Dixon v. Hopper

• Decision Date: 07 January 1976
• Docket Number: Civ. A. No. 75-6-Alb.
• Parties: Tom DIXON, Petitioner, v. Joseph S. HOPPER, Warden, Georgia State Prison, Respondent.
• Court: U.S. District Court — Middle District of Georgia

407 F. Supp. 58

Tom DIXON, Petitioner, v. Joseph S. HOPPER, Warden, Georgia State Prison, Respondent.

Civ. A. No. 75-6-Alb.

United States District Court, M. D. Georgia, Albany Division.

January 7, 1976.

COPYRIGHT MATERIAL OMITTED

Roger Mills, Jones, Cork, Miller & Benton, Macon, Ga., for petitioner.

G. Stephen Parker, Atlanta, Ga., for respondent.

OWENS, District Judge:

Petitioner Tom Dixon here asserts that he was unconstitutionally convicted and sentenced on a charge of armed robbery to 20 years imprisonment by a jury in the Superior Court of Dougherty County, Georgia. Based on an evidentiary hearing, record evidence in this case and in Dixon v. Georgia, Civil No. 1178 (M.D.Ga. June 5, 1972, rev'd sub nom. Dixon v. Caldwell, 471 F.2d 767 (5th Cir. 1973), and the findings of this court in Thompson v. Sheppard, Civil No. 1224 (M.D.Ga. Jan. 12, 1973), aff'd 490 F.2d 830 (5th Cir. 1974), cert. denied, 420 U.S. 984, 95 S.Ct. 1415, 43 L.Ed.2d 666 (1975), the court finds his conviction to be unconstitutional for several reasons. First, there is a total absence of evidence establishing that petitioner committed the offense of armed robbery. Second, the trial court's charge to the jury on the alibi defense raised by petitioner unconstitutionally shifted the burden of proof to him. Third, identification testimony of the alleged victim, irreparably tainted by prior suggestive procedures, was improperly admitted into evidence at the trial. Fourth, petitioner did not receive adequate representation by trial counsel. Fifth and finally, the grand and petit juries were unconstitutionally, discriminatorily constituted in that blacks and women were not properly represented on them. In view of the disposition of these claims in petitioner's favor, the court need not consider whether he is entitled to relief on other claims: unconstitutional police interrogation, lack of evidence before the grand jury, indictment and trial on a charge different from that for which he was arrested, ineffective assistance of appellate counsel, and punishment so severe in length that it is cruel and unusual.

Petitioner's difficulties began on the evening of December 26, 1969, when one Mario Martinez was beaten and robbed of a broken watch, $30.00, and other items from his wallet in the bathroom of a bus station in Albany, Dougherty County, Georgia. After treatment for his wounds, the victim was taken to the police station where he looked through a book of mug shots. Upon finding a photograph of Dixon, he said it "looked like" his assailant. This belief was immediately confirmed by the police officer's statement, "Yes, that's him." (Record, Respondent's Exhibit 1 at 34-35, State v. Dixon, Case No. 15274, Dougherty County Superior Court, January 20, 1970 hereinafter cited as R.). Petitioner that same night was arrested and placed alone in a room at the police station from where, through a two way mirror, he was identified by the victim as the perpetrator. No "lineup" was used.

On January 2, 1970, a committal hearing was held to determine if probable cause existed for petitioner's continued detention. Without the presence of counsel for petitioner (R. 101-102), the judicial officer found such cause and bound petitioner over to the Superior Court on a robbery charge. (Record on appeal in Dixon v. Georgia, Civil No. 1178, supra at 130 hereinafter cited as R.App.). On January 14, 1970, the grand jury indicted petitioner on a charge of armed robbery, a capital offense. (R.App. 127). Dougherty County's procedures for selecting grand and petit juries were found constitutionally infirm less than three years later in Thompson v. Sheppard, Civil No. 1224 (M.D.Ga. Jan. 12, 1973), aff'd 490 F.2d 830 (5th Cir. 1974), cert. denied, 420 U.S. 984, 95 S.Ct. 1415, 43 L.Ed.2d 666 (1975), because blacks and women were discriminatorily excluded. In that litigation it was established that the jury commissioners selected persons for jury duty based on the commissioner's personal knowledge of the prospective juror, or the prospective juror's presence on a previous jury list. As a result, at a time when 55 percent of the county's citizens were female and 30 percent were black, the jury lists contained a grossly disproportionate number of blacks and females — the grand jury composition was about 17 percent female and 13 percent black while the petit jury was roughly 24 percent female and 13 percent black. Id. at 3. Because the identical procedures existed when petitioner was indicted and convicted (Affidavit of Wendell Prince, Nov. 11, 1975), the petitioner was indicted and convicted by unconstitutionally composed juries. Neither petitioner nor his trial counsel objected to the composition of these juries, although petitioner to no avail did complain to his trial counsel that a particular petit juror was prejudiced against him.

