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Taylor v. Cassady

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

September 22, 2016

JAMES N. TAYLOR, Petitioner,
v.
JAY CASSADY and CHRIS KOSTER, [1]Respondents.

          MEMORANDUM AND ORDER

          RODNEY W. SIPPEL, UNITED STATES DISTRICT JUDGE

         Petitioner James N. Taylor seeks federal habeas relief from a state court judgment entered after a jury trial. See 28 U.S.C. § 2254. For the reasons set forth below, the Petition and Petitioner's request for an evidentiary hearing will be denied.

         I. Background

         The State of Missouri charged Petitioner, as a prior and persistent offender, with committing on May 24, 2007, six felonies: forcible rape in violation of Mo. Rev. Stat. Section 566.030 (Count I); armed criminal action in violation of Mo. Rev. Stat. Section 571.015 (Count II); forcible sodomy in violation of Mo. Rev. Stat. Section 566.060 (Counts III and IV); kidnapping in violation of Mo. Rev. Stat. Section 565.110 (Count V); and, first-degree assault in violation of Mo. Rev. Stat. Section 565.050 (Count VI).[2] These charges stemmed from an incident occurring in the City of St. Louis, in which Petitioner assaulted V.W.[3]

         At trial in April 2009, the State introduced as exhibits, among other items, a knife and a box cutter seized at the crime scene;[4] pictures of the crime scene;[5] pictures of V.W. and of Petitioner taken after the assault;[6] Petitioner's written consents to swab him for DNA material, as well as the results of those swabs;[7] and the results of V.W.'s examination at the hospital.[8] The State also presented the testimony of eight witnesses: V.W.; three investigating police officers; two employees of the police department's crime lab who prepared the DNA material for examination and analyzed that material; and two nurses, one who had swabbed Petitioner for DNA and one who had examined and cared for V.W.[9] In addition to his testimony, [10] Petitioner introduced, among other exhibits, the parties' stipulation that, prior to the incident, V.W. had been diagnosed with and treated for schizophrenia.[11]

         V.W. testified that she knew Petitioner from the neighborhood and asked him to help her move some large items out of her apartment. She let him in the apartment building through a back entrance because he was “banned” from her building.[12] She described the subsequent night-time assault in her apartment as including Petitioner making her lick his chest, the use of “Vaseline, ” Petitioner placing his penis in V.W.'s vagina, and other conduct of a sexual nature; Petitioner repeatedly beating V.W.'s head with his hands; Petitioner refusing to allow V.W. to use the bathroom, and V.W. urinating and defecating on the floor; and Petitioner strangling V.W. until she became unconscious.[13] V.W. first reported the assault and rape to Officer Ernest Greenlee of the St. Louis Metropolitan Police Department (“Department”), who was in the lobby of her apartment building when she arrived after she awakened and crawled from her apartment while Petitioner slept there.[14] Officer Greenlee called an ambulance and described V.W. as having “blood on her face, coming from her nose and mouth” and as appearing “like she was pretty upset and afraid.”[15]

         Michael Herzberg, a detective with the Department, observed at V.W.'s apartment a knife, “an overturned bottle of petroleum jelly[, . . . a]nd a large brown stain on the carpet next to some white towels.”[16] After visiting the crime scene, Detective Herzberg talked with V.W. at the hospital.[17] Detective Herzberg showed V.W. a photo array, and V.W. identified Petitioner as the person who had assaulted her.[18]

         Kathryn Howard, an emergency room nurse, completed a physical examination and a sexual assault examination of V.W.[19] In relevant part, Ms. Howard testified that V.W. had “physical injuries” and “genital trauma.”[20] More specifically, Ms. Howard's examination of V.W. revealed that V.W. had:

bleeding inside her vagina, as well as some abrasions inside her vagina, as well as on her cervix . . .
[and m]ultiple abrasions, lots of bruises. [V.W.] had scleral hemorrhaging in her eyes, which basically means that she had a lot of popped blood vessels in her eyes. She had bruising all over her body.[21]

(Footnote added.)

