Jones v. Smith, 84-7783

• Decision Date: 11 September 1985
• Docket Number: No. 84-7783,84-7783
• Citation: 772 F.2d 668
• Parties: Arthur Lee JONES, Petitioner-Appellant, v. Fred SMITH, Commissioner, Alabama Department of Corrections and Willie Johnson, Warden, Holman Unit, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 668

772 F.2d 668

Arthur Lee JONES, Petitioner-Appellant, v. Fred SMITH, Commissioner, Alabama Department of Corrections and Willie Johnson, Warden, Holman Unit,

Respondents-Appellees.

No. 84-7783.

United States Court of Appeals, Eleventh Circuit.

Sept. 11, 1985.

John Furman, Mobile, Ala., for petitioner-appellant.

Charles A. Graddick, Atty. Gen., Ed Carnes, Martha Gail Ingram, Asst. Attys. Gen., Montgomery, Ala., for respondents-appellees.

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

Before RONEY, FAY and JOHNSON, Circuit Judges.

JOHNSON, Circuit Judge:

Petitioner-appellant, Arthur Jones, was convicted of murder and sentenced to death in 1982. Direct appeals in state court proved unsuccessful. See Jones v. State, 450 So.2d 165 (Ala.Crim.App.1983), aff'd, In re Jones, 450 So.2d 171 (Ala.), cert. denied, --- U.S. ----, 105 S.Ct. 232, 83 L.Ed.2d 160 (1984). Subsequent efforts to obtain coram nobis relief in state court also failed. Jones then filed the present action in federal district court, seeking habeas corpus relief. In this appeal, we review the district court's denial of Jones' habeas petition. Three issues are presented: (1) whether the pretrial line-up was unduly suggestive; (2) whether the trial court erred in rejecting Jones' requested instruction on eyewitness testimony, and (3) whether Jones received effective assistance of counsel during the trial proceedings.

The district court below did not hold an evidentiary hearing; it considered only the records made at trial and at the state coram nobis hearing. 599 F.Supp. 1292. The district court examined the record to determine whether the state court's findings of fact were erroneous. These findings are entitled to a presumption of correctness unless they are "not fairly supported by the record." See 28 U.S.C.A. Sec. 2254(d)(8); Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). Having reviewed the record on appeal, we agree with the district court that the state court's findings are fairly supported by the record. We also agree with the district court's disposition of the legal issues presented in this appeal. Accordingly, we affirm.

I. FACTS

The murder victim was a taxi driver Jones hired at 12:45 a.m. on the morning of August 17, 1981. Immediately after the taxi left the taxi stand, a dispatcher attempted to call the driver on a radio. The driver failed to respond. Approximately thirty-five minutes later, the driver was found robbed and shot to death, lying in the street beside his car eight-tenths of a mile from Jones' home in Plateau, a residential area in North Mobile, Alabama. The radio in the taxi was in working condition when found.

A witness named "Shorty" Banks saw Jones hire the taxi and described him to the police shortly after the murder had been discovered. Banks recalled Jones as having said that he wanted a ride to Plateau. Banks reviewed several photographic arrays but did not point to anyone as the suspect. A picture of Jones was not included among the photographs. At a line-up shortly after Jones' arrest and within three weeks of the murder, Banks immediately recognized Jones as the man he saw at the taxi stand. Banks is five feet four inches tall. He was sitting on the hood of an automobile when he saw Jones at the taxi stand. He described Jones to police as being 5'5"' or 5'6"'--slightly taller than Banks--but in fact Jones is five feet three inches tall, one inch shorter than Banks. Jones was the shortest person in the line-up.

Jones was represented at trial by two attorneys, both of whom have practiced as criminal defense lawyers for over twenty years. The first attorney appointed asked to be replaced because of disagreements with Jones over how to present his defense. The trial court did not replace this attorney but instead appointed a second attorney to assist. The state coram nobis court found that Jones had no problems with either attorney from then on.

