United States District Court, E.D. Missouri, Eastern Division
ANTOINE D. PEARSON, Petitioner,
TROY STEELE and CHRIS KOSTER,  Respondents.
MEMORANDUM AND ORDER
THOMAS C. MUMMERT, III, Magistrate Judge.
This matter is before the Court for review and final disposition of a petition for writ of habeas corpus filed by Antoine D. Pearson ("Petitioner") pursuant to 28 U.S.C. § 2254 to challenge a 2008 judgment following a jury trial. Respondents filed a response [Doc. 6] to the petition, including materials from the underlying state court proceedings [Docs. 9, 14-1, and 16-1].
After careful consideration, the Court will deny the petition upon concluding that Petitioner is not entitled to relief because ground two is procedurally defaulted and Petitioner failed to demonstrate either cause and prejudice or actual innocence so as to allow this Court to consider the merits of that procedurally defaulted claim; and because the other three grounds for relief lack merit.
Petitioner was charged with one count of first-degree statutory sodomy, in violation of Mo. Rev. Stat. § 566.062 (Count I), one count of attempt to commit statutory rape in the first degree, in violation of Mo. Rev. Stat. § 566.032 (Count II), and one count of attempt to commit statutory sodomy in the first degree, in violation of Mo. Rev. Stat. § 566.062. (Indictment, Legal File, Resp'ts Ex. A, at 5-6 [Doc. 9].) The charges were based on allegations that, between October 15, 2006 and December 31, 2006, Petitioner had deviate sexual intercourse, attempted to rape, and attempted to sodomize a girl, P.P. ("Victim"), who was less than twelve years old at the time. Id.
The trial court held a pre-trial hearing after the State provided notice of its intent to use at trial, under Mo. Rev. Stat. § 491.075, statements the minor Victim had made to others, and Petitioner had filed motions challenging that statute and requesting suppression of Petitioner's statements to the police. (See Hr'g Tr., Resp'ts Ex. G, at 5-118 [Doc. 14-1 at 2-30]; Mots. at Legal File, Resp'ts Ex. A, at 7-15 [Doc. 9].) The trial court subsequently denied Petitioner's motion to suppress, and found the relevant statements made by Victim to four others (Lisa Edwards, Luzette Wood, Kelly Patten, and Officer Robert Connell) were reliable and admissible. (Orders, dated Dec. 13, 2007, Legal File, Resp'ts Ex. A, at 16-18 [Doc. 9].)
Prior to trial, Petitioner again sought the suppression of Petitioner's statements to the police, including a videotaped statement, based in part on his characterization of the videotaped statement as constituting "extremely inflammatory hearsay." (Trial Tr., Resp'ts Ex. G, at 126-30 [Doc. 14-1 at 32-33].) The trial court noted that this request was a suggestion "that [the statements] should be excluded in limine, " reiterated its denial of Petitioner's motion to suppress, and acknowledged Petitioner's specific objections could be considered once the State determined if it was going to introduce any statement and, if so, to what extent. (Id. at 128, 130 [Doc. 14-1 at 33].)
During the trial in December 2007, and outside the presence of the jury, Petitioner asked the court not to allow his statements into evidence, either in video form or through police officer testimony, urging that Petitioner "has the right not to be tried for... prior bad acts, whether charged or uncharged[;]... these statements do not show any relation to the charge at hand"; and, as the State pointed out, Petitioner's statements do not include "confessions or admissions." (Id. at 335-37 [Doc. 14-1 at 86]; see also id. at 340-42 [Doc. 14-1 at 87].) In response, the State acknowledged that, in his statements, Petitioner "does not confess to committing the crimes here involved" but reports that he engaged in sexual conduct of a "nearly identical" nature in the presence of and near Victim, during the "same time frame." (Id. at 338-39 [Doc. 14-1 at 86-87].) The trial court concluded the statements constituted admissions against interest, found that the recent state case cited by Petitioner was not on point, characterized the information in the statements as describing circumstances surrounding the crime, and denied Petitioner's motion to exclude the statements Petitioner made in a videotaped recording or to police officers at the time of his arrest. (Id. at 340-41 [Doc. 14-1 at 87].)