         During Detective Herzberg's later interview of Petitioner at the police station, Petitioner consented to the swabbing of his body for DNA material, and his cheeks, hands, and chest were swabbed.[22] Two employees of the Department's Crime Lab, Jenna Oakes-Smith, a forensic biologist, and Sarah Custis, a DNA analyst, testified about the preparation and testing of material for DNA analysis.[23] Ms. Custis stated she found, to a reasonable degree of scientific certainty, a mixture of Petitioner's and V.W.'s DNA on a swab from Petitioner's right breast.[24]Additionally, she found no DNA of Petitioner on the box-cutter found in V.W.'s apartment, and found insufficient information to make a conclusive determination about DNA, other than V.W.'s DNA, on the handle of the knife found in V.W.'s apartment.[25]

         The trial court denied Petitioner's motions for acquittal at the close of the State's evidence and at the close of all the evidence, [26] and, outside the presence of the jury, concluded that Petitioner was a prior and persistent offender.[27] The jury found Petitioner guilty of forcible rape (Count I), kidnapping (Count V), and first-degree assault (Count VI); and not guilty of the other three charged offenses, armed criminal action (Count II) and forcible sodomy (Counts III and IV).[28] After trial, the trial court denied Petitioner's supplemented motion for acquittal or, in the alternative, for a new trial.[29] The trial court sentenced Petitioner, as a prior and persistent offender, to a twenty-year term of imprisonment for forcible rape, to run consecutively to two concurrent ten-year terms of imprisonment for kidnapping and first-degree assault.[30]

         In his timely direct appeal, Petitioner challenged his conviction on the grounds the trial court violated his right to due process under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution by: (1) overruling his motion for judgment of acquittal on the kidnapping charge on sufficiency grounds; and (2) overruling his objections to the State's leading questions during V.W.'s direct examination with respect to the allegations of forcible rape.[31] Petitioner also contended that the trial court violated his rights under the Fifth, Sixth, and Fourteenth Amendments by overruling his objections to State voir dire questions that sought to assess whether members of the jury panel were able to consider Petitioner's guilt based on testimony alone, despite the State's intention to introduce physical evidence.[32]

         The Missouri Court of Appeals affirmed the judgment, and described the circumstances of the incident as follows:

On May 24, 2007, V.W. was in the process of moving out of her eighth floor apartment because police had ordered her building to close. She stopped packing in order to buy liquor at a convenience store, and encountered [Petitioner] on her way home. The two knew each other in passing from the neighborhood, and V.W. asked [Petitioner] to return to her apartment and help her move a desk. [Petitioner] had been banned from V.W.'s building, so V.W. snuck him in the back door to avoid the 24-hour police surveillance.
Once in her apartment, V.W. began drinking the brandy she had purchased at the store. [Petitioner] told her to take her clothes off. V.W. testified that [Petitioner] proceeded to punch her in the head repeatedly and strangle her, causing her to suffer broken ribs and teeth and extensive hemorrhaging. According to V.W.'s testimony, [Petitioner] raped her and tried to have oral and anal sex with her, but was unable to climax. When V.W. lost control of her bowels as a result of the beatings, she testified that [Petitioner] would not let her use the bathroom. V.W. also testified that [Petitioner] made her lick his chest, and threatened her with a knife. She eventually passed out and awoke later to find [Petitioner] sleeping on the couch.
V.W. crawled to the door and made her way to the lobby via the fourth floor elevator. She made contact with Officer Ernest Greenlee in the lobby at approximately 6:30 a.m. Officer Greenlee observed blood on V.W.'s face and requested an ambulance. When more officers arrived on the scene, they went to V.W.'s apartment and found [Petitioner] sleeping naked on the floor. The officers seized a hunting knife and box cutter from V.W.'s apartment, and took multiple swabs from [Petitioner].
V.W. went to the hospital where emergency room nurse Kathryn Howard (“Howard”) performed a sexual assault exam. During the exam, Howard noticed bleeding and abrasions on the inside of V.W.'s vagina in addition to other genital trauma. Howard observed bleeding in V.W.'s eyes that was consistent with strangulation.

