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Muhammad v. Minor

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

September 29, 2017

DEAN MINOR, [1]Respondent.



         This matter is before the Court on the Petition of Jamaal Muhammad for a Writ of Habeas Corpus under 28 U.S.C. § 2254.

         I. Procedural History

         Muhammad is currently incarcerated at the Moberly Correctional Center in Moberly, Missouri, pursuant to the Sentence and Judgment of the Circuit Court of the City of St. Louis, Missouri. (Respt's Ex. D at 104-07.)

         On August 19, 2009, the State charged Muhammad as a prior and persistent offender with forcible rape and sodomy and, in the alternative, statutory rape and sodomy. (Respt's Ex. D at 17-18.) The crimes were alleged to have occurred in March 2008. On July 22, 2010, a jury found Muhammad guilty of forcible rape. Id. at 94-97. The court sentenced Muhammad to 20 years in prison. Id. at 104-07.

         Muhammad raised two points on direct appeal of his convictions. (Respt's Ex. B.) In his first point, Muhammad argued that the trial court plainly erred by failing to inquire into the discontent that existed between Muhammad and defense counsel before determining whether to appoint substitute counsel. (Respt's Ex. B at p. 17.) He next argued that the trial court abused its discretion in failing to quash the venire panel after a venireperson passed out in front of the panel. Id. at 19. On November 8, 2011, the Missouri Court of Appeals affirmed Muhammad's conviction. (Respt's Ex. E.)

         Muhammad filed a pro se motion for post-conviction relief under Rule 29.15. (Respt's Ex. F.) After appointment of counsel, Muhammad filed an amended post-conviction relief motion and request for evidentiary hearing, in which he alleged the following ineffective assistance of counsel claims: (1) trial counsel failed to locate, interview, and call as a witness Christian Clayborne; (2) trial counsel failed to locate, interview, and call as a witness Khaleed Salama and Penny Hubbard; and (3) trial counsel failed to advocate that Muhammad receive a more favorable sentencing disposition by calling witnesses on his behalf and failing to correct the court regarding Muhammad's prior criminal history. Id. On May 29, 2013, the motion court denied Muhammad's amended motion and his request for an evidentiary hearing. (Respt's Ex. H.)

         In his appeal from the denial of post-conviction relief, Muhammad raised the same ineffective assistance of counsel claims that he raised in his post-conviction motion. (Respt's Ex. J.) The Missouri Court of Appeals affirmed the decision of the motion court. (Respt's Ex. L.)

         Muhammad filed the instant Petition on June 9, 2014. (Doc. 1.) He raises 32 grounds for relief. In his first five grounds for relief, Muhammad raises the following claims previously raised in state court: (1) the trial court erred in failing to conduct an adequate inquiry into his discontent with trial counsel and in failing to appoint new counsel; (2) the trial court failed to grant a mistrial after a venire person fainted; (3) trial counsel was ineffective in failing to call Christian Claybourne to testify at trial; (4) trial counsel was ineffective in failing to call Khaleed Salama and Penny Hubbard to testify at trial; and (5) trial counsel was ineffective in failing to call witnesses and in failing to correct the court about his criminal history at his sentencing.

