Satcher v. Pruett

• Decision Date: 18 September 1997
• Docket Number: 96-23,Nos. 96-22,s. 96-22
• Citation: 126 F.3d 561
• Parties: Michael Charles SATCHER, Petitioner-Appellee, v. Samuel V. PRUETT, Warden, Mecklenburg Correctional Center, Respondent-Appellant. Virginia Capital Representation Resource Center, Amicus Curiae. Michael Charles SATCHER, Petitioner-Appellant, v. Samuel V. PRUETT, Warden, Mecklenburg Correctional Center, Respondent-Appellee. Virginia Capital Representation Resource Center, Amicus Curiae.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 561

126 F.3d 561

Michael Charles SATCHER, Petitioner-Appellee, v. Samuel V. PRUETT, Warden, Mecklenburg Correctional Center,

Respondent-Appellant.

Virginia Capital Representation Resource Center, Amicus Curiae.

Michael Charles SATCHER, Petitioner-Appellant, v. Samuel V. PRUETT, Warden, Mecklenburg Correctional Center,

Respondent-Appellee.

Virginia Capital Representation Resource Center, Amicus Curiae.

Nos. 96-22, 96-23.

United States Court of Appeals, Fourth Circuit.

Argued June 2, 1997.

Decided Sept. 18, 1997.

ARGUED: Katherine P. Baldwin, Assistant Attorney General, Office of the Attorney General, Richmond, VA, for Appellant. John Louis Hardiman, New York City, for Appellee. ON BRIEF: James S. Gilmore, III, Attorney General of Virginia, Office of the Attorney General, Richmond, VA, for Appellant. Lee Ann Anderson McCall, Greenville, SC; Steven D. Benjamin, Betty Layne Desportes, Steven D. Benjamin & Associates, Richmond, VA, for Appellee. Michele J. Brace, Virginia Capital Representation Resource Center, Inc., Richmond, VA; Mark Evan Olive, Tallahassee, FL; Gerald T. Zerkin, Gerald T. Zerkin & Associates, Richmond, VA, for Amicus Curiae.

Before WIDENER, WILLIAMS, and MICHAEL, Circuit Judges.

Reversed in part, affirmed in part, and remanded with instructions by published opinion. Judge MICHAEL wrote the opinion, in which Judge WIDENER and Judge WILLIAMS joined.

OPINION

MICHAEL, Circuit Judge:

Petitioner Michael Satcher was convicted in Arlington County, Virginia, in 1991 of the robbery, assault and battery, and attempted rape of Deborah Abel and of the robbery, rape, and capital murder of Ann Borghesani. Satcher was sentenced to death. After his convictions and sentence were affirmed on direct and habeas review in state court, Satcher filed this habeas case in the United States District Court for the Eastern District of Virginia in 1995. Satcher challenged various state court rulings and produced new DNA evidence, which he maintains proves his innocence or at least allows him to raise certain claims procedurally defaulted in state court. The district court granted the writ on the grounds that the in-court identification of Satcher by Abel, the attempted-rape victim, violated his right to due process under the Fourteenth Amendment. The court denied his other claims. Virginia appeals the in-court identification issue, arguing that the identification was admissible because it was reliable under all of the circumstances. In the alternative, Virginia argues that admitting the in-court identification testimony was harmless error. We agree with Virginia that admitting the in-court identification testimony was, if erroneous, harmless error. We therefore reverse the district court's grant of the writ. Satcher cross-appeals several of his other claims, arguing that (1) his defaulted claims may now be pressed because new DNA evidence provides proof of actual innocence, (2) his claim for ineffective assistance of trial counsel is not defaulted because the ineffective assistance of his state habeas counsel excuses the default, (3) his claim that the two offenses should not have been tried together is not procedurally defaulted, and (4) his due process claim that the trial court failed to excuse a juror for cause does not rely on a new rule barred from application on collateral review by Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). We agree with the district court's denial of these claims. Accordingly, we remand the case with instructions to dismiss the petition.

I.

Around 7:00 p.m. on March 31, 1990, Deborah Abel was riding her bicycle on a path running parallel to Lee Highway in Arlington County, Virginia. As Abel rode along, she entered a section of the bicycle path that is hidden from the view of passing motorists by a sound barrier wall about fifteen to twenty feet high. She noticed an "unthreatening" man walking toward her on the path; they made eye contact as they passed. Two or three seconds later, the man pulled Abel off her bicycle from behind, knocking her eyeglasses off; he then dragged her into a ditch along the path. The man began to beat her in the face and head, using one hand to keep her face turned toward the ground. The man also managed to pull Abel's pants part way down. Meanwhile, as Mark Polemani was riding his bicycle along the same section of the path, he noticed a man kneeling near a bicycle lying just off the path. Looking back over his shoulder, Polemani saw the man "throw a punch to the ground." Polemani got off his bicycle and walked toward the man to investigate. As Polemani approached, the man stopped beating Abel, grabbed her purse, and ran. Polemani chased the attacker along the path and up a hill to the street, but the man escaped. Polemani returned to the path and helped Abel to a nearby apartment complex, where they called the police. Police arrived at the scene at about 7:30 p.m. and searched the area for about an hour.

