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Lomax v. Cassady

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

March 28, 2018

SAMUEL LOMAX, Petitioner,
v.
JAY CASSADY, Respondent.

          MEMORANDUM AND ORDER

          JEAN C. HAMILTON, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Missouri State prisoner Samuel Lomax's pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The motion is fully briefed and ready for disposition.

         On August 3, 2011, a jury in the Circuit Court of St. Louis City, Missouri, found Petitioner guilty of one count of robbery in the first degree, one count of armed criminal action, two counts of robbery in the second degree, one count of attempted robbery in the second degree, one count of tampering in the first degree, one count of assault in the third degree, one count of resisting arrest, and one count of unlawful use of drug paraphernalia. On September 16, 2011, Petitioner was sentenced as a prior and persistent offender to consecutive life sentences on the robbery in the first degree and armed criminal action convictions, concurrent sentences of fifteen, seven, and four years on the remaining felonies, and concurrent sentences of ten months in a medium security institution on the misdemeanors. The Missouri Court of Appeals affirmed the convictions and sentence. State v. Lomax, 387 S.W.3d 420 (Mo. App. 2012). Petitioner thereafter filed a motion for post-conviction relief pursuant to Missouri Supreme Court Rule 29.15, which was denied without an evidentiary hearing. The Missouri Court of Appeals affirmed the denial of post-conviction relief. Lomax v. State, 507 S.W.3d 619 (Mo. App. 2016).

         Petitioner is currently incarcerated at the Jefferson City Correctional Center in Jefferson City, Missouri. In the instant petition for writ of habeas corpus, Petitioner raises the following four claims for relief:

(1) That the trial court erred in denying Petitioner's motion for judgment of acquittal, as the State's evidence was insufficient to prove that Petitioner committed the crime of tampering;
(2) That the trial court erred in denying Petitioner's motion for judgment of acquittal, as the State's evidence was insufficient to prove that Petitioner committed the crime of robbery in the second degree for the alleged offense involving Ms. Mandjiak;
(3) That the trial court erred in denying Petitioner's pro se motion to disqualify the public defender's office on the grounds of conflict of interest; and
(4) That Petitioner received ineffective assistance of counsel, in that trial counsel failed to advise Petitioner regarding the plea process.

         The Court will address the claims in turn.

         DISCUSSION

         I. Ground 1

         As stated above, in Ground 1 of his petition Petitioner asserts the trial court erred in denying Petitioner's motion for judgment of acquittal, as the State's evidence was insufficient to prove that Petitioner committed the crime of tampering. Petitioner raised this claim on direct appeal of his convictions. The Missouri Court of Appeals first outlined the facts established through evidence at trial as follows:

Jeffrey Schneider (Schneider) worked for a church organization in the City of St. Louis. The church organization owned a white 1995 Chevrolet half-ton pickup truck with the license plate number 1WG-534. On April 3, 2010, Schneider drove the truck to the church organization's office, parked it in the parking lot next to the main building, and went inside the building. The key used to start the truck was in Schneider's possession, and he did not leave it in the vehicle. When Schneider returned to the parking lot two to three hours later, the truck was gone and broken glass was on the ground where the truck had been parked. Schneider reported the theft to the police and provided the police with a description of the truck and its license plate number.
Several hours later, at approximately 5:15 p.m., David Scott (Scott) was walking along Oakland Avenue when he saw a struggle between a man and another person at a bus stop. Scott believed the man was an African American in his 40s, but Scott could see only the feet of the other person because the shelter at the bus stop obscured his view. Scott watched as the man and the other person pushed and pulled an object. A short while later, Scott saw the man run from the bus stop carrying a woman's purse. The man got into a white truck with the license plate number 1WG-534 and drove away. Scott noted the license plate number then went to the bus stop. There, he found an elderly woman who seemed distraught and confused; she had bruises on her face and scrapes on her arms and legs. The woman told Scott that the man he had seen running from the bus stop had stolen her purse. Scott called the police to report the incident.
When a police officer arrived at the bus stop, Scott and the elderly woman, Dorothy Mandjiak (Mandjiak), described the incident. The officer immediately broadcast the description of Mandjiak's assailant and of the truck. Mandjiak told the officer that the man had punched her in the face, and her face was swollen. As the officer took Mandjiak's report of the incident, the officer heard a radio broadcast regarding another robbery involving a man matching the description of Mandjiak's assailant and the white truck and license plate number the assailant had driven away. The second robbery occurred approximately seven blocks from where Mandjiak was attacked.
At approximately 5:25 p.m., Durie Shiebler (Shiebler) was trying to fuel a U-Haul truck at a gas station a few blocks from where Mandjiak had been attacked. Shiebler saw Defendant[1] walking toward the truck. Defendant was wearing a yellow plaid jacket and dark pants and carrying a tire iron. Defendant reached into the truck where Shiebler was sitting, grabbed a wallet hanging from a cord or chain around Shiebler's neck, and “ripped it off really hard.” Defendant then opened the door of the truck and tried to forcibly pull Shiebler out of the truck. Schiebler [sic] fought back by kicking Defendant in the chest and then screaming. Defendant reached inside the truck and snatched Shiebler's purse, which was on the front seat. Shiebler's friend ran out of the gas station and scared Defendant off. Shiebler saw Defendant get into a white pickup truck and noted part of the license plate number, 1WG. Shiebler reported the robbery to police and described the truck. Shiebler also described Defendant as a tall, medium build, middle-aged, medium-skinned, African-American male. Shiebler later identified Defendant in a photo lineup. Shiebler also identified Defendant's jacket and the tire iron.
A short time later, at approximately 6:15 p.m., Ann Brockland (Brockland) was securing her two-year old son in a car seat in the back of her parked car near Lafayette Square. Brockland noticed a white Chevrolet pickup truck stop in the middle of the street after it passed her car. Brockland saw Defendant carrying a crowbar walk in front of her car. Brockland faced Defendant and asked what he wanted. Defendant raised the crowbar and told Brockland to “shut the f*** up or I'm going to f****** kill you.” Defendant opened the passenger door of Brockland's car and took her purse, which had been on the front seat. Defendant told Brockland that if the purse did not have any money in it, he would kill her. As Defendant began to rummage through the purse, he was startled and walked toward the truck. Brockland started screaming, and Defendant got into the truck on the driver's side and drove away. Brockland saw that Defendant was the only person in the truck. Brockland reported the incident to police and provided a description of Defendant, his clothing, and the white pickup truck. Brockland later identified Defendant in a live lineup. She also recognized some of her property that was subsequently found inside the white truck.
Later that night, just after 10 p.m., Courtney Tiemann (Tiemann) parked her car on a side street near an apartment building on Washington Avenue. After exiting her car, Tiemann heard a loud noise and saw Defendant jump out of a white pickup truck. As Defendant lunged toward Tiemann, she turned and faced him, but he grabbed at her necklace and knocked her to the ground. Defendant also grabbed Tiemann's left arm, leaving a bruise. When Tiemann screamed, Defendant ran back to the truck, hopped in, and took off. Tiemann reported the incident to police and provided a description of Defendant, his clothing, and the white truck. A witness to the incident involving Tiemann and Defendant provided the license plate number of the truck. Tiemann subsequently identified Defendant in a live lineup.
After the incident involving Tiemann and Defendant, police placed a “wanted” notice on the white pickup truck. One of the officers then left the police station at the end of his shift. As the officer was driving home, the officer observed a pickup truck matching the description of the white Chevrolet pickup truck on which he had placed the “wanted” notice. The officer followed the truck and found it parked 15 to 20 blocks away from the location of the incident involving Tiemann and Defendant. The officer confirmed the license plate number as the same number provided by the witness to the incident involving Tiemann and Defendant, then he notified an officer still on duty that he had located the “wanted” vehicle. The truck then drove away.
The second officer, who was still on duty, drove his police cruiser toward the location the truck had last been seen. The officer saw the truck, followed it, and activated his police cruiser's lights and sirens. The truck pulled to the curb but sped away as the officer walked toward it. The officer pursued the truck, which reached speeds of up to 70 miles per hour. The truck ran a red light and collided with another vehicle. Both the truck and the other vehicle sustained significant damage in the collision. However, when officers approached the truck, they found Defendant sitting in the driver's seat with his foot on the gas pedal, revving the engine. The officers ordered Defendant to exit the truck, but Defendant refused. The officers forcibly removed Defendant, advised Defendant that he was under arrest for first-degree tampering, and informed Defendant of his Miranda rights. Defendant, using profanity, told the officers, “I know all that s***. You can't chase stolen cars, you're in more trouble than I am.”
When officers conducted a search of Defendant incident to the arrest, they found a glass smoking tube typically used for smoking crack. Subsequent testing revealed that the pipe contained traces of cocaine base. The officers then searched the truck and found that the steering column had been cracked and that a screwdriver had been used instead of a key in the ignition. The officers also found inside the truck a tire iron and clothing matching the description of the clothing worn by the suspect involved in the robberies or attempted robberies of Mandjiak, Shiebler, Brockland, and Tiemann.