         In grounds 6 through 32, Muhammad raises for the first time ineffective assistance of counsel claims. Muhammad alleges in the following grounds of the Petition that post-conviction counsel was ineffective for not raising the ineffectiveness of trial counsel as to trial counsel's: (6) failure to file a motion for change of venue as requested by Muhammad; (7) failure to familiarize herself with his case, prepare for trial, investigate witnesses, or visit him; (8) failure to file a motion to disqualify the trial judge; (9) failure to move to waive a jury trial upon Muhammad's request; (10) failure to present evidence at the sentencing phase of his trial; (12) failure to object to and preserve for review the prosecutor's knowing use of false statements; (13) failure to object to and preserve for review the prosecutor's wrongful actions in arguing outside of the evidence during closing argument; (14) failure to object to and preserve for review that the trial court erred in finding Muhammad a persistent offender; (15) act of urging the jury to convict him of a lesser offense; (16) failure to call the treating physician as an expert witness; (17) failure to request a hearing under the Missouri Rape Shield Statutes; (18) failure to object to the admission of DNA evidence; (19) failure to object to and preserve for review the wrongful admission of DNA evidence; (20) failure to offer expert testimony regarding the DNA evidence; (21) failure to secure the state's plea offer; (22) failure to investigate and call Khalilah Green, Steve Powell, Deshell Harris, and the Secretary of the Youth Program as character witnesses; (24) overall ineffectiveness at trial resulting in the trial being nothing more than a sham and a mockery of justice; (25) failure to preserve for review the claim that the trial court erred in denying Muhammad's motion to proceed pro se; (26) failure to object to and preserve for review the claim that the prosecutor violated Brady v. Maryland; (28) failure to impeach key prosecution witnesses with prior inconsistent statements; (29) failure to investigate and produce records showing the victim's propensity for lying; (30) failure to cross examine witnesses based on pre-trial statements; (31) failure to call impeachment witnesses; and (32) failure to adequately demonstrate the victim's prior inconsistent statements via cross-examination of the victim. (Doc. 1 at 15-24.) In two grounds of the Petition, Muhammad argued that direct appeal counsel was ineffective: (23) in failing to raise on appeal that the trial court erred in overruling his Motion for Judgment of Acquittal because there was insufficient evidence to support the verdict; and (27) in failing to raise on appeal the claim that the trial court erred in forcing counsel on Muhammad. Id. at 21-22, 23. Finally, Muhammad argued in ground eleven that post-conviction counsel was ineffective for failing to raise in the initial stage of the post-conviction proceeding that the trial court erred in releasing the probation officer's sentencing recommendation during the sentencing phase. Id. at 18.

         On October 14, 2014, Respondent filed a Response to Order to Show Cause, in which he argues that the first ground for relief along with grounds 6 through 32 are procedurally defaulted, and all of Muhammad's claims fail on their merits. (Doc. 11.)

         Muhammad has filed a Traverse (Doc. 27), as well as other pleadings and exhibits, in which he provides further argument in support of his grounds for relief.

         II. Facts

         The Court's summary of the facts below is taken directly from the decision of the Missouri Court of Appeals affirming Muhammad's conviction. (Respt's Ex. E at 3-4.)

         In March 2008, Muhammad was an employee at the Mark Twain Community Resource Center in a program designed to assist at-risk youths. S.A., who was sixteen years old, was a participant in the program. On March 18, 2008, S.A. called Muhammad and asked him for a ride home from her sister's house. Muhammad picked her up and then took her to Imo's for something to eat. While riding in the car, S.A. mentioned that she wanted to take a YMCA trip to Milwaukee but that she did not have the $45-50 necessary to participate. Muhammad offered to help S.A., suggesting that she could clean his house. S.A. agreed and Muhammad drove them to his house where S.A. helped Muhammad pick things up off the floor. Muhammad then turned down the lights and pulled S.A. toward him. S.A. told him to stop playing but Muhammad continued to pull her toward him and pulled off her jeans and underwear. Muhammad eventually pulled S.A. onto the bed, got on top of her, and put his penis into her vagina. After he finished, Muhammad told S.A. to go into the bathroom and wash up. When she refused, he took her into the bathroom, gave her a rag and told her that “all that crying couldn't turn him on like she should have.” Muhammad then took S.A. home and gave her $40.

         S.A. reported the incident to a neighbor who was involved in the community program. The neighbor drove S.A. to the police station and the hospital, where a rape kit was collected. DNA from seminal fluid on the vaginal swab contained a mixture of S.A.'s and Muhammad's DNA. Muhammad's DNA was also recovered from cuttings on S.A.'s underwear and swabs taken from S.A.'s cheek, lower perineum, thigh, and rectum.

         The jury found Muhammad guilty of forcible rape and not guilty on the remaining counts.

         III. Standard of Review

         A federal court's power to grant a writ of habeas corpus is governed by 28 U.S.C. § 2254(d), which provides:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

         The Supreme Court construed Section 2254(d) in Williams v. Taylor, 529 U.S. 362 (2000). With respect to the “contrary to” language, a majority of the Court held that a state court decision is contrary to clearly established federal law “if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law” or if the state court “decides a case differently than [the] Court has on a set of materially indistinguishable facts.” Id. at 405. Under the “unreasonable application” prong of ' 2254(d)(1), a writ may issue if “the state court identifies the correct governing legal rule from [the Supreme Court's] cases but unreasonably applies [the principle] to the facts of the particular state prisoner's case.” Id. Thus, “a federal habeas court making the ‘unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable.” Id. at 410. Although the Court failed to specifically define “objectively unreasonable, ” it observed that “an unreasonable application of federal law is different from an incorrect application of federal law.” Id. at 410.

