Gardner v. Norris
| Decision Date | 12 December 1996 |
| Docket Number | No. PB-C-89-99.,PB-C-89-99. |
| Citation | 949 F.Supp. 1359 |
| Parties | Mark Edward GARDNER, Petitioner, v. Larry NORRIS, Director, Arkansas Department of Correction, Respondent. |
| Court | U.S. District Court — Eastern District of Arkansas |
Mark S. Cambiano, Cambiano Law Firm, Morrilton, AR, Deborah Ruth Sallings, Roland, AR, for Plaintiff.
Clint E. Miller, Arkansas Attorney General's Office, Joseph V. Svoboda, Kelly K. Hill, Pamela Rumpz, Little Rock, AR, for Defendant.
On June 7, 1986, petitioner was convicted of two counts of capital murder and sentenced to death by lethal injection. Petitioner appealed his sentence to the Arkansas Supreme Court raising twenty-one points of error. In an opinion on June 20, 1988, the Arkansas Supreme Court affirmed petitioner's conviction. An execution date for the petitioner was set for October 17, 1988.
In September of 1988, petitioner filed a pro se petition for writ of habeas corpus in the Eastern District before the Honorable Judge George Howard, Jr. At that time, Judge Howard granted a stay of execution and appointed petitioner's present counsel.
Following respondent's motion to dismiss the claim for failure to exhaust state remedies, the court dismissed the action without prejudice in order for the petitioner to exhaust his state remedies. Subsequently, petitioner filed a Rule 37 petition with the Arkansas Supreme Court which was denied on February 3, 1989. ARK.R.CRIM.P. 37.
On February 16, 1989, petitioner filed a petition for writ of habeas corpus which was assigned to Judge Howard, and petitioner later amended the petition on September 1, 1989. On April 13, 1989, respondent filed a motion to dismiss petitioner's habeas claim. Although a number of evidentiary hearings were held, no other actions were taken until, by an order on October 2, 1996, Judge Howard transferred the case to this court.
On November 13, 1996, this court denied petitioner's objection to the transfer of the case to this court and took under advisement petitioner's request to reopen hearings on this matter until such time as it could familiarize itself with the record as required by Rule 63 of the Federal Rules of Civil Procedure. Rule 63 outlines the requirements in a situation where one judge replaces another when the matter is already underway. In order to proceed, it is required that this court certify familiarity with the record and determine if the proceedings may be completed without prejudice to the parties. FED. R.CIV.P. 63. After careful review of the record of both the prior state and federal court proceedings, this court is prepared to certify its familiarity with the record and that these proceedings may be completed without prejudice to the parties. A separate order certifying such will entered concurrently with the filing of this opinion.
As noted above, the court has, until this point, taken under advisement petitioner's request to reopen hearings on this matter. Petitioner has had three separate hearings on this matter over a span of more than three years almost entirely about his claim of ineffective assistance of counsel. Petitioner rested his case in chief prior to the case being transferred to this court.
After full consideration of petitioner's claims and the testimony given at the prior hearings, the court will deny petitioner's request to reopen hearings. Due to the nature of the claims presented, as outlined below, the court believes that the vast majority of that which petitioner presented at the earlier hearings is immaterial to the court's determination of his claims. Further, that portion of the prior hearings which the court may rely on does not require any credibility determinations be made by this court. Accordingly, petitioner's request to reopen the proceedings will be denied.
After certifying familiarity with the record and determining that the proceedings in this case can be completed without prejudice to the parties and without further hearings, this court is prepared to rule on the merits of petitioner's habeas claim. For the reasons outlined below, this court determines that petitioner's habeas claim should be, and hereby is, dismissed with prejudice.1
The facts of this case are laid out with sufficiency in the record below, Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988), so for the sake of brevity the court will only outline the relevant facts. Further facts will be provided in the text of this opinion when appropriate.
In the afternoon of December 12, 1985, the bodies of Joe and Martha Joyce and their daughter Sara McCurdy were discovered in the Joyces' residence in Fort Smith, Arkansas. Mr. Joyce was found in one room tied to a chair with his own neckties, bound and gagged, with a necktie tied so tightly around his neck that it had to be cut free. Mrs. Joyce was found bound and gagged in one of the bedrooms. Sara McCurdy was found in another bedroom also bound and gagged. Sara had a belt wrapped around her neck and a metal coat hanger twisted tightly around her neck. The medical examiner determined that the cause of death for all three of the victims was strangulation. At trial, the state also produced evidence which will be discussed below that Sara McCurdy had been raped.
