Marsden v. Moore

• Decision Date: 28 June 1988
• Docket Number: Nos. 87-7174,87-7708,s. 87-7174
• Citation: 847 F.2d 1536
• Parties: Norman F. MARSDEN, Petitioner-Appellant, v. Louie MOORE, Sheriff, Chilton Co., Alabama, Respondent-Appellee. Norman F. MARSDEN, Petitioner-Appellant, v. George BOWEN, Warden, Staton Correctional Facility, Elmore, Alabama, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1536

847 F.2d 1536

Norman F. MARSDEN, Petitioner-Appellant, v.Louie MOORE, Sheriff, Chilton Co., Alabama, Respondent-Appellee.

Norman F. MARSDEN, Petitioner-Appellant, v.George BOWEN, Warden, Staton Correctional Facility, Elmore,Alabama, Respondent-Appellee.

Nos. 87-7174, 87-7708.

United States Court of Appeals Eleventh Circuit.

June 28, 1988.

Hardwick, Knight & Haddock, Steven E. Haddock, Decatur, Ala., for petitioner-appellant.

Don Siegelman, Atty. Gen., Rivard Melson, Asst. Atty. Gen., Montgomery, Ala., for respondent-appellee.

Appeals from the United States District Court for the Northern District of Alabama.

Before VANCE and CLARK, Circuit Judges, and GARZA^*, Senior Circuit Judge.

CLARK, Circuit Judge:

Norman Marsden, an Alabama prisoner serving a life sentence for murder, appeals the district court's denial of his petition for a writ of habeas corpus.Finding that none of the claims advanced by Marsden warrant habeas relief, we affirm.

I.

Jerry Gillespie was found dead in his Huntsville, Alabama home on Monday, March 3, 1980.Gillespie had been shot once in the chest, struck in the back of the head, and stabbed.According to police, the living room of Gillespie's home "was disarrayed as if there had been a fight within the area."A bullet was found near Gillespie's body.

Marsden was arrested for the murder of Gillespie on August 18, 1980.His trial was continued at the state's request due to the absence of a material witness.Unable to locate the witness, the state nolle prossed the charges against Marsden on March 13, 1981 because of "insufficient evidence."Marsden was reindicted by the state in February of 1982, and he filed a motion for speedy trial two months later.In June of 1982, Marsden filed a plea of former jeopardy and a motion to dismiss the indictment on the ground that he had been denied a speedy trial.The state trial court denied the motion on June 28, 1982, the first day of Marsden's trial.At that time, the court also denied Marsden's motion for a change of venue due to excessive publicity.

The physical evidence from Gillespie's home did not conclusively implicate Marsden.The latent prints found at the home did not match Marsden's prints.Of the fifteen usable blood samples found at the murder scene, eleven were not consistent with Marsden's blood type and grouping, and four were consistent with the blood of both Gillespie and Marsden.In addition, none of the fibers and hairs found at the murder scene belonged to Marsden.

The state's theory of the murder was that Marsden had killed Gillespie after finding out that Gillespie had been seeing his wife.Faced with inconclusive physical evidence from the murder scene, the state built a circumstantial case against Marsden.Witnesses for the prosecution testified that Gillespie had met Marsden's second wife, Joanne, sometime in 1978, that Joanne Marsden had accompanied Gillespie to his farm-hunting club in the summer of 1979, that in January of 1980 Gillespie received a bottle of whiskey which contained ethylene glycol (a constituent of antifreeze) and that in February of 1980 Marsden was seen in the parking lot adjacent to the building where Gillespie's business office was located.The state also introduced into evidence a .357 magnum handgun with several parts missing or damaged and the serial number filed off.The gun had been found wrapped in a white plastic bag in a dry lake bed in an adjacent county.The serial number of the gun, which was restored by police through standard acid etching procedures, matched that of a gun purchased by Marsden about three weeks before the murder.A firearms expert testified that he reassembled the gun and that, after conducting some tests, it was his opinion that the gun found in the lake bed fired the bullet found at Gillespie's home.Gene Stuttles, Marsden's twelve-year old stepson (and Joanne's son by a previous marriage), testified that Marsden told Joanne that if she called the police to have him picked up she herself would be taken in for aiding and abetting the murder.