State v. Taylor, No. ED93334, Opinion at 1-2 (Mo.Ct.App. filed May 4, 2010).[33] After Petitioner's unsuccessful efforts to transfer the case to the Missouri Supreme Court, the Missouri Court of Appeals issued its mandate on September 8, 2010.[34]

         Following his direct appeal, Petitioner timely filed a pro se motion for post-conviction relief (“PCR motion”) presenting seventeen ineffective-assistance-of-trial-counsel claims and a claim that the State withheld certain evidence. Pet'r PCR Mot., filed Nov. 22, 2010.[35] Through appointed counsel, Petitioner filed an amended PCR motion, including a request for an evidentiary hearing. Pet'r Am. PCR Mot., filed Mar. 1, 2011.[36] Petitioner expressly incorporated into his amended PCR motion all claims presented in his pro se PCR motion, [37] and set forth three additional claims that his trial attorney provided ineffective assistance of counsel in violation of his rights under the Fifth, Sixth, and Fourteenth Amendments. Id. at 3-8.[38]

         For the first additional claim in his amended PCR motion, Petitioner contended his trial attorney violated Petitioner's rights to a fair and impartial jury, to the effective assistance of counsel, to a fair trial, and to due process by failing to ask the trial court to question the jurors individually to ascertain whether any of them slept during V.W.'s testimony. Id. at 4-5.[39] Next, Petitioner argued his trial attorney violated Petitioner's rights to due process, to the effective assistance of counsel, to present a defense, and to a fair trial by failing to object, to ask for an instruction that the jury disregard, and to seek a mistrial on the grounds that the prosecutor engaged in improper personalization during closing argument and argued facts not in evidence. Id. at 5-6.[40] Finally, Petitioner claimed that his trial attorney's failure to object to V.W.'s testimony that Petitioner was banned from V.W.'s building and to request a mistrial violated Petitioner's rights to due process, effective assistance of counsel, a defense, and a trial only on the charged offenses. Id. at 7.[41] After addressing the merits of each claim in Petitioner's pro se and amended PCR motion, the motion court denied Petitioner post-conviction relief without an evidentiary hearing.[42] Taylor v. Missouri, No. 1022-CC11847, Conclusions of Law and Order (“motion court's judgment”), filed Feb. 3, 2012.[43]

         Petitioner timely appealed the motion court's judgment to the Missouri Court of Appeals. In that appeal, Petitioner presented challenges to the motion court's denial of the three additional ineffective-assistance-of-trial-counsel claims that Petitioner had presented in his amended PCR motion.[44] The Court of Appeals affirmed the motion court's judgment in a summary order accompanied by a more detailed supplemental memorandum. Taylor v. State, No. ED98182, Order and Mem. Supplementing Order Affirming J. Pursuant to Rule 84.16(b) (Mo.Ct.App. filed Jan. 29, 2013) (per curiam).[45]

         After discussing the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668 (1984), the Missouri Court of Appeals rejected each of Petitioner's points on appeal. Taylor v. State, No. ED98182, Supp. Mem. at 3-8. In regard to Petitioner's first point, challenging his trial attorney's failure to ask the trial court to individually question jurors about whether a juror slept during V.W.'s testimony, the Court of Appeals concluded Petitioner had neither overcome the strong presumption that the challenged conduct was reasonable trial strategy nor sufficiently alleged prejudice resulting from his attorney's challenged conduct. Id. at 3-5. The court rejected Petitioner's second point, regarding closing argument, explaining that an attorney is not ineffective for failing to make a non-meritorious objection and the challenged argument neither constituted improper personalization nor introduced facts not in evidence. Id. at 5-6. The Court of Appeals also denied Petitioner's third point concluding that Petitioner had not demonstrated the vague references to the “building ban” “linked [Petitioner] to any prior arrest, charge, crime, or conviction, ” or “played a decisive role in determining his guilt.” Id. at 6-7. The Court of Appeals issued its mandate on February 20, 2013.[46]

         II. Petitioner's Grounds for Federal Habeas Relief

         In his timely federal habeas petition, Petitioner seeks relief on the following six grounds, which, he asserts, demonstrate violations of his constitutional rights under the Fifth, Sixth, and Fourteenth Amendments:

1. The trial court erred in overruling Petitioner's motion for judgment of acquittal on the kidnapping charge because there was insufficient evidence;
2. The trial court erred in overruling Petitioner's objections to the leading questions during V.W.'s direct examination, because the content of the leading questions provided the only evidence to support proof of the elements of forcible rape;
3. The trial court erred in overruling Petitioner's objections to the State's voir dire questions asking whether the panel members would be able to consider guilt on testimony alone, despite the State's intention to introduce physical evidence;
4. The trial attorney failed to ask the trial court to question the jurors individually to ascertain whether any of them slept during V.W.'s testimony;
5. The trial attorney failed to object during closing argument to the prosecutor's personalization and introduction of facts not in evidence, as well as to move for a mistrial and request an instruction directing jurors to disregard the prosecutor's statements; and
6. The trial attorney failed to object and request a mistrial in response to V.W.'s repeated testimony that Petitioner was banned from V.W.'s building.

