United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
AUDREY
G. FLEISSIG, UNITED STATES DISTRICTJUDGE
This
matter is before the Court on the pro se petition of Missouri
state prisoner Julius Smith for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. On September 15, 2009,
Petitioner was convicted by a jury of first-degree murder and
armed criminal action for the November 8, 2007 shooting death
of Jonathan Walker. Petitioner was sentenced to life without
parole on the murder charge, and a concurrent sentence of
five years' imprisonment for armed criminal action. 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.
Petitioner
raises eight claims for habeas relief: (1) the trial court
abused its discretion in admitting the testimony of an
investigator (Michael Graves) for the prosecution and a
police officer (James Stagge) regarding gang activity in the
area of the crimes; (2) the trial court erred in admitting
photo exhibits showing gang graffiti in the area; (3) the
trial court erred in admitting the testimony of one of the
two eye witnesses (Corey McCanery) who testified that he had
known Petitioner for approximately seven years, and also
testified that Petitioner had shot him in June 2007, a crime
for which Petitioner was never charged, and which, according
to Petitioner, he did not commit; (4) defense counsel was
ineffective in failing to call two individuals (Kesha Johnson
and Gloria Johnson) as alibi witnesses; (5) defense counsel
was ineffective in failing to ask Petitioner at trial where
he was at the time of the murder; (6) defense counsel was
ineffective in failing to introduce evidence showing that
Petitioner was not the shooter in the June 2007 incident
(namely, photographic evidence that in June 2007, he did not
have dreadlocks), thereby undermining the credibility of
McCanery's identification of Petitioner as Walker's
murderer; (7) defense counsel was ineffective in failing to
request clarification as to what evidence the jury asked to
see during deliberations; and (8) defense counsel was
ineffective in failing to request a mistrial after the jury
indicated it was at an impasse and before the trial court
gave a "hammer" instruction.
Respondent
argues that Petitioner's last claim was procedurally
defaulted, and that the state courts' adjudication of the
remaining claims was factually and legally reasonable. For
the reasons set forth below, federal habeas relief will be
denied.
BACKGROUND
Trial
During
voir dire, both the State and Petitioner told the venire
panel that there would be evidence that the victim and
Petitioner were associated with criminal street gangs.
Venirepersons who indicated a tendency to presume guilt based
on Petitioner's association with a gang were struck for
cause. McCanery, who was 18 years old at the time of trial,
testified that on November 8, 2007, at approximately 6:30
p.m., he was walking on the 4900 block of Aldine Place in the
City of St. Louis when he encountered two friends, Donovan
Wilson and Walker. As McCanery was talking to Wilson and
Walker, a car drove down the street and stopped a short
distance from the three young men. McCanery testified that
Petitioner was driving the car and an individual named Edward
Hughes was also in the car; that Petitioner started firing at
the three men with a semi-automatic handgun; that McCanery
dropped to the ground and hid behind a car; that as Wilson
and Walker attempted to run away, they were both shot; that
Petitioner fired a final shot to where McCanery was hiding,
and drove away. McCanery testified that he ran toward Walker,
saw that he was bleeding, and called the police.
McCanery
testified further that approximately three hours later,
during an interview at the police station, he told the police
that he saw the shooting from a distance, that he was sure
the person in the passenger seat of the car was Hughes, but
that he was not sure that the driver - the person who fired
the shots - was Petitioner. These statements were recorded
and the recording was played for the jury and admitted into
evidence.[1]McCanery testified at trial that he made
these statements to the police because he was nervous and
shaken up. ECF No. 9-1 at 44-45, 50-51.
McCanery
testified that he had known Petitioner for about seven years
before the murder, and that Petitioner had previously shot
him on June 11, 2007. McCanery testified that in June 2007,
Petitioner had dreadlocks, whereas at the time of the
November 8, 2007 shooting he had a "low haircut, "
which was one of the reasons McCanery initially told police
he was not sure the driver of the car was Petitioner.
McCanery
testified that a "couple of months" after the
November 8, 2007 shooting, he identified Petitioner to the
police from a photo lineup as the person who killed Walker.
He also identified Petitioner in the courtroom as the
murderer. On cross-examination, defense counsel brought out
the inconsistencies between McCanery's initial videoed
statements to the police and his trial testimony, as well as
inconsistencies between his trial testimony and a deposition
defense counsel had taken. The deposition was not admitted
into evidence.
Wilson
testified consistent with McCanery, except that Wilson
testified that he did not see who the men in the car were. He
further testified that he never told the police that
Petitioner was the shooter. Wilson testified that he was
involved in gang life as a "4900 Aldine Blood, "
and that he was aware that Petitioner (referred to as
"JuJu") was a member of a rival "Crips"
gang. The State introduced evidence that Walker died at the
scene of the shooting from a gunshot wound to the chest.
Graves
testified that as an investigator for the Circuit
Attorney's Office of the City of St. Louis, he was member
of a "gang unit, " and that in July 2017, he spoke
to Wilson about Walker's murder, and Wilson told him that
"JuJu" was the person who shot and killed Walker.
Id. at 57. Graves also identified six photo exhibits
depicting gang graffiti in the neighborhood of the murder
taken after the murder. Stagge testified that he had special
training and was an expert on criminal gangs. He explained to
the jury what a gang is, and testified at some length about
gangs' propensities for violence and cycles of
retaliation, and how some of the graffiti shown in the
photographs indicated that the two local gangs mentioned
earlier were engaged in an ongoing dispute that involved
reciprocal killings of members of each gang. There was no
physical evidence linking Petitioner to the murder.
