United States District Court, E.D. Missouri, Eastern Division
TERRY E. WASHINGTON, JR., Petitioner,
JEFF NORMAN, Respondent,
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
NOELLE C. COLLINS, Magistrate Judge.
This matter is before the court on Petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). This matter has been referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Doc. 10). After reviewing the case, the court has determined that Petitioner is not entitled to relief. As a result, the court will recommend that the Petition be dismissed.
Petitioner was charged, by Indictment, with Robbery in the First Degree, a Class A felony, in that between December 24, 2005, at 8:00 a.m. and December 24, 2005, at 8:08 a.m., at 93 North Oaks Plaza, in St. Louis County, Petitioner, Demond Taylor, and Chris Davis, acting together, forcibly stole U.S. currency in the possession of Robert Jordan, agent for National Rent to Own, and in the course thereof Petitioner displayed and threatened the use of what appeared to be a deadly weapon. Petitioner was also charged with armed criminal action in regard to the robbery of Jordan. (Resp. Ex. B at 6-7).
According to the Missouri appellate court, testimony at Petitioner's June 2007 trial was as follows:
The store manager of the North Oaks National Rent-to-Own location in Normandy (Victim) testified that he was working on the night before Christmas Eve, December 23, 2005. At about 6:55 p.m., two African-American men walked into the store and straight up to the counter, without looking at any merchandise on the sides of the aisle. Victim, who had been standing in his office door, stepped up to the counter, which was located about five feet away from his office. The cash register and valuable items such as jewelry, camcorders and digital cameras were located at the counter. Victim testified that he stood about a foot and a half away from the men and asked them, "May I help you, please? Are you looking for anything in particular?" He said one of the men responded, "No we're just looking." Victim said he stood there for a short time, and then the men turned around and walked straight out, again without looking at any merchandise along the aisle.
Victim testified that he looked at the men face-to-face for more than 10-20 seconds because he had a short conversation with them and because nothing else was going on at the time. He also had observed them as they walked. Victim had observed that the man on his right was wearing a "pure white stocking cap, " which stood out because there was no printing, writing or design on it and he had never seen one like this before. The other man on Victim's left had curls all the way around his head, which reminded Victim of Shirley Temple, under a black hat. When the man walked up to the counter, his nose stood out to Victim because it was "really flat and wide, " and Victim noticed his large forehead because his hat was up high. Victim also testified that the man on the left had really white eyes, was stocky but not fat, and that he stood about the same height as Victim, which was five-feet-ten-and-a-half or eleven-and-a-half inches tall. Victim added that he looked at the men straight on because in his customerservice job, he must make eye contact with the customers to build an "instant relationship."
The next day, December 24, 2005, Victim came into the store at about 7:45 a.m. He sent one of his staff members outside to start the truck and prepare to load it. A few minutes after the store opened at 8:00 a.m., a young African-American woman came into the store looking for a bedroom set. Victim began assisting her, and the woman asked him the price on a bedroom set because there was a scratch on it. Victim turned his back to the woman to look for the scratch but did not see one, and at the time he noticed that she started running. Then Victim noticed the two men that came into the store the previous night. He noticed the one man's smashed nose, stocky body, large forehead, and curls under his black hat, and the other man's pure white hat. He had no doubt that the two men were the same men from the night before because "it just tuck out like a big thumb. I kept the Shirley Temple curls and nose and forehead stuck in my brain because I just seen it yesterday, from the fact they were acting kind of weird coming into the store yesterday." Victim testified that the man with the flat nose and curls had a gun and told him to go to the office. Victim said he immediately put his hands up and walked straight to his office. The man with the gun and flat nose told him to open the safe. Victim obeyed him and put the money on the floor. Then the man with the gun told Victim to give him Victim's wallet and empty Victim's pockets, which Victim did. The man with the gun put into a bag the money from the safe, leaving behind the checks, and Victim's wallet and money. Victim also noticed that he picked up the camcorder and laptop from a chair next to the safe. Next, the men duct taped Victim's hands and eyes and ripped the phone out of the wall. The man with the gun and flat nose told him not to move, and then Victim heard the register's ding and pitter-patter sound. The men took $1296 from the safe, the laptop worth $586, and $150 cash from the register. Victim made his way to the front of the store, freed himself from the duct tape, and called the police.
