Bell v. Bell

• Decision Date: 04 January 2008
• Docket Number: No. 04-5523.,04-5523.
• Parties: Stephen M. BELL, Petitioner-Appellant, v. Ricky BELL, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

512 F.3d 223

Stephen M. BELL, Petitioner-Appellant, v. Ricky BELL, Warden, Respondent-Appellee.

No. 04-5523.

United States Court of Appeals, Sixth Circuit.

Argued: June 6, 2007.

Decided and Filed: January 4, 2008.

ARGUED: Gretchen L. Swift, Federal Public Defender's Office, Nashville, Tennessee, for Appellant. Joseph F. Whalen III, Office of the Attorney General, Nashville, Tennessee, for Appellee. ON BRIEF: Gretchen L. Swift, Jude T. Lenahan, Federal Public Defender's Office, Nashville, Tennessee, for Appellant. Joseph F. Whalen III, Office of the Attorney General, Nashville, Tennessee, for Appellee.

Before: BOGGS, Chief Judge; MARTIN, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, and GRIFFIN, Circuit Judges.

GIBBONS, J., delivered the opinion of the court, in which BOGGS, C.J., BATCHELDER, ROGERS, SUTTON, COOK, McKEAGUE, and GRIFFIN, JJ., joined. CLAY, J. (pp. 237-50), delivered a separate dissenting opinion, in which MARTIN, MOORE, COLE, and GILMAN, JJ., joined, with MOORE, J. (p. 250), also delivering a separate dissenting opinion, in which MARTIN, COLE, and CLAY, JJ., joined. DAUGHTREY, J. (p. 251), delivered a separate opinion dissenting in part and concurring in part.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Petitioner-appellant Stephen Michael Bell¹ was convicted in Tennessee state court of one count of first degree murder and one count of second degree murder. After unsuccessfully pursuing relief in the Tennessee appellate courts, Bell sought a writ of habeas corpus in federal district court. The district court denied Bell's petition but issued a certificate of appealability as to Bell's claims that the prosecution in his case violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to turn over impeachment material and that he received ineffective assistance of counsel. Bell appealed, and a divided panel of our court reversed the district court as to Bell's Brady claim. Bell v. Bell, 460 F.3d 739 (6th Cir.2006). A majority of the active members of the court voted for rehearing en banc, vacating the original panel decision.

For the reasons below, we affirm the decision of the district court denying Bell habeas relief.

I.

The Tennessee Court of Criminal Appeals set forth the facts underlying Bell's conviction:

The victims, Herman Harrison Wallace, a/k/a Mad Dog, and his wife, Jean Lynn Wallace, were street people who camped under the bridges along the Cumberland River. The defendant, Michael Bell, a/k/a Monk, a street person, camped between the Wallaces and Nashville's Riverfront Park.

Ronald Harrington, a street person, met the defendant on the railroad tracks near the camp sites on September 6, at approximately 3:00 p.m. Defendant was shirtless, wearing Levi's, a pair of shoes or boots and had a gun in his hand. Chained to his belt, was a billfold similar to that carried by truck drivers. The gun was either a .32 or .38 caliber revolver. Defendant appeared to be under the influence and stated that he had been "coking[."] During this exchange the defendant asked Mr. and Mrs. Harrington to take care of his dog if anything happened to him.

Edward Stansbury, an admitted alcoholic, testified that he spent the night of September 5, 1986, with friends on the river. The next morning he left but returned to the camp of Gary Hedges in the afternoon. At approximately 4:30 p.m. they noticed a man come up a path with a shiny black dog on a leash. The leash was a choker chain with a leather belt. When the man got to within twenty feet he spoke identifying himself as "Monk" and inquiring if "Mad Dog" and Jean were home. He walked down to the Wallaces' tent and entered. Up to this point he, Stansbury, had no reason to commit to memory the man's clothing or facial features.

As Stansbury and Hedges continued to sit they heard the sounds of dogs fighting and people arguing in the Wallaces' camp, then they heard a muffled shot. Jean Wallace ran out of the tent screaming "He has killed my dog, he has killed my dog[."] She turned and re-entered the tent. Stansbury heard a distinctive gun shot and saw Jean Wallace backing out of the tent. As she cleared the entrance she fell and there were two more shots. He was sure he had seen the man fire the last shot. The man had been right behind Mrs. Wallace at the entrance. The man left the tent and left the scene. As the man was leaving he attempted to reload his pistol.

