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Full Opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DONALD WHITE, )
)
Petitioner, )
)
v. ) No. 4:20 CV 351 DDN
)
MICHELLE BUCKNER, )
)
Respondent. )
MEMORANDUM OPINION
Before the Court is the petition of Missouri state prisoner Donald White for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. Both petitioner and respondent have
consented to the exercise of plenary authority by a United States Magistrate Judge under
28 U.S.C. § 636(c). For the reasons set forth below, the petition is denied.
BACKGROUND
The underlying convictions
Petitioner White was convicted in 2014 by a jury in the Circuit Court of the City of
St. Louis of first-degree murder and armed criminal action. Petitioner was sentenced to
life imprisonment without the possibility of parole for first degree murder and thirty years
for armed criminal action, sentences the Circuit Court ordered to be served consecutively.
The Missouri Court of Appeals, in its decision affirming the lower court’s denial of
post-conviction relief, described the facts of this case as follows:
A.Y. (Victim) was murdered on August 23, 2011. At the time of the
murder co-defendant Leon Moss had charges pending for second-degree
domestic assault and armed criminal action for acts he committed against
Victim. Victim was prepared to testify at this trial. Prior to the murder, Moss,
in the presence of a group of associates, discussed the murder of Victim.
[Petitioner] told Moss that he knew someone who could do the job, and later
said that co-defendant Christopher Spates could commit the murder.
Raymond Jones was introduced to co-defendant Spates. Jones could identify
Victim, and, according to Moss, Jones would take Spates to “do what you
got to do.”
In the evening of August 23, 2011, Spates and Jones followed Victim
and waited for her to pull into a parking lot, where the murder occurred.
Video surveillance identified the vehicle they were driving, and eyewitness
testimony indicated Spates was the shooter. Victim died immediately from
three shots to the head.
Following the murder, Moss and [petitioner] discussed that Spates had
yet to be paid for the hit. Moss was seen handing [petitioner] a stack of money
wrapped in a rubber band. [Petitioner] said the money was for the murder of
Victim. [Petitioner] was seen separating the money before he arrived at
Spates’s apartment, and handing Spates the cash. Later, Moss indicated he
wanted the murder weapon disposed of. [Petitioner] went back to Spates’s
apartment, convinced Spates to give him the gun, broke it down, and threw
it in a river.
[Petitioner] was tried by a jury alongside co-defendants Spates and
Moss. He was found guilty and sentenced to consecutive terms of life without
probation or parole for murder and thirty years for armed criminal action. On
direct appeal this Court affirmed the convictions and sentences. State v.
White, 507 S.W.3d 33 (Mo. App. E.D. 2016). [Petitioner] filed a motion to
vacate, set aside, or correct judgment and sentence. The motion court denied
[Petitioner]’s motion without an evidentiary hearing. The present appeal
follows.
(Doc. 10-22 at 1-3); White v. State, 567 S.W.3d 644 (Mo. Ct. App. 2018).
Petitioner’s direct appeal
Petitioner directly appealed his convictions and sentences to the Missouri Court of
Appeals. Petitioner asserted the following 10 violations of the federal Constitution:
(1) The Circuit Court erred in allowing witness Devonta Gomillia to testify
regarding out-of-court statements made by petitioner’s co-defendant
Christopher Spates.
(2) The Circuit Court abused its discretion in allowing witness Darryl Clemons
to testify regarding out-of-court statements made by petitioner’s co-
defendant Leon Moss.
(3) The Circuit Court abused its discretion in denying petitioner’s motion to
sever his trial from that of his co-defendants Christopher Spates and Leon
Moss.
(4) The Circuit Court erred in denying petitioner’s motion to dismiss charges
based on violations of the Interstate Agreement on Detainers (IAD).
(5) The Circuit Court erred in limiting the cross-examination of Mr. Clemons
regarding his prior conduct in which he threw a woman out of a moving car.
(6) The Circuit Court erred in allowing testimony that indicated petitioner was
involved in drug activity and overruling petitioner’s Motion for Mistrial after
said testimony was given.
(7) The Circuit Court erred in denying petitioner’s motion for a mistrial after
testimony was adduced regarding his prior imprisonment.
(8) The Circuit Court erred in failing to strike the comments of the prosecutor,
order a new trial, or properly instruct the jury when the prosecutor, in her
closing argument, referred to petitioner’s failure to deny that he was an
associate of Mr. Clemons.
(9) The Circuit Court erred in allowing testimony by Officer Kaiser regarding
out-of-court statements made to him by Mr. Gomillia.
(10) The Circuit Court refused to allow petitioner’s counsel access to federal case
files concerning Mr. Clemons and probation files concerning Mr. Gomillia.
The Missouri Court of Appeals affirmed. State of Missouri v. White, 507 S.W.3d
33 (Mo. Ct. App. 2016). In its unpublished explanatory opinion, the Missouri Court of
Appeals ruled against each of petitioner’s points on its merits. (Doc. 10-13.)
Motion for post-conviction relief
On March 28, 2017, petitioner filed a motion for post-conviction relief (PCR) under
Missouri Supreme Court Rule 29.15. In it he states eight of grounds for relief:
(1) Trial counsel rendered constitutionally ineffective assistance by failing to
properly and completely object or preserve in petitioner’s Motion for New Trial the trial
court’s error in admitting Mr. Gomillia’s testimony regarding the hearsay statements of co-
defendant Spates.
(2) Trial counsel rendered constitutionally ineffective assistance by failing to
object, move to strike, request a mistrial, or preserve in petitioner’s Motion for New Trial
the Assistant Circuit Attorney’s improper closing argument commenting on petitioner’s
right not to testify.
(3) Trial counsel rendered constitutionally ineffective assistance by failing to
effectively draft, litigate and present evidence regarding petitioner’s detainer and status
relative to his claims under the Interstate Agreement on Detainers (IAD).
(4) Trial counsel rendered constitutionally ineffective assistance by advising and
facilitating petitioner’s “consenting” to being returned to federal custody on or about
March 19, 2013, as this violated petitioner’s rights under provisions of the IAD.
(5) Trial counsel rendered constitutionally ineffective assistance by failing to
effectively plead, litigate and preserve petitioner’s motion to sever defendants for separate
trials.
(6) Trial counsel rendered constitutionally ineffective assistance because the
cumulative errors committed by trial counsel are sufficient in their egregiousness to
warrant relief.
(7) Appellate counsel rendered constitutionally ineffective assistance by failing
to properly plead and brief the issue and facts relating to the trial court’s error in failing to
sever petitioner’s case from that of his co-defendants.
(8) Appellate counsel rendered constitutionally ineffective counsel by failing to
properly plead and brief the issue and facts relating to the improper admission of co-
defendant Moss’s hearsay statements to Mr. Clemons regarding the purported planning of
the crimes charged.
(Doc. 10-17.)
The Circuit Court denied relief. (Doc. 10-18 at 3-12.) Petitioner appealed to the
Missouri Court of Appeals.
Post-conviction relief appeal
On his PCR appeal, petitioner raised the following five grounds:
(1) The motion court erred in denying petitioner’s Rule 29.15 motion for post-
conviction relief on grounds that his trial counsel was ineffective for failing to object to
and properly preserve the trial court’s error in admitting the hearsay testimony of Mr.
Gomillia concerning statements he allegedly heard from co-defendant Spates regarding the
murder of the victim.
(2) The motion court erred in denying petitioner’s PCR motion on the ground
that his trial counsel was ineffective for failing to effectively draft, litigate and present
evidence regarding petitioner’s detainer and status under the IAD.
(3) The motion court erred in denying petitioner’s PCR motion on the ground
that his trial counsel failed to litigate and preserve his Motion to Sever Defendants.
(4) The motion court erred in denying petitioner’s PCR motion on the ground
that his appellate counsel failed to effectively brief his Motion to Sever Defendants.
(5) The motion court erred in denying petitioner’s PCR motion on the ground
that his appellate counsel was ineffective for failing to properly brief and plead facts
relating to the improper admission of co-defendant Moss’ hearsay statement to Mr.
Clemons regarding the purported planning of the crimes charged. (Doc. 10-19.)
The Missouri Court of Appeals affirmed the denial of post-conviction relief. White
v. State of Missouri, 567 S.W.3d 644 (Mo. Ct. App. 2018) (Doc. 10-22 at 6.).
PETITIONER’S GROUNDS FOR FEDERAL HABEAS RELIEF
Petitioner’s petition for a writ of habeas corpus under 28 U.S.C. § 2254 asserts the
following eight grounds:
(1) Trial counsel rendered constitutionally ineffective assistance because they
failed to object adequately to Mr. Gomillia’s hearsay testimony regarding
statements he allegedly heard from petitioner’s co-defendant Christopher
Spates regarding the murder-for-hire of the victim.