         Respondents counter that Petitioner's grounds for habeas relief lack merit because the Missouri Court of Appeals' decision addressing these issues is neither incorrect nor an unreasonable application of clearly established federal law. In addition, Respondents argue that the Court of Appeals' decision is based on a reasonable determination of the facts in light of the evidence presented in the state court proceedings.

         III. Discussion of Grounds for Habeas Relief

         A. Standard of review under 28 U.S.C. § 2254[47]

         “In the habeas setting, a federal court is bound by the [Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)] to exercise only limited and deferential review of underlying state court decisions.” Lomholt v. Iowa, 327 F.3d 748, 751 (8th Cir. 2003). Under this standard, a federal court may not grant relief to a state prisoner unless a state court's adjudication of a claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

         A state court decision is contrary to clearly established United States Supreme Court precedent if “the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or . . . decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000) (“Taylor”). If a state court's decision is not “contrary to” clearly established law, then the “unreasonableness” standard applies, which is “meant to be difficult to meet, and ‘even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.'” Williams v. Roper, 695 F.3d 825, 831 (8th Cir. 2012) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011)). A state court decision is an unreasonable application of clearly established federal law if it “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case.” Taylor, 529 U.S. at 407-08; see also id. at 413.

         The “clearly established federal law” requirement of federal habeas review requires the federal habeas court to consider only United States Supreme Court precedent in force when a state court issues its decision on the merits. Greene v. Fisher, 132 S.Ct. 38, 44-45 (2011) (relying on Cullen v. Pinholster, 563 U.S. 170 (2011)). Moreover, Supreme Court holdings, rather than dicta, constitute “clearly established Federal law.” Woods v. Donald, 135 S.Ct. 1372');">135 S.Ct. 1372, 1376 (2015) (per curiam). State courts are not required to cite to United States Supreme Court cases, “‘so long as neither the reasoning nor the result of the state-court decision contradicts them.'” Revels v. Sanders, 519 F.3d 734, 739 (8th Cir. 2008)) (quoting Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam)). Importantly, in reviewing state court decisions to ascertain whether they either contradict or unreasonably apply clearly established federal law, a federal habeas court “is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen, 563 U.S. at 181-82.

         In a federal habeas action pursued by a state prisoner, “a determination of a factual issue made by a state court shall be presumed to be correct” unless rebutted by clear and convincing evidence. 28 U.S.C. Section 2254(e)(1). The presumption of correctness applies to the factual determinations made by a state court at either the trial or appellate levels, Smulls v. Roper, 535 F.3d 853, 864-65 (8th Cir. 2008) (en banc), and to a state court's implicit findings of fact, Grass v. Reitz, 749 F.3d 738, 743 (8th Cir. 2014). Likewise, federal habeas courts defer to state court credibility determinations. Smulls, 535 F.3d at 864.

         B. Claims alleging trial court error

         1. Ground one - sufficiency of the evidence of kidnapping

         Petitioner claims that the trial court violated his rights to due process and a fair trial because there is insufficient evidence to support the kidnapping conviction. Specifically, Petitioner argues there is no evidence that Petitioner's confinement of V.W. increased the risk of harm to her and, therefore, V.W.'s confinement was incidental to the assault and rape offenses.

         Respondents counter that the confinement of V.W. “was not merely incidental to the rape and assault but also concealed [Petitioner]'s crimes and made [V.W.]'s escape more difficult.” Respondents further contend that the Court of Appeals' decision finding sufficient evidence to support the kidnapping conviction is reasonable, entitled to deference, and neither contrary to nor an unreasonable application of clearly established federal law.

