United States District Court, E.D. Missouri, Eastern Division
TERRY G. WATSON, Petitioner,
CHANTAY GODERT, Respondent.
MEMORANDUM AND ORDER
CRITES-LEONI UNITED STATES MAGISTRATE JUDGE
matter is before the Court on the Petition of Terry G. Watson
for a writ of habeas corpus under 28 U.S.C. § 2254.
is currently incarcerated at the Northeast Correctional
Center in Bowling Green, Missouri, pursuant to the sentence
and judgment of the Circuit Court of Jefferson County,
Missouri. (Respt's Ex. D at 63-65.) On February 29, 2012,
a jury found Watson guilty of first-degree statutory rape,
second-degree statutory rape, two counts of first-degree
statutory sodomy, and incest. Id. at 42-46. The
court followed the jury's recommendation and sentenced
Watson to an aggregate sentence of nineteen years'
imprisonment. Id. at 56-65.
direct appeal of his convictions, Watson raised three claims:
(1) the trial court abused its discretion in submitting an
instruction to the jury regarding the requirement of
unanimity for the count of first degree statutory rape; (2)
the trial court plainly erred in allowing the prosecutor to
make certain statements in closing argument, and that those
statements resulted in manifest injustice; and (3) the trial
court plainly erred in admitting the victim's
brother's testimony regarding Watson's alleged
violence toward him. (Respt's Ex. B.) On September 3,
2013, the Missouri Court of Appeals affirmed the judgment of
the trial court. (Respt's Ex. E.)
filed a pro se motion for post-conviction relief
under Rule 29.15. (Respt's Ex. F at 5-60.) After
appointment of counsel, an amended post-conviction relief
motion and request for evidentiary hearing was filed.
Id. at 66-139. The amended motion raised the
following claims: (1) trial counsel was ineffective in
failing to introduce available medical records indicating
Watson was diagnosed and treated for erectile dysfunction, a
condition relevant to his theory of defense; and (2) trial
counsel was ineffective for failing to file a pretrial motion
to dismiss pursuant to Rule 25.18 or, in the alternative, for
sanctions, because Deputy Carden Choney intentionally
destroyed the victim's first statement and knew of its
exculpatory nature. Id. at 74, 69, 75. The motion
court denied Watson's amended motion after holding an
evidentiary hearing. Id. at 140-47.
single point on appeal from the denial of post-conviction
relief, Watson raised the claim that trial counsel was
ineffective related to Deputy Choney's destruction of the
victim's statement. (Respt's Ex. G.) The Missouri
Court of Appeals affirmed the decision of the motion court.
(Respt's Ex. I.)
filed the instant Petition on December 16, 2015, in which he
raises the following grounds for relief: (1) the
prosecutor's comments during closing argument improperly
shifted the burden of proof to the defense; (2) the trial
court abused its discretion in overruling Watson's
objection to instruction number 9; (3) the trial court erred
in allowing testimony from Watson's son regarding
Watson's physical abuse; (4) trial counsel was
ineffective in failing to introduce medical records to prove
Watson suffers from erectile dysfunction; (5) the prosecutor
committed misconduct by asking witnesses why Watson disliked
the victim's boyfriend; (6) the prosecution stole
valuable property and evidence from his home; (7) the
State's witnesses committed perjury; (8) the prosecutor
relied on facts outside of evidence during his closing
argument; (9) the police should have prevented the victim
from deleting her Facebook account and emails; (10) trial
counsel was ineffective for failing to call an orthopedic
surgeon or pain specialist at trial; (11) trial counsel was
ineffective for failing to call an expert to testify about
DNA evidence, police procedure, or child psychology; (12) the
evidence was insufficient to convict him of statutory rape,
statutory sodomy, and incest; (13) the prosecutor violated
attorney-client privilege by asking Watson's probation
officer what he told her; (14) members of the jury were
biased against him; (15) trial counsel was ineffective for
failing to pursue a defense based on the fact the victim did
not report the abuse for several years; (16) the prosecutor
improperly named Watson's son as a “victim”
in his opening statement; (17) he was prejudiced when his son
testified at trial about an instance in which the son was
highly intoxicated; (18) the trial court erred in asking
Watson to remove military service medals in front of the
jury; (19) the prosecution failed to obtain phone records
showing text messages he sent to the victim; (20) his son
committed perjury because his trial testimony was
inconsistent with his testimony at a preliminary hearing;
(21) the victim's testimony a trial concerning foreign
exchange students was inconsistent; and (22) the prosecutor
improperly vouched for the credibility of the State's
witnesses during closing argument. (Doc. 12.)