Petitioner
was the only witness for the defense. The only question,
other than his identity, that defense counsel asked him was
whether he had killed Walker, to which Petitioner answered,
"No, sir." On cross-examination, Petitioner
testified that he was not a member of the Crips gang
referenced by Wilson, that he did not know McCanery, Wilson,
or Walker, and that McCanery and Walker made up their stories
about what happened at the shooting.
The
first-degree murder charge was submitted to the jury on the
theory of transferred intent. The verdict director instructed
the jury that if it found that Petitioner caused Walker's
death by shooting at McCanery and hitting Walker, that it was
Petitioner's purpose to cause McCanery's death, and
that Petitioner did so after deliberation, then the jury was
to find Petitioner guilty of first-degree murder. In closing
argument, defense counsel stressed the lack of any physical
evidence against Petitioner, McCanery's changing stories
in identifying the shooter, and the State's burden of
proof. After the jury was escorted to the jury room, the
trial court questioned Petitioner about his satisfaction with
defense counsel's performance. Petitioner stated that he
did not help counsel in the preparation of his defense in
that counsel did not call two individuals Petitioner wanted
him to all as alibi witnesses - his girlfriend Kesha Johnson
and her mother Gloria Johnson. Defense counsel stated that he
had contacted them both but that as a matter of trial
strategy, he decided not to call them, and that he discussed
this with Petitioner. Petitioner responded that he did not
agree with counsel on the matter and that he told counsel he
specifically wanted him to call Gloria Johnson. Petitioner
acknowledged that he knew counsel had withdrawn the notice of
alibi defense and that he was not going to call alibi
witnesses. The discussion ended with the court asking
Petitioner if he was happy with counsel's representation
of him, and Petitioner responding, "Yes, sir."
Id. at 95-96.
During
deliberations, the jury requested to see "deposition of
Corey McCanery, " and "transcript of Detective
Graves." Defense counsel argued that he believed the
jury was confused between the videotape of McCanery's
statement to the police (in which McCanery stated that he was
not sure that Petitioner was the driver of the car and the
shooter) and McCanery's deposition. The trial court did
not agree, saying the jury asked for McCanery's
deposition, not the videotape of his statements to the
police. Counsel made a record that he requested that the
videotape be given to the jury; the court denied the request.
The court sent an answer to the jury that they could not
review McCanery's deposition or Grave's transcript.
Id. at 96-97.
After
deliberating for two hours and 45 minutes, the jury told the
trial court that they were at an impasse and the court gave
the following "hammer" instruction, over defense
counsel's objection:
I have one more Instruction that that I am going to read to
you and then I am going to send you upstairs to continue to
deliberate on the case. This will be Instruction number 13.
You should make every reasonable effort to reach a verdict,
as it is desirable that there be a verdict in every case.
Each of you should respect the opinions of your fellow jurors
as you should have them respect yours, and in a spirit of
tolerance and understanding endeavor to bring the
deliberations of the whole jury to an agreement upon a
verdict. Do not be afraid to change your opinion if the
discussion persuades you that you should. But a juror should
not agree to a verdict that violates the Instructions of the
Court, not should a juror agree to a verdict of guilty unless
he is convinced of the defendant's guilt beyond a
reasonable doubt. I will ask you to go upstairs and continue
to deliberate.
ECF No. 9-1 at 97. Approximately 40 minutes later, the jury
returned its verdict of guilty.
Direct
Appeal
On
direct appeal, Petitioner raised the first three claims he
now presents for federal habeas relief: that the trial court
erred in admitting (1) Grave's and Stagge's testimony
about gangs, (2) the photos of gang graffiti in the
neighborhood of the shooting, and (3) evidence that
Petitioner had previously shot McCanery, a crime for which
Petitioner was never charged. As the appellate court noted,
in his motion for a new trial, Plaintiff did not challenge
the admission of Graves' testimony about gangs. The
appellate court stated that Petitioner, therefore, had not
preserved this particular point for appellate review. The
court proceeded to consider the matter for plain error, and
concluded that no "evident, obvious, and clear
error" existed concerning the admission of this
testimony. ECF No. 9-6 at 7.
The
Court then considered whether the trial court erred in
admitting Stagge's gang-related testimony and the photos
of gang graffiti, matters that had been properly preserved
for review. The court noted that generally, evidence of a
defendant's affiliation with a gang is improper character
evidence, but here, Stagge's testimony and the photos
were relevant to explain the State's theory that an
ongoing dispute between the local Bloods and Crips gangs was
Petitioner's motive for the shooting. The appellate court
also believed that the gang-related evidence helped to
establish Petitioner's identity as the shooter by
corroborating McCanery and Wilson's testimony and by
showing that Petitioner had a reason to shoot at them and
Walker. Lastly, the court held that "any potential
prejudice resulting from references to gang activity was
minimal" because both the Sate and Petitioner introduced
the gang issue to the venire panel before trial began, and
any venireperson who indicated a tendency to presume guilt
based on Petitioner's association with a gang was struck
from the jury. Id. at 11. The Missouri Court of
Appeals also rejected Petitioner's third point on appeal,
holding that McCanery's testimony that Petitioner shot
him approximately five months before Walker's murder was
relevant to establishing the identity of Walker's
murderer.
State
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