Carr v. State of Ala., 76-4120

• Decision Date: 15 December 1978
• Docket Number: No. 76-4120,76-4120
• Citation: 586 F.2d 462
• Parties: Willie CARR, Petitioner-Appellant, v. STATE OF ALABAMA, Respondent-Appellee. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 462

586 F.2d 462

Willie CARR, Petitioner-Appellant, v. STATE OF ALABAMA, Respondent-Appellee.

No. 76-4120

Summary Calendar. ^*

United States Court of Appeals, Fifth Circuit.

Dec. 15, 1978.

Robert R. Bryan, Birmingham, Ala., for petitioner-appellant.

William J. Baxley, Atty. Gen., G. Daniel Evans, Asst. Atty. Gen., Montgomery, Ala., for respondent-appellee.

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

Before GOLDBERG, AINSWORTH and HILL, Circuit Judges.

JAMES C. HILL, Circuit Judge:

Willie Carr sought habeas corpus relief under 28 U.S.C. § 2254 in the United States District Court for the Northern District of Alabama from his sentence following a conviction for robbery in the Circuit Court of Jefferson County, Alabama. Carr raises three issues in his § 2254 petition, all of which were submitted to the Alabama Court of Criminal Appeals in petitioner's brief to that court. He contends that his conviction is invalid because: (1) improper comments by a police officer to a material witness during a lineup were unduly suggestive and the resulting identification was, thus, improperly and prejudicially admitted into evidence at trial; (2) he was unconstitutionally compelled to give possibly incriminating evidence against himself in answering a question asked of him by a prosecution witness who was under cross-examination; and (3) his trial was marred by plain error when a jury member asked the trial judge a question in open court which revealed that the jury members had begun to discuss the case and deliberate before the trial had concluded. The district court adopted the magistrate's recommendation and denied Carr's petition for habeas corpus. No. CA 76-A-0929-S (order filed September 20, 1976). The magistrate had concluded that Carr's suggestive lineup and self-incrimination contentions were without merit and that the premature jury deliberation contention could not be considered because the petitioner had not exhausted his state remedies as to that issue under 28 U.S.C. § 2254(b). No. CA 76-A-0929-S (examination, report and recommendation filed September 20, 1976). The magistrate's recommendation regarding the premature deliberation issue was based on the absence of any reference to that issue in the opinion of the Alabama Court of Criminal Appeals affirming Carr's conviction. Carr v. State, 56 Ala.App. 125, 319 So.2d 744, Rehearing denied (1975). Although the magistrate was apparently unaware that Carr had, in fact, presented the deliberation issue to the state appellate court in his brief, the district court was alerted to that fact by Carr's motion of October 1, 1976, for rehearing and review. The district court then concluded that, nevertheless, state remedies had not been exhausted under § 2254(b) since the issue could still be presented to the trial court by a petition for a writ of error coram nobis. No. CA 76-A-0929-S (order filed October 21, 1976). We affirm the district court's finding of no merit in petitioner's claims relating to the suggestive lineup and to self-incrimination, but reverse the finding of failure to exhaust state remedies as to the jury deliberation claim, and remand for further proceedings consistent with this opinion. ¹

A thorough review of the record reveals that the magistrate and district court correctly concluded that Carr's lineup and self-incrimination claims are without merit. The argument regarding improper comments by a police officer to the robbery victim during a lineup identification is supported only by the uncorroborated testimony of a participant in the lineup. He asserted that he overheard, through an intercom speaker which had not been turned off, a police officer telling the victim to identify Carr. All of the other testimony in the record regarding the lineup completely refutes this assertion. The victim observed her robbers over a period of approximately five minutes at close quarters in full daylight. The jury's apparent choice of the victim's version of her immediate and unaided identification of Carr, from mug shots and in court as well as at the lineup, will not be disturbed on appeal where its verdict is supported by substantial evidence. "It is not for this Court to weigh the credibility of witnesses." United States v. Vomero, 567 F.2d 1315, 1316 (5th Cir. 1978).

Neither will Carr's self-incrimination claim support a vacation of his conviction. The incident which serves as the basis for this claim involved a question asked of him by a prosecution witness who was being cross-examined by defense counsel. At defense counsel's urging, the witness was allowed to ask Carr, who was seated at the defense table, the following single question: "Did you used to be a customer of mine, Willie? " Without hesitation or objection, Carr answered, "Yes, sir, I did." Not only was Carr's response not compelled, but it was also neither incriminating nor prejudicial. The questioning witness had been called by the...