Albert v. Montgomery, 82-8695
| Decision Date | 21 May 1984 |
| Docket Number | No. 82-8695,82-8695 |
| Citation | 732 F.2d 865 |
| Court | U.S. Court of Appeals — Eleventh Circuit |
| Parties | 15 Fed. R. Evid. Serv. 1229 Claude W. ALBERT, Jr., Petitioner-Appellant, v. Charles M. MONTGOMERY, et al., Respondents-Appellees. |
T. Bart Gary, Wasson, Sours & Harris, Atlanta, Ga., court appointed, for plaintiff-appellant.
Mary Beth Westmoreland, Asst. Atty. Gen., Atlanta, Ga., for defendants-appellees.
Appeal from the United States District Court for the Middle District of Georgia.
Before RONEY, FAY and CLARK, Circuit Judges.
Appellant, Claude W. Albert, Jr., was convicted in Georgia state court of two counts of aggravated assault, attempted armed robbery, armed robbery, attempted rape, kidnapping, kidnapping with bodily injury, and possession of a firearm during the commission of a crime. All of the criminal counts arose from a single assault upon a young man and woman. In this action, Albert appeals from a judgment of the United States District Court for the Middle District of Georgia dismissing his petition for a writ of habeas corpus as to his state convictions.
Appellant raises three issues: (1) whether the admission of evidence at appellant's trial concerning a prior offense for which the appellant was tried and acquitted violates the fifth amendment guarantee against double jeopardy so as to constitute reversible error; (2) whether the pre-trial lineup and in-court identification of the appellant by the victims was tainted by a contrived show-up which created a substantial risk of misidentification and thus denied appellant his fourteenth amendment due process rights; and (3) whether the trial court's instructions on criminal intent impermissively shifted the burden of proof of an essential element of the crimes under the rationale of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), thus denying appellant due process. Finding that harmful constitutional error was committed during the state trial by the admission of evidence concerning appellant's alleged prior offense, we reverse and remand on the basis of appellant's double jeopardy claim. We affirm the district court as to appellant's misidentification claim, for we find appellant's identification to have been neither impermissively suggestive nor unreliable. We find it unnecessary to reach the merits of appellant's Sandstrom claim.
On the evening of August 18, 1978, two teenagers, Sandra McEntee and Anthony Lunceford, were attacked by a man as they were parked on a desolate dirt road in Warner Robins (Houston County), Georgia. The two teenagers, returning from a movie in Lunceford's car, decided to stop the car at approximately 10:30 p.m. Just before they turned off a main highway, McEntee and Lunceford noticed a white van as it approached from the opposite side of the highway and passed them. Within seconds after stopping the car, the teenagers saw the van pass by a second time.
Approximately five to ten minutes after McEntee and Lunceford last saw the white van, a man approached the driver's side of Lunceford's car, pointed a pistol at Lunceford and demanded money. The man was wearing a pair of women's underpants over his head as a mask. He also wore a tee shirt, blue jeans, boots and yellow gloves similar to Playtex dishwashing gloves.
Lunceford blew the horn on the automobile, as he and Sandra began to scream. The assailant demanded that they keep quiet and threatened to shoot them if any further noise was made. Lunceford gave the assailant ten dollars; the assailant then ordered Lunceford to get out of the automobile. The assailant slapped Lunceford and forced him at gunpoint into the trunk of the car, stating at that time that he was going to rape McEntee. The assailant then forced McEntee into the back seat and drove the vehicle further into the wooded area until he reached a clearing.
The assailant then demanded that McEntee remove her clothing and indicated that he was going to rape her. McEntee hesitated and begged not to be raped or killed. The assailant responded that if she would not do as he insisted, she would die a slow death and that he would also kill Lunceford. When the assailant put a pistol to McEntee's head, she became hysterical and the assailant began to strike her. McEntee fought back, and the assailant hit her several times in the head with his pistol.