The testimony at trial revealed that several items were missing from the Joyces' home. These items included a bag of silver coins, money, knives, a purse, binoculars, and numerous pieces of jewelry. One of the witnesses at trial, Cindy Griggs, the Joyces' other daughter and McCurdy's sister and co-worker, testified with particularity to the description of the knives, purse, binoculars, and jewelry.
Testimony and evidence introduced at trial developed the following. On December 12, at approximately 3:30 a.m., petitioner checked into the Regal 8 Inn in Fort Smith. Shortly before 11:00 a.m. he was seen walking in the direction of May Avenue in Fort Smith. Between 11:00 and 11:30, in a shop on May Avenue, petitioner asked for directions to Linwood Street. The directions given to petitioner would have taken him to within one block of the Joyce residence.
On that same day, Sara McCurdy left work at 11:15 a.m. to drop off her car, a 1977 Buick LaSabre, at her parents' home. It had been agreed that Mr. Joyce would take Sara back to work after lunch, but Sara never returned. Calls to the Joyce residence between 12:30 and 2:00 went unanswered. Shortly after 2:00 the victim's bodies were discovered by a relative. It was determined at that time that Sara McCurdy's car was missing.
The next time petitioner was seen was shortly before 2:00 p.m. on the same day near Pocola, Oklahoma. He was seen driving a 1977 Buick LaSabre later found abandoned near Pocola and identified as the missing vehicle belonging to Sara McCurdy.
McCurdy's vehicle was left near a service station from which petitioner obtained a ride to the Fort Smith bus station. Petitioner was seen carrying a purse matching the description of the one taken from the Joyce residence. From Fort Smith, petitioner took the bus to Little Rock. At the Little Rock bus station, petitioner attempted to sell pieces of jewelry and several silver coins to persons who testified for the State at trial and described the jewelry and coins in detail. Petitioner checked into the Downtowner Motor Inn, in Little Rock, and on December 13 pawned some of the jewelry belonging to the victims at Maxie's Pawn Shop in Little Rock.
Based upon a description of the petitioner and his activities, including that he was trying to obtain a ride back to Fort Smith, undercover Arkansas State Police officers went to the Little Rock bus station in an unmarked car and offered petitioner a ride to Fort Smith if he would agree to pay the gas. Petitioner agreed.
Petitioner was arrested in route to Fort Smith. On the same day, the jewelry pawned by petitioner was identified by Cindy Griggs as the jewelry missing from her parents' home.
On December 14, the police searched petitioner's room at the Downtowner Motor Inn in Little Rock pursuant to a warrant. The search produced several items later identified as having been taken from the Joyce home. On December 16, one of the officers returned to the Downtowner Inn and took custody of certain items not seized during the original search. These items had been removed and secured by the employees of the Downtowner Motor Inn. Among the items was the purse Gardner had been carrying near Pocola which had belonged to Mrs. Joyce.
Petitioner raises numerous grounds for relief. The court will discuss these points in the order presented by the petitioner.
Petitioner alleges that his privilege against self-incrimination was violated because statements he made to the undercover police officers while riding in their car were introduced at trial. Petitioner does not allege otherwise, and it appears apparent from the record, that petitioner was unaware that he was speaking to undercover police officers. Admittedly, petitioner had not received his Miranda warnings at the time the statements were made.
Apparently, petitioner interprets the Constitution to forbid the admittance of statements made to undercover agents by individuals without knowledge of the agents' true identity. Petitioner's interpretation of the right against self-incrimination is terribly askew. Conversations between a suspect and undercover officers do not implicate the concerns underlying Miranda unless the essential elements of "police-dominated atmosphere" and compulsion are present. Illinois v. Perkins, 496 U.S. 292, 296-97, 110 S.Ct. 2394, 2397, 110 L.Ed.2d 243 (1990).
The court cannot construe a situation in which an unmarked automobile occupied by two undercover agents could be considered a "police-dominated...
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...It follows then, that a criminal defendant who is asked to display tattoos suffers no constitutional harm." Gardner v. Norris, 949 F.Supp. 1359, 1374-75 (E.D.Ark.1996) (citing U.S. v. Bay, 762 F.2d 1314, 1316-17 (9th Cir. 1984)). Requiring a defendant to display a distinguishing physical fe......
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