United States District Court, W.D. Missouri, Southern Division
ELVIS W. VOLNER, Petitioner,
LARRY DENNEY, Respondent.
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
BRIAN C. WIMES, District Judge.
Petitioner, who is confined at the Crossroads Correctional Center in Cameron, Missouri, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 to challenge his 2010 convictions and sentences for first degree murder, first degree robbery, and armed criminal action, which were entered in the Circuit Court of Douglas County, Missouri. Petitioner's conviction was affirmed on appeal to the Missouri Court of Appeals, Southern District, in State v. Elvis Volner, No. SD30747 (Mo.Ct.App. Dec. 9, 2011). Petitioner's motion for post-conviction relief filed pursuant to Mo. Sup.Ct. R. 29.15 was denied, Respondent's Exhibit H, pp. 5-8, and the appeal from the denial thereof was dismissed before it was briefed. Doc. No. 17. Petitioner raises two grounds for relief: (1) the trial court abused its discretion in admitting into evidence two color autopsy photographs; and (2) post-conviction counsel was constitutionally inadequate and ineffective because he did not present every issue petitioner raised in his pro se Rule 29.15 motion and because he abandoned petitioner on appeal from the denial of post-conviction relief.
In affirming the judgment of conviction and sentence of the Circuit Court of Douglas County, Missouri, the Missouri Court of Appeals, Southern District, set forth the following facts:
[Petitioner], along with his brother Benny, his cousin Dennis, and Dennis's wife, Julia, convened at his apartment on February 9, 2008, and planned an attack on Dustin Skaggs ("Victim"). [Petitioner] believed that Victim had been sleeping with Benny's wife. The group decided to scout bodies of water in order to get rid of Victim's car. The group first went to Noblett Lake, but determined that they could not get a car far enough into the water without being seen. The group then drove to Dennis and Julia's house in Hartville so that Julia could shower and change clothes. While in the yard of the home, [petitioner] discovered a lead pipe that he planned to use against Victim. At that point, Dennis asked Benny if he was going to kill Victim, to which Benny replied, "No, [petitioner] is." [Petitioner] nodded his head affirmatively and smiled in response to Benny's statement.
The foursome then headed to a rock quarry in Lebanon in order to determine if it would be an acceptable site to dump Victim's vehicle. When they arrived Benny kicked off the clips of the barbed wire fence surrounding the quarry so that the strands of the fence were pliable. Benny determined that the quarry would be a good site because it was deep enough to sink a car to the bottom and [petitioner] stated that the body would not come back up.
That night the group spent time at a nightclub in West Plains until approximately 1:30 a.m., after which they ate an early breakfast at a truckstop. They then drove their Jeep to Old Highway 5 and parked on the roadside with the hood popped up. They knew that the Victim would eventually pass them on the way to his early-morning shift at a nursing home in Mountain Grove. Not long after the Jeep was parked, Victim drove toward the ambush. As Victim drove up, Julia flagged him down with a flashlight and pretended to have car trouble, while Dennis and Benny crouched in the backseat of the Jeep and [petitioner] hid in a nearby ditch.
When Victim pulled up and opened his hood, thinking he would help Julia jumpstart her car, [petitioner] ran out and struck Victim in the head with the lead pipe he had acquired earlier. Victim started running back across the highway in an attempt to get away. [Petitioner] continued swinging the pipe at Victim as they made their way across the highway and Victim eventually fell into a ditch. [Petitioner] continued to beat Victim after he fell to the ground. Benny and Dennis eventually helped load Victim's body into the trunk of victim's car. They then took both vehicles to the rock quarry they found earlier, where they drove Victim's car into the water-filled quarry with his body still in the trunk.
Respondent's Exhibit E, pp. 3-4.
Before the state court findings may be set aside, a federal court must conclude that the state court's findings of fact lack even fair support in the record. Marshall v. Lonberger, 459 U.S. 422, 432 (1983). Credibility determinations are left for the state court to decide. Graham v. Solem, 728 F.2d 1533, 1540 (8th Cir. en banc), cert. denied, 469 U.S. 842 (1984). It is petitioner's burden to establish by clear and convincing evidence that the state court findings are erroneous. 28 U.S.C. § 2254 (e)(1). Because the state court's findings of fact have fair support in the record and because petitioner has failed to establish by clear and convincing evidence that the state court findings are erroneous, the Court defers to and adopts those factual conclusions.
In Ground One, petitioner claims that the trial court abused its discretion in admitting into evidence two color autopsy photographs (State's Exhibits 34 and 35). Doc. No. 1, p. 3. In reviewing this claim on direct appeal, the state appellate court found it to be without merit:
In his sole point relied on, [petitioner] argues that the trial court abused its discretion in admitting the autopsy photos of the Victim's body because "the photographs were so inflammatory as to interfere with the jury's rational thought process in deciding [petitioner's] criminal responsibility for the crime." [Petitioner] therefore claims that he was prejudiced by the admission of the photographs and deprived of his right to a fair trial.
"A trial court has broad discretion in deciding whether to admit or exclude evidence, and its ruling will not be disturbed on appeal absent a clear showing of abuse of discretion." State v. Smith, 330 S.W.3d 548, 553 (Mo. App. S.D. 2010). A decision to admit evidence constitutes an abuse of discretion when the decision is clearly against the logic of the circumstances and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful consideration." Id. Inflammatory photographs - i.e., ones that tend to arouse anger, hostility, or passion - should not be excluded if they are otherwise relevant. State v. Johnson, 244 S.W.3d 144, 161 (Mo. banc 2008); State v. Mort, 321 S.W.3d 471, 482 (Mo. App. S.D. 2010). If photographs are gruesome, it is usually because the crime itself was gruesome. Johnson, 244 S.W.3d at 161. Generally, gruesome photographs are admissible if they: (1) show the nature and location of the victim's wounds; (2) enable the jurors to better understand the testimony at trial; and (3) aid in ...