         (Resp. Exh. E, PP. 2-6). The Missouri Court of Appeals then considered and rejected Petitioner's first claim for relief, as follows:

In his first point, Defendant claims the trial court erred in overruling his motions for judgment of acquittal and in entering judgment on the jury's finding of guilty on Count VI, first-degree tampering, because the evidence was insufficient to establish beyond a reasonable doubt that Defendant did not have permission to possess or operate the truck. Defendant argues that the owner of the truck did not testify and that the State did not present any evidence showing that Defendant did not have the owner's permission….
In reviewing a challenge to the sufficiency of the evidence to support the jury's verdict, this Court must look to the elements of the crime, consider each in turn, and consider whether a reasonable juror could have found the defendant guilty of each of the elements beyond a reasonable doubt. State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc 2001); State v. Grim, 854 S.W.2d 403, 411 (Mo. banc 1993). We view the evidence and all favorable inferences drawn therefrom in the light most favorable to the verdict and disregard inferences to the contrary. Whalen, 49 S.W.3d at 184; Grim, 854 S.W.2d at 411. This Court will not supply missing evidence or draw unreasonable, speculative, or forced inferences. Whalen, 49 S.W.3d at 184. “[The] [t]estimony of a single witness, if deemed credible by the jury, may be considered sufficient for conviction, though that testimony is uncertain or inconsistent.” State v. Uptegrove, 330 S.W.3d 586, 590 (Mo. App. W.D. 2011), quoting State v. Case, 140 S.W.3d 80, 91 (Mo. App. W.D. 2004).
With regard to Defendant's first point, the State was required to present evidence at trial establishing that Defendant committed first-degree tampering in violation of Section 569.080.1(2). Section 569.080 provides, in pertinent part:
1. A person commits the crime of tampering in the first degree if: …
(2) He or she knowingly receives, possesses, sells, alters, defaces, destroys or unlawfully operates an automobile, airplane, motorcycle, motorboat or other motor-propelled vehicle without the consent of the owner thereof.
“To establish this offense, the State must prove the defendant knew he was operating the car without the consent of the owner.” State v. Presberry, 128 S.W.3d 80, 96 (Mo. App. E.D. 2003) (quotation omitted). Direct proof of the required mental state may not be available, so intent may be inferred from circumstantial evidence. Presberry, 128 S.W.3d at 96. “Even in a circumstantial evidence case, the evidence need not be conclusive of guilt, nor must the evidence exclude every hypothesis of innocence.” Id., citing State v. Martin, 882 S.W.2d 768, 770 (Mo. App. E.D.l994). “Proof of a defendant's knowledge he is operating a motor vehicle without the owner's consent may take several forms.” Presberry, 128 S.W.3d at 96. When a defendant is stopped while operating a stolen vehicle, evidence such as the presence of a broken steering column in the vehicle or the presence of a tool used to bypass the ignition key is strong evidence to support the inference that the defendant knowingly operated the vehicle without the owner's consent. Id. “Additionally, the knowledge element for first degree tampering may be established through evidence that links the defendant who is stopped while operating a stolen vehicle to the theft of that vehicle.” Id.
Here, the State presented sufficient evidence establishing that Defendant had committed first-degree tampering.
First, at the time of his arrest, Defendant admitted that he was driving a stolen car. One of the police officers who had forcibly removed Defendant from the driver's seat of the truck after the collision with another vehicle testified that, after advising Defendant of his Miranda rights, including the right to remain silent, Defendant told the officer, “I know all that s***. You can't chase stolen cars, you're in more trouble than I am.” The officer also testified that he observed the steering column had been cracked and that a screwdriver had been used instead of a key in the ignition, which was a known method of operating a vehicle without using a key to start it.
Second, we disagree with Defendant's assertion that no “officer or agent” of the record owner of the truck, the church organization, testified at trial and that no evidence supported the State's claim that Schneider was an agent of the church organization. “The proof of a lack of consent under Section 569.080 is not limited to the testimony of the title owner, but may be provided by the testimony of the person who had the exclusive use and possession of the vehicle at the time of the alleged tampering.” State v. White, 947 S.W.2d 101, 103 (Mo. App. W.D. 1997). Schneider, who was the employee of the church organization that owned the white 1995 Chevrolet half-ton pickup truck with the license plate number 1WG-534, testified that he drove the truck in connection with his employment. Schneider testified that only he had permission to operate the truck on behalf of employer, that he did not know Defendant, and that he had not given Defendant permission to operate the truck. Schneider testified that on the day the truck was stolen, he had driven it to the church organization's office, parked it in the parking lot next to the main building, and went inside the building. Schneider testified that the key used to start the truck was in his possession and that he did not leave it in the vehicle. Schneider further testified that when he returned to the parking lot two to three hours later, the truck was gone and broken glass was on the ground where the truck had been parked. Schneider reported the theft to the police and provided the police with a description of the truck and its license plate number. Schneider's testimony regarding his employment relationship with the church organization and the fact that his employer had given only Schneider permission to operate the truck on behalf of employer was sufficient to establish that neither he nor the church organization gave Defendant permission to operate the truck. See White, 947 S.W.2d at 103.
Accordingly, from this evidence, a reasonable juror could have inferred that Defendant operated the truck without the consent of the church organization. Defendant's first point is denied.

         (Resp. Exh. E, PP. 7-10).

         With respect to federal court review of state court conclusions, 28 U.S.C. § 2254 states in pertinent part as follows:

(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 B
(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 ...

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