(2) Trial counsel rendered constitutionally ineffective assistance because they
failed to adequately assert and present petitioner’s claim based on the denial
of rights protected by the IAD.
(3) At trial, the Circuit Court found that no detainer occurred prior to trial and
denied petitioner’s motion to dismiss the charges against him for violation of
the IAD.
(4) At trial, the Circuit Court denied petitioner’s request for a trial separate from
that of his co-defendants.
(5) At trial, the Circuit Court overruled defense counsel’s objection to testimony
by Mr. Gomillia regarding out-of-court statements purportedly made by Mr.
Spates implicating petitioner in victim’s murder.
(6) At trial, the Circuit Court refused to allow defense counsel to cross-examine
Mr. Clemons.
(7) At trial, the Circuit Court did not declare a mistrial or provide the jury with
an immediate remedial instruction after the prosecuting attorney commented
to the jury on petitioner’s failure to testify.
(8) At trial, the Circuit Court did not allow defense counsel access to federal
investigation files concerning Mr. Clemons and probation files concerning
Mr. Gomillia.
(Doc. 1 at 6-17.)
Respondent argues that Ground Four is procedurally barred to the extent it expands
on the claim that petitioner presented in state court. (Doc. 10 at 13.) Respondent also
argues that Ground Five is procedurally barred because of petitioner’s failure to preserve
the claim at trial. (Id. at 14.) On the remaining grounds, respondent argues that this Court
should leave the reasonable decision of the Missouri Court of Appeals undisturbed. (Id. at
6-17.)
EXHAUSTION AND PROCEDURAL BAR
Congress requires that state prisoners exhaust their state law remedies for claims
made in federal habeas petitions under 28 U.S.C. § 2254. See 28 U.S.C. § 2254(b)(1). A
prisoner has not exhausted his state law remedies if he “has the right under the law of the
State to raise, by any available procedure, the question presented.” 28 U.S.C. § 2254(c).
An appeal to an intermediate state appellate court exhausts remedies in Missouri,
permitting federal habeas review. See Mo. Sup. Ct. R. 83.04; Randolph v. Kemna, 276 F.3d
401, 404 (8th Cir. 2002) (“Rule 83.04 ... makes clear that Missouri does not consider a
petitioner who bypasses its supreme court in favor of federal habeas review to have denied
the State its rightful opportunity to resolve federal constitutional claims.”).
To preserve issues for federal habeas review, a state prisoner must fairly present his
claims to the state courts during the trial court proceedings or post-conviction proceedings
and on appeal from the denial of relief in both proceedings. Sweet v. Delo, 125 F.3d 1144,
1149 (8th Cir. 1997). Failure to raise a denied claim in a post-conviction appeal is an
abandonment of the claim and federal habeas review of the claim is barred. Id. at 1150; see
also Coleman v. Thompson, 501 U.S. 722, 750 (1991). A petitioner may overcome the
procedural bar if he can demonstrate legally sufficient cause for the default and actual
prejudice resulting from it, or if failure to review the claim would result in a fundamental
miscarriage of justice. Id at 750.
Therefore, a prisoner “forfeit[s] his right to present his federal claim . . . unless he
can meet strict cause and prejudice or actual innocence standards.” Greer v. Minnesota,
493 F.3d 952, 957 (8th Cir. 2007). Generally, to establish cause for a procedural default,
petitioner must “show that some objective factor external to the defense impeded” his
“efforts to comply with the State’s procedural rule.” Coleman, 501 U.S. at 753. To establish
actual prejudice, petitioner “must show that the errors of which he complains worked to
his actual and substantial disadvantage, infecting his entire trial with error of constitutional
dimensions.” Ivy v. Caspari, 173 F.3d 1136, 1141 (8th Cir. 1999).
STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), habeas
relief can be granted by a federal court on a claim that has been decided on the merits by a
state court only when that adjudication:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d)(1)-(2).
A state court’s decision is contrary to clearly established law if it “arrives at a
conclusion opposite to that reached by [the Supreme] Court on a question of law
or…decides a case differently than [the Supreme] Court has on a set of materially
indistinguishable facts.” Thaler v. Haynes, 130 S. Ct. 1171, 1174 (2010). A state court’s
decision involves an “unreasonable application” of clearly established federal law if “the
state court identifies the correct governing legal principle from [the Supreme] [C]ourt’s
decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id.
This standard is difficult to meet, because habeas corpus “is a guard against extreme
malfunction in the state criminal justice systems, not a substitute for ordinary error
correction through appeal.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011).
A state court’s findings of fact are presumed to be correct. See 28 U.S.C. §
2254(e)(1); Wood v. Allen, 558 U.S. 290, 293 (2010). A federal court’s review of factual
findings is generally limited to the record before the state court that adjudicated the claim
on the merits. See Cullin v. Pinholster, 563 U.S. 170, 181 (2011). Clear and convincing
evidence that a state court’s findings of fact lacked evidentiary support is required for a
federal court to make a correction. See 28 U.S.C. § 2254(e)(1); Wood, 558 U.S. at 293.
DISCUSSION
Constitutionally ineffective assistance of counsel
In Grounds One and Two petitioner argues trial counsel rendered constitutionally
ineffective assistance for trial counsel’s failure to adequately object to the admission of Mr.
Gomillia’s testimony and failure to adequately present a claim that petitioner had been
detained in violation of the IAD. In Strickland v. Washington, 466 U.S. 668 (1984), the
Supreme Court determined that the right to effective assistance of counsel arises from the
Sixth and Fourteenth Amendments. The right to counsel is “the right to effective assistance
of counsel.” McCann v. Richardson, 397 U.S. 759, 771 n.14 (1970). Under Strickland, a
petitioner is entitled to federal habeas corpus relief upon a showing that “counsel’s conduct
so undermined the proper functioning of the adversarial process that the trial cannot be
relied on as having produced a just result.” Strickland, 466 U.S. at 686.
In order to prevail on a Sixth Amendment claim, a petitioner must prove that (1)
counsel’s representation “fell below an objective standard of reasonableness,” measured
under “prevailing professional norms,” id. at 688, and (2) “there is a reasonable probability
that, but for the counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 694. A “reasonable probability” is “a probability sufficient to
undermine confidence in the outcome.” Id. There is “a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.” Id. at 689. The
performance and prejudice prongs of Strickland can be addressed in either order, and “[if]
it is easier to dispose of a ineffectiveness claim on the ground of lack of sufficient
prejudice…that course should be followed.” Id. at 697.
Ground One
In Ground One, petitioner argues that he was deprived of the right to effective
assistance of trial counsel because counsel failed to properly object to the testimony of Mr.
Gomillia regarding statements made by petitioner’s co-defendant Christopher Spates in
violation of the Sixth and Fourteenth Amendment. Petitioner raised this claim in his Rule
29.15 post-conviction motion, and the motion court found the claim was without merit.
Petitioner appealed to the Missouri Court of Appeals, which affirmed the Circuit Court’s
holding.
The trial transcript indicates that Mr. Gomillia testified that Mr. Spates told him that
he received payment for the killing of the victim and that petitioner was the one who made
that payment. The trial transcript also indicates that the jury was given a limiting
instruction to only consider the testimony in question when determining the guilt of co-
defendant Spates and not that of petitioner. (Doc. 10-2 at 1550-51.)
The Missouri Circuit Court stated the following regarding this matter upon
petitioner’s Rule 29.15 appeal:
[Petitioner]’s first claim is that his trial counsel was ineffective for
failing to properly object to Davonta Gomillia’s testimony regarding the
hearsay statements of co-defendant Spates and for failing to preserve for
appeal the trial court’s error in admitting Davonta Gomillia’s testimony.
Failure to object does not rise to the level of ineffective assistance of
counsel unless movant has suffered a substantial deprivation of the right to a
fair trial. Johnson v. State, 330 S.W. 3d 132, 139 (Mo. App. W.D. 2010);
Williams v. State, 783 S.W. 2d 457 (Mo. App. 1990). Improperly admitted
evidence is not prejudicial when other evidence before the court establishes
the same facts. Elliot v. State, 272 S.W. 3d 924, 926 (Mo. App. S.D. 2009).
The Court finds [petitioner]’s first part of the claim, regarding a failure
to properly object, is without merit. The Court gave a limiting instruction,
and there was substantial other evidence in the case regarding [petitioner]’s
involvement in arranging the murder and the payment of money from co-
defendant Moss to co-defendant Spates, and particularly through the
testimony of Darryl Clemons. [Petitioner] therefore suffered no prejudice.
The Court further finds the claim that counsel failed to preserve the
issue for appeal is without merit. The review of ineffective assistance of
counsel is limited to consideration of alleged errors which denied movant a
fair trial. Therefore, a claim that counsel failed to adequately preserve issue
for appeal is not cognizable. Johnson v. State, 283 S.W. 3d 279, 282 (Mo.
