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Lee v. Russell

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

July 31, 2017

BRANDON LEE, Petitioner,
v.
TERRY RUSSELL, 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 Brandon Lee for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner pled guilty to one count of unlawful possession of a firearm, and a jury convicted him of one count of first-degree robbery, one count of armed criminal action, one count of unlawful use of a weapon, and one count of resisting arrest. Petitioner was acquitted of one count of first-degree assault and one additional count of armed criminal action. All charges arose out of an incident in St. Charles, Missouri, on August 3, 2009, in which Petitioner robbed a woman at gunpoint, threatened others with the firearm, and then led police on a high speed chase. Petitioner was sentenced to a total of 25 years' imprisonment.

         In his petition for habeas relief, Petitioner claims that he received ineffective assistance of trial and appellate counsel in that they “collaborat[ed] with St. [Charles] County Court official[s]” to convict Petitioner on his prior criminal history and they failed to investigate Petitioner's version of his encounter with the victim. He also claims that the trial court erred in allowing witnesses to testify who had not been deposed before trial, in allowing admission of an audio recording which mentioned prior criminal activity unrelated to the charges being tried, and in admitting evidence of these prior, uncharged crimes without giving a limiting instruction to the jury.

         Respondent argues that Petitioner's claims of ineffective assistance of counsel and trial court error regarding witnesses that were not deposed were procedurally defaulted and without merit, and that the state courts' adjudication of all of Petitioner's remaining claims in his petition was reasonable. For the reasons set forth below, habeas relief will be denied.

         BACKGROUND

         Trial

         Petitioner's trial commenced on August 3, 2010. In opening statement, the prosecutor presented the state's theory of the case, that the evidence presented a clear instance of robbery followed by the suspect leading police on a high speed chase. The prosecutor also cast doubt on Petitioner's version of events - that he spoke with the victim on the phone to arrange to meet her to sell her illegal drugs, and that upon meeting her, she tried to take the drugs without paying for them so he took her purse to recover his property. The prosecutor highlighted inconsistencies and gaps in the story Petitioner relayed to the police, including Petitioner's failure to provide the police with sufficient identifying information to locate a person named Craig who, according to Petitioner, arranged the drug deal between Petitioner and the victim and gave Petitioner the gun he used in the robbery. In her opening statement, defense counsel argued that Petitioner's version of events was credible, that Petitioner did provide the police with enough identifying information to locate Craig, and that the police failed to adequately investigate his story.

         The evidence adduced at trial established the following. On August 3, 2009, Petitioner drove into a Walgreen's parking lot in a vehicle his girlfriend rented from a car rental agency. Petitioner was alone. He circled the lot before parking. Victoria Doppieri, who was eight months pregnant at the time, was walking through the parking lot on her way home. Petitioner exited his vehicle and followed Doppieri into a nearby mobile-home park where she lived, pulled a gun on her, pointed it at her stomach, and demanded her purse. She initially refused to let go of her purse but relinquished it after Petitioner fired a shot into the ground. Doppieri screamed for help as Petitioner fled with the purse. Neighbors, responding to the screaming, chased Petitioner to the Walgreen's parking lot and demanded he return the purse. Petitioner yelled at them to get back and pointed his gun at one of the pursuers as Petitioner got into his car and backed out of the parking spot. Petitioner sped out of the parking lot. Witnesses called 911.

         A police dispatcher issued a call reporting that a black suspect had discharged a gun and left the area in a silver Mazda 6. An officer responding to the call spotted Petitioner's car that met the description, and pursued it. Petitioner then led the police on a chase with speeds exceeding 120 miles per hour. Petitioner lost control of his vehicle and crashed into an embankment. He attempted to flee on foot but was quickly apprehended by the police. The police found a loaded gun and Doppieri's purse in the crashed vehicle. A shell casing found at the scene of the robbery was later matched to the gun found in the vehicle. Petitioner was brought back to the scene by police where he was identified by witnesses before being hospitalized for injuries sustained during the crash. He was questioned in the hospital two days later where he alleged that his interaction with Doppieri was actually a drug deal that went wrong.

         Witnesses who testified at trial included Doppieri, three neighbors who witnessed the incident and responded to her scream, and the police officers who responded to the dispatcher's call. During the testimony of one of the pursuing officers, the state played an audio recording of the police dispatcher in which she read off the license plate of the vehicle the perpetrator was driving and then stated, “I believe this was the plate given out earlier on a drive off for gas.” ECF No. 12. Defense counsel asserted at a side bar that this statement referenced prior criminal acts in violation of Petitioner's motion in limine to exclude such evidence, and she moved for a mistrial. The prosecution argued that the comment referenced the vehicle Petitioner was driving, and did not specifically identify Petitioner himself as having committed any prior bad acts. The court denied Petitioner's motion for a mistrial, and the trial continued. ECF No. 9, Resp. Ex. A at 127-28. Later testimony from another police officer established that the vehicle driven by Petitioner had been rented by his then girlfriend from a rental car agency. Id. at 188.

         On cross-examination of the state's witnesses, particularly police officers, defense counsel drew attention to the fact that the police failed to investigate Petitioner's version of his encounter with Doppieri. She questioned their failure to test drugs found near Petitioner's wrecked car, their failure to attempt to identify a man named Craig who Petitioner claimed was the individual who connected him with Doppieri, and their failure to test Doppieri or her newborn child's blood for the presence of narcotics.

         After the state concluded its case, the trial judge informed Petitioner of his right to testify and directly asked him if he would like to take the stand in his own defense. Petitioner informed the judge that he did not wish to testify. Id. at 212-14. The defense rested without presenting any evidence.

         To rebut the defense's suggestion that police should have tested the blood of Doppieri or her newborn child for drugs, in closing statement the prosecution suggested that had the police done so, it would have constituted harassment, which is “what causes people not to like the police.” Id. at 225. Defense counsel did not object. Defense counsel's closing statement again faulted the police for failing to investigate Petitioner's story and in not trying to locate Craig.

         As stated above, Petitioner pleaded guilty to one count of unlawful possession of a firearm, and the jury convicted Petitioner of one count of first-degree robbery, one count of armed criminal action, one count of unlawful use of a weapon, and one count of resisting arrest. Petitioner was acquitted of one count of first-degree assault and one additional count of armed criminal action. Petitioner was sentenced to a total of 25 years' imprisonment.

         Direct ...


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