Gary v. Schofield
| Decision Date | 28 September 2004 |
| Docket Number | No. 4:97-CV-181 (CDL).,4:97-CV-181 (CDL). |
| Citation | 336 F.Supp.2d 1337 |
| Parties | Carlton GARY, Petitioner, v. Derrick SCHOFIELD, Warden, Respondent. |
| Court | U.S. District Court — Middle District of Georgia |
John Richard Martin, Michael Kennedy McIntyre, Atlanta, GA, for Petitioner.
Carlton Michael Gary, Jackson, GA, pro se.
Susan V. Boleyn, Atlanta, GA, for Respondent.
Petitioner, an inmate on death row at the Georgia Diagnostic and Classification Prison in Jackson, Georgia, petitions the Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, the Court denies Petitioner's application for relief.
Between the fall of 1977 and spring of 1978, terror gripped the historic Wynnton neighborhood in Columbus, Georgia. Targeting elderly white women, an assailant sexually assaulted nine women, killing seven of them and leaving stockings around their necks as his calling card.1 Labeled the "stocking strangler" by the local news media, the assailant suddenly ceased his activities in the Wynnton area in 1978 and eluded authorities for six years.
These crimes remained unsolved until 1984 when a pistol that was stolen from a home in the Wynnton area in October 1977 was linked to Petitioner. (Resp't Ex. 54 at 3247, 3265, 3388.) Petitioner was arrested on May 3, 1984 for this burglary. (Resp't Ex. 54 at 3338.) After acknowledging his Miranda rights, Petitioner confessed that he was present at the burglary and that he was either present at, or had knowledge of, eight of the nine 1977-78 Wynnton area rapes and murders.2 (Resp't Ex. 54 at 3337, 3341, 3357, 3369, 3371-73, 3375-76, 3379-80; Resp't Ex. 55 at 3429.) Petitioner stated that he burglarized these women's homes while an individual named Malvin A. Crittenden committed the rapes and murders. (Resp't Ex. 54 at 3359-60.) The authorities found no corroborating evidence linking Crittenden to the crimes.
Petitioner's fingerprints were ultimately found to match the latent prints found at four of the crime scenes.3 (Resp't Ex. 50 at 2530-33, 2546, 2557-59, 2569-70; Resp't Ex. 51 at 2709-10, 2789-91, 2795; Resp't Ex. 52 at 2819-20, 2912-16, 2923.) Blood evidence and hair samples taken from the crime scenes were inconclusive-they did not establish Petitioner as the perpetrator, nor did they exclude Petitioner. (Resp't Ex. 55 at 3545-84; Resp't Ex. 57 at 3862-85.)
An investigation into Petitioner's background revealed his connection to similar crimes in the past. Specifically, on April 14, 1970, the body of eighty-five year old Nellie Farmer was found in her residence in Albany, New York. (Resp't Ex. 56 at 3596-97.) She had been raped, strangled, and her body was covered. (Resp't Ex. 56 at 3598-99, 3675-76.) A fingerprint taken at the scene matched Petitioner. (Resp't Ex. 56 at 3612, 3615.) When arrested and confronted with this evidence, Petitioner claimed that he was at the crime scene, but an individual by the name of John Lee Mitchell actually raped and killed Mrs. Farmer. (Resp't Ex. 56 at 3628-38.) Mr. Mitchell was acquitted of these charges. (Resp't Ex. 56 at 3648.)
On January 2, 1977, fifty-five year old Jean Frost was attacked and raped during a burglary of her home in Syracuse, New York. (Resp't Ex. 56 at 3684-88.) One of the items taken during the burglary was her watch. (Resp't Ex. 56 at 3688.) When Petitioner was taken into custody two days later, he had the watch in his pocket. (Resp't Ex. 56 at 3709-11.) Petitioner confessed to being the "lookout" for the Frost burglary. He claimed that an individual named Dudley Harris committed the attack and rape. (Resp't Ex. 56 at 3726.) Mr. Harris was not convicted for the crimes. (Resp't Ex. 56 at 3726.)
Regarding the Columbus "stocking strangler" crimes, Petitioner was indicted for raping, murdering, and burglarizing the homes of three of the nine victims-Ruth Schieble, Martha Thurmond, and Kathleen Woodruff. At trial, the Prosecution introduced evidence of the attacks on the other "stocking strangler" victims, claiming that they showed a similar pattern and were also committed by Petitioner. The evidence presented by the Prosecution to show a similar pattern included the following. All of the victims were elderly white women between the ages of 55 and 89. (Resp't Ex. 49 at 2274.) Each of the victims lived alone. (Resp't Ex. 49 at 2274.) In each crime, the assailant broke into the woman's home and burglarized her residence. (Resp't Ex. 49 at 2275.) With the exception of one, all of the crimes happened at night. (Resp't Ex. 49 at 2275.) All of the elderly women were sexually assaulted. (Resp't Ex. 49 at 2275.) All of the attacks involved ligature strangulation, usually with the victim's stockings or pantyhose. (Resp't Ex. 49 at 2276.) With the exception of only one attack, all of the attacks occurred in the Wynnton area of Columbus, Georgia. (Resp't Ex. 49 at 2276.) Every deceased victim had been either partially or totally covered after the attack. (Resp't Ex. at 2277.)