         IV. Procedural Default

         Respondent contends that Muhammad procedurally defaulted Ground 1 and Grounds 6 through 32, by failing to properly raise the claims in state court.

         To avoid defaulting on a claim, a petitioner seeking federal habeas review must have fairly presented the substance of the claim to the state courts, thereby affording the state courts a fair opportunity to apply controlling legal principles to the facts bearing on the claim. Wemark v. Iowa, 322 F.3d 1018, 1020-21 (8th Cir. 2003) (internal quotation marks and citations omitted) (quoting Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam) and Anderson v. Groose, 106 F.3d 242, 245 (8th Cir. 1997)). Specifically, a state prisoner must fairly present each of his claims in each appropriate state court before seeking federal habeas review of the claim. Baldwin v. Reese, 541 U.S. 27, 29 (2004). A claim has been fairly presented when a petitioner has properly raised the same factual grounds and legal theories in the state courts that he is attempting to raise in his federal petition. Wemark, 322 F.3d at 1021 (internal quotation marks omitted) (quoting Joubert v. Hopkins, 75 F.3d 1232, 1240 (8th Cir. 1996)). Claims that are not fairly presented to the state courts are procedurally defaulted. See Id. at 1022.

         In cases of procedural default, federal courts are barred from reaching the merits of the defaulted ground absent a showing of both ‘cause' and ‘actual prejudice' resulting from the alleged constitutional violations. See Wainwright v. Sykes, 433 U.S. 72, 87 (1977). A petitioner must “show that some objective factor external to the defense impeded counsel [or petitioner's] efforts to comply with the State's procedural rule” in order to show “cause” for procedural default. Murray v. Carrier, 477 U.S. 478, 488 (1986). “Cause” can be demonstrated by either “a showing that the factual or legal basis for a claim was not reasonably available to counsel” or by a showing that interference by officials made compliance impracticable. Id. If a petitioner cannot show ‘cause' for the procedural default, then the court need not determine whether actual prejudice has resulted. See Leggins v. Lockhart, 822 F.2d 764, 768 (8th Cir. 1987).

         To invoke the alternative miscarriage of justice exception to the procedural default rule, a petitioner must present new evidence affirmatively demonstrating that he is innocent of the crime for which he was convicted. Abdi v. Hatch, 450 F.3d 334, 338 (8th Cir. 2006). “‘Without any new evidence of innocence, even the existence of a concededly meritorious constitutional violation is not in itself sufficient to establish a miscarriage of justice that would allow a habeas court to reach the merits of a barred claim.'” Cagle v. Norris, 474 F.3d 1090, 1099 (8th Cir. 2007) (quoting Schlup v. Delo, 513 U.S. 298, 316 (1995)).

         V. Muhammad's Claims

         As previously noted, Muhammad asserts 32 grounds for relief. The undersigned will discuss Muhammad's grounds for relief in turn.

         1.a. Ground 1, Procedural Default

         Muhammad argues that the trial court erred in failing to conduct an adequate inquiry into the “source, substance, or truth” of his discontent with trial counsel and in failing to appoint new counsel on this basis. (Doc. 1 at 16.) Respondent argues that this claim is procedurally barred because Muhammad failed to preserve the claim for direct appellate review by not raising it in his motion for new trial.

         Muhammad raised this claim in his direct appeal. The Missouri Court of Appeals first noted that Muhammad conceded that he failed to preserve this issue for appellate review. (Respt's Ex. E at 6.) The court explained that “[u]pon plain error review, the defendant must show that an evident, obvious, and clear error affected a substantial right resulting in manifest injustice or a miscarriage of justice.” Id. (citations omitted). The court then held as follows:

Here, the record indicates that Appellant and defense counsel disagreed over trial strategy, which is an insufficient basis to require substitution of counsel. While Appellant alleged that he had not communicated with counsel, counsel contradicted this assertion before Judge Grady, stating that she communicated her trial strategy to Appellant via letter. Defense counsel also advised Judge Grady that she responded to this accusation before Judge Ohmer prior to trial. Contrary to Appellant's assertions, the trial court did investigate the possibility of substituting defense counsel, yet Appellant failed to present any evidence of “justifiable dissatisfaction” with his counsel. In light of counsel's assertions to the contrary and Appellant's failure to present the court with any objective evidence that there was a total breakdown of communication between him and defense counsel, Appellant failed to make a showing of justifiable dissatisfaction or irreconcilable conflict with his appointed counsel justifying substitution of counsel. The trial court did not commit plain error in conducting additional inquiries and investigation into Appellant's alleged conflict with his appointed counsel.

