United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
G. FLEISSIG, UNITED STATES DISTRICT JUDGE
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.
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.
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,
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.
arrived on the scene shortly after the shooting. T. Mims was
transported to the hospital, and the police detained the
witnesses 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.
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.
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.
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
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.
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
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
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.
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
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.
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. 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.
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. ...