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 Ted Davison for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On March 1, 2006, Petitioner was convicted by a jury of first-degree murder and first-degree robbery. He was sentenced to consecutive terms of life imprisonment without parole and 20 years, respectively. For habeas relief, Petitioner raises the following claims: (1) defense counsel was constitutionally ineffective for allegedly telling him that the state would use an unrelated charge of sexual misconduct to impeach him if he decided to testify; (2) the trial court improperly denied Petitioner the opportunity to cross-examine two of the state's witnesses regarding pending criminal charges they allegedly faced; (3) the trial court improperly sent demonstrative exhibits and a ruler to the jury during deliberations; (4) there was insufficient evidence to support Petitioner's conviction of first-degree murder; (5) defense counsel was constitutionally ineffective for failing to adduce exculpatory evidence, failing to object when the trial court allegedly told the jury that it needed to reach a verdict before they left for the day, failing to use a peremptory challenge to remove a certain juror from the venire panel, failing to fully investigate and to call Petitioner and another individual as witnesses, and failing to investigate another individual's whereabouts on the day in question; and (6) Petitioner's constitutional rights were violated based upon the cumulative effect of the errors in his trial. For the reasons set forth below, habeas relief shall be denied.
The evidence presented at trial, viewed in the light most favorable to the verdict, established the following:
In December 2002, Petitioner owned a pawn shop where his then 16-year-old son, Eric Davison, worked for him. Petitioner discussed with his son and another individual, Pat Crouch, robbing the victim, who was a wholesale jeweler who sold jewelry to pawn shops. On the morning of December 10, 2002, Petitioner told his son that they (Petitioner and his son) were going to rob the victim that day when the victim came to the store. When the victim arrived, Petitioner's son hit the victim in the back of the head with an aluminum baseball bat. Petitioner dragged the victim into a back storage room, grabbed a flashlight, and began hitting the victim on the side of the head with it. Petitioner then picked up a shotgun and slammed it into the victim's forehead, killing him. Petitioner and his son then took the victim's suitcases of jewelry to Petitioner's apartment.
Petitioner and his son returned to the pawn shop, cleaned the victim's blood from the carpet and walls, and Petitioner loaded the victim's body into the back of Petitioner's truck. Petitioner and his son then drove to a wooded area and disposed of the victim's body in the woods, covering it with leaves and sticks. A few days later, Petitioner had his son and nephew replace the carpet in the storage room where the victim was killed. Later that week, Petitioner drove his son and nephew to the wooded area where the body had been left. They dug a hole in the ground and buried the victim's body. On June 1, 2003, the police found the victim's body based upon information from a confidential informant. Petitioner was arrested the following day.
Petitioner filed a pretrial motion to disclose any deals the state may have made with several witnesses. The prosecutor asserted that there were no deals offered in exchange for the witnesses' testimony. At trial, defense counsel attempted to crossexamine two of the state's witnesses, Charles Crump and Crouch, regarding pending criminal charges they allegedly faced. Crump had testified that while he was watching a television news report with Petitioner and his son in March or April 2003 about the missing victim in the case, Petitioner said in a joking tone, "we did that, " but Crump did not take the comment seriously. Crump also testified that he had prior convictions for drug possession, misdemeanor domestic assault, and stealing. He testified that all of the cases had been disposed of and that he was not promised anything in exchange for his testimony. (Resp. Ex. A at 299-302.)
On cross-examination, Crump testified that he did not inform the police about Petitioner's admission to the murder until after he was arrested on the drug possession charge in September 2003. After reviewing his prior convictions to which Crump had testified on direct examination, defense counsel asked Crump if in connection with the drug possession charge, he had been arrested with three-fourths of a pound of marijuana. The prosecutor objected to any further inquiry behind the charge itself on the ground that such inquiry was "not permitted, " and the objection was sustained. At a bench conference, the trial court told Petitioner's counsel that he "may be able to argue an inference that [Crump] received favorable treatment, but the details of the disposition are not permitted." Crump then testified that the drug possession case had been resolved two or three months before Petitioner's trial and further testified that it was not resolved in exchange for his testimony. Id. at 305, 310-12.
Crouch testified about the conversation he had with Petitioner in December 2002 about robbing the victim. Crouch stated that his testimony was not made in exchange for any deals with the state. On cross-examination, defense counsel asked Crouch if he had been arrested on January 6, 2003. The prosecutor objected, stating that the state had informed the defense that no charges had been filed related to that arrest. The trial court sustained the objection. At a bench conference, the trial court told defense counsel that such an arrest was unusable for impeachment purposes because it occurred prior to the discovery of the body and could not have any relevance. Id. at 387-99.
Defense counsel continued cross-examining Crouch, and then asked Crouch if he had been arrested on January 31, 2004. The state objected to any inquiry beyond the arrest itself without evidence that any charges were filed. Defense counsel argued that he should be entitled to draw the inference that Crouch was not charged in exchange for his testimony. The objection was sustained. Id. at 401-02.
A medical examiner testified for the state that the victim died of at least two head injuries (apparently referencing the blow to the back of the head and the blow to the front of the head), which likely in combination contributed to the victim's death. The medical examiner used a plastic skull to illustrate his testimony, placing marks on the skull where the victim was hit. The skull was admitted into evidence as a demonstrative exhibit without objection. Id. at 493. The shotgun identified as the murder weapon was also admitted into evidence without objection. Id. at 492.
Petitioner did not testify in his own defense. At the close of evidence, outside the presence of the jury, 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, as follows:
THE COURT: Before we conclude the evidence finally, Mr. Davison, it is come upon me to advise you that under the law you have the right to testify in your own defense, if you so choose. Do you understand that?
MR. DAVIS: Yes, Your Honor.
THE COURT: Do you understand you also have the right to refrain from testifying, and no one can force you to testify in this trial?
MR. DAVISON: Yes, Your Honor
THE COURT: Have you discussed those options with your attorneys?
MR. DAVISON: Yes, I have.
THE COURT: And in consultation with them, I take it you have chosen not to testify?
MR. DAVISON: Yes.
THE COURT: And I assume you discussed the pros and cons of that decision with your attorneys?
MR. DAVISON: Yes, Your Honor.
THE COURT: And you have made a decision not to testify; ...