Later during trial and outside the presence of the jury, Petitioner objected to various aspects of the video recording of Petitioner's statement to the police that the prosecutor advised he was planning to play for the jury. (Id. at 416-35 [Doc. 14-1 at 106-11].) The trial court sustained Petitioner's objections to, and required the deletion of, any references to Petitioner's prior juvenile court history and to any past sexual abuse he had suffered; required the prosecutor to advise the jury that Victim did not have any sexually transmitted disease; overruled Petitioner's hearsay objections, as well as his objections that the statements were coerced; and disallowed the playing of any other portion of the video recording of Petitioner's statement until after the parties and trial court addressed any other objections to it that Petitioner might have. (Id. at 419, 423-24, 426, 428, 429, 431-33 [Doc. 14-1 at 107-10].)
Before the State sought to admit the videotaped recording of Petitioner's statement to the police and before the State questioned a police officer who had interviewed Petitioner about Petitioner's statement, Petitioner reiterated his objection to the introduction of the statements he made during police interrogation. (Id. at 489-90 [Doc. 14-1 at 124].) Petitioner argued the introduction of such evidence violated Petitioner's constitutional rights to due process, to counsel, and not to incriminate himself; and contended any statement was not an "admission or a confession to the charges at hand" and was offered only to show Petitioner has a propensity to commit the charged offenses. (Id. at 489 [Doc. 14-1 at 124].) The trial court overruled that objection and admitted the videotaped recording of Petitioner's statement to the police, as well as the police officer's testimony regarding the interview of Petitioner. (Id. at 489-90 [Doc. 14-1 at 124].)
After the testimony of one of the police officers who had interviewed Petitioner and out of the presence of the jury, Petitioner asked the trial court to strike the officer's testimony because it related statements that were hearsay, were not reliable, were "extremely prejudicial[, were] more prejudicial than probative, and were inflammatory." (Id. at 565-66 [Doc. 14-1 at 144].) The trial court denied that motion. (Id. at 566 [Doc. 14-1 at 144].)
The State presented the testimony of six witnesses whose testimony focused on matters pertaining to the charged offenses (id. at 299-568 [Doc. 14-1 at 77-621]); introduced various exhibits, including three drawings of a male body and a female body, which were used during Wood's interview of Victim (id. at 408 [Doc. 14-1 at 104]); played for the jury the videotape of the police officers' interview of Petitioner (id. at 501-10 [Doc. 14-1 at 127-29]); and presented a court reporter who testified to the accuracy of a transcript she prepared of the video-recording of Wood's interview of Victim (id. at 396-99 [Doc. 14-1 at 101-02]), a recording that was also played for the jury (id. at 411-13 [Doc. 14-1 at 105]).
Victim, who was Petitioner's daughter and four years old at the time of trial, testified that Petitioner had done "bad stuff" to her. (Id. at 301, 345, 347, 368 [Doc. 14-1 at 77, 88, 89, 94].) While on the stand, Victim pointed to her vaginal area, what she referred to as her "pie pie, " and her buttocks, what she referred to as her "butt, " and referred to her mouth, as areas that Petitioner did "bad stuff" to. (Id. at 345-47 [Doc. 14-1 at 88-89].) In part, she testified that Petitioner put "his piepie" in her mouth and "[w]ater came out." (Id. at 348 [Doc. 14-1 at 89].) During cross- and recross-examination by Petitioner's counsel, Victim responded to questions indicating both that Petitioner did not hurt her and that the "bad things" Petitioner did to her "hurt." (Id. at 363-64, 369 [Doc. 14-1 at 93, 94].) Victim also reported that she did not hit Simone Hunter's belly when Simone was pregnant and nodded when asked, "[n]obody told you to hurt the baby?" (Id. at 366 [Doc. 14-1 at 93].)
