Thomas v. Newsome

• Decision Date: 20 July 1987
• Docket Number: No. 86-8841,86-8841
• Citation: 821 F.2d 1550
• Parties: Albert THOMAS, Plaintiff-Appellant, v. Lanson NEWSOME, Warden, Defendant-Appellee. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1550

821 F.2d 1550

Albert THOMAS, Plaintiff-Appellant, v. Lanson NEWSOME, Warden, Defendant-Appellee.

No. 86-8841

Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

July 20, 1987.

Floyd M. Buford, Macon, Ga. (Court-appointed), for plaintiff-appellant.

Paula K. Smith, Asst. Atty. Gen., Atlanta, Ga., for defendant-appellee.

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

Before HILL, FAY and KRAVITCH, Circuit Judges.

HILL, Circuit Judge:

Shortly after 2:00 a.m. on January 28, 1977, appellant Albert Thomas, armed with a pistol he had taken from a friend earlier that evening, robbed a Days Inn Motel in Athens, Georgia and kidnapped David Parris, the night auditor. Thomas forced Parris to undress and tied him up with his own clothes. As they were driving around, and apparently without warning or provocation, Thomas shot Parris in the head. Thomas then drove to a deserted area where he pushed Parris out of the car into a culvert and shot him again in the chest. Thomas drove off leaving his victim to die, nude in the sub-freezing temperature of that January night.

Thomas was indicted and convicted in Georgia state court of armed robbery and kidnapping. He was sentenced to death for the kidnapping and to life imprisonment for the armed robbery. On direct appeal, the Georgia Supreme Court set aside Thomas' death sentence because the victim did not die as a result of the crime. ¹ On remand, the trial court imposed a second life sentence for the kidnapping count, to be served consecutively to his original life sentence for the armed robbery. This new sentence was affirmed by the Georgia Court of Appeals. Thomas v. State, 150 Ga.App. 341, 258 S.E.2d 28 (1979). After exhausting his state habeas remedies, Thomas filed for federal habeas corpus relief pursuant to 28 U.S.C. Sec. 2254, which was denied by the district court. 646 F.Supp. 583 (N.D.Ga.1986).

In this appeal, Thomas attacks his conviction and sentence on three grounds. First, he argues that he received ineffective assistance of counsel because his trial counsel failed to challenge the legality of his arrest and the admission of crucial evidence discovered as a result of his arrest. Second, he claims that the district court erroneously determined that the jury in its deliberations did not see or consider the original indictment, which included a count alleging that Thomas had previously been convicted of another armed robbery. Finally, Thomas contends that the imposition upon remand of a second consecutive life sentence violates the eighth and fourteenth amendments, as well as the Supreme Court's decision in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). We reject all of appellant's arguments, and affirm the judgment of the district court.

I. INEFFECTIVE ASSISTANCE CLAIM

Thomas' claim that he suffered ineffective assistance of counsel at his 1977 trial is governed by the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to prevail, the petitioner must first show that his counsel's performance was so deficient that it fell below an objective standard of reasonableness. Id. at 687-88, 104 S.Ct. at 2064-65. In addition, he must demonstrate actual prejudice, i.e., a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694, 104 S.Ct. at 2068. Recently, in Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986), the Supreme Court addressed the situation where the principal allegation of ineffectiveness is defense counsel's failure to litigate competently a fourth amendment claim. In such a case, the Court held that the petitioner "must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate the actual prejudice." Id. at ----, 106 S.Ct. at 2583.

The district court found that "nothing done by [Thomas'] counsel fell below an objective standard of reasonableness. Even if it had, however, petitioner has made no showing of possible prejudice to his defense that was caused by anything appointed counsel did or failed to do." Dist.Ct.Order 646 at 589. Thomas disputes this determination, contending that he was arrested without probable cause, and therefore all the evidence seized as a result of his arrest should have been excluded as "fruit of the poisonous tree." We reject Thomas' arguments, concluding that he cannot prove actual prejudice in the form of a meritorious fourth amendment claim as required by Kimmelman. A review of the sequence of events leading to his arrest reveals that Thomas was properly stopped and then lawfully arrested.