App. S.D. 2009); State v. Baker, 850 S.W. 2d 944, 950 (Mo. App. E.D. 1993);
Strong v. State, 263 S.W. 3d 636, 646 (Mo. banc 2008).
(Doc. 10-18 at 5-6.) Petitioner appealed. On appeal, the Missouri Court of Appeals stated
the following:
Movant alleges multiple points which this Court previously addressed
on his direct appeal. Movant alleges that these issues were not properly
objected to or otherwise not correctly preserved for review. However, this
Court reviewed these claims of error either ex gratia or as preserved error,
and held that they were without merit.
When a court reviews and rejects a movant’s argument on direct
appeal, even if ex gratia, a movant cannot then successfully argue ineffective
assistance of the same alleged error in post- conviction proceedings. Moss v.
State, 540 S.W.3d 427, 432 (Mo. App. E.D. 2018). Counsel will not be found
ineffective for failing to preserve a claim that has no merit. State v. Phillips,
940 S.W.2d 512, 524 (Mo. banc 1997). Because this Court has already
determined the alleged errors to be without merit, they could not have
affected the outcome of trial. Accordingly, points one through four are
denied.
(Doc. 10-22 at 3-4.) (footnotes omitted.)
Both the Circuit Court and the Missouri Court of Appeals rejected petitioner’s
ineffective assistance of counsel claim because it had already been determined the alleged
errors of counsel were without merit, and a meritless error, the court reasoned, could not
have affected the outcome of petitioner’s trial. The Circuit Court, in its ruling on
petitioner’s motion for post-conviction relief, held that petitioner suffered no prejudice, an
essential element of a claim of ineffective counsel under Strickland. The court reasoned
that, had petitioner been able to exclude the testimony from Mr. Gomillia regarding co-
defendant Spates’ implication of defendant, there would have been no material difference
in the outcome of the case, because there were several other pieces of evidence that
connected petitioner to the murder of the victim. (Doc. 10-18 at 5-6.) In neither petitioner’s
petition for a writ of habeas corpus nor his traverse did he state how he was prejudiced by
the admission of Mr. Gomillia’s testimony.
The state courts’ decisions on this ground were reasonable applications of federal
law based upon a clearly established factual record.
Accordingly, Ground One is without merit.
Ground Two
In Ground Two, petitioner argues that he was deprived of the right to effective
assistance of trial counsel because trial counsel failed to properly present claims based on
the denial of rights protected by the IAD. Petitioner raised this claim in his Rule 29.15 post-
conviction motion and the Circuit Court found this claim was without merit. Petitioner
appealed to the Missouri Court of Appeals, which affirmed. Petitioner now alleges that trial
counsel rendered ineffective assistance at trial because they failed to stipulate the following
facts:
(1) Federal law enforcement officials charged with his custody accepted and
acted upon the warrant issued by the state prosecutor in St. Louis as a
detainer, (2) the transfer of [petitioner] from the Jennings jail to the St. Louis
jail by St. Louis homicide detectives rather than federal marshals was
extraordinary and intended to thwart continuous detention in federal custody,
(3) the transfer to state custody after federal sentencing occurred only
because the federal government honored the state warrant as a detainer, (4)
absent a detainer the federal marshals would have transferred [petitioner] to
a federal prison after sentencing in the United States District Court rather
than leave him in local jails, and (5) [petitioner] thus remained a federal
prisoner in state custody after a detainer was filed against him for more than
120 days without being brought to trial.
(Doc. 19 at 25-26.)
The Missouri Court of Appeals made the following statements regarding the Circuit
Court’s finding that no violation of the IAD took place:
The IAD, codified in Missouri at Section 217.490 RSMo., authorizes
a state to secure custody of a prisoner against whom it has lodged a detainer
and who is serving a term of imprisonment in another state, for disposition
of the charges against him in the state. Section 217.490, Art. IV(1); State v.
Davis, 210 S.W.3d 229, 235 (Mo. App. W.D. 2006). If the state chooses to
exercise its right, trial must be commenced within 120 days of the prisoner’s
arrival in the state. Section 217.490, Art. IV(3); Alabama v. Bozeman, 533
U.S. 146, 151 (2001); Davis, 210 S.W.3d at 235.
The IAD also contains an “anti-shuttling” provision. That provision
requires that when an individual who is serving a term of imprisonment in
one jurisdiction is removed to another jurisdiction pursuant to a detainer, he
must be tried in that jurisdiction before being returned to the original place
of imprisonment; if he is not, the indictment or other charging document
“shall not be of any further force or effect, and the court shall enter an order
dismissing the same with prejudice.” Section 217.490, Art. IV(5); Bozeman,
533 U.S. at 148-54; State v. Robertson, 182 S.W.3d 747, 753 (Mo. App.
W.D. 2006).
[Petitioner] contends that the State violated both the 120-day
requirement and the anti- shuttling provision. [Petitioner]’s claim is
premised on his assertion that the warrant served in this case on January 26,
2012, constituted a detainer under the IAD. Hence, he argues, because a
detainer had been filed when he arrived in state custody on June 6, 2012, the
subsequent year he spent in custody without trial violated the 120-day
requirement. He further contends that his return to federal custody in August
of 2013, prior to trial in this case, violated the anti-shuttling provision.
[Petitioner]’s claim is without merit.
(Doc. 10-13 at 2-3.) (footnotes omitted.) Later the Missouri Court of Appeals made the
following conclusions on this claim:
For a prisoner to invoke the provisions of the IAD, a detainer must have been
lodged against him. State v. Morrison, 364 S.W.3d 779, 785 (Mo. App. W.D.
2012); Dillard v. State, 931 S.W.2d 157, 166 (Mo. App. W.D. 1996) (noting
that the IAD requires the existence of a detainer filed by one state against a
prisoner being held in another). “‘A detainer is a request filed by a criminal
justice agency with the institution in which a prisoner is incarcerated, asking
the institution either to hold the prisoner for the agency or to notify the
agency when release of the prisoner is imminent.’” Morrison, 364 S.W.3d at
784 (quoting Carchman v. Nash, 473 U.S. 716, 719 (1985)). Stated similarly,
a detainer is “a legal order that requires a State in which an individual is
currently imprisoned to hold that individual when he has finished serving his
sentence so that he may be tried by a different State for a different crime.”
Bozeman, 533 U.S. at 148. The IAD expressly requires the filing of a
detainer. Section 217.490, Art. IV(1); Morrison, 364 S.W.3d at 785. Mere
notice or knowledge of a warrant, by itself, does not constitute a detainer.
See Greene v. State, 332 S.W.3d 239, 245 (Mo. App. W.D. 2010). Because
no detainer was filed in January of 2012, defendant cannot invoke the
provisions of the IAD as of that time, and his entire argument fails.
[Petitioner]’s argument suffers from several other fatal flaws. Even if
the warrant constituted a detainer, defendant still cannot invoke the
protections of the IAD as he wishes. The IAD only applies to prisoners
incarcerated in another jurisdiction who are subject to detainers originating
in Missouri. Section 217.490, Art. IV(1); Lancaster v. Stubblefield, 985
S.W.2d 854, 856 (Mo. App. E.D. 1998). And here, [petitioner] was not
incarcerated in another jurisdiction until July of 2013. Although
[petitioner]was sentenced in his federal case in June of 2012, he remained
in state custody at the St. Louis City Justice Center, as a pre-trial detainee.
He was not taken into federal custody and transferred to the federal Bureau
of Prisons facility in Memphis, Tennessee, until July 29, 2013. See United
States v. Taylor, 173 F.3d 538, 540-41 (6th Cir. 1999) and Crooker v. United
States, 814 F.2d 75, 77-78 (3rd Cir. 1987) (noting that some federal courts
interpreting the IAD have concluded that incarceration in a local facility
awaiting transfer to a correctional facility does not implicate the IAD).
Lastly, [petitioner] did not suffer a violation of the anti-shuttling
provision when he was sent to the Bureau of Prisons in July of 2013, because
he consented to that transfer. By consenting to the transfer, [petitioner] acted
in a manner contrary to the IAD, and thus waived his protection under the
anti-shuttling provision of the IAD. State v. Vinson, 182 S.W.3d 709, 712-
14 (Mo. App. E.D. 2006).
The stipulation of the parties regarding the timeline of [petitioner]’s
custody and case status shows that the State filed an IAD Form V with federal
officials, requesting temporary custody of defendant, on August 29, 2013.
The stipulation then shows “warrant and detainer issued” on this same date.
The trial court concluded that the provisions of Article IV of the IAD were
not triggered until the State lodged this detainer. We agree. We deny this
point.
