United States v. Stone
| Decision Date | 26 March 1973 |
| Docket Number | No. 71-2937.,71-2937. |
| Citation | 472 F.2d 909 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jerry Houston STONE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Frank K. Martin, Columbus, Ga., for defendant-appellant.
William J. Schloth, U. S. Atty., Charles T. Erion, Asst. U. S. Atty., Macon, Ga., for plaintiff-appellee.
Before JOHN R. BROWN, Chief Judge, and BELL and SIMPSON, Circuit Judges.
On July 28, 1971, a federal grand jury returned a six count indictment against the appellant, Jerry Houston Stone. Stone was charged under Count One with kidnapping coupled with infliction of bodily injury under Title 18, U.S. Code, Section 13,1 in accordance with Georgia Code Ann. Section 26-1311, under Count Two with assault with a dangerous weapon, Title 18, U.S.Code, Section 113(c); under Count Three with assault with intent to rape, Title 18, U.S.Code, Section 113(a); under Count Four with disabling and maiming, Title 18, U.S.Code, Section 114; under Count Five with aggravated sodomy, Title 18, U.S.Code, Section 13, in accordance with Georgia Code Ann. Section 26-2002; and under Count Six with rape, Title 18, U.S.Code, Section 2031. A jury found Stone guilty under all six counts on September 15, 1971. He was sentenced to confinement for life under Counts One, Five and Six, five years under Count Two, twenty years under Count Three, and seven years under Count Four, all sentences to be served concurrently. After careful consideration of the grounds urged for reversal of the judgment below, we affirm.
Mrs. Jane Doe (a fictitious name) was, at all material times, a resident of Columbus, Georgia. Lt. Doe, Mrs. Doe's husband, was stationed at nearby Fort Benning for attendance at a U. S. Army's Officer Candidate School conducted on that post. After he completed his prescribed course Lt. Doe remained on duty at Fort Benning awaiting further assignment. In September of 1970 he left under orders for South Vietnam.
During her husband's Fort Benning tour of duty Mrs. Doe taught elementary school in Columbus. She continued teaching after his departure. In December of 1970 she also began teaching an adult education class on Tuesday and Thursday evenings.
Just before 10 P.M. Thursday April 29, 1971, Mrs. Doe returned alone to her rented home in Columbus from teaching her evening class. Upon entering her house she went immediately to the back door. She flipped on an outside light to look for her pet cat. The cat was dead in the backyard. Mrs. Doe testified she then "sort of went into shock". She telephoned two fellow teachers, one of whom agreed to take her to get some tranquilizers. She went to her front door to wait for her friend. She looked to her right as she reached the door and suddenly saw a man rushing at her from that part of the house. He was wearing her blue panty hose on his head. Mrs. Doe screamed, and the man struck her on the head. The assailant grabbed her hair and dragged her into the hallway. He produced a knife which he held at her throat and threatened to kill her if she failed to do as he said. He then hit her in the eye, dislodging a contact lens to the upper part of her eye and took her into her bedroom where she was ordered to disrobe. She complied. The assailant threw her to the bed. At this point some one or more persons outside yelled and pounded on the front door. A voice called to ask if she was all right. The man directed her, with his knife at her throat, to tell those outside she was okay, that she just had a bad dream. She did so and the persons outside left.
After checking to see if anyone was around, the man ordered Mrs. Doe into a top and slacks, then grabbed her by the hair and dragged her out of the house, out the backyard and over a fence into a neighbor's yard. When neighborhood dogs began barking he dragged her to the road, and eventually into his car. Mrs. Doe attempted to get out through the car door but her attacker grabbed her and slit her wrist with his knife. He then drove rapidly to Fort Benning.
The man drove to one of the more remote ranges at Fort Benning, located on a deserted side road. He stopped the car and told Mrs. Doe to remove her clothes. According to Mrs. Doe's testimony, the man then proceeded to rape her several times, committed sodomy upon her several times, and forced her to perform fellatio upon him several times. These events, occurring over a number of hours, took place both in and out of the car. Other indignities were inflicted on Mrs. Doe. The man chopped off some of her hair, cut off part of her pubic hair, hit her several times, kicked her, and whipped her with a tree branch. He tied her up with pieces of her panty hose that he had been wearing earlier, gagged her, and burned her repeatedly with the car's cigarette lighter and a lighted cigarette.