Lisa Edwards, Victim's grandmother, testified that she lived with Victim and Victim's mother, and was alone with Victim in January 2007 when Victim told her on two separate occasions, in a car and at home, that Petitioner "did a bad thing to" her and indicated that he had hurt her "private area" and "her butt." (Id. at 309-10, 312, 324 [Doc. 14-1 at 79, 80, 83].) Victim also told Edwards that Petitioner had put his "peepee in her mouth" and "water" came out. (Id. at 312-13 [Doc. 14-1 at 80].) In November or December 2006, Edwards testified, Victim had spent some time with Petitioner at his house, and afterward Victim "seemed to be withdrawn" and had changed in that she began "bed wetting, [had] nightmares, [was] very clingy[, and was] masturbating." (Id. at 315-18, 323, 326-29 [Doc. 14-1 at 81, 83, 84].)
Wood was, early in 2007, an interview specialist or forensic interviewer with the Children's Advocacy Center. (Id. at 375-77 [Doc. 14-1 at 96].) She testified that, in that position, she had interviewed over a thousand children ranging in age from 3 through 17; and she described the protocol that she followed while interviewing children. (Id. at 377-80 [Doc. 14-1 at 96-97].) Wood reported what she looks for in an interview and mentioned that certain cues, such as a child's description of sensory details regarding what occurred, are important "[b]ecause it suggests a child is speaking from his or her own memory instead of something else someone told them to say." (Id. at 389 [Doc. 14-1 at 99].)
On January 23, 2007, Wood interviewed Victim, with no one else in the interview room, but with other adults, not Victim's family members, watching the interview from behind a one-way mirror; and recorded that interview, which recording was admitted into evidence, and played for the jury. (Id. at 382, 384-85, 412-13 [Doc. 14-1 at 97, 98, 105].) Wood identified anatomical drawings of a girl and a boy on which lines were drawn between body parts, specifically the penis, vagina, and buttocks, and words that Victim used to name those parts: "thingy" or "dingading" for penis; "coocoo" for vagina, and "booty" for buttocks. (Id. at 414-15 [Doc. 14-1 at 105-06].) Those drawings were used during Wood's interview of Victim. (Id.)
Wood opined, based on her experience, her training, and her analysis of cues during her interview of Victim, that Victim had not been "told what to say or coached in any way." (Id. at 391 [Doc. 14-1 at 100]; see also id. at 410 [Doc. 14-1 at 104].) During crossexamination, Petitioner's attorney asked Wood whether she had seen any indication that Victim had been coached and Wood testified that she had not. (Id. at 407 [Doc. 14-1 at 104].) After Wood testified and the video recording of Wood's interview of Victim was played for the jury, Petitioner unsuccessfully moved to strike the DVD and Wood's testimony. (Id. at 416 [Doc. 14-1 at 106].)
Kelly Patten, a pediatric medical social worker at St. Louis Children's Hospital, interviews children visiting the hospital's emergency room, including those who may have suffered physical or sexual abuse; and, at the time of trial, had interviewed over five hundred children in her three-and-one-half years of working there. (Id. at 435-37 [Doc. 14-1 at 111].) She interviews a child who may have been the subject of physical or sexual abuse alone, before the child is seen by other medical care providers. (Id. at 439-40 [Doc. 14-1 at 112].) She looks for cues to help determine whether a child has been told what to say or has been coached. (Id. at 441 [Doc. 14-1 at 112].)
On January 21, 2007, Patten interviewed Victim, with no one else present. (Id. at 442-46, 451 [Doc. 14-1 at 112-13, 115].) Victim told Patten that Petitioner had put "his thing... him dingaling" in her mouth, "in her booty and in her potpot, " and pointed to her vaginal area when asked what "his thing... him dingaling" was, to her buttocks for her "booty, " and to her vaginal area for her "potpot." (Id. at 443-45 [Doc. 14-1 at 113].) Victim told Patten that "water came out in my mouth"; and that these things happened at Petitioner's house. (Id. at 444-45 [Doc. 14-1 at 113].) Patten opined that Victim was not coached or told what to say. (Id. at 456 [Doc. 14-1 at 116].)
