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Stallmann v. Steele

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

September 12, 2016

MASSIGH STALLMANN, Petitioner,
v.
TROY STEELE, Respondent.

          MEMORANDUM AND ORDER

          CAROL E. JACKSON UNITED STATES DISTRICT JUDGE

         This 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.

         I. Background

         A. The Crimes

         On 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.

         Petitioner 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.” Id.

         In 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 226.

         Officer 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.

         Though 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]

         Brennan 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.

         Officer 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.

         Upon 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.

         The car 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.

         The 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.

         “Trooper 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.

         Tatoian 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.

         At 4:35 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 710-11, 720-21.

         Proceeding 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.

         According 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 415.

         B. The Indictment and the Pre-Trial Proceedings

         Petitioner 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)[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.

         In 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.

         “A 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.

         As 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.

         Hoskins 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 ...


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