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Walker v. Hurley

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

March 22, 2017

TIMOTHY WALKER, Petitioner,
v.
JAMES HURLEY, Respondent.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the pro se petition of Missouri state prisoner Timothy Walker for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted by a jury on May 14, 2009, of one count of first degree involuntary manslaughter (driving while intoxicated) in violation of Missouri Revised Statutes § 565.024.1(3)(a).[1] He was sentenced to a term of 15 years of imprisonment. For federal habeas relief, he raises several claims of trial court error and ineffective assistance of defense counsel and post-conviction counsel. He also claims that § 565.024.1(3)(a) (2006) was unconstitutionally vague. Respondent argues that the statutory claim was procedurally defaulted, and that, in any event, it and all other claims lack merit.[2] For the reasons set forth below, habeas relief will be denied.

         BACKGROUND

         Trial

         The Missouri Court of Appeals described the evidence adduced at trial as follows.

         Upon review the record, this Court concludes that this is a fair summary of the evidence at trial, with this Court's additions following the summary.

On April 13, 2007 around 12:30 a.m., Donald Gaither (“Gaither”) was traveling westbound on Interstate 70 when he was struck and killed by a Corvette near the Blanchette Bridge [in St. Charles County]. Witnesses saw the Corvette strike Gaither's motorcycle and estimated the Corvette's speed at over 100 mph. There were two occupants in the Corvette [Defendant and Scott Fus], Defendant remained at the scene. The other occupant [Fus] fled the area, but was apprehended by law enforcement a short time after the crash. That individual had a blood smear on his neck; no blood was observed on Defendant. A dark [reddish brown] spot was visible on the driver side airbag in the Corvette. The spot was not tested to determine whether or not it was blood. Other motorists were in the area, but none of them saw who was driving the Corvette. Officer Dennis Navies (“Officer Navies”) of the St. Louis County Police Department was the first officer on the scene [arriving five minutes after the collision]. He and a motorist at the scene observed Defendant get out of the driver's seat of the Corvette. Officer Navies observed that Defendant's legs were wobbly and that he appeared to be about to fall over. Defendant told Officer Navies that he had hit something, but he did not know what. Defendant also complained of seatbelt injuries. Officer Navies could smell alcohol on Defendant's breath. Defendant told Officer Navies that he had some beer earlier in the night. Officer Navies also observed that Defendant's eyes were glassy and his pupils were dilated.
When Trooper David Dengis (“Tropper Dengis”) of the Missouri Highway Patrol arrived, Officer Navies walked Defendant over to him and told Trooper Dengis that he believed Defendant was intoxicated. Defendant approached Trooper Dengis and Trooper Dengis noticed that Defendant was swaying and stumbling, that Defendant's eyes were glassy and bloodshot, and that Defendant's speech was slurred and confused. Trooper Dengis also smelled a strong odor of intoxicants. A second trooper on the scene, Trooper Matthew Schmidt, also made similar observations. When Trooper Dengis asked for Defendant's identification, Defendant stated that he left it at a bar. Defendant further stated that he had consumed four or five beers and a shot.
Officer Dean Meyer (“Officer Meyer”) of the St. Charles Police Department arrived at the scene of the accident and was asked by Trooper Dengis to watch Defendant. Defendant told Officer Meyer that he had been traveling the speed limit and that the motorcycle cut in front of him. Defendant further stated that he had been out drinking, but did not feel intoxicated. Defendant originally stated that he did not need medical treatment, but eventually asked to go to the hospital. Officer Meyer followed the ambulance to the hospital, and waited outside Defendant's room at the nurses' station.
Trooper Dengis arrived at the hospital a short time later, administered a horizontal gaze nystagmus test, and observed indicators of intoxication in each of the six clues. Based on Defendant's performance on the test and his appearance at the scene of the crash, Trooper Dengis read Defendant his Miranda Rights, and placed him under arrest for driving while intoxicated. Trooper Dengis then asked Defendant questions from the alcohol influence report. Defendant stated that he had not consumed alcohol since the accident. Defendant also stated that he was the driver of the Corvette. Further, Defendant stated that he had started drinking at 7:30 p.m., had stopped at 11:00 p.m., and during that time he had consumed four beers and a shot. Defendant also admitted to having used marijuana within the 72 hours prior to the accident, although he would not specify when. Trooper Dengis informed Defendant of his rights under the implied consent law, and Defendant refused to provide a blood sample.
At 3:43 a.m., a search warrant for Defendant's blood and urine was issued and Trooper Dengis served Defendant with the warrant at 4:30 a.m. Defendant stated the warrant was invalid due to his birthday being incorrect on the warrant by one day. Defendant continued to object to the warrant, but submitted after he was informed he would be restrained if necessary to execute the warrant. Based on the blood samples drawn, Defendant's blood alcohol level (“BAC”) was between 0.148 and 0.188 at the time of the accident. Further, the blood and urine samples showed the presence of cocaine in Defendant's system.
Days later, a search warrant was obtained for the System Diagnostic Module (“SDM”) from Defendant's Corvette. The SDM showed that five seconds before impact, Defendant was accelerating from 109 mph to, ultimately, 118 mph three seconds before impact. The SDM showed that Defendant began braking two seconds before impact and that one second prior to impact the Corvette was still traveling at 108 mph. In addition, the SDM indicated that the driver's seatbelt was not fastened. No Sheriff's Deputies participated in the execution of either search warrant.
Defendant was charged by an Amended Information with involuntary manslaughter in the first degree. At trial Defendant's argument was that he was not the driver. The jury returned a verdict finding Defendant guilty and he was sentenced to 15 years in prison.

