United States District Court, W.D. Missouri, Western Division
TERRY A. BLAIR, Petitioner,
TROY STEELE, Respondent.
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY
DEAN WHIPPLE, District Judge.
Petitioner, a convicted state prisoner currently confined at the Potosi Correctional Center in Mineral Point, Missouri, has filed pro se a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2008 convictions and sentences for six (6) counts of murder in the first degree which were entered in the Circuit Court of Jackson County, Missouri. The direct appeal of his convictions, State v. Blair, 298 S.W.3d 38 (Mo. App. 2009) (Respondent's Exhibit E), and the appeal from denial of his motion for post-conviction relief, Blair v. State, 402 S.W.3d 131 (Mo. App. 2013) (Respondent's Exhibit J) were denied.
Petitioner raises six (6) grounds for relief: (1) the evidence was insufficient to find petitioner guilty of all six counts of murder; (2) trial court error in relying on evidence that was not supported by the record; (3) trial court error in failing to suppress petitioner's preliminary statements to police and failing to furnish petitioner with an electronic record of his interrogation recorded by a local television station; (4) ineffective assistance of trial counsel for failing to object to Dr. Young's testimony regarding an autopsy performed by Dr. Gill; (5) ineffective assistance of trial counsel for failing to object to the testimony of Ruby Williams; and (6) ineffective assistance of trial counsel for failing to call petitioner to testify during a suppression hearing. Respondent contends that all grounds are without merit.
In affirming petitioner's convictions and sentences, the Missouri Court of Appeals set forth the following facts:
In December 2004, [petitioner] was charged in Jackson County circuit court with eight charges of first-degree murder, § 565.020, RSMo 2000, for the 2004 murders of eight women in Kansas City, Missouri [Petitioner] was also charged with first-degree assault, § 565.050, RSMo 2000, and three charges of forcible rape, § 566.030, RSMo 2000.
Prior to trial, the State and [petitioner] reached an agreement in which the State would dismiss two of the murder charges, dismiss the assault and forcible rape charges, and not seek the death penalty. In exchange, [petitioner] agreed to permit admission of a witness' statement if she could not be located to testify at trial.
[Petitioner] waived his right to a jury trial, and on March 27, 2008, after a bench trial, the trial court found [petitioner] guilty of the murder of Sheliah McKenzie, Patricia Wilson, Carmen Hunt, Anna Ewing, Darci Williams, and Claudette Juniel. On April 24, 2008, the trial court entered judgment and sentenced [petitioner] to six consecutive sentences of life imprisonment without the possibility of parole.
a. Summer 2004
Throughout the summer of 2004, [petitioner] stayed with his mother, who lived at 2449 Prospect, and with his sister, who lived at 1340 West Bluff. The man living above [petitioner]'s mother often let prostitutes eat, sleep, and shower at his apartment. [Petitioner]'s grandmother lived nearby at 2454 Olive.
b. Anonymous 911 Calls
On September 3, 2004, at approximately 10:39 p.m., an unidentified male made a 911 call from a deactivated cell telephone without a SIM card (meaning no number was attached to identify the telephone making the call) to report a dead body at 29th and Park. (This body would later be identified as Carmen Hunt). At trial, a linguistics professor identified the 911 caller as an urban, native-English-speaking, African-American male in the lower-middle to upper working class.
The caller told the 911 dispatcher that the body was in the back yard at the northeast house on the corner. When asked how he knew there was a dead body there, he said, "I put it there." The caller refused to identify himself. When he was asked a second time how he knew the body was there, the man stated, "Because I put the two on 25th and Montgall, and I put that there." (In context, the caller is referring to the bodies of Sheliah McKenzie and Patricia Wilson).
The caller told the dispatcher the body at 29th and Park was in the back yard of an abandoned house on the corner and that it was "all the way to the fence by the alley, buried up under tree branches. It's been there for about two months." The caller said he did not know the victim's name, but knew she was a prostitute.
The caller again confirmed that he killed the other two prostitutes whose bodies were found at 25th and Montgall and then hung up.
On September 4, 2004, at 6:51 p.m., the same unidentified man, using the same cell telephone, called 911. The caller told the 911 dispatcher that he had called the day before to "report bodies" and that he was calling again to report "two more bodies."
The caller stated that one body was at 24th and Prospect "in the alley right next to the gate by the U-Haul place" and was covered by "black vinyl." (this body would later be identified as Darci Williams). The caller stated the other body was at 27th and Olive and covered with brush and pillows. (This body would later be identified as Claudette Juniel). The caller said the victims were prostitutes and that he killed them because they were "scum" and a "disgrace." The caller refused to give his name, but told the dispatcher that the body at 27th and Olive had been there for about six weeks and that the one at 24th and Prospect had been there only a week. The caller told the dispatcher, "you can smell hell." The caller told the dispatcher that he did not know the victims' names, but that he was killing these women because they were prostitutes.
The caller went on to tell the dispatcher that he put the two bodies at 26th and Montgall (McKenzie and Wilson), and when asked if there were other victims, the caller mentioned the body found at 23rd and Prospect (Anne Ewing), but said that "they find [sic] her long time ago."
The cell telephone used to make these two calls, as well as a 911 hang-up call on August 30, 2004, was a T-Mobile cell telephone stolen from a maintenance company. Although the telephone did not have an internal SIM card, all phones have an International Mobile Equipment Identifier and a feature that always allows a cell telephone to dial 911. No further calls were attempted from this cell telephone after it was reported that police were attempting to track the location of the caller.
