United States District Court, E.D. Missouri, Eastern Division
RICHARD C. SIMMONS, Petitioner,
JAY CASSADY, Warden of the Jefferson City Correctional Center, Respondent.
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 Richard C. Simmons ("Petitioner") pursuant to 28 U.S.C. § 2254 to challenge a 2009 judgment entered following a trial in which the jury found Petitioner guilty of first-degree murder and armed criminal action in the January 2008 death of Pamela Pugh ("Victim"). Respondent filed a response [Doc. 11] to the petition, including materials from the underlying state court proceedings [Doc. 12]. Petitioner attached copies of several state court materials to his petition [Doc. 1-1] and filed a traverse [Doc. 26].
Petitioner presents four grounds for relief in his petition: that the pre-trial court erred in not allowing Petitioner's attorney to withdraw or in not granting a continuance shortly before the start of trial (ground one); that his trial attorney provided ineffective assistance of counsel by failing to call as a witness Estress Lindsay in apartment 33, as well as the unidentified tenants of apartments 30 and 31, and "the maintenance man for the apartments" in the building on Greenwood where Petitioner and Victim once lived ("Greenwood apartments") (ground two); that the trial court erred in allowing the jury to see Petitioner in the courtroom in handcuffs (ground three); and that Petitioner's trial attorney provided ineffective assistance of counsel in failing to elicit testimony from Petitioner that Victim had assaulted him in 2007 and that Petitioner was under the influence of several prescription medications and alcohol at the time of the January 2008 incident (ground four).
After careful consideration, the Court will deny the petition upon finding no merit in the part of ground four contending that Petitioner's trial attorney provided ineffective assistance of counsel in failing to elicit testimony from Petitioner about Victim's prior assaults on Petitioner, and concluding that the remaining claims are procedurally barred and may not be considered on their merits.
In mid-December 2008, Petitioner was charged, as a prior and persistent offender, with one count of first-degree murder in violation of Mo. Rev. Stat. § 565.020 and one count of armed criminal action in violation of Mo. Rev. Stat. § 571.015 for causing the death of Victim on January 17, 2008, by striking her with a dangerous instrument. (Indictment, Resp't Ex. 2, at 8-9.) Petitioner was arraigned on those charges on January 6, 2009. (Docket entry, dated Jan. 6, 2009, Legal File, Resp't Ex. 2, at 1.)
On January 13, 2009, over the objection of the State, Petitioner requested a continuance of the January 20, 2009, trial date because he had recently been arraigned on the first-degree murder charge and "need[ed] time to adjust trial strategy or negotiate plea agreement." (Order, filed Jan. 13, 2009, Legal File, Resp't Ex. 2, at 15.) By order, dated January 14, 2009, the pretrial court rescheduled trial for February 9, 2009. (Order, filed Jan. 14, 2009, Legal File, Resp't Ex. 2, at 14.) On February 6, 2009, the pre-trial court denied Petitioner's trial attorney's motion to withdraw "to allow private counsel... to enter" his appearance for Petitioner. (Order, filed Feb. 6, 2009, Legal File, Resp't Ex. 2, at 26; see also colloquy between Petitioner and the trial court, outside the presence of the venire panel, discussing Petitioner's desire to have a private attorney represent him, Trial Tr., Resp't Ex. 1, at 150-56.) Petitioner reports that the new attorney requested a continuance of the trial date.
In addition to playing the recordings of the 911 telephone calls (Trial Tr., Resp't Ex. 1, at 205) and introducing numerous exhibits, the State presented fourteen witnesses during its case-in-chief and rebuttal at the three-day trial that began on February 9, 2009. (Trial Tr., Resp't Ex. 1.) Petitioner testified in defense of the charges. (Id. at 294-370.)
Victim's mother, Bernice Tolbert, testified, in relevant part, that Petitioner made threats to her through telephone calls Petitioner repeatedly made to her at night in late 2007 after Victim had stopped staying with Petitioner. (Id. at 168-72.) In those calls, Petitioner threatened to kill her or Victim. (Id. at 171.) In an effort to stop those telephone calls, Tolbert applied for a restraining order against Petitioner. (Id. at 172.) The telephone calls ended after Victim began staying with Petitioner again. (Id. at 178.)