         A federal habeas court “may not overturn a state court decision rejecting a sufficiency-of-the-evidence challenge simply because the federal court disagrees with the state court.” Cavazos v. Smith, 132 S.Ct. 2, 4 (2011) (per curiam). Rather, a federal habeas court may only overturn a state court decision on the grounds of insufficiency “if the state court decision was ‘objectively unreasonable.'” Id. (quoting Renico v. Lett, 599 U.S. 766, 773 (2010)); accord Coleman v. Johnson, 132 S.Ct. 2060, 2062 (2012) (per curiam) (quoting Cavazos, 132 S.Ct. at 4).

         To find sufficient evidence to support a criminal conviction, the Fourteenth Amendment's due process clause requires “evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense.” Jackson v. Virginia, 443 U.S. 307, 316 (1979). The evidence is sufficient to support a “conviction whenever, ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'” Parker v. Matthews, 132 S.Ct. 2148, 2152 (2012) (emphasis in original) (quoting Jackson, 443 U.S. at 319). To resolve a federal habeas claim challenging the sufficiency of the evidence to support a state court conviction, a federal court looks to state law for the substantive elements of the offense, “but the minimum amount of evidence that the Due Process Clause requires to prove the offense is purely a matter of federal law.” Coleman, 132 S.Ct. at 2064. Importantly, “it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). A federal habeas court may grant relief on a sufficiency-of-the-evidence claim if the jury's finding of guilt, based on the evidence considered in the light most favorable to the prosecution, “was so insupportable as to fall below the threshold of bare rationality.” Coleman, 132 S.Ct. at 2065.

         Missouri law provides that:

[a] person commits the crime of kidnapping if he or she unlawfully removes another without his or her consent from the place where he or she is found or unlawfully confines another without his or her consent for a substantial period, for the purpose of . . .
(4) [f]acilitating the commission of any felony or flight thereafter, or
(5) [i]nflicting physical injury on or terrorizing the victim or another.

Mo. Rev. Stat. Section 565.110.1. “[T]he offense of kidnapping can only be sustained where the movement or confinement of the victim is more than ‘merely incidental' to another offense.” State v. Sistrunk, 414 S.W.3d 592, 600 (Mo.Ct.App. 2013) (citing State v. Williams, 860 S.W.2d 364, 366 (Mo.Ct.App. 1993) (“Williams”). “Determining whether a defendant's . . . confinement of his victim is merely incidental to another offense or is sufficient to constitute the offense of kidnapping requires [a court] to focus upon whether ‘there was any increased risk of harm or danger to the victim from the . . . confinement that was not present as the result of the other offense.'” Id. (quoting Williams, 860 S.W.2d at 366).

         On direct appeal, the Missouri Court of Appeals analyzed the circumstances of the incident to determine whether “there was any increased risk of harm or danger to the victim from the . . . confinement that was not present as the result of” the assault and rape offenses. State v. Taylor, No. ED93334, Opinion at 4[48] (internal quotation marks omitted) (quoting Williams, 860 S.W.2d at 366). Such increased risk, the court stated, “may arise . . . from the potential of more serious criminal activity because of the remoteness or privacy of the area . . . .” Id. (internal quotation marks omitted) (quoting Williams, 860 S.W.2d at 366.) The court noted prior decisions concluding that the confinement element for kidnapping was satisfied by the confinement of an assault victim to an apartment, confinement of a rape and assault victim to a hotel room, and confinement of the victim of an attempted rape to a car. State v. Taylor, No. ED3334, Opinion at 3-5[49] (discussing and citing State v. Brock, 113 S.W.3d 227, 229, 231 (Mo.Ct.App. 2003); State v. Shelton, 78 S.W.3d 200, 204 (Mo.Ct.App. 2002); and Williams, 860 S.W.2d at 366, respectively). In each circumstance, the confinements increased the difficulty of the victim's escape and reduced the likelihood of detection. Id.

         In denying Petitioner's first point on direct appeal, the Missouri Court of Appeals concluded:

[T]he facts of this case are such that [Petitioner]'s confining V.W. to her apartment increased the risk of harm to her. [Petitioner] confined V.W. in her apartment against her will, and beat, strangled, and raped her for approximately two hours. V.W. testified that [Petitioner] would not allow her to use the bathroom. Moreover, V.W.'s apartment building had been recently ordered to close, and V.W. was one of the few people still living there. According to V.W.'s testimony, she was “literally the last person in that building on the eighth floor.” The isolated circumstances in which [Petitioner] held V.W., therefore, increased the risk of harm to her and allowed [Petitioner]'s criminal behavior to go unnoticed.
[Petitioner]'s confining V.W. to her apartment likewise made her escape more difficult. V.W. testified that she ultimately escaped by crawling down the fire stairs and taking the fourth floor elevator to the lobby; V.W. feared that [Petitioner] might hear the elevator ding if she called it to her floor. [Petitioner]'s confining V.W. in her apartment increased the risk of harm or danger to her, and therefore there was sufficient evidence to support the jury's finding [Petitioner] guilty of kidnapping.