At the trial, evidence identifying petitioner as Martinez' attacker came from three sources. First, Martinez testified that he had had a momentary conversation in the bathroom with the person who then beat and robbed him; he identified this person in court as Dixon. Second, Charles Williams, an employee at the station, testified that he saw Dixon attacking the victim when he entered the bathroom to investigate the disturbance and glanced around a corner before being frightened away. The third source of identification was Williams' testimony that another individual, Ned Lee Smith, told police that one assailant was Dixon. (R. 62). Smith did not testify, and no objection was made to this hearsay testimony.

The victim testified positively that he did not see a gun, was not aware of the presence of any weapon (R. 15, 23), and did not hear any threats about the use of a weapon. (R. 45-46). Williams, the station employee, testified that the co-defendant of petitioner pointed a gun at him to make him leave when he entered the bathroom to investigate. (R. 52-53). At the close of the state's case, no motion was made for a directed verdict on the theory that the evidence did not authorize a conviction for an armed robbery because of the lack of evidence of an essential element of that crime, the statutory requirement that property be taken from the victim "by use of an offensive weapon." Ga.Code Ann. § 26-1902.

Dixon testified in his own behalf that he was at a place called Dye's lounge during the time the crime allegedly took place. On cross-examination, he testified that a Rufus Jones and the bartender knew he was there but neither of these potential witnesses testified for petitioner, and his counsel does not recall having obtained these names for petitioner or discussing the case with potential alibi witnesses.

After a charge discussed in more detail below and objected to by counsel for petitioner's co-defendant on only one ground not material here, the jury returned a verdict of guilty against petitioner and his co-defendant and, under the sentencing procedure then in effect, simultaneously imposed punishment of 20 years in prison for both. This became the judgment of the court on January 23, 1970.

Petitioner did not appeal. In 1971, however, he filed the first of many post-conviction petitions. In the Tattnall County (Georgia) Superior Court he alleged that he had not been advised by trial counsel of his right to appeal and that he had been denied a transcript of his trial proceedings. He also asserted that his trial counsel had not properly represented him because, inter alia, counsel did not challenge the petit jurors despite petitioner's statement to him that one of the jurors was prejudiced against him. The habeas court's denial of relief, Dixon v. Caldwell, Habeas Corpus No. 5343 (Tattnall County Superior Court September 15, 1971) (R.App. 163), was affirmed by the Supreme Court of Georgia, Dixon v. Caldwell, 228 Ga. 658, 187 S.E.2d 292 (1972). Both courts found that no evidence had been produced by petitioner to support his allegations.

Petitioner's next effort came in this court which likewise denied relief. Dixon v. Georgia, Civil No. 1178, supra. This determination was reversed by the Fifth Circuit in Dixon v. Caldwell, 471 F.2d 767 (5th Cir. 1973), which held:

"The district court should conduct an evidentiary hearing to determine if petitioner's claims that he was not effectively represented by counsel on appeal and that he was denied the use of a free transcript of his state court trial for the purposes of appeal are true. . . . the court below should also investigate any other habeas claims raised by the petitioner." Id. at 771.

Pursuant to this mandate, this court on April 5, 1973, ordered that an out of time appeal be allowed or that petitioner be released. Dixon v. Caldwell, Civil No. 1178 (M.D.Ga. April 5, 1973). Petitioner was granted such an appeal and counsel for him was appointed by the state. In that proceeding, without consulting petitioner, counsel asserted, inter alia, that the use of suggestive identification procedures made Martinez' in court identification inadmissible and that the trial court erred in refusing to exclude hearsay identification evidence. The Supreme Court of Georgia affirmed. Dixon v. State, 231 Ga. 33, 200 S.E.2d 138 (1973). The court rejected the contention that the identification procedures were defective and refused to consider the hearsay identification issue because that question had not been raised at trial. Counsel in that appeal did not argue the constitutionality of the charge on the alibi defense, the improper composition of the grand and petit juries, the lack of counsel at the committal hearing, or the argument that armed robbery is not committed when the victim is unaware of a weapon and the weapon is not directed toward the victim. Moreover, despite the fact that appellate counsel argued that certain defects were so egregious that the trial court erred in failing to correct them sua sponte, Enumeration of Errors, Respondent's Exhibit 3, no argument was advanced that trial coun...