Id. at 7-8.

         Muhammad does not dispute that he failed to preserve the claim asserted in Ground 1 for appellate review resulting in the procedural default of Ground 1. He does not argue cause or prejudice for this default but, rather, contends that the State appellate court's plain error review cures the procedural default.

         Until recently, there was a split within the Eighth Circuit regarding whether plain-error review by a state appellate court waived a procedural default, and courts were permitted to choose which line to follow. Clark v. Bertsch, 780 F.3d 873, 876 (8th Cir. 2015) (comparing Toney v. Gammon, 79 F.3d 693, 699 (8th Cir. 1996) and Hayes v. Lockhart, 766 F.2d 1247, 1253 (8th Cir. 1985) (state court's plain-error review does not excuse procedural default) with Thomas v. Bowersox, 208 F.3d 699, 701 (8th Cir. 2000), Bannister v. Armontrout, 4 F.3d 1434, 1445 n. 6 (8th Cir. 1993) and Williams v. Armontrout, 877 F.2d 1376, 1379 (8th Cir. 1989) (state court's plain-error review permits federal review)). In 2011, the Eighth Circuit, sitting en banc, directed that, in the event of an intra-circuit split, future panels were to “determine and follow the earliest precedent.” Id. (citing Mader v. United States, 654 F.3d 794, 800 (8th Cir. 2011)). The Court then determined that the earliest controlling panel opinion on the effect of plain-error review is Hayes, which held that such claims are procedurally defaulted and unreviewable, absent cause and prejudice. Id. (quoting Hayes, 766 F.2d at 1253).

         The Missouri Court of Appeals' discretionary plain-error review of Muhammad's unpreserved claim cannot excuse his procedural default. Thus, the first ground is procedurally defaulted.

         1.b. Ground 1, Merits

         Not only is the first ground procedurally defaulted, it also fails on its merits. The Sixth Amendment of the United States Constitution guarantees criminal defendants the right to counsel. U.S. Const. Amend. VI. The right to counsel, however, does not include the appointment of an attorney who will advance meritless theories, proceed according to a defendant's wishes, or develop a close relationship with the defendant. See United States v. Rodriguez, 612 F.3d 1049, 1055 (8th Cir. 2010) (citations omitted). Nor does the right bestow on a defendant “the absolute right to counsel of his own choosing.” Carey v. Minnesota, 767 F.2d 440, 441 (8th Cir. 1985).

         Whether to grant a request for substitute counsel is a matter of the trial court's discretion. Nerison v. Solem, 715 F.2d 415, 418 (8th Cir. 1983). To obtain a new attorney, “the defendant must show justifiable dissatisfaction with his appointed counsel.” Id. Possible circumstances include “a conflict of interest, an irreconcilable conflict, or a complete breakdown in communication between the attorney and the defendant.” Smith v. Lockhart, 923 F.2d 1314, 1320 (8th Cir. 1991). When a defendant makes an ostensibly valid complaint about his lawyer, the court “has an obligation to inquire thoroughly into the factual basis of the defendant's dissatisfaction.” United States v. Hart, 557 F.2d 162, 163 (8th Cir. 1977). A defendant's refusal to communicate with his attorney will not suffice, Hunter v. Delo, 62 F.2d 271, 274 (8th Cir. 1995), nor will “a defendant's frustration with counsel's performance or disagreement with his tactical decisions, ” United States v. Boone, 437 F.3d 829, 839 (8th Cir. 2006).

         Counsel, Assistant Public Defender Katrina Jones, filed a motion to withdraw on April 9, 2010, in which she stated that Muhammad had terminated her representation in writing. (Respt's Ex. D at 48-49.) On April 14, 2010, Judge Steven R. Ohmer (a pretrial judge) held a hearing on the motion. Muhammad withdrew his request to discharge counsel during the hearing and Judge Ohmer denied defense counsel's Motion to Withdraw. Id. at 50. Judge Ohmer continued the case to July 19, 2010.