Missouri v. Walker, No. ED93225 (Mo.Ct.App. Dec. 7, 2010) (ECF No. 13-16 at 1-4.)

         To the above, the Court adds the following. The prosecutor stated without objection in opening and closing statements, and four witnesses testified, that Petitioner was indifferent to the victim's condition. More specifically, (1) Officer Navies testified without objection that Petitioner never asked what he hit and never said anything about the victim when Officer Navies escorted Petitioner away from the victim's uncovered body; (2) Officer Meyer testified without objection that Petitioner's question about the condition of the victim “didn't seem to be a sincere type of request, ” and in comparison to other incidents, Petitioner seemed to lack genuine concern; (3) Trooper Dengis testified without objection that at the hospital, Petitioner “showed no emotion and no care for the victim whatsoever;” and with objection that was sustained, that Petitioner was giggling and laughing in the emergency room when his family and friends visited; and (4) Trooper Schmidt testified without objection that when he was with Petitioner 15 yards away from the victim's covered body, Petitioner never asked questions about the victim's condition or looked concerned.

         The Court also adds that at trial Kathryn Biondo, R.N., a nurse who treated Petitioner at the hospital, testified as to the contents of the medical chart that she and an examining physician (whom she identified as Dr. Svancarek) created. The chart was admitted into evidence, but was not provided to this Court by Respondent. R.N. Biondo confirmed that she had marked Petitioner as the driver of the car, but she could not testify whether she was told this by Petitioner or by a paramedic who was at the scene. She also testified that she noted on the chart a chin laceration and a nasal injury, and that these injuries could have caused bleeding. R.N. Biondo testified that Dr. Svancarek's notes indicated clotted blood in Petitioner's nose, bruising in his right shoulder, and tenderness and seatbelt bruising, but that his notes did not specifically link the right shoulder pain to the seatbelt bruising.

         Trooper Dengis testified that the examining doctor told him that Petitioner had bruising from a seatbelt. And a highway patrol officer read part of the “data limitations” section of the Corvette SDM, which stated that if the vehicle's electrical system was compromised during a crash, the state of the driver's belt at the time of the collision might not be correctly reported. Lastly, the Court adds that Trooper Dengis testified that Petitioner told him “multiple times, ” at the scene and at the hospital, that he was the driver of the Corvette. ECF No. 13-9 at 70, 93, 97, 156-57.

         The trial court denied defense counsel's request to instruct the jury on involuntary manslaughter in the second degree[3] as a lesser-included offense, on the basis that there was no evidence that Petitioner was not intoxicated, and no evidence that the cause of the victim's death was by any means other than operation of a motor vehicle. The court reasoned that if Petitioner was not the driver, he would be acquitted, not be found guilty of second degree involuntary manslaughter. ECF No. 13-10 at 181-90.

         Direct Appeal

         On direct appeal, Petitioner argued that the trial court erred in denying his motion to quash the search warrants and in admitting Petitioner's blood and urine samples and the SDM information from the Corvette, because the highway patrol officers who executed the search warrants did not have authority to do so under Missouri law, in that the warrants were applied for and executed without notice to or participation of the Sheriff of St. Charles County or his designee. This argument was based on Mo. Rev. Stat. § 542.286, which addresses the territorial jurisdiction of the judge, court, and officer executing a search warrant; and primarily, § 43.200, which, at the time of the incident, authorized the highway patrol to request that a prosecutor apply for a search warrant, but provided that the sheriff of the county “shall” be notified of the application and participate in its execution, which did not occur here for either warrant.

         Petitioner's remaining arguments on direct appeal were that the trial court erred in admitting evidence regarding Petitioner's lack of remorse toward the victim, because this evidence was irrelevant and prejudicial; and in denying Petitioner's motion for acquittal at the close of the evidence, because the then-current first degree involuntary manslaughter statute, § 565.024.1(3)(a) (2006), was unconstitutionally vague as to whether leaving the highway or right-of-way was an element of the crime.[4]

         The Missouri Court of Appeals denied Petitioner's first point, reasoning that the two statutes relied upon by Petitioner were not connected, and that even though the version of §43.200 in effect at the time of the incident contained the word “shall” with respect to a sheriff's participation, the statute was “directory” rather than “mandatory” because it did not state what results would follow in the event of a failure to comply with its terms. Thus, Petitioner had to show that he was prejudiced by such failure, which he did not do.

         The second point, admission of evidence of lack of remorse and demeanor toward the victim, was denied on the ground that the issue was not properly preserved for appellate review, and there were no grounds for plain error. The appellate court reasoned that evidence of Petitioner's demeanor toward the victim tended to show that Petitioner was intoxicated, and was thus evidence relevant to the State's case. The appellate court further concluded that even if the evidence was prejudicial, its admission was harmless error because there was substantial evidence of Petitioner's guilt, including Petitioner admitting several times that he was the driver of the Corvette. The appellate court denied Petitioner's last argument, that the first degree involuntary ...


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