(Id. at 4-5) (footnotes omitted.) Upon reviewing at post-conviction appeal whether trial
counsel gave ineffective assistance regarding IAD, the Circuit Court directly relied on the
Missouri Court of Appeals’ findings in their rejection of petitioner’s PCR claim, stating:
[Petitioner] claims his attorney was ineffective for failing to properly
litigate and present evidence of a claimed violation of the Interstate
Agreement on Detainers (IAD). [Petitioner]’s claim appears to be based on
his contention that he was transferred from federal to state custody pursuant
to a warrant in January 2012 that federal officials treated as a detainer.
The Court finds this claim is without merit. This Court listened to
arguments on the issue and the Court entered a written decision denying
movant's IAD claim. The Court of Appeals specifically said in its
Memorandum Supplementing Order in movant's appeal the warrant pursuant
to which movant's custody was transferred did not constitute a detainer. In
addition, the Court of Appeals said that “even if the warrant constituted a
detainer, defendant still cannot invoke the protections of the IAD as he
wishes.”
(Doc. 10-18 at 8.) The Missouri Court of Appeals upheld the Circuit Court’s holding that
petitioner had no basis for his claim that the trial court erred in its original decision
regarding the IAD.
The Circuit Court, in its denial of petitioner’s PCR post-conviction appeal,
followed the Court of Appeals’ view expressed in its opinion denying petitioner’s direct
appeal, that the warrant by which petitioner’s custody was transferred was not a detainer
under the IAD. Petitioner now restates his claim of ineffective assistance of counsel, via
Ground Two of his habeas corpus petition. Ground Two of petitioner’s claim states
petitioner was deprived of his right to effective assistance of counsel because counsel
failed to adequately stipulate a number of facts regarding his claim that his rights under
the IAD were violated.
Under Strickland, for a claim of ineffective assistance of counsel to be meritorious,
it requires both that counsel’s conduct fell below some objective standard of
reasonableness and but for counsel’s improper conduct there is a reasonable probability
the proceedings would have had a different outcome. Therefore, in order for petitioner to
have a successful claim of ineffective assistance of counsel, he must establish how, if his
trial counsel had adduced the aforementioned facts, there is a substantial certainty the
proceedings would have had a different outcome.
Petitioner argues that if trial counsel had properly presented his claim under the
IAD, with the asserted facts, his indictment would have been dismissed. (Doc. 1 at 7.)
Petitioner argues that trial counsel failed to establish the following facts: (1) that the
United States Marshals Service believed the warrant from the state trial court to be a
detainer; (2) the transfer of petitioner from custody in St. Louis County to St. Louis City
jail by St. Louis city homicide detectives was unusual and demonstrated assertion of
custody by the state; (3) petitioner’s status as a federal prisoner in St. Louis City jail after
federal sentencing was the consequence of the federal government honoring the state
warrant as a detainer; (4) except in the presence of a detainer, the common practice of the
Marshals Service was to transfer federal prisons from a local jail to the custody of the
federal Bureau of Prisons following the conclusion of federal prosecution; and (5)
petitioner remained a federal prisoner in state custody for more than 120 days after the
detainer had been filed against him. (Doc. 19 at 25-26.)
Even if these facts had been established by trial counsel, the outcome of
petitioner’s claim regarding his rights under the IAD would have been the same. The
assertion that trial counsel failed to show (1) that the United States Marshals Service
considered the warrant to be a detainer is not of any consequence to petitioner’s IAD
claim. The Missouri Court of Appeals did not rely on the United States Marshals Service’s
beliefs regarding the warrant in holding no detainer had been filed. Instead, they held there
was no detainer because “[t]he IAD expressly requires the filing of a detainer. Mere notice
or knowledge of a warrant, by itself, does not constitute a detainer.” (Doc. 10-13 at 4)
(citations omitted.) The court based their holding on the lack of any formal detainer being
filed; how the Marshals Service interpreted the warrant was irrelevant to the Court of
Appeals holding.
This interpretation of the IAD was subsequently endorsed by the Circuit Court in
its ruling on petitioner’s PCR claim of ineffective assistance of counsel on the grounds
petitioner’s counsel failed to properly argue claims regarding the IAD. Therefore, it is
unlikely that trial counsel’s failure to adduce facts relating to the United States Marshals
Service’s perception of the warrant had a prejudicial effect on the outcome of the original
proceedings regarding the IAD. In short, the Circuit Court’s original holding regarding
the IAD was not based on how the Marshal Service viewed the warrant against petitioner,
thus facts regarding the perception of this warrant are immaterial to petitioner’s IAD
claim.
Facts (2), (3), and (4) are all similarly irrelevant to the disposition of petitioner’s
IAD claim, and thus fail to meet the standard under Strickland for ineffective counsel.
The Missouri Court of Appeals did not rely on assumptions contrary to the facts petitioner
alleges trial counsel was ineffective for failing to adduce. The Circuit Court ruled that no
formal detainer had been filed, so petitioner was not entitled to the protections of the IAD.
Even if trial counsel adduced facts (2), (3), and (4) the outcome of petitioner’s IAD claim
would have been the same. Therefore, petitioner suffered no prejudice from trial counsel’s
failure to adduce these facts.
Fact (5) is immaterial to the disposition of petitioner’s IAD claim as well. When
the Missouri Court of Appeals denied petitioner’s claim that his rights under the IAD had
been violated, they acknowledged that petitioner had been detained for approximately a
year in state custody, before returning to federal custody. (Doc. 10-13 at 3.) Although
petitioner was in state custody for over 120 days, the Missouri Court of Appeals
determined there had been no violation of the IAD. The court determined that petitioner
entered state custody on June 6, 2012, pursuant to a warrant issued on January 26, 2012.
The warrant by which petitioner was transferred from federal to state custody did not
constitute a detainer because a detainer document must be expressly filed, and the warrant
did not constitute an express filing of a detainer. (Id at 4.) The incarceration in state
custody for over 120 days did not contravene the IAD, because the court determined that
no detainer had ever been filed against petitioner. Therefore, trial counsel’s failure to show
that petitioner was in state custody for over 120 days was non-prejudicial.
The Missouri Court of Appeals’ holding that no detainer had been filed against
petitioner, and thus petitioner could not rely on the protections of the IAD, would not have
been altered had trial counsel adduced any of the aforementioned facts. The Court of
Appeals concluded that no detainer had been filed on the grounds that there was no
express legal order filed that constituted a detainer. The Court of Appeals makes clear that
a warrant itself does not constitute a detainer for the purposes of the IAD. The Circuit
Court followed this ruling of the Court of Appeals. Therefore, trial counsel’s alleged
failure to adduce certain facts regarding the IAD did not prejudice the outcome of
petitioner’s trial. Petitioner fails to meet the burden set forth in Strickland by failing to
establish how he was prejudiced by trial counsel’s omissions. The state courts’ decisions
on this ground were reasonable applications of federal law based upon a clearly
established factual record.
Accordingly, Ground Two is without merit.
Ground Three
In Ground Three, petitioner argues that he was deprived of his rights to equal
protection and due process of law when the trial court found that no detainer occurred
prior to trial and denied petitioner’s motion to dismiss the charges against him for
violation of the IAD.
In support of his claim that the trial court incorrectly denied his claim under the
IAD, petitioner states the following stipulated facts agreed upon by petitioner’s trial
counsel and prosecution:
• On January 26, 2012, while [petitioner] was in federal custody in St.
Louis County, a warrant was issued and served and, at the request of St. Louis
city police, he was transferred from the federal holdover in St. Louis County
to the St. Louis city jail.
• [Petitioner] was released to state authorities on June 6, 2012, after he
had been sentenced in federal court.
• [Petitioner] remained in state custody for 377 days, until he was
transferred back to federal custody on June 18, 2013.
(Doc. 1 at 9-10.) Petitioner appealed the trial court’s rejection of his IAD claim in his
direct appeal to the Missouri Court of Appeals. The Missouri Court of Appeals affirmed
the trial court’s denial of petitioner’s IAD claim. (Doc. 10-13 at 4-5.)
AEDPA states that in order for habeas relief to be granted, a state court’s decision
must have been contrary to, or involved an unreasonable application of, clearly
established federal law, as determined by the Supreme Court of the United States, or
resulted in a decision that was based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d)(1)-(2).
Petitioner states several facts that he believes, if they were properly adduced by
trial counsel, would have made his IAD claim successful, because the facts would have
established that a detainer had been filed against him. As discussed in the analysis of
Ground Two, these facts were immaterial the disposition of petitioner’s IAD claim.
In Ground Three petitioner claims that the trial court incorrectly decided his IAD
claim by finding no detainer had been filed. In support of his claim petitioner states:
Under the IAD, a “detainer” is “a notice filed with the confining institution
that criminal charges from another jurisdiction [are] outstanding and that the
prisoner [is] wanted in order to stand trial on those charges.” Esola v.
Groomes, 520 F.2d 830, 838 (3rd Cir. 1975).
(Doc. 1 at 9.)