The state also theorized that Marsden had sustained a hand injury in a scuffle with Gillespie on the night of the murder, and had gone to Vanderbilt Hospital the following day to get medical treatment for the injury.Three witnesses placed Marsden at Vanderbilt Hospital on March 3-4, 1980.Marsden's stepson testified that he accompanied his mother and Marsden to Nashville to have stitches put in Marsden's hand.¹Dr. James Madden, a surgeon, testified that he had performed surgery for a flexor tendon laceration on the hand of an individual he knew as Edward Nelson on March 3 or 4 of 1980 at Vanderbilt Hospital.After examining a scar on Marsden's left hand outside the presence of the jury, Dr. Madden stated that Marsden's scar was identical to the incision he had made on Nelson's hand.Dorothy Gregory, whose husband shared a room with Nelson on March 3-4, 1980 at Vanderbilt Hospital, testified that Marsden was the patient who was in her husband's room.A week before trial, and twenty-seven months after her husband had been at Vanderbilt Hospital, Gregory had been unable to identify Marsden as the individual who shared her husband's room from photographs shown to her by police.²

After the state rested, the defense presented its case.Neither Marsden nor his wife Joanne took the stand.Dudley Powell testified that on March 2, 1980, as he walked his dog near Gillespie's home at about 7:30 p.m., he heard a woman's scream and a gunshot.Marsden's first wife, Yolanda, testified that she had spoken to Marsden when she phoned Marsden's parents' home at around 8:00 p.m. on March 2, 1980.Marsden's son and relatives also placed him at his parents' home on the night of March 2, 1980 until around 9:00 p.m. Marsden's brother testified that neither he nor Marsden knew Gillespie.He also testified that on February 24, 1980 Marsden sold a .357 magnum handgun to an unknown individual who had become interested in it while shooting in a target area near Huntsville.

The jury found Marsden guilty of murder.Marsden appealed, raising a host of issues.The Alabama Court of Criminal Appeals remanded the case to the trial court to resolve a conflict over Marsden's arraignment, but the Alabama Supreme Court reversed, holding that Marsden had waived his right to be arraigned.SeeMarsden v. State, 475 So.2d 586(Ala.Crim.App.1983), rev'd, 475 So.2d 588(Ala.1984).On remand, the Alabama Court of Criminal Appeals affirmed Marsden's conviction without opinion.SeeMarsden v. State, 475 So.2d 589(Ala.Crim.App.1984).

After pursuing direct appeals, Marsden filed a petition for a writ of habeas corpus in the district court.He argued that (1) excessive publicity made it impossible for him to be tried by a fair and impartial jury, (2)he was improperly required to show a scar to a witness, (3) the testimony of Dorothy Gregory was inadmissible because it was the result of improper identification procedures, (4)the prosecutor improperly commented on his right to remain silent, (5)he was denied his Sixth Amendment right to a speedy trial, (6)the trial court failed to instruct the jury on the lesser included offense of manslaughter, and (7)he was not arraigned prior to trial.The district court, adopting the magistrate's report and recommendation, denied Marsden's petition.On appeal, Marsden raises all of the claims presented to the district court except for the arraignment claim.He also contends that the district court erred in not conducting an evidentiary hearing.

II.

A.

Marsden claims that the state trial court should have granted his motion for a change of venue because of pervasive publicity in the community where he was charged and tried.We disagree.

1.

Gillespie's brother was the county commission chairman of Madison County, Alabama, where Huntsville is located.Consequently, Gillespie's murder generated a good deal of interest in Huntsville.From August of 1980, when Marsden was first arrested, to July of 1984, when the Alabama Supreme Court held that Marsden had waived his right to an arraignment, sixty-one newspaper articles alluding to Marsden's prosecution and trial appeared in Huntsville newspapers.Thirty-five of the articles appeared before Marsden's trial.

The articles described police reports about the murder, Marsden's arrest and indictment, the district attorney's contentions and his opposition to Marsden's bond, the pretrial and trial procedures, the role that Marsden's wife played in the prosecution's case, and the financial problems faced by Gillespie at the time of his death.Six of the articles were accompanied by Marsden's photograph.Seven of the articles simply mentioned Marsden's indictment or Huntsville (e.g., "Grand Jury Indicts Five in Slaying, 100 Others," Huntsville Times, Oct. 16, 1980).Sixteen of the articles were front-page stories.

One particular newspaper article contained information which was prejudicial to Marsden.On Sunday, June 27, 1982, the day before jury selection in Marsden's case was to begin, the Huntsville Times published a front page article entitled "Marsden Trial Begins Monday."In pertinent part, the article stated:

At the time of the 1980 arrest, which stemmed from his wife Joanne's cooperation with prosecutors, Marsden was listed in media reports as a Huntsville investment counselor[.]

....

Joanne Marsden agreed to help police and the district court's office after giving a letter to a friend which was to be opened only upon her "death or institutionalization."The friend subsequently gave the letter to the authorities, who contacted Joanne Marsden.

The letter ... details events which allegedly occurred shortly after Gillespie's death.

The letter said Marsden told his wife if she made a "wrong move" a knife would "go through her son's heart."The letter said Marsden said the knife was just "pulled out of Jerry's back."

Mrs. Marsden said in the letter she feared...