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Brooks v. Russell

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

March 27, 2017

MARK BROOKS, Petitioner,
TERRY RUSSELL, Respondent.



         This matter is before the Court on the pro se petition of Missouri state prisoner Mark Brooks for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On November 18, 2009, Petitioner was convicted by a jury of the forcible rape of R.R., occurring on November 12, 2001, and the attempted forcible sodomy of L.H., occurring on December 2, 2001. Petitioner was sentenced on January 13, 2010, to 15 years and five years, respectively, with the sentences to be served consecutively. His convictions and sentences were affirmed on direct appeal. Petitioner's motion for state post-conviction relief was denied following an evidentiary hearing, and this denial was affirmed on appeal.

         For federal habeas relief, Petitioner claims that his constitutional rights were violated by: (1) defense counsel's failure to move for dismissal as a result of the state's violation of Petitioner's right to a speedy trial; (2) defense counsel's failure to move for dismissal due to the state's destruction of “materially exculpatory” evidence; and (3) the trial court's failure to sever the charges arising out of the crimes against the two victims. For the reasons set forth below, habeas relief shall be denied.


         Pre-Trial Events

         On April 19, 2002, the State filed a felony complaint against Petitioner for the crimes of conviction, and an arrest warrant was issued that same day. On April 22, 2002, Petitioner was arrested in Illinois on unrelated charges. In December 2004, the evidence custodian destroyed the physical evidence (clothing worn at the time of the rape and a sexual assault kit) related to the rape of R.R. On October 23, 2006, while still in custody in Illinois, Petitioner moved for a speedy trial in the Missouri case. Petitioner remained in custody in Illinois until the Illinois charges were resolved in January 2007. On January 24, 2007, Petitioner was returned to and incarcerated in Missouri.

         On March 23, 2007, a six-count information was filed against Petitioner, with four counts related to the crimes against R.R., on November 12, 2001, and two counts related to the crimes against L.H. on December 2, 2001. Petitioner's arraignment was initially scheduled for June 2007, but on Petitioner's motion, it was continued to July 24, 2007, at which time trial was set for December 3, 2007.

         On July 6, 2007, Petitioner moved to sever the counts related to R.R. from the counts related to L.H. He argued that the two sets of counts were not alleged to have occurred as part of the same transaction or scheme. The motion to sever was denied.

         On November 14, 2007, Petitioner entered a plea of not guilty by reason of mental disease or defect, and the trial was continued to allow for a psychological evaluation of Petitioner. A final psychological evaluation was filed with the court on October 27, 2009, concluding that, at the time of the offenses, Petitioner was not incapable of knowing or appreciating the nature, quality, and wrongfulness of his conduct. Petitioner's case went to trial on November 16, 2009.


         The evidence adduced at trial established the following. In November 2001, R.R. was driving to a video rental store when she saw Brooks driving a truck on a road near the store. As R.R. testified, Brooks turned around the truck and drove it into the store's parking lot. Brooks exited the truck and approached R.R. asking if she had a cell phone. R.R. replied that she did not, and pointed Brooks to a pay phone he could use. Brooks initially walked toward the pay phone, but turned around and entered R.R.'s car and forced her into the passenger seat. Brooks turned the car on and drove out of the parking lot, and eventually stopped in a wooded area.

         After parking the car, Brooks exited the car and made R.R. perform oral sex on him. Brooks then removed R.R.'s clothing and performed oral sex on her. Brooks also engaged in sexual intercourse with R.R. R.R. asked Brooks why he did this, and Brooks replied that this was how he could get a woman. Acting under a ruse, R.R. responded that she would go out with Brooks, and gave him a piece of paper and pencil to write down his name, address, and telephone number. Brooks did, and R.R. gave this information to the police that night.

         On December 2, 2001, L.H. walked to a store to purchase cigarettes. As she was returning home from the store, she saw Brooks driving a pickup truck. Brooks stopped his truck next to L.H. and asked if she wanted to smoke a joint together. L.H. responded that she did, and she and Brooks drove to a parking lot. After Brooks parked the truck, he started to rummage around the truck as if he were looking for something. Brooks then suddenly jumped onto L.H. While on top of L.H., Brooks reached into L.H.'s pants and touched her genitals. L.H. struggled to stop Brooks from going further. L.H. eventually struggled free and exited the vehicle. Brooks then drove away, and L.H. ran to a nearby house and called the police.

         At the close of state's evidence, Petitioner moved for acquittal of all charges. The trial court granted the motion with respect to two counts related to R.R. The trial court set out each of the remaining four offenses in a separate jury instruction and specifically advised the jury to consider each count separately and to return separate verdicts for each. As stated above, on November 18, 2009, the jury found Petitioner guilty of one count of forcible rape of R.R. and one count of attempted forcible sodomy of L.H. The jury was unable to reach a verdict on the remaining two counts, and the state subsequently dismissed them. The court sentenced Petitioner to 15 years of imprisonment for the forcible rape of R.R. and five years of imprisonment for the attempted forcible sodomy of L.H., to run consecutively.

         Direct Appeal

         Petitioner raised one point on direct appeal. He argued that the trial court erred in denying his motion to sever because the charges related to R.R. were improperly joined with the charges related to L.H., as the offenses giving rise to each set of charges were unconnected, were not part of a common scheme or plan, and were not of the same or similar nature. Petitioner further argued that he was prejudiced because the jury was likely to consider the evidence of one incident when considering Petitioner's involvement in the other.

         The appellate court engaged in a two-step analysis in rejecting this claim. The court first concluded that joinder was proper, and then concluded that the trial court did not abuse its discretion in refusing to sever the charges. The court found that the strength in similarities between the crimes overcame the “minor discrepancies” cited by Petitioner. The court reasoned that the similarities in victims (both were 18 years old), tactics and circumstances of the assaults, and the passage of only one month between the incidents, showed that joinder was proper. The appellate court then found that the trial court did not err in denying the motion to sever, as the number of offenses joined was few and the facts and evidence were distinct and not complex. The court noted that the jury was properly instructed, and the jury's verdict, convicting Petitioner of only two of the four offenses submitted, indicated that the jury was able to ...

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