Oscar Davis stated that, before her death, Victim came to his home five days a week to take care of him for three hours in the late afternoon each day. (Id. at 269-70.) Davis noted that Petitioner called Victim on Davis' home telephone every day she was there. (Id. at 270-71.) On January 16, 2008, Petitioner called and told Davis that he was going to "knock" the "bitch, " which Davis took as a threat to "tak[e Victim's] life." (Id. at 272-74.)
During January 2008 Queena Johnson lived on the second floor of the Page Avenue apartment building where Petitioner and Victim lived on the third floor. (Id. at 188-89.) She saw Petitioner and Victim as they left the building to walk to a store and when they returned, with chips, between 4:00 p.m. and 5:00 p.m. on January 16, 2008. (Id. at 190-93; 197-98.) She did not notice that Victim had any injuries on those occasions. (Id. at 191-93.) That evening she stayed in her apartment. (Id. at 194.) After awhile she heard what sounded like furniture being moved, voices, and then Victim saying "Don't put your hands on me no more." (Id. at 194-96.) The sound woke her up at about 2:00 a.m. on January 17th. (Id. at 196.)
Petitioner's sister, Sherrion Zinn, testified that Petitioner called her early the morning of January 17, 2008, telling her that Victim was lying on the bathroom floor; and she called 911, after that call and after a subsequent call from Petitioner, to report that Victim was on the bathroom floor and to assist the responders in locating the correct apartment. (Id. at 179-88.)
Zachary Welker, an officer with the St. Louis Metropolitan Police Department ("City Police Department"), testified that at approximately 9:15 a.m. on January 17, 2008, he received a call to investigate a "sudden death" in the 5300 block of Page Avenue. (Id. at 201-02.) The call to respond resulted from two 911 calls that had been received earlier. (Id. at 202-03.) He was originally directed to 5354 Page Avenue, learned that address did not exist, and reported that 5356 Page matched the description that had been provided and would be the location he checked. (Id.) He knocked on the door of apartment 303 at 5356 Page Avenue and Petitioner answered. (Id. at 206-07.) Petitioner let Officer Welker in the apartment, which did not appear to be in disarray, and motioned toward the bathroom, where Officer Welker noticed a naked black female lying on the floor, blood smeared on the bathtub and floor, and the presence of "chip or snack bags" as well as cleaning supplies. (Id. at 208-09.) Officer Welker handcuffed Petitioner, who did not appear to have any injuries and had a tear in the t-shirt he was wearing. (Id. at 210, 213.)
Tom Carroll, a homicide detective with the City Police Department, responded to the scene at apartment 303 of 5356 Page Avenue on January 17, 2008, noticed some blood in the bedroom and found the bathroom "covered in blood." (Id. at 277-78.) Additionally, he saw Victim, with a chip bag and a knife by her body, and several cleaning items, in the bathroom. (Id. at 282-83.) Petitioner was at the scene in handcuffs, and appeared to have no injuries but several holes in the t-shirt he was wearing. (Id. at 286-88.)
Dawn Albers, a police officer with the City Police Department who works in that Department's crime lab, testified that she arrived at the crime scene and noticed blood splatter on the floor, walls, and television in the bedroom and in numerous places in the bathroom, and took pictures of the scene. (Id. at 233-36). She swabbed the blood splatter and seized a cane she found in the bedroom, as well as various items, including a knife, she found in the bathroom. (Id. at 237-45.)
Erin Duke, a forensic biologist with the City Police Department crime lab, found possible biologic fluids on the cane, swabs, and other items seized from the bathroom and bedroom, and stored them for later DNA analysis. (Id. at 248-59.)
Karen Preiter, a DNA analyst for the City Police Department, tested swabs from the cane and other items seized from the bathroom, swabs of splatter at the scene, Petitioner's clothing samples, and items from Victim, against known samples from Victim and Petitioner. (Id. at 261-268.) Her analysis revealed that Victim was the major contributor of the DNA on the cane, blood spatter samples, and on cuttings from the jeans and t-shirt worn by Petitioner. (Id.)
