United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
E. JACKSON UNITED STATES DISTRICT JUDGE
matter is before the Court on the petition of Massigh
Stallmann for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. Respondent has filed a response in opposition.
Petitioner has replied, and the issues are fully briefed.
April 20, 2005, Brenda Buschmann was asleep in her apartment
above the Schaeperkoetter General Store in Mount Sterling,
Missouri. Buschmann awoke just after midnight to see
petitioner “poke his head out of her bathroom.”
State v. Stallman, 289 S.W.3d 776, 777 (Mo.Ct.App.
2009). Petitioner “came into the bedroom, pointed a gun
at her, and demanded keys to her vehicle.” Id.
Buschmann gave petitioner the keys to her car, a silver Mazda
Protégé. Petitioner was dressed in camouflage
clothing and was wearing a ball cap. Id. He told
Buschmann that he had cut her phone line. Id.
then walked downstairs to the general store. Id.
Buschmann used her cellular phone to call 911. Id.
Meanwhile, petitioner used the keys to open Buschmann's
car; he started the vehicle and drove it around to the front
of the store. Resp. Ex. A-2 at 179-80. Leaving the Mazda
running with the driver's side door ajar, petitioner
entered the store after apparently breaking in through a
glass door. Id. at 225. Buschmann described hearing
noises coming from the store below. Stallman, 289
S.W.3d at 777. The police would later discover that money and
“other items were taken from the store, ” that
“the safe in the office was opened, ” and that
“the alarm wire” had been “cut.”
response to Buschmann's 911 call, law enforcement
officers were dispatched to the store, where they anticipated
finding “an armed robbery in progress.”
Id. Deputy Harold Heitman arrived on scene and
radioed to request the support of additional officers. Resp.
Ex. A-2 at 226. Though the storefront was dark, from his
vantage point in the parking lot in front of the store he
could see a person walking around inside, aiming a lit
flashlight around the store. Id. at 226- 28. He
testified to seeing petitioner holding a gun. Id. at
Brian Brennan arrived shortly after Heitman. Id. at
300-02. According to Brennan, the area outside the store
where he and Heitman were standing was bathed in “a lot
of light” from “a sign” at “the
business next to it that lights up the entire parking lot
pretty” well. Id. at 303-04. Standing in the
lit parking lot in front of the glass storefront, Heitman was
in a “full Class A” police “uniform.”
Id. at 269.
Heitman did not recall “saying anything” to
petitioner before petitioner fired the gun, id. at
233, Brennan testified that he heard Heitman yell,
“drop the weapon, drop the weapon, ” and
afterward “heard a gunshot from inside the
store.” Id. at 303. According to Heitman,
shortly after he saw petitioner holding the gun, petitioner
turned around and took “a look, ” after which he
“[r]aised his weapon, ” aimed it at Heitman,
“and then fired.” Id. at 227. A 12-guage
shotgun, a piece of “shotgun wadding, ” and a
spent shotgun shell were later recovered from the scene.
[Docs. ##6-2 at 2-5, 6-5 at 7]
testified: “After” Heitman “yelled drop the
weapon, drop the weapon, and I heard the gunshot from the
side of the store, that's when Deputy Heitman shot into
the store.” Resp. Ex. A-2 at 304, 324-25. Heitman
continued to return fire while utilizing his flashlight to
attempt to see into the darkened storefront. Id. at
227-28. After he was “fired upon, ” Heitman also
announced that he was a police officer. Id. at 267.
Paul Owensby arrived on scene minutes later. Id. at
231-32. The officers fired their weapons into the store.