As McEntee began to wipe the blood from the wound on her head, the assailant temporarily stopped beating her. The assailant stated that he was preparing to kill Lunceford. When the assailant began to leave the automobile, McEntee shoved the front seat of the car forward, forcing the assailant to stumble out of the car. McEntee climbed out of the back seat and struggled with the assailant. During the struggle, the mask over the man's face was partially removed and McEntee was able to see most of his face. During the fight, McEntee scratched the assailant's face and he cried out in pain. After scratching the assailant, McEntee ran to the trunk of the vehicle and released Lunceford. Lunceford also viewed the assailant at this time, as the assailant's mask covered only his mouth and throat. Lunceford and McEntee then fled through the nearby woods until they reached a telephone and notified the Houston County Sheriff's Department of the incident. Both victims immediately gave a description of the assailant to the sheriff.
The police investigation of the matter almost immediately focused upon the appellant, as Detective Joel Sullivan, of the Warner Robins Police Department, related to Sheriff Talton, of the Houston County Sheriff's Department, that the physical description of McEntee's and Lunceford's assailant was similar to appellant Albert whom Sullivan had investigated in a previous incident. Sullivan also emphasized that the two offenses were similar.
On August 20, 1978, Sheriff Talton and Sergeant Stewart of the county sheriff's office arranged to drive Lunceford and McEntee to several locations in Warner Robins in an attempt to identify the van which had passed them on the night of the attack. Sheriff Talton also sent Deputy Dees and Sheriff Talton's daughter in a separate vehicle to appellant's home. The sheriff later testified that the purpose of this visit was to view the appellant so as to confirm the description given by the victims. R. Vol. I. at 31-32. The sheriff's deputy and daughter approached appellant's home under the pretext of inquiring about a dog.
After viewing several vans in the area, McEntee and Lunceford were driven past appellant's house. Both McEntee and Lunceford identified the van in the driveway of appellant's house as the vehicle which they had seen on the night of the attack. After passing appellant's house with the victims, Sheriff Talton turned his vehicle around and drove McEntee and Lunceford past appellant's residence once again. The sheriff's second trip in front of appellant's house coincided with the visit of Deputy Dees and the sheriff's daughter to Albert's home. As Sheriff Talton drove by the house, the appellant was standing on his front porch in conversation with Deputy Dees. McEntee and Lunceford were thus able to view the appellant and McEntee immediately identified Albert as her assailant. The appellant was arrested shortly thereafter and on the same afternoon was placed in a lineup. McEntee and Lunceford both identified appellant as their assailant during the lineup.
On September 12, 1978, appellant was indicted by the Houston County, Georgia grand jury for nine counts of criminal conduct arising from the attack upon McEntee and Lunceford. Appellant was charged with two counts of aggravated assault, attempted armed robbery, armed robbery, attempt to commit rape, kidnapping, kidnapping with bodily harm, theft of a motor vehicle, and possession of a firearm during the commission of a crime. Beginning on February 26, 1979, the appellant was tried by a jury in the Superior Court of Houston County, Georgia. The state's case focused upon the identification by McEntee and Lunceford of appellant as their assailant. However, as part of the state's case-in-chief, the prosecutor also introduced the testimony of Terri Lynn Hatcher and Detective Sullivan of the Warner Robins Police Department who testified, over objection by appellant's trial counsel, concerning a prior attempted armed robbery allegedly committed by the appellant. R. Vol. I. at 162-80. The prior incident in question occurred in Houston County on March 22, 1977, when Miss Hatcher, a high school student, was accosted by a white male with a gun who demanded money. The appellant had been tried and acquitted by a jury in the Houston County Superior Court of that attempted armed robbery charge. The prosecution also introduced through Miss Hatcher several photographs of appellant and appellant's truck which Miss Hatcher identified. R. Vol. I at 446-56.
The remainder of the state's case focused upon physical evidence through which the state attempted to link appellant to the attack upon McEntee and Lunceford. Specifically, the state introduced into evidence a tee shirt, a pair of blue jeans and lace-up boots which were seized from appellant's house and van. Lunceford testified that the boots seized from appellant's vehicle appeared similar to those which were worn by the assailant during the attack. R. Vol. I at 47. Expert testimony established that appellant's right boot had a similar size, tread pattern and wear pattern as the bootprints which had been taken at the crime scene. R. Vol. I at 152. Yellow gloves were also seized from appellant's home. Lunceford testified that the gloves were similar to those worn by the assailant during the attack. R. Vol. I at 105. Testimony was also introduced that appellant, at the time of his arrest, had fresh scratches on his chest, arm and head which appellant claimed had been made by a bird in his pet store. Appellant also had a chipped front...
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