattie and Morris were undercover agents. Stoner said that he thought

they were trying to get me to bomb [the church] on account of my views and then prosecute me and accomplish two objectives but they became more interested in having Shuttlesworth killed and I saw that as an effort to destroy Reverend Shuttlesworth and send me to the electric chair so they could call the case closed and say what a good job they had done.

Record, Vol. 4 at 762. Stoner testified that he did not report...

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