Jones' primary defense tactic was to attack Banks' identification of him as the last one to ride with the slain taxi driver. At Jones' insistence, however, an alibi defense was also proffered. Two alibi witnesses testified that they saw Jones at a particular social club on the night of the murder. Jones now claims that seven other witnesses should have been located and subpoenaed to testify to the same effect. The state coram nobis court found that Jones did not give the names of three of these additional witnesses to his attorneys before trial. The other four witnesses either were not located or refused to appear and testify. The state court found that Jones' attorneys made every reasonable effort to find these four potential witnesses, and the district court below adopted this finding as correct.

One of the potential witnesses, Bobby Vaughn, heard before the trial that Jones' attorneys were looking for him. Vaughn called the attorneys and verified Jones' claim that on the night of the murder he and Jones were arranging a marijuana sale, but he refused to give the attorneys his address and failed to appear and testify at trial as he had promised. Despite last minute attempts, Vaughn was never served with a subpoena. Jones' attorneys did not move for a continuance and did not ask that funds be provided to hire a private investigator to locate Vaughn or the other witnesses.

Vaughn is now dead. None of the remaining alibi witnesses have been found. Thus, not one of the seven testified at the state coram nobis hearing that he or she would have appeared at trial and confirmed Jones' alibi defense if requested.

II. ISSUES AND DISCUSSION

A. The Pretrial Line-up.

Jones claims that, because Banks had previously described him as short and since he was, in fact, the shortest participant in the pretrial line-up, the line-up was impermissibly suggestive and tainted Banks' subsequent in-court identification of Jones as the last one to ride with the murdered taxi driver. Jones seeks to bolster this claim by citing the discrepancy between his actual height and the estimate of his height Banks gave the police before his arrest. ¹

A pretrial line-up is impermissibly suggestive if, under the totality of the circumstances, the procedure challenged created a "substantial likelihood" of misidentification:

[F]actors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the time of the confrontation, and the length of time between the crime and the confrontation.

Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382-383, 34 L.Ed.2d 401 (1972). Jones emphasizes the first three of these factors, arguing that: (1) Banks observed Jones for only five minutes as Jones arranged to hire the taxi, (2) Banks was not attentive since he did not then know that the driver would be murdered, and (3) Banks' estimate of Jones' height was inaccurate by two or three inches.

Like the state courts and the district court below, however, we hold that the line-up, if suggestive at all, was not impermissibly suggestive. The five-minute period of observation passed under good lighting conditions. During this period, Banks' attention was specifically directed towards Jones when Jones asked Banks if he were the taxi driver. The line-up occurred only three weeks later, at which time Banks immediately and unequivocally identified Jones. In fact, this identification was so positive that at trial Banks could remember very little about the other individuals who participated in the line-up. This evidence of Banks' certainty is even more compelling when it is recalled that he had previously rejected without hesitation several photographic arrays not containing Jones' picture. The remaining core of Jones' claim--that five minutes was too short a period of observation and three inches too great a discrepancy in height estimation--does not, under a "totality of the circumstances" create a "substantial likelihood" of misidentification. The line-up was not unduly suggestive and did not taint Banks' in-court identification of Jones.

B. The Instruction on Eyewitness Identification.

Jones next claims that the trial court committed an error of constitutional magnitude when it refused, without explanation, to give the following jury charge:

The court charges the jury that the possibility of human error or mistake, and the probable likeness or similarity of objects and persons are elements that you must act upon in considering testimony as to identity. You must carefully consider these factors passing upon the credibility that you attach to the witness' testimony, and you must be satisfied beyond a reasonable doubt as to the accuracy of the witness' identification of the Defendant.

This requested instruction is an extremely truncated version of the "Telfaire" charge, which derives its name from a model charge recommended by the District of Columbia Circuit Court of Appeals in United States v. Telfaire, 469 F.2d 552, 558-59 (D.C.Cir.1972). The court in Telfaire did not make its proposed charge mandatory. In fact, it affirmed the defendant's conviction because the trial court's instructions--"both the initial instruction on the burden of proving beyond a reasonable doubt all the elements of the offense, and the follow-on instructions dealing with the defense of alibi, and the problem of mistaken identity"--when considered in "the overall context of the case," significantly focused the jury's attention on the issue of identity. Id. at 556.

This Court has yet to decide whether a "Telfaire" charge should be constitutionally required in every case where identification of the defendant is a major issue at trial. Instead, in the few similar cases we have decided thus far, we have held that the more general...