Sara Nikravan, M.D., an emergency department resident, testified that she practiced medicine at St. Louis Children's Hospital and examined Victim in January 2007, in the presence of an attending physician and a nurse. (Id. at 461-62, 467 [Doc. 14-1 at 117, 119].) They found no external markings or bruising on Victim; her vaginal area and anus were normal with no signs of trauma, abrasions, cuts, rashes, marks, or lesions; and her hymen was in tact. (Id. at 461-62 [Doc. 14-1 at 117].) Dr. Nikravan testified that "[i]n 95 percent of prepubertal children, before puberty, children that are victims of sexual assault [have] no findings on physical exam" and "the longer you go [between the assault and the examination], the less likely you are to find something" on physical examination. (Id. at 463 [Doc. 14-1 at 118].)
Robert Connell, an officer with the St. John Police Department, whose work as a police officer focuses, in relevant part, on investigations of incidents involving juveniles as victims, conducted a "cursory" interview of Victim on January 21, 2007, with Victim's mother present, to ascertain whether a crime may have been committed. (Id. at 471-75 [Doc. 14-1 at 120-21].) Victim told him that Petitioner had done "bad things to" her, had "stuck his thingy in her mouth and water came out, " and had "hurt her booty and her piepie." (Id. at 476-77 [Doc. 14-1 at 121].) When asked to point to and circle the "thingy" on a drawing of a male figure, Victim "pointed to [and drew a circle around] the male genitalia or the penis on the... picture." (Id. at 477 [Doc. 14-1].) When asked to circle the "piepie" on a female picture, Victim "circled the... vagina on the picture." (Id.) When asked to point to the "booty, " Victim stood up and "pointed to her own personal buttocks area." (Id.) Officer Connell brought two anatomically correct dolls to Victim, asked her to point to the "thingy, " and she pointed to the "penis on the doll." (Id.) He laid the dolls on the couch where Victim sat, and, while Officer Connell told Victim's mother the interview was complete and they needed to go to Children's Hospital for a "check-up, " Officer Connell noticed Victim had placed "the male doll on top of the female doll [and] was making noises as she pressed them together[, ] going, uh, uh, uh.' [Victim was] asked... What are you doing?' And she said, This is what [Petitioner] does after he puts grease on me.'" (Id. at 478 [Doc. 14-1 at 121].) Officer Connell testified that Victim's mother did not coach or otherwise get involved with Officer Connell's interview of Victim, other than to tell Victim "not to color on the couch." (Id. at 479 [Doc. 14-1 at 122].)
That afternoon, after his interview with Victim, Officer Connell, along with a detective, interviewed Petitioner after giving him his Miranda rights. (Id. at 480-82, 544 [Doc. 14-1 at 122, 138].) During the interview, Petitioner reportedly started out denying that he was ever alone with Victim, or changed Victim's diapers, or gave Victim a bath, or masturbated in Victim's presence, or showed her his penis, but then stated that she might have seen him and a girlfriend have sex once; that, when Victim was in bed with Petitioner, his penis may have touched Victim "along her legs, her thigh, and her buttocks area"; that he remembered his penis being "erect at times when it was in contact with [Victim], skin on skin"; and that he would "get a wash cloth and wipe her off" when "he got semen on" her from masturbating. (Id. at 498-501; see also id. at 513 [Doc. 14-1 at 127, 130].) Officer Connell testified that, during Petitioner's interview, Petitioner never admitted to putting his penis in Victim's vaginal cavity, anal cavity, or mouth, although Petitioner stated that semen was on Victim's "butt or anus" at some point and he admitted to masturbating on her or around her, although he stated it was not intentional. (Id. at 513-14, 539 [Doc. 14-1 at 130, 137].)