Petitioner does not adequately demonstrate that the trial court’s definition of a
detainer contravened federal law or the interpretation of the United States Supreme Court
in either his petition for a writ of habeas corpus or his traverse. The state courts’ decisions
on this ground were reasonable applications of federal law based upon a clearly
established factual record.
Therefore, Ground Three is without merit.
Ground Four
In Ground Four, petitioner argues that he was deprived of his rights to due process,
fair trial, and an impartial jury when the trial court denied petitioner’s request for a trial
separate from that of his co-defendants. Petitioner argues that the failure to grant the
request for separate trial violates the Supreme Court’s holding that “prevailing notions of
fundamental fairness ... require that criminal defendants be afforded a meaningful
opportunity to present a complete defense.” California v. Trombetta, 467 U.S. 479, 485
(1984).
Petitioner argues that the jury was affected by testimony heard about co-defendant
Spates that incriminated petitioner, and he felt compelled to refrain from testifying in
order to avoid being subject to cross-examination from his own previous attorney, as co-
defendant Moss’s counsel had previously represented petitioner.
Upon direct appeal, the Missouri Court of Appeals made the following findings
regarding decisions to sever petitioner for a trial separate from the other defendants:
The decision to sever a joint trial lies within the sound discretion of
the trial court. State v. Isa, 850 S.W.2d 876, 885 (Mo. banc 1993). We will
disturb that ruling only if the trial court abused its discretion and the
defendant suffered clear prejudice. Id.; State v. Kidd, 990 S.W.2d 166, 182
(Mo. App. W.D. 1999).
Rule 24.06 and Section 545.880.2 RSMo. govern the propriety and
procedure of severing joint trials. Kidd, 990 S.W.2d at 182. Rule 24.06 states
that co-defendants must be tried separately only if the court finds the
probability of prejudice exists or if one of four incidences appears, three of
which are relevant here. Id.; Isa, 850 S.W.2d at 884-85. The rule requires
separate trials if “there is, or may reasonably be expected to be material and
substantial evidence not admissible against the defendant that would be
admissible against other defendants if a separate trial is not ordered. Rule
24.06(b)(2). The rule also requires separate trials if “an out- of-court
statement that is not admissible against the defendant ... would be admissible
against other defendants if a separate trial is ordered unless the court finds
the out-of-court statement can be limited by eliminating any reference to the
defendant. Rule 24.06(b)(3). And the rule requires a separate trial if one is
“necessary to a fair determination of whether the defendant is guilty.” Rule
24.06(b)(4). Like Rule 24.06, Section 545.880.2 mandates separate trials
only when the trial court finds the “probability for prejudice” exists in a joint
trial. Isa, 850 S.W.2d at 885; Kidd, 990 S.W.2d at 182.
Missouri courts traditionally favor joint trials. Isa, 850 S.W.2d at 885;
State v. Denzmore, 436 S.W.3d 635, 640 (Mo. App. E.D. 2014). Joint trials
play a vital role in the criminal justice system and serve the interests of justice
by avoiding inconsistent verdicts and enabling more accurate assessment of
relative culpability. Id. Severance is not required when a less drastic course,
such as the provision of proper jury instructions, will prevent prejudice to
the defendant. Id.; Kidd, 990 S.W.2d at 182. On appeal, the defendant bears
the burden of affirmatively showing that the joint trial prejudiced his right to
a fair trial. Denzmore, 436 S.W.3d at 640; Kidd, 990 S.W.2d at 182.
(Doc 10-13 at 5-7) (footnotes omitted). Later, the Court of Appeals made the following
conclusion on this ground or relief:
[Petitioner] failed to carry his burden. He first contends the trial court
should have severed the trials because evidence admitted at the joint trial
would have been inadmissible against him in a separate trial, namely “snitch”
testimony from Davonta Gomillia regarding Mr. Spates’s admissions.
[Petitioner]did not further specify the purportedly objectionable testimony.
In his argument, he simply referenced “an out-of-court statement of Spates
which referenced [petitioner] but was inadmissible against him was admitted
at trial.” [Petitioner] did not provide citations to the record for the
complained-of testimony, in violation of Rules 30.06(e) and 84.04(e). Those
rules require specific page references to the relevant portion of the record on
appeal for all factual assertions made in the argument portion of an
appellant’s brief. Rules 30.06(e) and 84.04(e). [Petitioner] referenced his
argument in a previous point. This is insufficient. We are still left to wonder
what statements defendant is relying on when he calls for severance. Is it all?
Some? One in particular? Moreover, [petitioner] did not identify the
purportedly offensive testimony or provide citations to the record in that
point either. It is not for this Court to comb through the entire record,
searching for the claimed error or the factual basis supporting that claim.
State v. Hardin, 229 S.W.3d 211, 215 (Mo. App. W.D. 2007). [Petitioner] is
required to identify the challenged evidence or ruling, and support his
argument with specific citations to the record. Failure to do so renders
[petitioner]’s point unpreserved. Morales v. State, 323 S.W.3d 466, 470
(Mo. App. E.D. 2010)(holding issue not preserved for appellate review
where appellant failed to provide specific page references in legal file or
transcript); State v. Ward, 622 S.W.2d 354, 356 (Mo. App. E.D.
1983)(holding point not preserved where appellant failed to identify what
specific evidence was objectionable). When such references are lacking, we
are effectively thrust into the role of being defendant’s advocate, which is a
role we cannot assume. Pattie v. French Quarter Resorts, 213 S.W.3d 237,
240 (Mo. App. S.D. 2007).
[Petitioner] also failed to develop his argument. Indeed, his argument
on this portion of his claim consists of a mere six lines of conclusions. He
does not discuss why any complained- of evidence was inadmissible. He
does not explain why the admission of the complained-of evidence was
prejudicial. He does not explain why the evidence necessitated severance.
He cited no legal authority, other than the general statute and rule governing
severance. He does not discuss how the law and facts interact, calling for
severance in this case. We are left to speculate. To review this claim, this
Court must comb the record, assume facts, and craft defendant’s argument.
In short, we must become defendant’s advocate. This the Court cannot and
will not do. Hardin, 229 S.W.3d at 215 (dismissing case where court would
have to reconstruct facts, and refine [petitioner]’s points and legal argument).
By failing to develop his claim, we may consider his point abandoned. State
v. Nunley, 341 S.W.3d 611, 623 (Mo. banc 2011).
The State asserts that the purportedly offending testimony is on pages
1550-51 of the transcript, from the direct examination of Davonta Gomillia.
Review of this portion of the transcript clearly demonstrates that relief is not
called for. Critically, the trial court explicitly instructed the jury not to
consider the evidence against defendant. The court’s instruction, patterned
after approved instruction 310.15, instructed the jury that the statements from
Mr. Gomillia could only be considered against Mr. Spates. MAI-CR 3d
310.15. We presume that jurors follow the court’s instructions. State v.
Barton, 240 S.W.3d 693, 703 (Mo. banc 2007). [Petitioner] has not alleged
or shown otherwise, other than summarily stating that a limiting instruction
was insufficient. He does not point to anything specifically about the nature
of the evidence to explain why the jury was rendered so incapable of
comprehending and following the court’s instruction. We find the instruction
sufficient to keep the jury from considering the evidence against defendant.
[Petitioner]’s argument about mutually-antagonistic defenses also
fails. A trial court must sever trials if there are co-defendants with mutually
antagonistic defenses. State v. Oliver, 791 S.W.2d 782, 786 (Mo. App. E.D.
1990); Kidd, 990 S.W.2d at 182. But, this doctrine is limited. Id. The
defendant must show that he and his co-defendant presented conflicting and
irreconcilable defenses, and that there is a danger that the jury unjustifiably
inferred that the conflict alone demonstrated that both defendants are guilty.
Id. And here, defendant failed to make such a showing. [Petitioner]’s
defense at trial was that no evidence existed linking him to the victim or her
murder except for the unbelievable and biased testimony of Mr. Clemons and
Mr. Gomillia. Mr. Moss’s defense was that nothing connected him to the
victim’s murder except for the unbelievable and biased testimony of Mr.
Clemons. These two defenses are fully consistent with one another.
Accepting one defense would not preclude the acquittal of the other
defendant. [Petitioner] admits in his brief that his trial defense was consistent
with that of Mr. Moss.
Lastly, [petitioner] argues that severance was required because he had
previously been represented by Mr. Moss’s attorney. This argument also
fails. [Petitioner] did not preserve this claim for appeal, as he failed to
include it in his motion for new trial. Rule 29.11(d). The purpose of a
motion for new trial “is to allow the trial court the opportunity to reflect
on its action during the trial.” State v. Bartlik, 363 S.W.3d 388, 391 (Mo.