Id. During the firefight, Heitman was accidentally
“struck in the face with a bullet, ”
Stallman, 289 S.W.3d at 777, later revealed to have
been fired by Owensby. Resp. Ex. A-2 at 272-73. After Heitman
was shot and lying on the ground, petitioner exited the
store. Id. at 231-32. According to Heitman, at the
time petitioner exited the storefront his face was uncovered,
and Heitman had an unobstructed view of petitioner's
face. Id. Heitman testified that petitioner is the
man who shot at him. Id.
exiting the store, petitioner “dropped his weapon,
jumped in Buschmann's Protégé, and drove
away.” Stallman, 289 S.W.3d at 777. Owensby
got in his police car and set off in pursuit of petitioner,
while Brennan radioed for medical support and tended to
Heitman. Resp. Ex. A-2 at 306, 337. Owensby caught up with
petitioner, activated his police vehicle's lights and
sirens, and engaged petitioner in a high-speed chase, at
times reaching speeds of “at least 95 miles an
hour.” Id. at 340-41. Owensby also radioed for
additional police assistance. Id. Other officers
joined the pursuit. Id. at 342-43.
chase ended in Franklin County, Missouri, where petitioner
“fled the car, which caught on fire.”
Stallman, 289 S.W.3d at 777. “A SWAT team was
called out to set up a perimeter and conduct a manhunt. A
camouflage ball cap was found fifteen to twenty feet from the
burned car.” Id. Missouri Highway Patrol
Trooper Robert Wolf testified that the Franklin County
Sheriff's Office requested the Highway Patrol engage the
SWAT team to assist them in the “manhunt” for
petitioner, who “had fled into the woods.” Resp.
Ex. A-2 at 690-92, 699.
Highway Patrol's communications team then paged members
of the SWAT team to respond from their various locations
throughout that area of Missouri. Id. at 692-93. The
SWAT team established a staging area for the manhunt at a
church in Leslie, Missouri, and SWAT team members were
directed to proceed there to assist with the manhunt for
petitioner. Id. at 693. According to Wolf, when the
members of the SWAT team are paged, they are to
“respond just as quickly as they can.”
Id. at 695.
Ralph Tatoian . . . was a member of the SWAT team who was
called to respond to the manhunt.” Stallman,
289 S.W.3d at 777. Tatoian was first paged and then called at
home by Highway Patrol radio operator Kevin Turnbough, at
3:36 a.m. Resp. Ex. A-2 at 708. Turnbough informed Tatoian
that the SWAT team was being activated to “respond
to” a call arising from “shots fired at deputies,
” an “armed robbery, ” and “a stolen
vehicle.” Id. He was also told “the
suspect fled” and “more shots” had been
“fired.” Id. Turnbough directed Tatoian
to proceed to the staging area in Leslie. Id.
confirmed he would “be en route just shortly.”
Id. at 709. Wolf testified that in such an
“active manhunt” situation, a SWAT team
member's vehicle lights and sirens would be activated.
Id. at 699-700. SWAT team members are trained to,
and “have to, ” drive at high speeds “every
day” while “exercising care in doing so.”
Id. at 704. A SWAT team member in Tatoian's
circumstances would be expected to drive at whatever speed
“the car is capable of” and “whatever the
conditions allow for” to reach the intended destination
“just as fast as” the trooper “possibly
can.” Id. at 699-701. Thus, Tatoian would
“be expected” to exceed the speed limit while
responding to the call to assist with the manhunt.
Id. at 700.
a.m., Turnbough requested a status check from Tatoian, who
responded that he was en route to Leslie via Interstate 44.
Id. at 710. According to Wolf, Interstate 44 was the
“most direct route to” Leslie “from
where” Tatoian lived. Id. at 698-99. At 4:43
a.m., Turnbough was notified of an accident on Interstate 44,
which he later learned involved Tatoian. Id. at
at high speed in the left lane on Interstate 44 and with his
vehicle's lights and sirens activated, as he was trained
to do, id. at 735-36, Tatoian “passed a crash
site. A car entering a construction zone had lost control and
hit the concrete wall on the right, rotated and came to rest
in the left lane facing the wrong way.”