Officers made "test calls" with a T-Mobile cell telephone from [petitioner]'s mother's apartment and [petitioner]'s sister's duplex in an attempt to determine the location of the 911 caller. The officers' tests showed that the September 3rd call originated from the south of a cell tower at 18th Street and Prospect. [Petitioner]'s mother's apartment was directly south of this tower. The August 30th hang-up call and the September 4th call both originated from the north of a tower located at 3330 Roanoke. [Petitioner]'s sister's duplex at 1340 West Bluff is directly north of this cell-phone tower.
During the September 4, 2004, 911 call, the sounds of children playing and a train horn could be heard in the background. There are two playgrounds within a short distance of [petitioner]'s sister's housing complex, including one just behind her residence. [Petitioner]'s sister's duplex is also located near several sets of railroad tracks. Train records and GPS coordinates show that a train blew its horn at 6:53 p.m. on September 4, 2004 (the 911 call that night started at 6:51), in a location near [petitioner]'s sister's duplex. At trial, a friend of [petitioner]'s testified that it was possible to hear the trains from [petitioner]'s sister's duplex.
c. [Petitioner]'s Arrest
On September 6, 2004, Cherry Chadbourne flagged down police and told them that [petitioner] told her he was going to kill all prostitutes one by one because they were the scum of the earth. Earlier that summer, [petitioner] paid Chadbourne for sex. Chadbourne also told police that [petitioner] had been stalking her and told her what she had been wearing the previous week. [Petitioner] also told Chadbourne he killed his first wife because she had become a prostitute.
On September 10, 2004, [petitioner] was at a friend's house when his picture was featured in a newscast as a person of interest in a string of murders committed along the Prospect corridor. [Petitioner]'s friend pretended she did not recognize him as the person of interest. When [petitioner] left her house, she called the police. [Petitioner] later returned to his friend's house and hid in the garage. Police found [petitioner] between the rear of a car and the back of the garage.
After his arrest, [petitioner] received the Miranda warnings and agreed to talk to police. [Petitioner] was shown pictures of five of the victims. [Petitioner] denied having contact with any of the victims or being at any of the locations where the bodies were found.
[Petitioner] would later state that he recognized Darci Williams and that he had seen her ten or eleven days earlier. [Petitioner] denied ever having sex with Williams. [Petitioner] also denied ever having sex with any of the victims or any prostitute except for a woman named "Peaches whom he paid for sex in 2002.
[Petitioner] also denied that he had made the anonymous 911 calls. [Petitioner] told police that on September 3 and 4, 2004, when the calls were made, he helped his mother move out of her apartment and stayed with his sister (thus placing him in the areas from where the 911 calls were made).
State v. Blair, 298 S.W.3d at 40-43.
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 1, petitioner asserts that the trial court erred in finding him guilty. Petitioner claims that the State's evidence was insufficient to support the finding that petitioner committed all six murders. Doc. No. 1, p. 6. The Missouri Court of Appeals considered the sufficiency of the evidence presented at trial. They began their analysis by determining that the record supported the fact finding that petitioner was the anonymous 911 caller:
At the outset of this analysis, it is especially helpful to establish that sufficient evidence supports the trial court's finding of fact that [petitioner] was the 911 caller. This is because at trial and oral argument, it was conceded that one person killed all six victims. In its judgment, the trial court observed this when it noted, "[a]s everyone involved has stated, identify the caller because he must also be the killer." In this regard, however, it is important to remember that this factual determination was merely one factual finding that was used cumulatively with all the other evidence to prove guilt beyond a reasonable doubt.
At trial, a linguistics professor identified the 911 caller as an urban, native-English-speaking, African-American male in the lower-middle to upper working class. [Petitioner] fits this description.
Test calls made by police establish that the caller and [petitioner] were in the same vicinity when the calls were made. The August 30th and September 4th calls originated from a cell phone tower located at 3330 Roanoke. This tower is directly south of [petitioner]'s sister's duplex at 1340 West Bluff. Out of seven test calls made from [petitioner]'s sister's duplex, three calls originated from the Roanoke cell tower and reported the identical longitude and latitude as the anonymous 911 calls.
Other evidence places the calls in the vicinity of [petitioner]'s sister's duplex. There are two children's playgrounds within a short distance of the duplex, and the sound of children playing can be heard in the background of the call. The duplex is also near train tracks. A train horn can be heard in the call. Evidence from a train's onboard computer and GPS showed that it blew its horn during the call and while it was near the duplex. One of [petitioner]'s friends testified that trains could be heard at the duplex.
The September 3rd call originated from a tower at 18th and Prospect. [Petitioner]'s mother's apartment is directly south of this tower at 2449 Prospect. Nine test calls were made in front of [petitioner]'s mother's apartment, five originated from the cell tower at 18th and Prospect and one call reported the identical latitude and longitude as the anonymous 911 call made on September 3rd.
[Petitioner] admitted to being at both his mother's and sister's residence on September 3rd and 4th, telling police that he helped his mother move out of her apartment on 2449 Prospect and that he stayed at his sister's duplex at 1340 West Bluff. Thus, [petitioner] was in the vicinity where the 911 calls were made.
Finally, [petitioner] made comments very similar to the 911 caller. At trial, Cherry Chadbourne testified that [petitioner] told her he killed his first wife because she had become a prostitute and that he was going to kill all prostitutes because they were scum of the earth. The 911 caller told the dispatcher that he killed the prostitutes because "they are scum" and "a disgrace." The trial court found this to be "stunningly identical."
The trial court's conclusion that [petitioner] was the anonymous caller is supported by the record. That [petitioner] was the 911 caller is important; [petitioner]'s identity as the 911 caller, in light of the facts that [petitioner] identified the location of all six bodies and the concession at trial and oral argument that one person killed all six victims, is significant evidence supporting the sufficiency of his convictions.
State v. Blair, 298 S.W.3d at 43-44.
The appellate court went on to find that there was sufficient evidence of petitioner's responsibility for each of the six murders. In regard to ...