App. E.D. 2012). “It is a time honored fundamental principle of appellate
procedure that a trial court must be given an opportunity to review and
correct its own errors before the aid of an appellate court can justly be
involved.[”] Id. (internal quotation omitted). The motion “allows a judge to
correct his or her own errors without the delay, or expense, or other hardships
of an appeal.” Id. (internal quotation omitted). “A trial court is far better able
to judge whether the trial has been fair than is the court that reviews the
record.” Id. (internal quotation omitted). To preserve an allegation of error
for appellate review, defendant must have included it in his motion for new
trial. Id. We decline review.
[Petitioner] failed to show that he was prejudiced by the joint trial. We
deny this point.
(Id. at 7-10.) (footnotes omitted.)
The Missouri Court of Appeals denied relief to petitioner on this ground because
petitioner was not able to overcome the presumption in favor of joint trials and
demonstrate that the jury instructions were insufficient to prevent prejudice towards him
from the jury. Petitioner first argues that the trial court should have granted his request to
sever trials because a joint trial admitted evidence that would have been inadmissible in a
separate trial; namely, the “snitch” testimony from Davonta Gomillia regarding
statements made by co-defendant Spates. The court rejected petitioner’s claim and found
the instruction to keep the jury from considering this testimony against petitioner was
sufficient. The court rejected petitioner’s second argument, that his trial should have been
severed because of mutually antagonistic defenses with a co-defendant. Instead, it found
that the two defenses were consistent with each other and did not reach the level of
irreconcilability necessary to sever defendants for separate trials. Lastly, the court rejected
petitioner’s claim that trials should be severed due to having previously been represented
by co-defendant Moss’s attorney due to petitioner’s failure to preserve this claim for
appeal in his motion for new trial.
The state courts’ denials of relief on this ground were not contrary to federal law.
Accordingly, Ground Four is without merit.
Ground Five
In Ground Five, petitioner argues that he was deprived of his rights to a fair trial, to
confront witnesses against him, and to due process of law in violation of the Sixth and
Fourteenth Amendments when the trial court overruled defense counsel’s objection to the
testimony of Mr. Gomillia regarding out-of-court statements made by Mr. Spates that
implicated petitioner in the murder. Petitioner argues that the admission of Mr. Gomillia’s
testimony violated the rule articulated in Bruton v. United States, 391 U.S. 123 (1968), that
the confession of a non-testifying codefendant at a joint trial implicating another defendant
is not admissible because the codefendant is not available for cross-examination. While the
jury was instructed to rely upon Mr. Gomillia’s testimony about the statement only in
reaching its verdict regarding Mr. Spates, petitioner contends, under Bruton, that this
instruction was an inadequate substitute for cross-examination of Mr. Spates. (Doc. 1 at
12-13.)
Ground Five is not preserved for this Court’s review because petitioner failed to
comply with Missouri procedural rules. Specifically, this ground was not included in his
motion for a new trial as required by Missouri Rule of Criminal Procedure 29.11(d). (Doc.
10-13 at 12.) A state prisoner has not exhausted his state law remedies for a ground alleged
in a federal habeas petition if he has not preserved that claim according to state law
procedural rules. See Coleman, 501 U.S. at 729-30 (a federal court will not review a
question of federal law decided by a state court if the decision of that court rests on a state
procedural rule because the procedural ground is independent of the federal question and
adequate to support the judgment.) Nevertheless, the Court reviews the merits of his claim.
Because Mr. Spates’ statement to Mr. Gomillia incriminating petitioner was not a
testimonial statement, petitioner was not entitled to cross-examine Mr. Spates at trial.
Bruton, which is premised on the rights protected by the Confrontation Clause, does not
apply to the non-testimonial statements of Mr. Spates. It is well-settled that the
Confrontation Clause applies exclusively to testimonial statements. Crawford v.
Washington, 541 U.S. 36, 51-53 (2004); Whorton v. Bockting, 549 U.S. 406, 420 (2007)
(“[T]he Confrontation Clause has no application to [non-testimonial statements]”); United
States v. Dale, 614 F.3d 942, 955 (8th Cir. 2010) (“It is now clear that the Confrontation
Clause does not apply to non-testimonial statements by an out-of-court defendant”).
Further, the rule in Bruton that the confession of a non-testifying co-defendant at a joint
trial is not admissible applies only to the testimonial statements of the co-defendant. Dale,
614 F.3d at 956.
While the United States Supreme Court has not offered an exhaustive definition of
the term “testimonial,” it has distinguished the testimonial statements of an accuser who
makes a formal statement to government officers from the non-testimonial statements of a
person who makes a casual remark to an acquaintance. Crawford, 541 U.S. at 51.
Statements taken by police officers in the course of an interrogation are testimonial. Id. at
52. Conversely, statements made unwittingly to a government informant and statements
from one prisoner to another are clearly nontestimonial. Davis v. Washington, 547 U.S.
813, 825 (2006). In general, statements are testimonial when made under circumstances
which would lead an objective witness reasonably to believe that the statement would be
available for use at a later trial. See Crawford, 541 U.S. at 52.
Here, Mr. Spates’ statements to Mr. Gomillia are nontestimonial. Those statements
were informal and made to an acquaintance, rather than to a government officer. Moreover,
Mr. Spates and Mr. Gomillia took precautions against their conversation being overheard
when they removed the batteries from their cellphones and stepped into another room. An
objectively reasonable witness would not believe that statements made in the course of a
conversation with an acquaintance which was purposefully conducted in secret would later
be available for use at trial.
Accordingly, Ground Five is without merit.
Ground Six
In Ground Six, petitioner argues that he was deprived of his right to confront and
cross-examine adverse witnesses as well as his rights to due process and a fair trial in
violation of the Sixth and Fourteenth Amendments when the trial court did not allow
defense counsel to cross-examine Mr. Clemons regarding an incident in which he had
thrown a woman out of a moving vehicle. He claims that the trial court’s ruling prevented
him from impeaching the credibility of Mr. Clemons, the principal witness in the
prosecution’s case against him. (Doc. 1 at 14-15.) Petitioner raised this claim in his direct
appeal to the Missouri Court of Appeals which ruled this claim without merit.
Upon direct appeal, the Missouri Court of Appeals stated the following regarding
petitioner’s claim that the Circuit Court improperly limited the cross examination of Mr.
Clemons:
During direct examination, Mr. Clemons testified that he felt that
cooperating with the State was “the right thing to do.” He said that seeing
pictures of the victim “touched him,” and explained that in the streets, there
were certain things that were not “okay to do.” He then specifically stated:
“I mean, if you got problems in the streets with guys, you handle your
business with them; but, like, as far as women, I don’t – I mean, it ain’t none
of my thing. Kids and all that type of stuff, it ain’t my thing. That’s probably
what touched me. I ain’t – that ain’t– it just ain’t part of my – what I – how
I get down.” The prosecutor then asked him: “So no women, no kids?” Mr.
Clemons responded: “No.”
During cross-examination, defense counsel sought to introduce
evidence that Mr. Clemons had allegedly thrown a woman, the mother of his
child, out of a moving vehicle. Mr. Clemons was arrested, but not charged
with a crime for that incident. Defense counsel urged that this evidence was
admissible and relevant to challenge Mr. Clemons’s credibility and his stated
reason for testifying – notably, that he was opposed to acts of violence against
women.
(Doc. 10-13 at 19). The Court of Appeals continued:
Generally, the credibility of a witness is always a relevant issue.
Mitchell v. Kardesch, 313 S.W.3d 667, 675 (Mo. banc 2010). And
impeachment provides a tool to test a witness’s credibility. Id. The most
commonly recognized methods of impeaching a witness are: (1)
admission of evidence showing the witness’s incapacity or problems with
perception or memory; (2) admission of evidence of prior convictions;
(3) admission of evidence of the witness’s bias, interest, or prejudice; (4)
admission of evidence of prior inconsistent statements of the witness; and
(5) admission of evidence of the witness’s character for truthfulness or
veracity. Id.; State v. Austin, 411 S.W.3d 284, 289 (Mo. App. E.D. 2013).
However, the trial court may, in its discretion, limit the admission of this
evidence if the prejudicial value of the evidence outweighs its probative
value. Austin, 411 S.W.3d at 289; Mitchell, 313 S.W.3d at 679. “We give
trial judges wide latitude to impose reasonable limits on cross-examination
to avoid prejudice, confusion of the issues, and interrogation that is only
marginally relevant.” Austin, 411 S.W.3d at 289 (internal quotation
omitted).
The trial court was well within its discretion in precluding the sought-
after cross- examination. The evidence had the potential to mislead the jury.