Dr. Ariel Goldschmidt, a forensic pathologist who worked at the City of St. Louis medical examiner's office, performed an autopsy on Victim. (Id.) Dr. Goldschmidt described Victim's injuries as including several lacerations and contusions on her head, specifically, on her scalp, face, ears, and tongue; bleeding under her scalp and on her brain; and injuries all over her body, including two fractured ribs in the back as well as contusions and abrasions on her chest, arms, back, and front. (Id.> at 216-224.) She testified that the injuries to Victim's face could have been caused by a fist or a cane, and opined Victim died from "blunt trauma of [or strong force on] the head and back." (Id. at 227-28.)
After the State rested, Petitioner unsuccessfully presented a motion for judgment of acquittal at the close of the State's evidence, and waived an opening statement. (See id. at 293, 294.) Petitioner then testified. (Id. at 295.)
Petitioner said he and Victim began living together at the end of 2006, in the Greenwood apartments and then, starting in November 2007, in an apartment on Page Avenue. (Id. at 313-14, 331.) They lived apart for a short while in December 2007, and then moved back in together that month. (Id. at 314.)
On January 16, 2008, Petitioner testified he was using a cane to walk because his gout had "flared." (Id. at 325.) During that evening Petitioner and Victim were drinking alcohol and arguing in their apartment. (Id. at 319-20.) Petitioner had been treated with radiation and chemotherapy for throat cancer about five months earlier, lost one hundred pounds, and took several medications that proscribed drinking alcohol while taking the medications. (Id. at 320-23.) Petitioner reported that, when he was on his medications and drank alcohol, he felt weaker, uncoordinated, confused, and drowsy. (Id. at 322-23.) The night of January 16, 2008, Victim, who weighed more than Petitioner, started "swinging a knife" at Petitioner; he "tr[ied] to hit her and hit her with [his] cane" "to stop her from swinging the knife"; at some point, she dropped the knife; then she fell into the bathtub, and got out and "passed out, " so Petitioner thought she had had a heart attack. (Id. at 323-29; 350.) He tried to call his sister who is a nurse "to find out how to do CPR, " but called a different sister, and then "passed out." (Id. at 329-30.) He knew that Victim, Victim's mother, and another woman had sought orders of protection against him; in early January 2008 he went to one court proceeding that had been scheduled to address those orders, and that proceeding was rescheduled for January 17th. (Id. at 340-42.)
During rebuttal, the State presented the testimony of five witnesses. George Boggs, an officer with the City Police Department, testified that he responded in April 2007 to a call of "a cutting" and found Victim "bleeding from the right side of her cheek" where there was a cut that was approximately an inch long. (Id. at 385-87.) She told Officer Boggs that Petitioner had cut her. (Id. at 386.) Scott Sailor, an officer with the City Police Department who was a detective in May 2007, testified that he was present when Petitioner was arrested in May 2007 for first-degree assault and armed criminal action for the incident involving Victim. (Id. at 388-90.) Detective Sailor's partner, who was arresting Petitioner at that time, advised Petitioner of his Miranda rights and Petitioner stated that he understood them. (Id. at 390.) Petitioner then told Detective Sailor that "she had forgiven him for the incident and that they were okay." (Id.)
Linda Russo, a latent print examiner for the City Police Department, testified that she examined the knife found in the bathroom for the presence of identifiable latent prints and found none. (Id. at 394-96.)
