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Atkins v. Denney

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

August 8, 2017

MARQUISE ATKINS, Petitioner,
v.
LARRY DENNEY, 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 Marquise Atkins for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was charged with murder in the first degree, robbery in the first degree, and two associated counts of armed criminal action. Following a trial held in December 2009, the jury found Petitioner guilty of robbery in the first degree, both counts of armed criminal action, and the lesser-included offense of (felony) murder in the second degree. Petitioner was sentenced to an aggregate of 70 years of imprisonment.[1]

         For federal habeas relief, Petitioner raises the following claims: (1) the trial court erred in denying Petitioner's motion to suppress identification evidence; (2) the motion court erred in denying Petitioner's motion for post-conviction relief for ineffective assistance of defense counsel; (3) the trial court erred in denying Petitioner's motion in limine to prevent the State from introducing evidence that Petitioner told his girlfriend, Alysha Gregory, that he shot the victim; and (4) the trial court erred in failing to instruct the jury on involuntary manslaughter. For the reasons set forth below, habeas relief will be denied.

         BACKGROUND

         Incident

         The State's evidence established the following. On the evening of June 22, 2008, cousins Terrence Mims (“T. Mims”), Trevon McCray, Justin Mims (“J. Mims”), Barry Willis, and Richard Pittman, [2] were playing basketball together at a neighborhood park. While leaving the park, they noticed a group of men, including Petitioner, following them. After catching up with the group of cousins, one of the men robbed T. Mims of a gold chain. One of the men also punched T. Mims, although it is unclear whether this was the same person who stole the gold chain. When T. Mims attempted to run away, he was shot in the head and died as a result.

         Police Investigation

         Police arrived on the scene shortly after the shooting. T. Mims was transported to the hospital, and the police detained the witnesses[3] for the homicide detectives. The witnesses gave descriptions of the assailants, and the direction in which they ran after the shooting. Based on the descriptions, Detective Kevin Bentley believed that the assailants were members of a gang that included Petitioner. Detective Bentley believed that the descriptions by the witnesses of one of the assailants closely matched Petitioner, based on Detective Bentley's recollection of a prior police-related contact with Petitioner. Within hours, the police created a photographic line-up, including a photograph of Petitioner and five other headshots of men with similar height, weight, and hairstyle as Petitioner.

         On the same day as the shooting, the police showed the line-up to McCray, Willis, and Pittman, who witnessed the murder, and took their statements. McCray reported that one of the men punched the victim, and another man shot the victim. McCray then identified Petitioner as the person who punched the victim. Willis stated that he ran from the scene after the victim was punched, and was unable to identify Petitioner as having any involvement. Pittman identified Petitioner as the person who both robbed and shot the victim.

         The following day, June 23, 2008, the police initiated a search for Petitioner. The police found Petitioner at 5752 Lillian Avenue, and after gaining consent from the resident's owner, they conducted a search of the property. During the search, the officers encountered Petitioner's mother and his girlfriend, Gregory, who both agreed to be interviewed at police headquarters. During Gregory's interview, she told Detective Wallace Leopold that she did not know anything about the incident.

         Later on June 23, 2008, Petitioner was taken into custody and placed in a physical line up with four other prisoners who were similar in appearance to Petitioner. McCray, J. Mims, Willis, and Pittman were brought in separately for viewing. According to the police reports, McCray was a “100% positive” that Petitioner was the person who punched the victim; J. Mims was a “100% positive” that Petitioner was present during the crime, but J. Mims did not identify what action Petitioner had taken; Willis did not identify Petitioner; and Pittman was a “100% positive” that Petitioner had shot the victim. Resp't Ex. H at 45. Petitioner was subsequently placed under arrest.