The State rested; Petitioner unsuccessfully moved for a judgment of acquittal at the close of the State's evidence; and the State successfully moved in limine to prevent any hearsay testimony from Simone Hunter regarding what Victim told her that Victim's mother had said. (Id. at 567-68 [Doc. 14-1 at 145].)
Petitioner did not testify (see id. at 621-22 [Doc. 14-1 at 158]), and presented the testimony of three witnesses: Simone Hunter, Georgia Hunter, and Shantrell Hunter. (Id. at 569-621 [Doc. 14-1 at 145-59].) Simone testified that Petitioner had been her boyfriend since April 2006 and, in July 2006, moved in with her, her parents, her sister, and her aunt. (Id. at 569-70 [Doc. 14-1 at 145].) Simone stated that Victim stayed with them on occasion, including for about four days during the period "a few days before Halloween" 2006 and again around Thanksgiving 2006. (Id. at 572-73, 576 [Doc. 14-1 at 146, 147].) During those visits, Victim slept on the couch in the living room, while Petitioner and Simone slept on a mattress on the floor in the living room. (Id. at 573, 577-78 [Doc. 14-1 at 146, 147].) During the Thanksgiving visit, Simone testified, Victim hit Simone in the stomach twice after learning Simone was pregnant. (Id. at 578-79 [Doc. 14-1 at 147-48].) Georgia, Simone's mother, testified that Victim stayed at their home for several days around Halloween and Thanksgiving of 2006. (Id. at 596, 599 [Doc. 14-1 at 152, 153].) Georgia stated that, during these visits, Victim slept on the couch, while Petitioner and Simone slept on a mattress on the floor, in the living room. (Id. at 600-01 [Doc. 14-1 at 153].) Shantrell, Simone's sister, testified that Victim stayed at their home for several days around Halloween and Thanksgiving of 2006; and, when Victim spent the night during those visits, she would sleep on the couch, while Simone and Petitioner slept on a mattress on the floor, in the living room (Id. at 608, 611, 617-18 [Doc. 14-1 at 155, 156, 157].) After this testimony, Petitioner rested, and then unsuccessfully sought a judgment of acquittal at the close of all the evidence. (Id. at 623-24 [Doc. 14-1 at 159].)
One of the instructions read to the jury stated in part:
From time to time the attorneys may make objections. They have a right to do so and are only doing their duty as they see it. You should draw no inference from the fact that an objection has been made.
If the Court sustains an objection to a question, you will disregard the entire question and you should not speculate as to what the answer of the witness might have been. The same applies to exhibits offered but excluded from the evidence after an objection has been sustained. You will also disregard any answer or other matter which the Court directs you not to consider and anything which the Court orders stricken from the record.
(Instr. No. 2, Legal File, Resp'ts Ex. A, at 29 [Doc. 9].)
During his closing, the prosecutor argued, without objection, that Wood
is trained to look for kids that possibly are told what to say by their parents. Coached is the term we use sometimes. [Wood] told you [about] her training, her experience, her thousands of interviews with kids. [Victim] wasn't one of those [coached] kids. [Victim] was talking about things 3 year olds don't talk about. She did not appear to be coached; told what to say in any way.
(Trial Tr., Resp'ts Ex. G, at 634 [Doc. 14-1 at 162].)
The jury found Petitioner not guilty of the first-degree statutory sodomy offense charged in Count I and guilty of the other two charged offenses. (Id. at 667-70 [Doc. 14-1 at 170-71]); Verdicts, Legal File, Resp'ts Ex. A, at 42-44 [Doc. 9].) After further evidence was introduced, counsel presented additional argument, and the trial court read more instructions, the jury recommended a thirteen-year term of imprisonment on Count II and a twelve-year term of imprisonment on Count III. (Trial Tr., Resp'ts Ex. G, at 670-98 [Doc. 14-1 at 171-78]; Verdicts, Legal File, Resp'ts Ex. A, at 51-52 [Doc. 9]).