Stansbury described the culprit as 6'2" or 6'1", lanky, wearing fairly new blue jeans, a black baseball cap over his eyes, a sleeveless Levi jacket and T-shirt. His arms were tattooed. He had a billfold with a chain which appeared attached to a belt loop.

At a line-up conducted near the crime scene in the fading evening light, Stansbury was hesitant to identify the man in the number two spot. He was certain as to the man's jeans and nearby dog. While testifying he said he was still confused about the man's beard; he thought the culprit had short dark hair, but everything else about the number two man, the defendant, "fit to a tee[."]

Robert Moore, a Metropolitan Police Department homicide officer, arrived at the Wallaces' camp. He viewed the body of Mrs. Wallace and was directed to four shell casings that were lying on the ground. The soil in the area was fairly loose and the shell casings, covered with a chalky gray substance, were on top of the soil. Upon closer examination he was able to detect the smell of gun powder.

Officer Moore was advised that Mr. Wallace had been moved to General Hospital and although he appeared to have been shot as many as three times, only one slug had been found at the hospital. The officers at the crime scene made an extensive search and were able to recover a slug from the bloody mattress within the tent where Mr. Wallace had lain when shot.

After talking with Hedges and Stansbury and getting a general description of the suspect, the officers broadcasted a pick-up. Other detectives took the defendant in[to] custody and returned him to an area near the crime scene. Due to the fading light in and around the camp sites and under the bridges, other officers were setting up a line-up of street type people in an open area nearby. Officer Moore explained that facial identification was not that strong at the crime scene, but clothing details and the overall characteristics of the participants were strong in the witnesses' minds.

Officer Mark Wynn and two other officers responded to a call that a man fitting the description of the suspect was believed to be in the area of Fessler's Lane and Hermitage Avenue. They observed the suspect sitting on the curb and drinking a beer. He had a dog with him. He was taken in[to] custody and found to have six unspent .38 caliber Special Winchester 158 grain bullets in his pants pockets, but no weapon was found. He was concerned about the dog so the officers agreed to transport the dog to the place of the line-up. (A picture of the dog wearing the choke chain and belt leash was shown the jury.)

Sergeant Tommy Jacobs testified that shortly after 5:30 p.m., September 6, 1986, he visited the camp site of the defendant and recovered eleven spent .38 caliber shell casings and a Winchester ammunition box that were lying on the ground. A holster was also recovered at the camp site. Later at the police station Sergeant Jacobs read the defendant his Miranda rights. When told he would be charged with murder, the defendant responded that he had not shot anyone, had not shot a gun and had never shot a gun.

Officer Darryl Ryan performed a nitric acid test on the defendant's hands. The swabs were sent to the crime laboratory.

Officer Archie Spain was sent to General Hospital. He took possession of a .38 caliber slug that was laying beside Mr. Wallace's body in the emergency room.

The State introduced testimony from three laboratory technicians. The first technician had examined the defendant's clothing for blood stains but found none. The second technician, a criminalist, had examined the swabs from the defendant's hands for gunshot residue. This technician testified that "antimonium, barium and lead indicative of gunshot residue was found in significant concentrations on exhibit 5, hand swabs. These results indicate that the subject could have fired or handled a gun."

The third technician was a firearm examiner. He identified the two lead slugs filed earlier as exhibits as being fired from the same firearm. He had disassembled one of the live cartridges taken from the defendant's pockets to compare the lead to the other lead slugs. He was of the opinion the three were from the same manufacturer. The eleven spent shells taken from defendant's camp site were compared with the four spent shells recovered at the victims' camp site. Based upon his microscopic examination he was of the opinion they all had been fired from the same firearm.

The medical examiner testified in detail as to two gunshot wounds found upon Jean Wallace's body. In his opinion either one of these would have caused her death. From his examination of Herman Wallace, he concluded that death was the result of a saddle pulmonary embolus, a blood clot caused by the gunshot wounds which occluded the artery to the lungs.

The State rested its case in chief. Defendant's motion for judgments of acquittal [was] overruled.

Defendant testified that on the morning of September 6, 1986, he went to Riverfront Park. There he met two men with whom he pooled his money for the purchase of a fifth of wine. He and one of the men moved about in that general area of town during which time the man mentioned having a .38 caliber pistol but needed shells. They went to Service Merchandise where this person purchased a box of cartridges upon signing the log and entering an identification number. They returned to Riverfront Park and then to defendant's camp site where defendant did target practice with the man's...