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McDaniel v. Dormire

United States District Court, E.D. Missouri, Eastern Division

September 30, 2014

BRYAN McDANIEL, Petitioner,
DAVE DORMIRE, Respondent.


AUDREY G. FLEISSIG, District Judge.

This matter is before the Court on the petition of Missouri state prisoner Bryan McDaniel for a writ of habeas corpus pursuant to 28 U.S.C. ยง 2254. A jury convicted Petitioner of first-degree trespass, Class B first-degree assault, armed criminal action, and attempted burglary. He was sentenced to imprisonment of one year, ten years, three years, and seven years, respectively, with all sentences to run concurrently except for the three year sentence that was to run consecutively, for a total sentence of 13 years.

For federal habeas relief, Petitioner claims that there was insufficient evidence to support the conviction of first-degree assault; that Petitioner was denied a fair trial due to the prosecutor's reference to Petitioner during closing argument as "tattoo man, " and the prosecutor's repeated references to Petitioner's use of the word "nigger" during the commission of the crimes; that defense counsel was ineffective for failing to object to several racially-related comments by the prosecutor in closing argument, failing to object to the prosecutor's repeated use of the word "nigger, " failing to object to the prosecutor's characterization, in opening argument, of Petitioner's crimes as hate crimes, and failing to investigate the crime scene adequately; and that the state postconviction motion court deprived Petitioner of due process by adopting the State's proposed findings of fact and conclusions of law verbatim and without giving Petitioner a chance to submit proposed findings and conclusions.

Respondent argues that habeas relief should be denied because Petitioner's claims concerning the "tattoo man" comment and defense counsel's failure to object to the prosecutor's characterization of the crimes as hate crimes were procedurally defaulted, and in any event fail on the merits, and the state courts' adjudication of the remaining claims was factually and legally reasonable. For the reasons set forth below, habeas relief shall be denied.


Information and Trial

In charging the offense of first-degree assault, the amended information stated, in relevant part, that Petitioner, armed with a rifle that was loaded and ready to fire, "while yelling nigger, " threatened to kill Adrian Hudson (who is African American). Before the jury was brought into the courtroom, defense counsel asked that the word "nigger" be stricken from the amended information as it was inflammatory. The trial court agreed, noting that Petitioner was not charged with a hate crime, and ordered the word stricken. During opening argument, the prosecutor stated, without objection by defense counsel, that during commission of the crimes, Petitioner "said I'm going to kill you nigger.' He didn't say it once, he said it twice, he said it repeatedly while they heard. But our evidence will show you that these were more than just hateful words of racism spewing from the mouth of a bigot." (Resp. Ex. A at 122.) The prosecutor also said in opening argument, "This isn't Birmingham in the 1960s, this is St. Charles, Missouri, " to which the trial court sustained Petitioner's objection. Id. at 126-27.

The Missouri Court of Appeals summarized the evidence at trial, viewed in the light most favorable to the verdict, as follows:

On September 20, 2005, [Petitioner] [who is white] rang the doorbell of one of his apartment building neighbors, Adrian Hudson, who resided there with his girlfriend, Cindy Green, their 10-month old baby, and Cindy's sister, Jazimine. Hudson opened the door, and [Petitioner], holding out a handful of paper trash, complained that Jazimine had littered on or near the complex. Hudson denied that the litter belonged to anyone in his unit. The discussion escalated between the two, standing there in the threshold of the apartment. Papers were thrown and kicked, Hudson's shoe came off, [Petitioner] hit Hudson in the face with it, and Hudson swiped at [Petitioner] with a knife, cutting [Petitioner]'s hand. Hudson and Green eventually managed to close and lock the door.
[Petitioner] disappeared briefly, returned with a fully-loaded semiautomatic assault rifle, cocked it with the safety off, his finger on the trigger, and began yelling infinite variations on the theme, "I'm going to get you, nigger! I'm going to kill you, nigger! Fuck you, nigger! You're dead!" [Petitioner] kicked on the door hard enough to shake the walls and pass light through the doorframe. He punched the door hard enough to break his own hand. Hudson and Green braced the door with a chair and called 911. A neighbor [Joseph Twehous] likened [Petitioner]'s actions to that of a SWAT team attempting to breach an entryway. That same neighbor also called 911 and later testified, "I thought I was going to witness a murder."
At some point [Petitioner] placed his weapon against a nearby banister. He explained during cross-examination that he couldn't hold the gun and pound on the door at the same time. When the police arrived, [Petitioner] was holding the rifle, pacing, and still shouting the aforementioned obscenities.

(Resp. Ex. F.)

This Court's review of the summary confirms that it is fair and accurate, when viewing the evidence in the light most favorable to the verdict. The Court adds to the above that Twehous testified that he observed the initial confrontation when he was sitting "just off" the patio of a neighbor's apartment, that before Petitioner left to retrieve the rifle, he (Twehous) observed that Petitioner "had about half his body into [Hudson's] apartment, " and that he then observed the rest of the incident through a window and peephole in his neighbor's apartment. Id. at 213-32.

The evidence also showed that the four police officers who had arrived at the scene took Petitioner from the scene to the hospital for treatment of the knife wound that required some stitches. In closing argument, the prosecutor referred to Petitioner as "tattoo man" in arguing that Hudson's version of events portraying Petitioner as the aggressor was more credible than Petitioner's story that Hudson provoked the violence:

Adrian did not provoke this. The defendant went to his door. Even [Petitioner] says Adrian tried to break this off by closing the door. And Adrian tried to cut this off by closing the door again. He didn't get in. When a door slams in your face, the conversation is over. Then he attacked Adrian. They want you to believe that Adrian attacked him. You saw the size of Adrian. You got tattoo man here...

(Resp. Ex. A at 343-44.) The record establishes that Petitioner had 30 tattoos. Defense counsel's objection was overruled.

Also during closing argument, the prosecutor stated, without objection by defense counsel, that the case was about race, that Petitioner was a "narrow minded little bigot, " that when bigotry is tolerated, "everyone is in danger, " and that the jury needed to send a message that bigotry would not be tolerated in their community. The prosecutor also invoked the memory of Martin Luther King and stated that although it was "an exaggeration to say that this was a 21st century attempted lynching, " Petitioner was filled with hate and terrorized Hudson and his family. Id. at 350. The word "nigger" was uttered approximately 50 times during the trial.

Direct Appeal

On direct appeal, Petitioner argued that the trial court erred in overruling his motion for judgment of acquittal on the first-degree assault charge because there was insufficient evidence that Petitioner took a substantial step toward attempting to kill or cause serious physical injury to Hudson; erred in overruling Petitioner's objection to the prosecutor's reference to Petitioner as "tattoo man" during closing argument; and erred in failing to declare a mistrial sua sponte when the prosecutor made the above noted racially-related comments and repeated Petitioner's use of the term "nigger, " all of which, according to Petitioner, improperly incited the jury's emotions against Petitioner and personalized the argument to the jury. (Resp. Ex. C.)

On March 25, 2008, the Missouri Court of Appeals affirmed Petitioner's conviction and sentence. The court concluded that the evidence was sufficient to support the conviction for first-degree assault, as "[p]etitioner's actions, accompanied by his relentless and unambiguous threats, were sufficient to lead a reasonable trier of fact to conclude that he was taking substantial steps and would have persisted, but for the police, until he successfully entered the apartment and caused serious injury to its inhabitants." (Resp. Ex. F at 3.) The court distinguished Verweire v. Moore, 211 S.W.3d 89 (Mo. banc 2006), upon ...

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