James E. Messer, Jr. v. Ralph Kemp, Warden Georgia Diagnostic and Classification Center

760 F.2d 1080, 1985 U.S. App. LEXIS 30003
CourtCourt of Appeals for the Eleventh Circuit
DecidedApril 30, 1985
Docket84-8376
StatusPublished
Cited by67 cases

This text of 760 F.2d 1080 (James E. Messer, Jr. v. Ralph Kemp, Warden Georgia Diagnostic and Classification Center) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
James E. Messer, Jr. v. Ralph Kemp, Warden Georgia Diagnostic and Classification Center, 760 F.2d 1080, 1985 U.S. App. LEXIS 30003 (11th Cir. 1985).

Opinions

FAY, Circuit Judge:

James Messer, Jr. was convicted of murder and kidnapping with bodily injury in the Superior Court of Polk County, Georgia on February 8, 1980, and was sentenced to death on both charges. On November 23, 1982, after exhausting his state remedies,1 Messer filed a petition for writ of habeas corpus before the United States District Court for the Northern District of Georgia. The district court denied the petition and Messer appeals. On appeal, petitioner claims that (1) the trial court erred in not declaring a mistrial after an outburst by the victim’s father in the presence of the jury, (2) he was denied effective assistance of counsel, and (3) the trial judge erred in not defining “bodily injury” in the jury charge as it pertains to the offense of kidnapping with bodily injury. After careful consideration, we affirm.

I. FACTS

On February 14, 1979, the half-nude, blood-spattered body of eight-year old Rhonda Tanner was found lying in the woods outside rural Cedartown, Georgia. There were six stab wounds to the body and five knife slashes traversing the victim’s abdomen. The little girl’s face, neck and upper chest were covered with numerous lacerations and abrasions. Massive bruises and swelling indicated that the little girl’s head had been kicked and stomped. Swabs taken from the child’s abdomen and vaginal area indicated the presence of sperm.

The following day, local police, along with state and federal agents, arrested the victim’s uncle, James Messer, and charged him with the crime. Messer was subsequently indicted by the grand jury of Polk [1083]*1083County during the November term of 1979, for kidnapping with bodily injury and for the murder of Rhonda Tanner. A jury trial resulted in a guilty verdict against Messer on both charges. Messer was given the death penalty on both the murder and the kidnapping with bodily injury charge.

The facts adduced at trial paint a vivid picture of the events which transpired on that fateful day. Rhonda Tanner left her parents’ home early on the morning of February 13, 1979, and boarded the bus which took her to College Street Elementary School in Cedartown. At approximately 2:30 p.m. that afternoon, Messer arrived at the grade school and told the principal, Sam Brabson, that Rhonda’s father had been injured in an accident at work and that he was there to pick Rhonda up. Brabson summoned Rhonda from her classroom. When the little girl arrived at the principal’s office, she quickly ran to her uncle’s side and caressed his hand. Brabson, having no reason to suspect that anything was awry, allowed the child to leave with Messer.

When Rhonda did not get off the bus that afternoon, her mother became worried and drove to the elementary school to look for her. Mr. Brabson told Mrs. Tanner what had transpired earlier and described the individual who picked Rhonda up. Mrs. Tanner immediately contacted her mother-in-law who in turn notified the police and then called Messer’s wife. Messer’s wife stated that she knew of no reason why her husband would take Rhonda from school.

When Messer arrived home that evening, his wife and his sister-in-law, Pamela Dunn, were waiting for him. Ms. Dunn testified that Messer came in the door cursing and complaining about having spent the entire day at the doctor’s office. He then went straight to the bathroom where he immediately changed clothes. In reference to Rhonda’s disappearance, Ms. Dunn asked Messer what could be wrong with Rhonda, to which he replied, “I don’t know and I don’t give a damn.” (T. at 243).

The following day, Ms. Dunn was driving down Old Mill Road when she spotted Rhonda’s coat lying in some bushes near the railroad tracks. She notified the police and a search of the area was immediately undertaken. By this time, agents of the FBI and the GBI had joined in the investigation of Rhonda’s disappearance. Later that afternoon, Rhonda’s body was found in a secluded wooded area near the railroad tracks. Her books, pants, and panties were discovered nearby.

Throughout the day, law enforcement officials had been conducting interviews with various witnesses. Retha Wood, an employee at Barber’s Service Company, told police that on the morning of Rhonda’s disappearance, a man came into the store and inquired about light fixtures and supplies. Mrs. Wood, who was working alone at the store, told police that the man acted rather strangely and kept insisting that she go back to the storeroom to get the supplies he needed. She refused and then called her husband to come to the store. The man immediately left the store but returned later thinking that Mrs. Wood was alone. When Mr. Wood appeared from the back of the store, the stranger again left the premises. At approximately 2:30 p.m., Mrs. Wood saw this same individual drive by the store and look in the window. According to Mrs. Wood, he was heading in the direction of College Street Elementary School.

That night, Mrs. Wood called the police and reported what had happened. Subsequently, both Mr. and Mrs. Wood identified a photograph of Messer as the same man who had been in the store on the day Rhonda disappeared. Even more importantly, the principal and two other witnesses from Rhonda’s school had also selected Messer’s photograph as being the man whom they saw pick Rhonda up. These witnesses further stated that on the day in question, Messer was wearing a red cap, blue jeans and a tan jacket.

On the evening of February 14, 1979, the day after Rhonda’s disappearance, investigators went to a residence to question Messer. He agreed to accompany them to the Cedartown Police Station where he volun[1084]*1084tarily gave a statement and signed a waiver permitting a search of his house. Messer was not under arrest at this time.

Initially Messer denied killing Rhonda, but when confronted with the fact that witnesses had identified him, he broke down crying and confessed to the murder. Messer stated that on February 13, 1979, he tried to pick up a female employee at Barber’s Service Company. That attempt having failed, he drove to College Street Elementary School to get Rhonda. Messer claimed that when he picked Rhonda up at school, he planned to molest her, but not to kill her. He also confessed to telling the school’s principal that Rhonda’s father had been injured on the job in order to secure Rhonda’s release.

Messer then left with Rhonda and drove down Old Mill Road to a secluded area near the railroad tracks. Messer stopped the car and the two of them walked into the woods together. Messer then began to molest Rhonda. When she resisted, Messer told investigators that he beat and stomped her head with his fists and shoes. Messer further stated that he stabbed Rhonda repeatedly and slashed her stomach. Although he denies having raped his victim, Messer did inform investigators that he masturbated at the scene. Messer concluded that he spent approximately thirty minutes in the woods before leaving. Following this confession, Messer was informed by the investigators that he was under arrest.

II. THE TRIAL

Following Messer’s indictment, Attorney John Sawhill was appointed as counsel for the accused. Sawhill was the third attorney appointed by the court. The first two attorneys asked to be relieved and cited community pressure as the reason. On November 9, 1979, Messer entered his plea of not guilty.2

The evidence presented against Messer at trial was overwhelming. Mr. and Mrs.

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Bluebook (online)
760 F.2d 1080, 1985 U.S. App. LEXIS 30003, Counsel Stack Legal Research, https://law.counselstack.com/opinion/james-e-messer-jr-v-ralph-kemp-warden-georgia-diagnostic-and-ca11-1985.