United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
AUDREY G. FLEISSIG, District Judge.
This matter is before the Court on the petition of Missouri state prisoner Lamont Thompson for a writ of habeas corpus pursuant to 28 U.S.C. '2254. Petitioner was convicted by a jury of first-degree robbery and armed criminal action, and was sentenced to 15 years and 5 years, respectively, to run concurrently. The crimes arose out of a robbery committed by Petitioner and another individual, during which the other individual displayed a deadly weapon.
For habeas relief, Petitioner claims that his constitutional rights were violated in the following ways: (1) the state appellate court improperly found on plain error review that an error in the verdict director for first-degree robbery was harmless; (2) the verdict director in question, which did not follow the Missouri approved instruction for accomplice liability, did not require the jury to find an essential element of the crime beyond a reasonable doubt; (3) Petitioner's right to a speedy trial was violated; and (4) trial counsel provided ineffective assistance by failing to object to the above-noted verdict director, failing to request a mistrial and/or judgment of acquittal when the trial court instructed the jury to continue deliberating after the jury submitted a note indicating it was unable to reach a unanimous decision, failing to call Petitioner or any other witness to testify on his behalf, and failing to request a dismissal based upon the denial of a speedy trial. For the reasons set forth below, federal habeas relief shall be denied.
Petitioner was arrested on February 22, 2006. On March 21, 2006, an indictment was filed against Petitioner charging him with the crimes of conviction. The first count alleged that Petitioner committed the robbery with another individual, and that the other participant in the crime displayed what appeared to be a deadly weapon. (Resp. Ex. A at 16.)
The case was set for an initial appearance on February 23, 2006, but was continued twice by Petitioner until April 4, 2006, when Petitioner was arraigned. On April 4, 2006, a public defender entered an appearance on Petitioner's behalf, and on May 3, 2006, a substitute public defender entered an appearance for Petitioner. After the case was transferred to a different judge, the court rescheduled the initial appearance for May 9, 2006, then continued the case "for want of time by the court" to September 19, 2006. Id. at 3-4. On July 25, 2006, Petitioner filed a pro se request for a speedy trial. The record does not indicate how the trial court addressed this speedy trial request. On September 19, 2006, a jury trial was set for January 8, 2007.
On the January 8, 2007 trial date, Petitioner and the state requested a joint continuance, which was granted until April 16, 2007. One month later, a retained attorney entered an appearance on Petitioner's behalf. Petitioner's trial was not held on April 16, 2007; instead, the court continued the case "at the request of the court" to August 27, 2007. On August 27, 2007, the court continued the trial at Petitioner's request to October 29, 2007, then again at the court's request to February 11, 2008. Id. at 6-7, 96. On October 3, 2007, Petitioner filed a pro se motion to dismiss for violation of a speedy trial, and on November 6, 2007, Petitioner's counsel filed a request for a speedy trial. Both motions were summarily denied. Petitioner's jury trial commenced on February 11, 2008, almost 24 months after Petitioner's indictment. It is not disputed that approximately 14.5 months of the delay were not occasioned by Petitioner.
Petitioner did not testify at trial nor present any evidence. The evidence presented at trial, viewed in the light most favorable to the verdict, established the following:
The victim knew Petitioner through a mutual friend, Kenny Millen, who owned a car shop. On October 12, 2005, Petitioner called the victim and asked him for a ride. When the victim arrived to pick him up, Petitioner entered the front passenger seat of the victim's car and closed the door. Suddenly, a man opened the passenger door and pointed a shotgun at the victim, ordered him out of the car, and told him to put his jewelry and money on the ground in front of him. The victim complied, leaving some money in his pockets. When the victim was getting out of the car, Petitioner reached over, took the keys from the victim's car, walked behind the car, and approached the victim. Petitioner took the rest of the victim's money out of his pockets, telling the man with the shotgun, "That's all he's got." Petitioner and the other man ran away with the victim's jewelry, money, car keys, and cell phone. (Trial Tr., Resp. Ex. I. at 50-61.)
The victim contacted a friend who gave him a ride to a nearby residence, where the victim told Millen what had just happened. Millen called Petitioner and confronted him about the robbery. Petitioner initially denied participating in the robbery, but eventually admitted to robbing the victim and said that he could return to the victim what he stole from him, but that he could not return the property that the other person took. Petitioner never returned any of the victim's property. Approximately one month after the robbery, Petitioner called Millen from Arkansas and apologized for what he did, but said he wasn't coming back. Id. at 61-62, 97-105.
Instruction No. 5, the verdict director for first-degree robbery, stated that the jury should find Petitioner guilty of first-degree robbery if it found and believed from the evidence beyond a reasonable doubt:
First, that on or about October 13, 2005, in the City of St. Louis, State of Missouri, [Petitioner] took money and jewelry which was property owned by [the victim], and
Second, that [Petitioner] did so for the purpose of withholding it from the owner permanently, and
Third, that [Petitioner], or another, in doing so threatened the immediate use of physical force on or against [the victim], forcing [the victim] to deliver up the property, and
Fourth, that in the course of taking the property, another person displayed or threatened the use of what appeared to be a deadly weapon, and
Fifth, that the other person referred to in paragraph Fourth was a participant with [Petitioner] in the commission of the offense.
(Resp. Ex. A at 111.) This instruction was modeled on MAI-CR 3d 323.02, the verdict director for first-degree robbery. Petitioner's counsel did not object to any of the jury instructions.
The jury began to deliberate at 12:45 p.m. on February 13, 2008. After the jury retired to deliberate, the trial court asked Petitioner whether it was his own decision not to testify. The trial court ascertained that Petitioner was both aware that he had the right to testify, and that he had made the decision himself not to do so. (Resp. Ex. I at 137-38.)
At 3:00 p.m., the jury sent a note to the court inquiring, "Are the witness statements solely what we have to base our decision on or can we make a decision on what we may perceive as a lack of evidence presented by the state?" The court instructed the jury in writing, "The jury should be guided by the instructions and the evidence." At 3:30 p.m., the jury sent another note to the court asking, "It seems that we are surely unable to come to unanimous vote. What should we do?" The court responded with another written note, "Please continue to deliberate." (Resp. Ex. A at 128.) ...