The evidence at trial showed that Mrs. Schieble was raped, beaten, and strangled to death with a stocking on October 21, 1977. (Resp't Ex. 50 at 2476-78; 2482-83, 2500-01, 2503.) She was eighty-nine years old at the time, legally blind, and could walk only with the aid of a walker. (Resp't Ex. 50 at 2468, 2495, 2500.) Mrs. Schieble's son and his wife discovered her lifeless, covered body on October 21, 1977. (Resp't Ex. 50 at 2776-78.)
Martha Thurmond's body was discovered on October 25, 1977. (Resp't Ex. 51 at 2664.) Her body was covered by a pillow, blankets, and sheets. (Resp't Ex. 51 at 2664.) The evidence showed that Mrs. Thurmond was sexually assaulted, beaten, and strangled with a stocking. (Resp't Ex. 51 at 2673, 2699-2701.)
On December 28, 1977, the body of seventy-four year old Kathleen Woodruff was discovered, partially covered, and lying on her bed. (Resp't Ex. 51 at 2735, 2749.) Mrs. Woodruff had been raped and strangled with a scarf. (Resp't Ex. 51 at 2735, 2749, 2757.)
The similar crimes evidence showed that Gertrude Miller was attacked on September 11, 1977. (Resp't Ex. 53 at 3001.) She was raped and severely beaten. (Resp't Ex. 53 at 3004.) Knotted stockings, similar to the ones used to strangle the other victims, were found at the scene. (Resp't Ex. 53 at 3026.) Mrs. Miller survived the attack and identified Petitioner as her assailant. (Resp't Ex. 53 at 3004-09.)
The body of fifty-eight year old Mary "Fern" Jackson was discovered on September 16, 1977. (Resp't Ex. 52 at 2891, 2895.) Her body was covered and she had been beaten and raped. (Resp't Ex. 52 at 2891, 2898.) Mrs. Jackson was strangled to death with a stocking and a sash from a dressing gown. (Resp't Ex. 52 at 2891, 2897, 2900-01.)
Seventy-one year old Jean Dimenstein was raped and strangled to death with a stocking in her home on September 24, 1977. (Resp't Ex. 52 at 2949, 2952-53, 2964, 2966-67.) Her body was covered with sheets and a pillow. (Resp't Ex. 52 at 2949, 2952.)
On February 11, 1978, police responded to a call and found Mrs. Ruth Schwob sitting on the edge of her bed with a stocking tied around her neck. (Resp't Ex. 53 at 3080.) Mrs. Schwob never identified Petitioner as her assailant. Although she survived the February 11, 1978 assault, she died before Petitioner was charged and tried. (Resp't Ex. 53 at 3077.)
On February 12, 1978, the body of seventy-eight year old Mildred Borom was found lying in a hallway of her home. She was lying on her back with her face covered. (Resp't Ex. 53 at 3107, 3114.) Mrs. Borom had been strangled with a venetian blind cord. (Resp't Ex. 53 at 3146, 3148.) She also had been raped. (Resp't Ex. 53 at 3148.)
On April 19, 1978, sixty-one year old Janet Cofer's body was found lying in her bed covered with linen and with a pillow over her face. (Resp't Ex. 54 at 3179, 3200, 3206.) Mrs. Cofer had been raped and strangled with a stocking. (Resp't Ex. 54 at 3218-19.) Although Mrs. Cofer did not reside in the Wynnton area of Columbus (as all of the other victims did), she had attended choir practice at the Wynnton Methodist Church on the evening of her murder. (Resp't Ex. 54 at 3184-85.)4
On May 4, 1984, Petitioner was indicted in the Superior Court of Muscogee County, Georgia on three counts of murder, three counts of rape, and three counts of burglary.5 (Resp't Ex. 1.) Judge Kenneth Followill, the presiding judge in Petitioner's case, ordered Petitioner's trial to begin on March 10, 1986. (Resp't Ex. 2 at 677.) August F. Siemon was Petitioner's primary attorney both pre-trial and at his trial.
On March 10, 1986, the date set for trial, Petitioner filed a notice of his intention to raise the issue of mental incompetency. (Resp't Ex. 2 at 828.) On this same date, Petitioner also filed a "Special Plea of Incompetency." (Resp't Ex. 2 at 829.) In response, Judge Followill entered an "Order for Mental Evaluation re Competency at the Time of the Acts and Competency to Stand Trial." (Resp't Ex. 2 at 834.) Subsequently, the court conducted a competency trial and the jury found Petitioner competent to stand trial. (Resp't Ex. 14-21.)6
On June 10, 1986 and July 7, 1986, Petitioner filed motions to recuse Judge Followill from the case.7 (Resp't Ex. 2 at 898-904, 932-37.) On July 21, 1986, Judge C. Cloud Morgan conducted a hearing regarding the recusal of Judge Followill. (Resp't Ex. 24.) On July 24, 1986, Judge Morgan entered an Order denying Petitioner's recusal motion. (Resp't Ex. 2 at 950.)
On June 18, 1986, Petitioner filed a motion for change of venue. (Resp't Ex. 2 at 905-12.) In an Order dated July 2, 1986, the court held that the trial jury would be selected in Spalding County, Georgia, of qualified jurors from that jurisdiction and that jury would be transported to Muscogee County, Georgia for the trial. (Resp't Ex. 2 ...
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