In his motion for acquittal or in the alternative for new trial ("motion for new trial"), Petitioner argued the trial court had erred in allowing and not striking the testimony of Officer Connell regarding Petitioner's statements to the police; in allowing the showing of the video recording of the police interview of Petitioner; in denying Petitioner's motion seeking to declare as unconstitutional Mo. Rev. Stat. § 491.075 and in allowing Officer Connell, Patten, Wood, and Edwards to testify about statements made to them by Victim; and in overruling Petitioner's objection to the prosecutor's misstatement of evidence during closing argument. (Pet'r Mot. New Trial, Legal File, Resp'ts Ex. A, at 55-62 [Doc. 9].) The trial court subsequently denied Petitioner's motion for new trial, sentenced Petitioner in accordance with the jury's recommendation, and ordered that the sentences run consecutively, for a total term of imprisonment of twenty-five years. (Sentence and J., dated Feb. 19, 2008, Legal File, Resp'ts Ex. A, at 63-65 [Doc. 9]; Sentencing Hr'g Tr., Resp'ts Ex. G, at 700, 705 [Doc. 14-1 at 178, 181].)
In his timely direct appeal, Petitioner raised two points. First, Petitioner cited, in relevant part, Jackson v. Virginia , 443 U.S. 307 (1979), and argued that his Fourteenth Amendment right to due process was denied in that there was insufficient evidence to prove his guilt beyond a reasonable doubt because Victim's testimony at trial was so contradictory that it could not be relied on without corroboration. (Pet'r Br., Resp'ts Ex. B, at 14 and 16 [Doc. 9].) In his second and final point, Petitioner contended that his Sixth and Fourteenth Amendment rights to a fair trial and to present a defense were violated by the trial court's exclusion of Simone's testimony describing how Victim told Simone that Victim's mother had "ordered" Victim to hit Simone in the stomach when Simone was pregnant, in that it constituted a prior inconsistent statement due to Victim's prior contrary testimony and it supported Petitioner's defense that Victim's mother induced Victim to implicate Petitioner. (Id. at 15 and 24 [Doc. 9].)
The Missouri Court of Appeals for the Eastern District affirmed the conviction and sentence in a summary order, supplemented by a memorandum sent only to the parties setting forth the reasons for the decision. (Per Curiam Order and Mem. Supplementing Order Affirming J. Pursuant to Rule 30.25(b), dated Dec. 9, 2008, Resp'ts Ex. C). In its decision, the state appellate court summarized the facts relevant to these claims as follows:
In late November or early December of 2006, [V]ictim, a three-year-old female, visited [Petitioner], her father, for four days. During the visit, [Petitioner] attempted to insert his penis into [V]ictim's vagina and into her anus. [V]ictim testified at trial. Also at trial, the court sustained the state's motion in limine to exclude the testimony of Simone..., [Petitioner's] girlfriend, that [V]ictim had said that [Victim's] mother had told her to hit [Simone], who was then pregnant, in the stomach.
* * *
During direct examination, [V]ictim testified that [Petitioner] did "bad stuff" to her vaginal area and her buttocks. On cross examination, defense counsel posed the following question: "[Petitioner] didn't really hurt you at all, did he?" [V]ictim responded, "No." On redirect, [V]ictim again testified that [Petitioner] did "bad things" to her. On re-cross, [V]ictim reaffirmed that Defendant did "bad things" to her and also stated that those things hurt.
* * *
After the close of the state's evidence, the state made a motion in limine to exclude [Simone]'s testimony about [V]ictim's statements to her that related [V]ictim's mother's statements to [V]ictim. The following colloquy transpired:
[PROSECUTOR]: I think I have one thing. In review of the transcript from the [pretrial] hearing [regarding the admissibility of Victim's statement to four others] when [Simone] testified she mentioned on a couple of occasions hearsay statements. She mentioned statements [[V]ictim] told her, which is hearsay, that apparently [[V]ictim's mother] had told [[V]ictim], which is double hearsay. At this point I would make a Motion in Limine pertaining to any hearsay statements made by ...