Jarrell v. Balkcom

• Decision Date: 20 June 1984
• Docket Number: No. 83-8535,83-8535
• Citation: 735 F.2d 1242
• Parties: David JARRELL, Petitioner-Appellant, v. Charles BALKCOM, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1242

735 F.2d 1242

David JARRELL, Petitioner-Appellant, v. Charles BALKCOM, Warden, Respondent-Appellee.

No. 83-8535.

United States Court of Appeals, Eleventh Circuit.

June 20, 1984.

J.M. Raffauf, Decatur, Ga., for petitioner-appellant.

Mary Beth Westmoreland, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.

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

Before HILL and CLARK, Circuit Judges, and LYNNE ^*, District Judge.

CLARK, Circuit Judge:

Petitioner is a Georgia prisoner seeking habeas corpus relief under 28 U.S.C. Sec. 2254. We have jurisdiction. Id. Sec. 2253.

I. BACKGROUND

On Christmas Eve, 1973, Mrs. Mala Still disappeared. She had left work at 1:15 p.m. and was last seen alive buying groceries shortly thereafter in a Lawrenceville shopping center. Mrs. Still's car was observed parked alongside Georgia Highway 20 at approximately 8:00 p.m., but at that time the police had not been notified of her disappearance. The authorities located the automobile at about midnight.

On December 25, 1973, various articles of Mrs. Still's apparel and other personal property were found scattered and buried along Tribble Mill Road. On December 26, 1973, the victim's body was discovered about 15 feet off of Tribble Mill Road; she had been shot with a .45 caliber pistol three times in the head and back. When found, the victim's body was fully clothed. At the autopsy, however, pine straw, leaves and other particles were found between her clothing and back.

An investigation ensued, and the authorities interviewed hundreds of possible witnesses. A composite drawing was prepared and published in a local newspaper. The victim's family and employer offered a reward.

On January 4, 1974, Mrs. Joan Pruitt telephoned the Gwinnett County Police and reported a threatening telephone call she had received. The police advised her to secure her husband's .45 caliber pistol. When she attempted to retrieve the pistol, she discovered that it was missing. Mrs. Pruitt said that she had last seen the pistol on December 21, 1973 in the petitioner's possession.

On January 5, 1973, the police interviewed petitioner. After advising petitioner of his rights, the police told him that they wanted to discuss the Still case. Initially, petitioner denied knowledge of the murder, but began to express concern that the victim's husband might seek revenge on the perpetrator. Petitioner then confessed to the crime. He admitted stealing the gun from the Pruitts, kidnapping Mrs. Still in her car from the shopping center, forcing her to remove her clothes, shooting her, throwing things from the car as he drove away from the scene, cleaning the car with Ajax cleanser and later selling the gun to a Bobby Cannon. Petitioner subsequently reenacted the crimes and identified the place where the holster for the pistol would be found. Sometime between 6:00 and 7:30 p.m., petitioner's statement was reduced to writing. At about dark, petitioner was verbally advised that he was under arrest for murder, kidnapping, armed robbery and aggravated assault, and a signed warrant for his arrest was obtained from a justice of the peace.

Ballistics tests revealed that the .45 caliber pistol petitioner sold to Cannon was the murder weapon. Petitioner's fingerprint and palmprint were identified from an item thrown from the victim's automobile and picked up by a passerby on Tribble Mill Road. Petitioner had also been seen walking between his home and the shopping center at noon on Christmas Eve and in the possession of the victim's automobile before 5:00 p.m. that afternoon.

At trial, petitioner's defense was an alibi. Petitioner did not deny making the confession, but stated that he did not remember making it and denied all knowledge of the murder. He testified that he left his residence about 3:30 p.m. on the day of the murder, found the victim's car with its door half open and the keys in it, drove the car for approximately an hour, and then parked it at or near the place he had found it. Explaining his possession of the pistol, he stated that he had taken the gun from the Pruitts' residence on Christmas Day, the day after the victim's death.

On March 8, 1974, petitioner was convicted and received three death penalties and a ten-year sentence. The day of execution was fixed for June 7, 1974. On direct appeal, the Supreme Court of Georgia vacated the death penalty for the armed robbery offense, but affirmed the convictions and remaining sentences. See Jarrell v. State, 234 Ga. 410, 216 S.E.2d 258 (1975). The United States Supreme Court denied certiorari. 428 U.S. 910, 96 S.Ct. 3223, 49 L.Ed.2d 1218 (1976). On May 12, 1978, state habeas corpus relief was denied by the Superior Court of Tattnall County, and the Supreme Court of Georgia affirmed the denial. Jarrell v. Hopper, 242 Ga. 617, 250 S.E.2d 446 (1978).