Detective Carroll took the stand again and testified that, when he returned to the homicide office around noon on January 17, 2008, he advised Petitioner of his Miranda rights and Petitioner indicated that he understood those. (Id. at 398-99.) Petitioner then told Detective Carroll that Victim was dropped off at the Page Avenue apartment at about 9:30 p.m. on January 16th, after she was in a fight on Romaine Place; Petitioner went to bed; Petitioner heard Victim slip and fall in the bathroom a couple of times; then called his sister to tell her that Victim "had slipped and f[a]ll[en] in the bathroom" and later called his sister again to say "he thought [Victim] was... dead on the bathroom floor." (Id. at 400-01.) Petitioner also told Detective Carroll that Victim "came at him with a knife [and h]e hit her in the hand to knock the knife away, " although he did not indicate whether it "was an isolated hit or [part of] an ongoing struggle." (Id. at 401; see also Id. at 405.) Petitioner said he was "mad" at Victim for being at Romaine Place because "she was supposed to be at work [and] ha[d] a boyfriend there"; and reported to Detective Carroll that he "had hit [Victim] before" and there were restraining orders "from [Victim's] people." (Id. at 402.) Finally Petitioner told Detective Carroll that after he woke up on January 17th he "found [Victim] dead on the bathroom floor. There was blood everywhere, he started to clean it up" and then stopped to call his sister. (Id. at 402-03.) Upon investigation, Detective Carroll learned that a place at 5889 Romaine Place may have a connection to Victim, but it was a vacant building. (Id. at 403-04.)
Finally, Victim's younger sister, Kimberly Boehm, testified that Victim loved Petitioner and was not dating anyone else while she dated Petitioner; and that her father owned the property at 5889 Romaine Place, where their family had lived years before, but it was a vacant building in January 2008. (Id. at 406-08.)
Petitioner submitted a motion for judgment of acquittal at the close of all the evidence, which the trial court denied; and the trial court found Petitioner to be a prior and persistent offender. (Id. at 410-11.)
The jury found Petitioner guilty of the charged offenses of first-degree murder and armed criminal action. (Verdict Forms, Legal File, Resp't Ex. 2, at 50 and 51.) The trial court subsequently denied Petitioner's motion for judgment of acquittal notwithstanding the verdict of the jury or in the alternative motion for a new trial; and sentenced Petitioner to concurrent terms of imprisonment of life without the possibility of probation or parole for the first-degree murder offense and twelve years for the armed criminal action offense. (Sentencing Tr., Resp't Ex. 1, at 453, 457; J., Legal File, Resp't Ex. 2 at 71-74.)
Petitioner presented two points in his direct appeal. (See Pet'r Br., Resp't Ex. 3, at 15, 16, 17, 24.) First, Petitioner contended that his rights to due process and a fair and impartial trial as guaranteed by the Fifth and Fourteenth Amendments were violated in that there was insufficient evidence to establish the corpus delicti of first-degree murder and armed criminal action because there was insufficient evidence that Petitioner directly caused Victim's death by beating her. (Id. at 15, 17.) For his second point, Petitioner argued that the trial court violated his rights to due process and to a fair and impartial trial as guaranteed by the Fifth, Sixth, and Fourteenth Amendments in that evidence of the earlier cutting incident was used to show Petitioner's propensity to commit the crimes and to impeach Petitioner's credibility. (Id. at 16, 24.)
The Missouri Court of Appeals for the Eastern District affirmed the trial court's judgment in a summary order, supplemented by a memorandum sent only to the parties setting forth the reasons for the decision. ( State v. Simmons, No. ED92822, Per Curiam Order and Mem. Supplementing Order Affirming J. Pursuant to Rule 30.25(b), dated Apr. 13, 2010, Resp't Ex. 5.) In its memorandum, the state appellate court found the facts as follows:
Factual and Procedural Background
Viewed in the light most favorable to the jury verdict, the following evidence was adduced at trial. On April 22, 2007, [Petitioner] confronted his girlfriend, [Victim], and told her he wanted her to return a coat of his. [Victim] gave [Petitioner] the coat, and [Petitioner] cut [Victim]'s right cheek with a knife. For this attack, [Petitioner] was arrested for first-degree assault and armed criminal action.