During this ordeal Mrs. Doe had occasion to see and memorize the car's license tag number, to notice a red Fort Benning sticker tag on the front bumper of the car and that the car was a Chevrolet Camaro. She saw an airborne insignia sticker or decal on the windshield which she tried to peel off. She noted that her assailant was wearing raw-hide colored ankle-high boots and a gold colored sweat shirt. At one point, when the man appeared to doze from his exertions, Mrs. Doe tried to escape from the car. When she opened the car door, the overhead light came on, awakening her abductor. Mrs. Doe for the only time during the evening had an opportunity to see her assailant's features, getting a clear look at him for about 15 seconds before he grabbed her and pulled her back into the car to resume his sexual attacks.
Mrs. Doe's assailant finally stopped his abuse of her some time in the early hours of Friday morning, April 30. He told her he had served with the Army in Vietnam, had recently been released at Fort Campbell. He also said he had two children. Mrs. Doe begged him not to kill her. At length he agreed to take her elsewhere and release her. After they both dressed, he drove her off the Fort Benning base to a busy highway and released her. Mrs. Doe ran to a filling station and called the police. She was taken by ambulance to Martin Army Hospital, and there was treated for her wounds and discharged.
Acting upon information supplied by Mrs. Doe, FBI special agents quickly discovered the ownership of the Chevrolet Camaro used by the assailant. The car was owned by the defendant Stone, an airborne infantry instructor at Fort Benning. The agents arrested Stone in his car at his home. After his arrest and pursuant to a search warrant, the special agents searched Stone's car. They discovered clothing similar to that described by Mrs. Doe in Stone's home.
Stone later signed a written waiver of his constitutional rights under Miranda and then signed a confession admitting the attack on Mrs. Doe. At arraignment, Stone's plea was not guilty.
After the grand jury indictment, and prior to trial, a Title 18 U.S.C., Section 4244 hearing was held to determine Stone's competency to stand trial. Stone was examined by Dr. Raines, a psychiatrist, and Dr. Mandeville, a clinical psychologist, both of whom testified at the hearing. The trial judge found Stone competent to stand trial.
At the trial, in addition to questioning the sufficiency of proof of the offenses shown by the government's testimony, Stone defended on the basis of temporary insanity at the time of the events in question. Drs. Raines and Mandeville again testified, the former for the prosecution, Dr. Mandeville for the defense. A number of Stone's fellow soldiers testified to various irrational acts of Stone while he had been in Vietnam. Members of his family also testified to irrational behavior after his return from overseas. He did not take the stand. As stated the jury returned a guilty verdict as to all six counts of the indictment. Judgment of guilty and sentencing ensued, followed by this appeal.
The appellant raises ten separate issues on appeal. A number are clearly without merit and may be disposed of rather summarily; but some of the contentions merit serious evaluation.
In brief, the appellant alleges that:
(1) the trial court erred in ruling that Stone was competent to stand trial;
(2) the jury should have found Stone not guilty by reason of insanity at the time of the offense;
(3) the trial court erred in determining that the defendant's alleged confession was voluntary;
(4) the trial court erred in not granting a mistrial when the prosecution stated to the jury, in opening argument, that the government had a confession from the defendant, prior to the court's determination that the confession was voluntary;
(5) the trial court erred in admitting into evidence Stone's alleged confession and his Miranda waiver, and in permitting these items to be taken to the jury room by the jury while they deliberated upon their verdict;
(6) the trial court erred in allowing into evidence the allegedly "tainted" incourt identification of the appellant by the victim (7) the trial court erred in admitting evidence seized under a search warrant allegedly issued in the alternative;
(8) the trial court erred in not granting a motion for acquittal on Counts Two, Three and Four of the indictment, i. e., assault with a deadly weapon, assault with intent to rape, and disabling and maiming;
(9) the trial court erred in not making an in camera inspection of the government's files for exculpatory and impeaching evidence; and
(10) the overall conduct of the trial judge deprived the defendant of a fair trial in that the appellant was deprived of the effective assistance of counsel by the trial judge's assistance in the prosecution of the case, by his continual demeaning of defendant's counsel, and by his constant disparaging of the defense.
Each of these issues was preserved for appellate review by appropriate motion below.
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