On March 25, 1979, petitioner's former counsel instituted a federal habeas corpus petition and a stay of execution was entered. On June 13, 1980, the magistrate recommended denial of relief, but on July 19, 1980 the defendant obtained new counsel and was granted leave to amend the petition. The instant action was then stayed pending exhaustion of state remedies.

On September 26, 1980, petitioner filed a second state habeas petition in the Superior Court of Butts County, which was dismissed as successive. On appeal, the Supreme Court of Georgia found 19 of the 22 allegations for relief to be successive, moot or without merit, but the court addressed the remaining three issues on the merits. Petitioner's death sentence for murder was vacated because of an improper jury charge on aggravating circumstances. Jarrell v. Zant, 248 Ga. 492, 284 S.E.2d 17 (1981). Furthermore, the trial court was directed either to resentence defendant or to enter a life sentence. Because the instant pending action challenges petitioner's convictions, no sentencing trial has been scheduled.

Following petitioner's exhaustion of state habeas remedies, respondent filed an answer to the amended federal habeas corpus petition. On March 10, 1983, the magistrate recommended that a new trial be granted because of the improper charge to the jury on petitioner's alibi defense. On June 1, 1983, the district court rejected the recommendation and directed that relief be denied on all grounds. ¹ The court granted a certificate of probable cause and leave to proceed in forma pauperis. On July 11, 1983, petitioner timely filed a notice of appeal to this court.

II. OPINION

In this appeal, petitioner raises numerous grounds for relief. Facts will be developed as relevant to the specific issue addressed.

A. The Confession

On Saturday, January 5, 1974, Jarrell was arrested for and confessed to the murder of Mala Still. The relevant facts leading up to the confession commence on that Saturday morning. Jarrell and his friend, Haney, were drinking, smoking marijuana, and driving around in Haney's automobile. The city police stopped Haney for a traffic violation, and asked Haney and his passenger, Jarrell, to come down to City Hall. Both Haney and Jarrell agreed to go to City Hall, but only Haney was placed under arrest by the city for a traffic violation. (T.T. 441, 462). ²

At about 1 p.m., City Chief of Police Plunkett telephoned Sergeant Blannott of the Gwinnett County Police Department and told him that Jarrell was at City Hall. (T.T. 464, 537). Between 1:00 and 1:30, Sergeant Blannott sent the officers investigating the Still case, Bishop and Cox, to City Hall to ask Jarrell to come to the Gwinnett County Police Headquarters (hereinafter "Headquarters"). (Id., T.T. 473). Investigators Bishop and Cox arrived at City Hall at approximately 1:30, and Chief Plunkett informed them that Jarrell was in his office. (T.T. 473). Upon finding Jarrell in the Chief's office, Bishop carefully advised petitioner of his rights. After each point in the Miranda warnings, Jarrell indicated that he understood the rights explained. (T.T. 450, 499). The investigators then told Jarrell that his name had come up in their investigation of the Still case, and they asked him to come to Headquarters for questioning. Jarrell was not arrested, and he agreed to go to Headquarters voluntarily. ³ (T.T. 451-53, 464, 467). The investigators observed that Jarrell appeared to be in full control of his faculties. (T.T. 451-52, 467).

Cox and Bishop left City Hall with Jarrell and Haney in a police car sometime after 1:30 p.m. (T.T. 443-47, 467). Upon arriving at Headquarters, Jarrell was separated from Haney, and Bishop escorted Jarrell to the Headquarters' Detective Division and left him with Sergeant Blannott. (T.T. 468). At that time and within three or four feet of petitioner, Blannott asked Bishop if he had given Jarrell his Miranda warnings. Bishop told Blannott that he had done so at City Hall. (T.T. 545). Therefore, Blannott did not advise Jarrell of his rights before questioning him.

Between 1:30 and 1:45 p.m., Blannott questioned Jarrell about the Still case. (T.T. 538). Jarrell denied any knowledge of the Still murder. (T.T. 517). After about 20 to 25 minutes of questioning, Blannott decided to take Jarrell to the District Attorney's office for a polygraph examination. (T.T. 492). ⁴ Bishop and Blannott drove Jarrell to the District Attorney's office for the polygraph examination and they arrived at about 2:30 p.m. (T.T. 583). They stayed at the District Attorney's shortly over one hour. (T.T. 518, 539). Jarrell still had not been arrested. (T.T. 518).

Between 3:30 and 4:00 p.m., Blannott, Bishop and Jarrell returned to Headquarters in an unmarked police car. (T.T. 498). They were riding along quietly when, "out of the blue sky" Jarrell asked if the husband of the dead girl would kill the person who had killed her (T.T. 468, 470, 496, 519). Blannott said that when that person was caught he would be offered police protection and that no harm would come to him, just as with...