The alleged conduct of Mr. Clemons was not a prior conviction and did not
go to his character for truthfulness and veracity. See State v. Zahn, 823
S.W.2d 18, 22 (Mo. App. E.D. 1991) (no error in allowing cross-
examination on whether defendant had perjured himself under oath);
Mitchell, 313 S.W.3d at 679 (false answer in interrogatory). Nor did the
sought-after evidence fall within any of the other categories of evidence
allowed for impeachment. Rather, the nature of the proposed evidence would
impeach Mr. Clemons based on his general moral character, which is not
permitted. Mitchell, 313 S.W.3d at 677. Moreover, [petitioner] suffered no
prejudice, because the sought-after evidence about hurting a specific woman
was cumulative to other testimony Mr. Clemons gave. Mr. Clemons testified
that he had hurt a woman, and then twice confirmed that statement. He also
admitted that he had made prior statements about manipulating women –
conning them, and “messing with” them to get them to do things for him.
This testimony fully provided [petitioner] a basis to impeach Mr. Clemons.
Where excluded evidence is cumulative to other properly-admitted
evidence, it could not have contributed to conviction and thus the
exclusion of that evidence is harmless beyond a reasonable doubt. State v.
Lloyd, 205 S.W.3d 893, 903-04 (Mo. App. S.D. 2006).
[Petitioner] also argues that the trial court’s prohibition constituted a
violation of the Confrontation Clause. [Petitioner] is incorrect. The
Confrontation Clause guarantees only “an opportunity for effective cross-
examination, not cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish.” State v. Perry, 275 S.W.3d 237,
244 (Mo. banc 2009)(quoting United States v. Owens, 484 U.S. 554, 557
(1988)); State v. Fitzpatrick, 193 S.W.3d 280, 290 (Mo. App. W.D. 2006).
The Confrontation Clause is not implicated where the witness is available for
cross-examination, as Mr. Clemons was. State v. Harding, 323 S.W.3d 810,
817 (Mo. App. W.D. 2010); Perry, 275 S.W.3d at 243-44. We deny this
point.
(Id. at 19-21).
In Delaware v. Van Arsdall, 475 U.S. 673 (1986), the Court held that in order to
establish a violation of the Confrontation Clause under the Sixth Amendment, a defendant
must establish that but for the limitation on cross-examination, a reasonable jury would
have received a “significantly different impression” of the witness’s credibility. Van
Arsdall, 475 U.S. at 680. Here respondent argues that a reasonable jury would not have
received Mr. Clemons’ testimony any differently, even if petitioner had been able to cross-
examine him as desired. In petitioner’s case, counsel was able to get Mr. Clemons to admit
under cross-examination to hurting a woman, conning women, and “messing with
women.” (Doc. 10-2 at 1339, 1342.) Mr. Clemons’ genuine care for the safety and
wellbeing of women, something petitioner wished to call into question with further cross-
examination, had already had doubt cast upon it by Mr. Clemons’ other testimony
regarding his treatment of women.
Therefore, the state courts’ decisions regarding the cross-examination of Mr.
Clemons were a reasonable applicational of established federal law to a well-established
factual record.
Accordingly, Ground Six is without merit.
Ground Seven
In Ground Seven, petitioner argues that he was deprived of his right to be free from
compulsory self-incrimination as well as his rights to due process and a fair trial in violation
of the Fifth and Fourteenth Amendments when the trial court did not declare a mistrial or
provide the jury with a remedial instruction after the prosecuting attorney commented to
the jury during her closing argument on petitioner’s decision not to testify. (Doc. 1 at 15-
16.) At trial, Darryl Clemons testified about a conversation that involved petitioner making
statements. In his closing argument, trial counsel for petitioner argued strongly that
Clemons’s testimony should not be believed. (Doc. 10-3 at 91-96.) In reply, the prosecutor
focused on Clemons’s relationship with petitioner and the others on trial as a basis for the
credibility of his trial testimony thus:
Darryl Clemons is not an angel. He is not my associate. He is not
Mr. Martin’s associate. He is Donald White’s associate and there is no
dispute about that. No one ever claimed that they didn’t know each other.
And there’s no dispute that he is Christopher Spates’s associate. Men who
plan a woman’s murder are not going to have associates unlike Mr. Clemons.
Men like Leon Moss and Donald White and Christopher Spates are not going
to talk about planning a murder in front of someone like the Reverend
McCullough or Father French. They’re going to talk about it in front of
somebody like Darryl Clemons.
(Id. at 96-97.)
On direct appeal the Court of Appeals made the following statement on this ground:
Defendant alleges the trial court plainly erred in failing to strike the
comments of the prosecutor, order a new trial, or properly instruct the jury
when the prosecutor in her closing argument referred to defendant’s failure
to deny that he was an associate of Darryl Clemons. Defendant contends the
following comment violated his right not to testify: “Darryl Clemons is not
an angel …. He is [petitioner]’s associate and there is no dispute about that. No
one ever claimed that they didn’t know each other.”
(Doc 10-13 at 22-23.) The Court of Appeals continued:
Defendant correctly acknowledges that he did not preserve his claim
of error for appellate review. He did not object to the comment when made
at trial, and he did not include the claim in his motion for new trial. State v.
Walters, 363 S.W.3d 371, 376 (Mo. App. E.D. 2012); Rule 29.11(d). His
claim is subject only to plain-error review, at our discretion. State v.
Clemmons, 753 S.W.2d 901, 907-08 (Mo. banc 1988); Rule 30.20.
We rarely grant relief on claims of plain error concerning unobjected
closing argument. State v. Kempker, 824 S.W.2d 909, 911 (Mo. banc 1992).
This is because “in the absence of objection and request for relief, the trial
court’s options are narrowed to uninvited interference with summation and a
corresponding increase of error by such intervention.” Clemmons, 753
S.W.2d at 907-08. “The defendant’s failure to object to an improper
argument is often strategic, and uninvited intervention may emphasize the
matter in a way the defendant chose not to.” State v. Walter, 479 S.W.3d
118, 123 (Mo. banc 2016).
Defendant contends the prosecutor commented on his failure to
testify. Defendant is correct that the State may not, either directly or
indirectly, comment on a defendant’s failure to testify. Davis v. State, 453
S.W.3d 882, 886 (Mo. App. E.D. 2015); State v. Barnum, 14 S.W.3d 587,
591 (Mo. banc 2000); Section 546.270; Rule 27.05(a). But, in most cases
even a direct comment on a defendant’s failure to testify, although erroneous,
is not enough to justify a finding of plain error. Walters, 363 S.W.3d at 376.
Prejudice from such comments can normally be cured by an instruction to
the jury. Id.; Kempker, 824 S.W.2d at 911. By failing to object, defendant
denied the judge the opportunity to avoid prejudice by means of an
instruction and thereby restricted his right to raise this issue as error on
appeal. Walters, 363 S.W.3d at 376; see also Kempker, 824 S.W.2d at 911
(failure to object fatal to defendant’s claim). We deny this point.
(Id. at 24-25.)
In Griffin v. California, 380 U.S. 609 (1965), the Supreme Court held that a direct
comment by a prosecutor on a defendant’s failure to testify runs afoul of the Fifth
Amendment and its protections against self-incrimination. In addition, prosecutors may
not indirectly comment on defendant’s failure to testify if they “manifest the prosecutor's
intent to call attention to a defendant's failure to testify or would be naturally and
necessarily taken by a jury as a comment on the defendant's failure to testify.” Graham v.
Dormire, 212 F.3d 437, 439 (8th Cir. 2000). The standard of review upon a petition for
habeas corpus is whether a prosecutor’s improper comment had a “‘substantial and
injurious effect or influence in determining the jury's verdict.’” Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328 U.S.
750, 776, (1946)).
Petitioner alleges in Ground Seven that the prosecution made an indirect comment
on his failure to testify by stating, “Darryl Clemons is not an angel …. He is [petitioner]’s
associate and there is no dispute about that. No one ever claimed that they didn’t know
each other.” Therefore, the appropriate standard, as stated in Graham, is whether the
prosecutor’s intent when making this statement was to call attention to petitioner’s failure
to testify and was considered as such by the jury.
The intent of the prosecutor in petitioner’s case is reasonably clear: to respond to
the argument that Clemons’s testimony was not worthy of belief, by highlighting the
relationship between Clemons and petitioner, not to highlight the fact that petitioner did
not testify in his own defense.
When the prosecutor makes indirect comments that arguably could be considered
as calling attention to a defendant’s failure to testify, the Eighth Circuit has stated that a
jury instruction reminding the jury that the defendant has a right not to testify is a
sufficient safeguard of Fifth Amendment rights. See Robinson v. Crist, 278 F.3d 862, 866
(8th Cir. 2002) (holding that a jury instruction about a defendant’s privilege to not testify
may not cure prosecution’s direct comment or more blatant indirect comment regarding a
defendant’s failure to testify but can help cure some indirect comments made by
prosecution regarding the defendant’s failure to testify). The jury in petitioner’s case was
given an instruction that petitioner had the right not to testify. (Doc. 10-3 at 19; trans. p.
1652.)