         During the pretrial conference on July 19 before Judge Thomas C. Grady, 22nd Judicial Circuit, Division 21, defense counsel stated that she wanted to renew her motion to withdraw. (Respt's Ex. A at 6.) Counsel indicated that in March of that year it was clear that she and Muhammad had a “conflict of interest in the file on certain major points, ” and that Muhammad “really wanted a Muslim attorney.” Id. Defense counsel further explained that she was simultaneously representing Muhammad in a separate misdemeanor domestic violence case in which Muhammad had “renewed or filed a motion to terminate [her] from representing him on the second case.” Id. at 9. Judge Grady questioned Muhammad regarding whether he wished to have his attorney withdraw and proceed pro se. Muhammad stated that he wanted counsel to withdraw, did not want to proceed pro se, and that he wanted substitute counsel to be appointed. Id. at 9-11. This issue had been discussed previously with Judge Ohmer in April. At that time, Muhammad changed his mind and decided he wanted to proceed with Ms. Jones as his attorney. During the initial pretrial conference, Judge Grady commented:

. . .what we have here is a kind of minuet that is a procedural minuet or a square dance that's going on here. And one minute somebody wants the lawyer. The next minute they don't want the lawyer. Then they want that lawyer again. And this hog caller is not going to tolerate that. We are going to have a straight line thing here, and there's not going to be any music. There's not going to be any square dances procedurally. And it is going to be a nice, quiet, fair trial so that the jurors are respected in their dignity and so that the defendant's rights are respected.

Id. at 13.

         Judge Grady then called Ms. Jones' supervisor, James Frazier, who testified that, if there was mere discontent or disagreement with an attorney and no conflict of interest, the public defender's office's policy was not to reassign within the office. Id. at 17. He explained that honoring such requests was unworkable as they'd be making reassignments all of the time if the standard was simply that the defendants were not happy. Id. at 18. To support his dissatisfaction, Muhammad claimed that Ms. Jones had not spoken with him in person prior to the trial. Id. at 19. Judge Grady directed Mr. Frazier to investigate the matter further. Judge Grady also instructed the parties to appear before Judge Ohmer[2] regarding Muhammad's request for substitute counsel as he wanted Judge Ohmer's input on the issue. Id. at 20-21. That very day, after holding a hearing regarding Muhammad's request for substitute counsel, [3] Judge Ohmer denied counsel's motion to withdraw. (Respt's Ex. D at 5.) Later that afternoon, Judge Grady held the final pretrial conference for the case, including review of motions in limine. The case was reconvened for jury selection the following morning and concluded at 6:10 p.m., July 20.

         The next morning (July 21, 2010), before the jury was brought in, Muhammad stated to Judge Grady that Ms. Jones had not discussed the case with him that morning, and that he was unprepared for trial. (Respt's Ex. A at 259-60.) Muhammad stated that he was not requesting additional time but, rather, did not want Ms. Jones to represent him. Id. at 260. Upon questioning by the court regarding whether she was prepared to proceed, Ms. Jones stated as follows:

Your Honor, I am still prepared to go forward with my theory for the last two years. He's not agreed with it, but under the guidelines of representation and not by any order of my office I have explained to him in letter and for months what my theory would be.

Id. at 261-62 (emphasis added). Muhammad denied knowing Ms. Jones' theory of the case. Id. at 262. Judge Grady replied:

Judge Ohmer has gone through this downstairs in great detail, and he is on the record. His discussions with you are on the record. So I am not going to delay this case anymore.

Id. at 262.

         The jury was called in and sworn. Ms. Jones then requested a sidebar wherein she announced that Muhammad asked her if he could waive his right to the jury. Judge Grady was aggravated by the inquiry as the jury had been sworn and stated that he felt he was “being gamed” and didn't “appreciate it.” Id. at 263. Judge Grady expressed his view that Muhammad's averments that Ms. Jones had not seen him in two and a half years were incredulous and that he “assume[d Ms. Jones] responded to that downstairs with Judge Ohmer.” Id. at 263-64. Ms. Jones indicated that she did answer that question to which Judge Grady replied, “I am satisfied with that ruling and that will be the law of the case.” Id. at 264.

         The record reveals that, contrary to Muhammad's depiction of the proceedings, the trial court did inquire into the source of Muhammad's discontent with counsel. In fact, Judge Grady was emphatic about resolving “these what you call wrinkles, because then that distracts from the orderly and fair trial that we have got to get to here.” Id. at 12.