Stallman, 289 S.W.3d at 777. Tatoian moved to the
right lane to avoid the crash, and then moved back to the
left lane after he passed the accident. Resp. Ex. A-2 at
710-11, 720-21. He also simultaneously crested a hill,
immediately on the other side of which was a tractor-trailer
that had stopped in the left lane. Id. at 736.
to investigators, Tatoian had insufficient time and distance
to bring his police car to a stop before colliding with the
tractor-trailer. Id. at 736-37. Striking the trailer
at high speed, Tatoian's vehicle slid partially under the
trailer, the impact of which killed him instantly.
Id.; Stallman, 289 S.W.3d at 777-78.
Shortly after 6:00 a.m., the manhunt ended when petitioner
was apprehended after being chased down in a field.
Stallman, 289 S.W.3d at 777-78; Resp. Ex. A-2 at
The Indictment and the Pre-Trial Proceedings
was charged with ten crimes: (I) first-degree robbery, Mo.
Rev. Stat. § 569.020; (II) second-degree burglary of the
store, id. § 569.170; (III) stealing
Buschmann's vehicle, id. § 570.030; (IV)
stealing from the store, id.; (V) second-degree
assault of a law enforcement officer, id. §
565.082.1(1); (VI) resisting arrest, id.
§ 575.150; (VII) armed criminal action, for committing
Count I with a deadly weapon, id. § 571.015;
(VIII) armed criminal action, for committing Count V with a
deadly weapon, id.; (IX) first-degree burglary of
Buschmann's apartment, id. § 569.160; and
(X) second-degree murder, for Tatoian's death,
id. § 565.021. Resp. Ex. B at 9-14.
Missouri, “[a] person commits the crime of assault of a
law enforcement officer . . . in the second degree if such
person . . . [k]nowingly causes or attempts to cause physical
injury to a law enforcement officer . . . by means of a
deadly weapon or dangerous instrument.” Mo. Rev. Stat.
§ 565.082.1(1). The State alleged that, “on or
about April 20, 2005, in the County of Gasconade, State of
Missouri, Harold Heitman was a law enforcement officer, the
defendant knew Harold Heitman was a law enforcement officer,
and attempted to cause physical injury to him, by means of a
deadly weapon.” Resp. Ex. B at 10.
person commits the crime of murder in the second
degree” in Missouri if that person, “[c]ommits or
attempts to commit any felony, and, . . . in the flight from
the perpetration or attempted perpetration of such felony,
another person is killed as a result of the . . . immediate
flight from the perpetration of such felony or attempted
perpetration of such felony.” Mo. Rev. Stat. §
565.021.1(2). The State alleged that:
[O]n or about April 20, 2005 . . . Trooper Ralph Tatoian . .
. was killed in a motor vehicle accident while responding to
a call to assist in the apprehension of a suspect at large as
a result of the immediate flight from the perpetration of the
class B felony of assault of a law enforcement officer in the
second degree . . . committed by the defendant on April 20,
2005 . . . .
Resp. Ex. B at 11.
relevant here, petitioner was represented by Jessica Hoskins
during the pre-trial phase of his prosecution. Hoskins
solicited the aid of an intern from the state public
defender's office, who had access to petitioner's
defense files. Unbeknownst to Hoskins at the time, the intern
“had previously been employed as a” deputy police
officer and “had worked the initial
investigation” of petitioner's case; he was also
identified as a potential witness for the prosecution. Resp.
Ex. F at 31. When petitioner first raised that issue to
Hoskins, she inquired, but the intern denied that he had
worked on the investigation. Hoskins investigated the matter.
When the intern was presented with evidence documenting his
involvement, he admitted he had participated in the
investigation. The intern was immediately removed from
petitioner's defense team.
did not move to dismiss the charges. Rather, she filed a
motion to place a “gag order” on the intern. On
February 16, 2006, the trial court issued that gag order,
forbidding the intern from discussing petitioner's
“case unless counsel for” petitioner was
“present.” Resp. Ex. B at 25. The trial court
also ordered that, if petitioner's counsel objected to
any question posed to or statement made by the intern, he was
to “desist from answering” any “question or
making” any “statement” until ordered to
answer by the court. Id. Though petitioner
speculates otherwise, no evidence ...