Petitioner argues that the intent of the prosecutor was to demonstrate that petitioner
was an associate of Mr. Clemons, and that petitioner is the only one who could dispute
this relationship. (Doc. 1 at 16.) This is distinct from the prosecutor calling attention to
petitioner’s failure to testify. Petitioner admits that the purpose of the comment was to
call attention to the relationship between Mr. Clemons and himself, not that the purpose
of the comment was to bring to the jury’s attention petitioner’s failure to testify.
Even if one were to assume that the prosecutor’s intent was to call attention to
petitioner’s failure to testify, petitioner does not address how the jury perceived such a
comment. The jury’s perception of prosecutor’s comment is the second prong of the
indirect comment test laid forth in Graham, and petitioner made no attempt to address it
in his habeas petition or his traverse. The plain reading of the prosecutor’s comment does
not obviously suggest that jurors would perceive the prosecutor’s intent as being to call
attention to petitioner’s failure to testify. The prosecutor stated that, “no one ever claimed
otherwise,” in reference to Mr. Clemons and petitioner being associates. This comment
came during the prosecutor’s closing argument. At this point the jury had heard several
days of testimony from 11 witnesses. A more reasonable interpretation of the comment
is that in the course of examination of witnesses who did testify, at no point did any of
them suggest that Mr. Clemons and petitioner were not associates.
Ground Seven fails on both grounds of the Graham test, as petitioner failed to
demonstrate that the prosecutor’s intent was to call attention to his failure to testify and
that the jury perceived it as such. Therefore, continuing to the “substantial and injurious
effect or influence” test set forth in Kotteakos is not necessary. However, even if one
assumes that petitioner’s claim meets the Graham standard, petitioner fails to demonstrate
how the comment had any sort of injurious effect or influence on the jury’s decision.
Given the length of the trial, the significant witness testimony, and the brevity of the
prosecutor’s comment, it is not reasonably likely that the comment had a substantial
impact on the jury’s decision.
Accordingly, Ground Seven is without merit.
Ground Eight
In Ground Eight, petitioner argues that he was deprived of his rights to confront and
cross-examine adverse witnesses and to present a defense, as well as his rights to due
process and a fair trial in violation of the Sixth and Fourteenth Amendments, when the trial
court did not allow defense counsel access to federal investigation files concerning Mr.
Clemons and probation files concerning Mr. Gomillia.
Petitioner argued in his direct appeal of his conviction that the trial court improperly
refused to allow defense counsel access to federal investigation files concerning Clemons
and probation files concerning Gomillia. (Doc. 1 at 16-17.) The Court of Appeals stated
the following about access to federal investigation files concerning Clemons:
Regarding the federal documents concerning Darryl Clemons, we
have also reviewed those documents, at defendant’s request. The sought-
after records are from an ongoing, multi- state federal criminal investigation.
The records concern numerous individuals and multiple crimes over the span
of several decades, all unrelated to this case. The trial court perfectly
characterized the records as a “cornucopia of – from the ’90s to the present
of dope, money and gun wars in the metropolitan area as it extends outward
from people who send dope and money into the St. Louis area.” The current
crime – the murder of Ms. Young – is mentioned only tangentially.
Defendant’s name is included in the records, as being charged with first-
degree murder and awaiting trial in the present case. We discerned no
exculpatory evidence.
Defendant desired access to these federal materials, to review them
for impeachment purposes. But Mr. Clemons was impeached without the
sought-after materials. Mr. Clemons was repeatedly examined about the
federal investigation. He was challenged with a possible motive to lie to
further his own interests. He was challenged about his inconsistencies. The
jury was told that Mr. Clemons cooperated with the federal authorities in
their investigation, and that he received immunity from prosecution for his
involvement in drug-trafficking and weapons offenses in exchange for that
cooperation and his testimony at trial.
(Doc 10-13 at 11.) The Court of Appeals rejected petitioner’s claim, stating:
The trial court twice reviewed the federal materials, and concluded that the
information contained therein was “a morass, a swamp that we don’t want to
go into.” The court astutely observed that they were trying a murder case in
state court, not a federal RICO drug-murder case. We conclude that the
federal materials were neither favorable nor material, and that risk of
prejudice and confusion from collateral matters greatly outweighed
whatever minimal probative value they had. The trial court did not abuse its
discretion in denying access to the records. We deny this point.
(Id. at 11-12.) The Court of Appeals also rejected petitioner’s claim regarding Mr.
Gomillia’s probation records, stating:
Regarding Mr. Gomillia’s probation file, defendant asked the trial court to
review the probation records, specifically to see if the files contained any
evidence of an agreement between the State and Mr. Gomillia. The trial court
found none. We also reviewed the records and agree with the trial court’s
conclusion. We deny this portion of defendant’s point.
(Id. at 10-11). In order to find a due process violation based on suppression of evidence
by prosecution, it must be demonstrated that: (1) the evidence is favorable to the accused,
either because it is exculpatory or because it is impeaching; (2) the evidence was
suppressed by the state; and (3) the defendant suffered prejudice. Strickler v. Greene, 527
U.S. 263, 281-82 (1999).
In Keating v. Missouri, 643 F.2d 1315, 1319 (8th Cir. 1981), the Eighth Circuit
discussed what constituted impeaching evidence. The court held that since it was shown
that a key witness was unreliable because of a history of drug abuse, mental health issues,
past issues with law enforcement, past instances in which she had served as a witness for
the state in criminal trials, and a number of other issues that called into question her
credibility as a witness, additional evidence of an agreement between the prosecutor and
the witness would have little to no effect on the outcome of the trial. Keating, 643 F.2d
at 1319.
If petitioner sought the records regarding the federal investigation into Mr.
Clemons for purposes of impeachment, like the petitioner in Keating, the record shows
that petitioner White and his co-defendants had significant other material regarding Mr.
Clemons’ unreliability as a witness. Mr. Clemons himself admitted to his frequent use of
a variety of drugs; that his use of drugs resulted in him blacking out; that some of those
drugs were hallucinogenic; that he had a significant criminal history, which involved
crimes in which women were the victim, despite claiming he was testifying because he
had a code of honor which prevented him from harming women; that he cooperated with
federal investigators in a separate matter; and that he had received immunity from federal
prosecution for his cooperation. (Doc. 10-2 at 1185, 1273-1277, 1339, 1342.) Petitioner
fails to show how additional evidence regarding a federal investigation into Mr. Clemons
would further discredit him as witness, thus altering the outcome of the trial. Petitioner
cannot establish how he suffered prejudice and therefore fails to meet the burden set forth
in Stickler.
Petitioner argued in his direct appeal and in his federal habeas petition that he was
improperly denied access to Mr. Gomillia’s probation file as well. The Court of Appeals
affirmed the Circuit Court’s decision on grounds that there was no evidence that Mr.
Gomillia had an agreement with the state to have his probation discharged early in
exchange for testifying. Petitioner makes no claim as to how such evidence is exculpatory
or impeaching, but one can reasonably assume he sought such evidence because he
believed it would serve to impeach the testimony of Mr. Gomillia. Both the Circuit Court
and Court of Appeals decided to the contrary.
To demonstrate that the state courts made an incorrect finding of fact, petitioner
must demonstrate there is clear and convincing evidence that a state court’s findings of fact
lacked evidentiary support. See 28 U.S.C. § 2254(e)(1); Wood, 558 U.S. at 293. Petitioner
fails to go beyond mere allegation. In his petition for a writ of habeas corpus, petitioner
can only point to the fact that Mr. Gomillia was detained for a gun related probation
violation, at some point his probation officer recommended his probation be ended early,
and Mr. Gomillia went on to testify for the prosecution. (Doc. 1 at 17.) Both the Court of
Appeals and Circuit Court reviewed the probation files and found no evidence of agreement
between the state and Mr. Gomillia. (Doc. 10-13 at 10-11.) This does not suffice to show
that the state courts’ findings of fact that there was no exculpatory or impeaching evidence
in the probation files were incorrect. Petitioner fails to adduce clear and convincing
evidence that the state courts’ findings of fact lacked evidentiary support.
In short, petitioner does not adequately demonstrate that Mr. Gomillia’s probation
files had exculpatory or impeaching evidence, nor does petitioner demonstrate that he
suffered any prejudice because of the suppression of the probation files of Mr. Gomillia.
Accordingly, Ground Eight is without merit.
CONCLUSION
For the reasons set forth above, the petition of Donald White for a writ of habeas
corpus under 28 U.S.C. § 2254 is denied.
Petitioner made no substantial showing that he was deprived of a constitutional
right. Therefore, a certificate of appealability is denied. 28 U.S.C. § 2253(c)(2).
An appropriate Judgement Order is issued herewith
/s/ David D. Noce k
UNITED STATES MAGISTRATE JUDGE
Signed on December 16, 2022. Case Information
- Court
- E.D. Mo.
- Decision Date
- December 16, 2022
- Status
- Precedential