In November 2007, [Petitioner] and [Victim] moved into an apartment together. Shortly thereafter, [Victim] moved out. [Petitioner] called [Victim]'s mother's residence numerous times, threatening [Victim] and her mother, stating that he was going to kill one of them. [Victim]'s mother obtained a restraining order against [Petitioner]. Towards the end of 2007, [Victim] moved back in with [Petitioner]. In the late afternoon of January 16, 2008, [Victim] was caretaking for Oscar Davis (Davis) at Davis's residence. [Petitioner] called Davis's house, threatening [Victim]'s life, saying that he was going to "knock the bitch." Later that same evening, Queena Johnson (Johnson), a resident of the floor below [Petitioner] and [Victim]'s apartment, heard furniture moving and arguing coming from their apartment. Johnson heard [Victim] yell, "Don't put your hands on me no more." Johnson went to bed at approximately 11:00 p.m., but was woken up at about 2:00 a.m. by the noise of furniture moving again in [Petitioner] and [Victim]'s apartment. At 3:00 a.m. [Petitioner] called his sister, Sherrion Zinn (Zinn), and told her that he had beaten [Victim] with a cane. Zinn called 911 and told the operator, and the paramedics, that [Petitioner] had told her that he had beaten [Victim] over the head with a cane and that she was dead on the floor.
Officer Zachary Welker (Welker) responded to [Petitioner]'s apartment, where at [Petitioner]'s direction, he found [Victim] lying naked on the bathroom floor, dead, bruised and bloody. Blood was smeared all over the bathroom floor, bathtub, and shower curtain. Blood and hair were in the sink. On the bathroom floor were bloody mops, buckets, rags, and clothing, and a kitchen knife with no visible blood on it. Blood splatter were also discovered in [Petitioner]'s bedroom, and a walking cane was seized from [Petitioner]'s bedroom that had blood on it. Subsequent testing of DNA on the cane matched that of [Victim] and [Petitioner].
[Victim]'s autopsy revealed that she had suffered two fractured ribs in her back; contusions on her tongue, left ear, front upper chest, back and arms; lacerations on her face and right side of her scalp; and internal bleeding underneath her scalp and on the surface of her brain. The medical examiner concluded that [Victim] died of blunt trauma to the head and back, and that her lacerations were such that they could have been caused by a cane.
[Petitioner] was charged and convicted by a jury of first-degree murder and armed criminal action. The trial court sentenced [Petitioner] to concurrent terms of life imprisonment without the possibility of parole for the murder and 12 years' imprisonment for armed criminal action....
(Id. at 2-3.)
With respect to Petitioner's argument that his rights to due process and a fair and impartial trial were violated because there was insufficient evidence that he beat Victim to death, the Missouri Court of Appeals stated,
Only when there is insufficient evidence to support a guilty verdict is a directed verdict of acquittal authorized. State v. Sanchez, 186 S.W.3d 260, 266 (Mo. banc 2006). In reviewing the sufficiency of evidence underlying a jury verdict, we must determine whether there was sufficient evidence from which a reasonable juror could have found each element of the offense to have been established beyond a reasonable doubt. State v. Reed, 181 S.W.3d 567, 569 (Mo. banc 2006). On review, we view the evidence in the light most favorable to the verdict, including favorable inferences that may be drawn from the evidence, and disregard all evidence and inferences to the contrary. Id . We defer to the jury's superior position to assess the credibility of witnesses and the weight and value of their testimony. State v. Johnson, 244 S.W.3d 144, 152 (Mo. banc 2008).
To be convicted of first-degree murder, a defendant must (1) knowingly, (2) cause the death of another person, (3) after deliberation upon the matter. State v. Roe, 6 S.W.3d 411, 414 (Mo. [Ct.] App.... 1999); State v. Ervin, 835 S.W.2d 905, 923 (Mo. banc 1992). The corpus delicti in a homicide case consists of two elements: (1) proof of the death of the victim and (2) evidence that the criminal agency of another was the cause of the victim's death. State v. Edwards, 116 S.W.3d 511, 544 (Mo. banc 2003).
The State preseneted evidence that [Victim] (1) died, (2) by being repeatedly struck and beaten to death by another with a cane, such fatal injuries being blows to her head and back. [Petitioner] claims that the evidence presented at trial established that it was just as likely that [Victim] died as a result of hitting her head in the bathtub. The only evidence at trial that [Victim] hit her head in the bathtub was [Petitioner]'s own testimony. We give deference to the superior position of the jury to assess the credibility of witnesses and the weight and value of their testimony. Johnson, 244 S.W.3d at 152. Furthermore, this inference is contrary to the jury verdict. ...