Victim testified that he typically drives his car to the bank to deposit money from the previous day between 9:00 a.m. and 9:30 a.m. every day. He also testified that the store's security cameras had not been working for two or three weeks at the time of this incident, and that he had informed the store employees of this fact so they would be aware of everything in the store.
Victim testified that he received a phone call two months after the robbery from a young African-American female who told him that she knew who robbed him. She gave him the names of Demond Taylor (Taylor) and [Petitioner], who lived on Hamilton. She also said that she knew that they took a laptop and sold it for $500, that the store's drivers did not start work until 9:00 a.m., and that the store's security cameras were not working. Victim said the information regarding the laptop stood out because that information was not released, only Victim, the store's district manager, and the police knew that the laptop had been stolen. Victim testified that he knew Taylor's name because he was one of the store's drivers at the time, but testified that Taylor name was not one of the two men that came into the store on either the night of December 23 or morning of December 24, 2005. The anonymous female told Victim that Taylor had set up the robbery because he was mad at Victim and thought that it would be funny. Victim relayed the information about the phone call to the police. Victim testified that during the same month, he went to the Northwoods Police Department to look at a photo lineup. Officer Nidal Othman (Officer Othman) asked Victim to see if he recognized anyone from the robbery. Victim testified that he looked at all the photos and recognized [Petitioner] as the man with the gun from the robbery. Victim said, "I looked straight down to the very first person I looked at because of the nose and the curls. I went right to it." He told the officer he was 98 percent sure that [Petitioner] was the man who robbed him.
(Resp. Ex. E at 2-5).
The court also notes that Jordan testified that during the robbery he was told by the man with the gun to remove his glasses, but he was unable to do so because his hands were taped; the man with the gun grabbed Jordan's glasses and threw them down; the men then placed duct tape over Jordan's eyes. Also, Jordan identified Petitioner in court as the man with the gun. (Resp. Ex. A (Tr.) at 211, 226-28).
Officer Othman's testimony at trial was consistent with Jordan's. Officer Othman further testified that, after Jordan provided police with the information provided by the female caller, officers initiated surveillance of Petitioner but were unable to locate him. About two weeks later, Petitioner turned himself in to the police. After giving Petitioner his Miranda rights, another officer interviewed Petitioner in Officer Othman's presence. Petitioner said he was involved in the robbery with his cousin, Chris Davis, "and it involved cash money and a laptop." Petitioner also told the officers that he had used a fake gun. Petitioner then wrote a "voluntary statement, " which Officer Othman read to the jury and which stated the following: "The incident that took place was a robbery which involved money and a laptop that me and my cousin took, my cousin Chris Davis. And I'm trying to get the laptop back in a week." Petitioner told the court that he did not want to testify in his defense. (Resp. Ex. E at 5-6).
Petitioner was convicted, as charged, on June 29, 2007, and the court sentenced him to twenty years in prison. (Resp. Ex. E). Petitioner filed a direct appeal, in which he claimed the trial court plainly erred in allowing Jordan and Officer Othman to testify about what the anonymous caller told Jordan because this violated Petitioner's right to confrontation. (Resp. Ex. C). The Missouri appellate court found Petitioner's claim without merit and affirmed the judgment of the trial court. (Resp. Ex. E).
Petitioner then filed a pro se Motion to Vacate, Set Aside or Correct Judgment or Sentence pursuant to Missouri Rule 29.15. (Resp. Ex. F at 3). Counsel was appointed and filed an Amended Motion, claiming Petitioner was denied his right to due process and received ineffective assistance of counsel because counsel instructed Petitioner not to testify in his own defense. (Id. at 15-40). The motion court denied Petitioner's Rule 29.15 motion. (Id. at 44-49).
In the appeal of the motion court's denial of his Rule 29.15 motion, Petitioner claimed that he was denied due process and received ineffective assistance of counsel based on counsel's advising him not to testify. (Resp. Ex. G). By decision, dated April 6, 2010, the Missouri appellate court found ...