Smith v. Bowersox

          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 ...