After Thomas shot Parris and left him for dead in the culvert, Parris miraculously managed to pull on his pants and crawl up to the side of the road. A passing motorist spotted Parris at approximately 3:00 a.m. and notified the police. When Officer Fowler arrived at the scene, Parris was still able to talk, and apparently based upon what Parris told Fowler, the officer called in an all-points bulletin describing the assailant as a short black male, medium complexion, wearing a brown hat, and driving a blue Pinto automobile.

Later that morning, at approximately 9:20 a.m., Officer Nash of the Athens Police Department observed a car fitting the description in the bulletin being driven by a black male. Nash stopped the car, which was being driven by Thomas, and asked to see his driver's license. While Nash was in the process of conducting a license check, he noticed Thomas in the car ahead trying to stuff something under the seat. Nash then asked Thomas to step out of the car so he could conduct a pat-down search for weapons, after which the officer told Thomas to wait in the patrol car because of the cold weather.

Officer Pickett arrived at the scene immediately after Thomas had been placed in the patrol car. While the two officers waited for the results of the license check, they walked by the Pinto and saw something red which appeared to be blood on the front seat. They also noticed Thomas bending over in the police car apparently attempting to hide something. At that point Pickett advised Thomas of his Miranda rights. Upon inspection Nash found two rolls of dimes underneath the front seat of the patrol car, and a pat-down search of Thomas revealed $260.00 in his shirt pocket. The officers then searched the Pinto and found fifty $1 bills stuck between the driver's seat and the console, in addition to a slug with blood and hair on it lying on the car floor. The hair found on the bullet was later identified as having a common origin as that of Parris; the blood found on the seat and floor mat matched Parris' blood type, but was not the same type as Thomas' blood.

Thomas was taken to Clarke County Police Department, where he told police that he lived at 170 Macon Avenue and that he had borrowed his sister's car at 8:00 a.m. that Saturday morning. When detectives went to the address given by Thomas, however, they learned that only Thomas' sister and mother lived there. In addition, Thomas' sister told police that she had loaned her blue Pinto to her brother at approximately 9:00 p.m. the previous evening. Thomas' mother told police that his true address was 550 West Hancock Street. After obtaining a search warrant for that address, a detective searched Thomas' apartment and found a wallet, boots, car keys, check stubs, and payroll checks all belonging to Parris. The detective also found a pistol in the apartment, plus two spent cartridges and a Days Inn key in a trash can.

Thomas claims that Officer Nash did not have probable cause to arrest him, and therefore all the evidence seized from both the car and his apartment was tainted by the unlawful arrest. Probable cause to arrest exists "where the facts and circumstances within the collective knowledge of the law enforcement officials, of which they had reasonably trustworthy information, are sufficient to cause a person of reasonable caution to believe that an offense has been or is being committed." United States v. Blasco, 702 F.2d 1315, 1324 (11th Cir.), cert. denied, 464 U.S. 914, 104 S.Ct. 275, 276, 78 L.Ed.2d 256 (1983); United States v. Agostino, 608 F.2d 1035, 1037 (5th Cir.1979). ² Thomas contends that the arrest was consummated at the time Officer Nash ordered him to get out of his automobile and to wait in the patrol car; thus, he argues that for the arrest to be legal the officer must have had sufficient probable cause at the time he made the stop.

Even assuming that the information in the police bulletin was not enough in itself to establish probable cause, ³ we disagree that Thomas was subjected to an unlawful arrest. We also disagree that he was effectively placed under arrest when Officer Nash instructed him to wait in the patrol car. Instead, the officer's initial decision to stop the car was a permissible "investigative stop" under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny. In evaluating the reasonableness of a Terry stop, a reviewing court must examine "whether an officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." United States v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605 (quoting Terry, 392 U.S. at 20, 88 S.Ct. at 1879).

The descriptions in the police bulletin clearly were sufficient to justify detaining Thomas based upon the reasonable suspicion that he was wanted for past criminal conduct. ⁴ In United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985), the Supreme Court recently announced that

if a ["wanted"] flyer or bulletin has been issued on the basis of...