         The record shows that on the first day of trial, Muhammad informed the court that he believed counsel had not communicated effectively with him, and that he disagreed with counsel's trial strategy. Judge Grady understood that Muhammad did not want to be represented by Ms. Jones and that “she share[d] with [Muhammad] a concern about their long standing differences involving this case.” Id. at 15. The Missouri Court of Appeals held that Muhammad's disagreement with counsel regarding trial strategy was an insufficient basis to require substitution of counsel, and that counsel's testimony contradicted Muhammad's accusation that she had not communicated with him before the trial.

         As Judge Grady described it, Muhammad was raising a “private irritation” between lawyer and client which was related to trial strategy and “these things happen during trial.” Id. at 261. It is also worth noting that on the day Muhammad claimed he had not communicated with his attorney regarding trial strategy, he also claimed that trial counsel notified him the day before “that she could not represent me to the full extent of her ability because her supervisors were mad at me for some reason.” Id. at 259. In Ground 21, Muhammad indicates trial counsel communicated a plea offer from the State that he now claims trial counsel should have secured. Id. at 556-57; Doc. 1 at 21. Muhammad's own arguments support that he had ongoing communications with trial counsel prior to trial. There is sufficient evidence in the record to support the court's finding that Muhammad's dissatisfaction with his attorney was not justifiable. Thus, the State court's determination was not contrary to or an unreasonable application of law, nor was it based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings. The first ground for relief is denied.

         2. Ground 2

         In his second ground for relief, Muhammad argues that the trial court erred in failing to grant a mistrial when a venire person fainted after the prosecutor asked whether any members of the panel had been victims of a sexual crime. Muhammad contends that this incident “tainted the other venire members, and negatively affected Petitioner Mr. Muhammad's right to a fair trial and impartial jury.” (Doc. 1 at 16.)

         During voir dire, the prosecutor asked the venire members whether they or their friends or family members had ever been a victim of a sex crime. (Respt's Ex. A at 76.) After several members of the panel responded affirmatively to this question, Juror 352 requested a side bar. Id. at 85. Juror 352 approached the bench, and was noted to be “shaking badly.” Id. She then “fell to the floor, shaking.” Id. The court stated to the venire panel that Juror 352 was “incapacitated at the present time, so we are going to go into a temporary recess.” Id. During the recess, defense counsel moved to strike the panel based on the Juror 352 passing out. Id. at 87. The motion was denied. Id.

         When the venire panel returned to the courtroom after the recess, the court stated:

I want to ask a question of all of you because, as you know, when we recessed for lunch at about 11:30, one of our nice jurors had a spell, I guess you would call it. That's the old time word for it. It wasn't from my observations, I thought perhaps might have been some form of a spasm of some kind. I don't know what it was. Very nice lady. And we have taken good care of her, and she is being treated, and she got quite a bit calmer when the ambulance people came.
But my question to you is this: Because she came up wanting to be heard on a private matter-we never did get to that matter. We don't know what it was, and we can't-it is immaterial what it was. Are there any of you-and I want you to be honest with me. Don't be afraid to answer this question. Are there any of you who, having been in the room when this was occurring, were affected by it in such a way that it would have any coloration on your opinion of the facts as they evolve in this case? In other words, will you be affected by that and distracted by that so that you can't listen to the case here? Because it's very important that we have a fair and attentive jury and not a jury that's distracted by this particular event. So are there any of you who feel that having been in the room when this situation occurred will affect your ability to pay attention to the evidence and to give both sides of this case a fair trial and not hold this event on this very nice lady's very temporary incapacity, hold that against one of the sides, either the State or the defendant? You see what I am asking? Is it going to affect any of you in that kind of various way? Please let me know. If you want to come here to side and tell me privately, that's fine. Anybody have that problem? I see no one raising their hand.

Id. at 87-88.

         Muhammad raised this claim in his direct appeal. The Missouri Court of Appeals held as follows:

“A trial court has broad discretion in determining whether a venire panel should be dismissed, and the court's ruling will not be disturbed on appeal absent a clear abuse of discretion.” State v. Ware, 326 S.W.3d 512, 520 (Mo. App. S.D. 2010). The trial court abuses its discretion if its ruling is clearly against the logic of the circumstances and the ruling is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. Id. We presume the trial court's denial of a motion to quash is correct, and the defendant had the burden of demonstrating otherwise. Id.
Appellant has failed to demonstrate any prejudice resulting from Juror 352 passing out in front of the venire panel. The trial court advised the venire members that it was unclear what caused the woman's collapse and asked the members if they were affected by the experience. None of the panel members indicated that the incident would affect his or her ability to judge the case in any ...

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