         On the evening of June 24, 2008, Gregory returned to police headquarters on her own and asked to speak with homicide detectives. Gregory reported to Detective Leopold that at some point between the night of June 22 and morning of June 23, Petitioner told her that one of Petitioner's associates had robbed a male victim of a gold neck chain, punched the victim, and gave Petitioner a gun to shoot the victim. Gregory reported that Petitioner told her that he had been forced to shoot the victim, and if he had not, he could have been shot himself. Gregory also reported that Petitioner told her that he aimed for the victim's legs, in order to avoid hurting the victim. When Detective Leopold asked Gregory why she had not provided this information during her first interview with the police, Gregory stated that she was afraid at the time, but had since realized that she needed to do the right thing for the victim.

         Pre-Trial

         In preparation for trial, defense counsel deposed McCray and J. Mims and questioned them about their identification of Petitioner in the police line-ups. During McCray's deposition, McCray stated that he remembered identifying Petitioner as the shooter and the robber. During J. Mims's deposition, J. Mims stated that he remembered identifying Petitioner as the shooter with certainty, at the physical line-up.

         Defense counsel filed a motion to suppress any in-court identification and testimony about any out-of-court identifications of Petitioner by the State's witnesses. The motion asserted that the identification evidence would violate Petitioner's constitutional rights for the following reasons: (1) any identification would be the product of an unlawful arrest; (2) the circumstances of any out-of-court identification were inherently suggestive and conducive to mistaken identity; (3) any in-court identification of Petitioner would be tainted by impermissible and suggestive procedures; and (4) there was no adequate independent basis for in-court identifications of Petitioner.

         At a pre-trial conference on the motion, held prior to voir dire, defense counsel explained that when she prepared the written motion, she believed that the photographic line-up was tainted because, after reviewing a black-and-white copy of the photographic line-up, she perceived one of the headshots to be female. However, upon receiving the photo spread in color from the State, defense counsel acknowledged that the headshot in question appeared male, but she could not be certain without names of the participants. Defense counsel subsequently requested that the court take the motion along with the case. The trial court agreed and instructed defense counsel that she should approach the bench at the appropriate time to renew her motion.

         At the same pre-trial conference, defense counsel moved in limine to prohibit Detective Leopold from testifying about statements that Petitioner's girlfriend, Gregory, reported hearing from Petitioner. Defense counsel argued that such testimony by Leopold would constitute double hearsay. The State responded that it did not intend to elicit such testimony from Detective Leopold. The State explained that it would be calling Gregory as a State's witness to testify first-hand about what she reported hearing from Petitioner, and would only call Detective Leopold if Gregory denied reporting such statements. The trial court ruled that Gregory would be allowed to testify about statements Petitioner made to her, and if she denied reporting such statements, then the State would be allowed to impeach her testimony by calling Detective Leopold.

         Trial

         During the trial, which commenced on December 7, 2009, McCray, J. Mims, Willis, and Pittman each testified as to the details of the incident and the identity of the shooter. The four witnesses contradicted each other as to who robbed the victim, but McCray, J. Mims, and Pittman identified Petitioner as the shooter. Willis testified that he was not able to identify the shooter.

         McCray testified that when the police showed him the photographic line-up, he identified Petitioner as the shooter because of a “sixty-one hundred Sherry” tattoo on Petitioner's neck.[4] Resp't Ex. A at 287. McCray also testified that he identified Petitioner as the shooter in the physical line-up. On cross-examination, when defense counsel asked whether McCray was aware that Petitioner did not have a sixty-one Sherry tattoo on his neck, McCray replied simply “[t]hat's what I saw.” Id. at 300. When defense counsel questioned McCray about the physical line-up, McCray testified that he identified Petitioner as the shooter and denied identifying Petitioner as only the person who punched the victim.

         J. Mims testified that when the men approached his cousins and him on the day of the shooting, Petitioner pulled out a gun and demanded the victim's chain. J. Mims further testified that after another man punched the victim, Petitioner was still holding the gun and shot the victim when the victim attempted to run. J. Mims testified that when officers arrived, he described the shooter's general appearance, including braided hair and a tattoo on the right side of his neck. J. Mims testified that he was unable to identify the shooter with certainty at the photographic line-up because he could not see a tattoo. ...


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