Ann Borghesani was expected to arrive at a party around 8:00 p.m. that same night. Borghesani was ironing some clothes for the party when her roommate left their apartment around 7:10 p.m. To get to the party, Borghesani had about a five-minute walk along the same bicycle path to get to the Metro station. When Borghesani failed to arrive at the party, her friends called the police. Her friends then began looking for her along her usual route to the Metro, searching late into the night and resuming the search early the next morning. Shortly after 8:00 a.m. her body was found at the bottom of a stairwell in an Air Force Association building alongside the bicycle path, about 100 yards from the spot where Abel was attacked. ¹ Borghesani was found nude from the waist down. She had been stabbed twenty-one times with a sharp-tipped object and had been raped. Her purse and some of her jewelry were missing. One of Borghesani's shoes was found on the bicycle path next to the building. A few days later both victims' purses were found together in some bushes in a parking lot about two blocks away from the Air Force Association building.

On August 18, 1990, five months after the attacks on Abel and Borghesani, police arrested Satcher for trying to attack three different women that morning on a different bicycle path in Arlington County. The police said nothing to Satcher about the Borghesani murder before or during the trip to the station. When they arrived, however, an officer asked Satcher, "What's up?," and he replied that the police were "trying to frame [him] for a murder or something or rape or something." Police later found an awl (a pointed metal tool used for boring holes) in the glove compartment of Satcher's car. Borghesani's wounds could have been made with the awl, although it was never conclusively identified as the murder weapon.

Satcher voluntarily gave blood, saliva, and hair samples to the police. Tests showed that Satcher's blood type, carried by seven percent of the population, matched the semen sample taken from Borghesani's body. Tests performed on pubic hairs found on Borghesani's clothing were inconclusive: two hairs did not match Satcher's, and the rest could be neither confirmed nor eliminated as coming from Satcher. Virginia's DNA tests, however, showed that Satcher's DNA matched the DNA from swabs taken from Borghesani's body and clothing.

Abel gave the police a description of her attacker just after the attack in March 1990. She described the attacker as a stocky black male between twenty-five and thirty years old, about 5'9"' or 5'10"' and 190 to 200 pounds. She did not remember any facial scars and said the attacker had a short "Afro" haircut. A police artist made a sketch from Abel's description. Polemani reported similar physical characteristics, and the police artist also drew a sketch from Polemani's description. Polemani was startled to see how similar the sketches were, noting that they were "almost identical," though he thought the sketch based on Abel's description was better. When Satcher was arrested in August, he was twenty-one years old, 5'6"', 152 pounds, with short hair and a facial scar. These details differed somewhat from those reported by Abel and Polemani, and nothing in the record suggests that Satcher's appearance had changed significantly between the attack in March and his arrest in August.

A grand jury indicted Satcher on November 19, 1990, for the murder, rape, and robbery of Borghesani. On April 15, 1991, three months before trial, Satcher was also indicted for the attack and robbery of Abel. Police brought in Abel and Polemani to view a lineup fifteen days before trial. Before looking at the lineup, they reviewed the sketch the police artist had made from Abel's description of the attacker the year before. At the lineup Abel narrowed the choices down to number two and number four (Satcher). She decided that number four looked "almost identical" to the sketch. She picked out number two, however, because he looked "unthreatening," remembering that the man who attacked her had looked unthreatening as she passed him on the bicycle path. Polemani was unable to positively identify anyone at the lineup, although he testified at trial that he was "pretty sure" that the attacker was number four (Satcher).

Abel was in the courtroom during the two days of jury selection. She observed Satcher as he sat at the defense table and was led in and out of the courtroom. After the first few hours Abel approached the prosecutor and told her, "that's the guy." At trial, over Satcher's objection, the judge allowed Abel to identify Satcher for the jury as her attacker. Abel explained (on redirect examination) that after watching Satcher in the courtroom, she believed he was the attacker because of "the way he walked, the way he shrugged his shoulders when he would come back from the bench, it would put the picture in my mind or remind me of exactly that night." The sketch based on Abel's...