State v. Taylor, No. ED3334, Opinion, Resp'ts Ex. B, at 5.

         Petitioner argues that the Missouri Court of Appeals' conclusion that Petitioner's confinement of V.W. increased the risk of harm to V.W. conflicts with “clearly established federal law” set forth in Williams v. Armontrout, 912 F.2d 924, 927-30 (8th Cir. 1990) (en banc) (“Armontrout”) (construing Missouri kidnapping law). However, circuit precedent does not constitute “clearly established Federal law, as determined by the Supreme Court” for purposes of review and relief under the AEDPA. See, e.g., Glebe v. Frost, 135 S.Ct. 429, 431 (2014) (per curiam) (citing Lopez v. Smith, 135 S.Ct. 1, 4-5 (2014) (per curiam)). Therefore, this Court declines to consider Armontrout as a basis for federal habeas relief as to the sufficiency of the evidence to support the kidnapping conviction.[50]

         Petitioner also cites Fiore v. White, 531 U.S. 225 (2001) (per curiam), in support of his position that his kidnapping conviction violates due process because the prosecution failed to present sufficient evidence of an element of the crime. In Fiore, the United States Supreme Court concluded that a conviction under Pennsylvania law for operating a hazardous waste facility without a permit violated due process when the petitioner possessed the required permit, although the petitioner may have violated the permit's terms. Id. at 226-29. Petitioner urges his conviction is similarly inconsistent with the demands of due process. The circumstances in Fiore, however, are distinguishable. Petitioner's kidnapping conviction is supported by sufficient evidence to establish each element of the offense, including the requirement that the confinement of V.W. increase the risk of harm to her. Because there is sufficient evidence to support each element of Petitioner's kidnapping offense, the Fiore decision, concluding that due process is violated when there is no evidence establishing an element of the offense, does not support the granting of federal habeas relief.

         The Missouri Court of Appeals' decision finding sufficient evidence to support Petitioner's kidnapping conviction based on the increased harm to V.W. resulting from her confinement by Petitioner was not objectively unreasonable. Nor was the Court of Appeals' decision upholding Petitioner's kidnapping conviction either contrary to clearly established federal law or based on an unreasonable determination of the facts in light of the evidence presented.

         2. Ground two - prosecutor's leading questions during direct examination of V.W.

         Petitioner contends the trial court violated his right to due process and a fair trial by overruling Petitioner's objections to the prosecutor's leading questions during direct examination of V.W., resulting in the development of information establishing the elements for the forcible rape offense that “would otherwise have been unproven.” Respondents counter that the Missouri Court of Appeals' decision denying Petitioner's challenge to the prosecutor's leading questions in his direct appeal was reasonable and entitled to deference.

         During direct examination, the prosecutor asked V.W., “[V.W.] you told us about him putting his penis in your vagina.”[51] Petitioner's attorney objected to the question as leading.[52] The trial court overruled the objection.[53] V.W. stated, “[Petitioner] did all different thing[s] you can think of sexual. The intercourse, the sodomies, and I think he even tried to have anal sex.”[54] Later, the prosecutor said,

I want to go back and cover something that I realized in listening to you that I may have missed. You talked about way back in the beginning when you first took the stand, you were telling us about how [Petitioner] was trying to have sex with you. Did that happen?[55]

(Footnote added.) V.W. responded, “Yeah.”[56] Prosecutor asked her, “Okay. So he was able to penetrate you?”[57] V.W. answered, “Yes, ” and Petitioner's attorney objected on the grounds the question was a leading question.[58] V.W. answered “Yes” again and the trial court overruled Petitioner's objection to the question.[59]

         The Missouri Court of Appeals denied Petitioner's challenge on direct appeal to the leading questions. The court concluded that, even if the challenged questions directed to V.W. ...


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