filed a Response to Order to Show Cause, in which she argues
that grounds 4 through 22 are procedurally defaulted, and all
of Watson's claims fail on their merits. (Doc. 41.)
Watson filed a Traverse, as well as supplemental evidence, in
support of his claims. (Doc. 43.)
Victim (“Victim”) is the daughter of Petitioner
Terry G. Watson and Gina Watson (“Mother”). She
grew up living with both parents in Imperial, Missouri.
Sometime in 2001, when Victim was 12 years old, she came home
from school to find her father sitting on the couch watching
pornography on television. Mother was still at work. Victim
had seen the film her father was watching, and he told her
that day that he knew she had watched his pornography. Watson
told Victim he was going to teach her what sex was about.
Nothing further happened that day.
point after this, when Victim was still 12 years old, Watson
called Victim into his bedroom. He told her he was going to
work her out. She was on her parents' bed, and Watson put
a dildo inside her vagina. She cried and told him it hurt. He
continued to use objects like this with Victim for about one
year, at least three to four times per month.
after Watson stopped using dildos on Victim, he called her
into his bedroom, had her get on her knees, and instructed
her to suck his penis. This happened during the school year
in the afternoon. Victim gagged and teared up at one point,
and Watson told her he would not do it like that again.
Watson had Victim perform oral sex on him multiple times
until Victim was 18 or 19 years old.
point when Victim was around 13 years old, Watson began
having sexual intercourse with her. It would take place
either in Watson's bedroom or the living room. In the
living room it would take place either on the couch or on the
floor. When it took place in the living room, Watson would
turn pornography on the television, Victim would take her
clothes off, Watson would take his clothes off, and he would
be on top of her while having sex with her. Watson had sex
with Victim three to four times per month.
Victim was 13 or 14 years old, Mother found out about
Watson's sexual activity with Victim. Victim heard her
parents arguing about it, and after that, Mother became
involved. Victim testified it would then be sex between the
three of them sometimes. Victim also testified that Watson
wanted to make sure she had not told anyone about their
sexual activity, but that learning about sex from family
members was normal and would happen for kids in Germany
around age 12. Victim testified that the last time any sexual
activity occurred between Defendant and Victim was in January
half-brother and Watson's son, Joseph Watson, moved into
Watson's house in 2003, when Joseph was 15 years old.
Joseph also became aware of Watson's sexual activity with
Victim, and he witnessed Watson and Victim having sexual
intercourse. Joseph also became involved in “family sex
sessions” that took place with Watson, Mother, Joseph,
and Victim all present. Joseph testified that Watson also
told Joseph to perform sexual acts on Victim, which he did.
When Joseph was 17 years old, after an incident in which
Watson became angry with Joseph and threw a pick axe at
Joseph and Victim, Joseph moved out.
did not tell anyone about these incidents until 2010. She was
dating a man who her father did not like, and she wanted to
move out of the house. She told her aunt and her boyfriend
about the sexual incidents with Watson. She was afraid she
would not be able to get her things out of her house safely,
because Watson was abusive and had threatened violence
against her boyfriend. She asked police to accompany her to
her home so she could remove her things. Deputy Carden Choney
went with Vitim and her boyfriend to Victim's house.
Deputy Choney waited outside while Victim retrieved her
things, and no one else was present while they were there.
Deputy Choney consulted detectives about further
investigation, and he decided not to investigate for physical
evidence of the sexual abuse in the house. This was because,
given that it had been over one year since the last sexual
incident, the detectives told Deputy Choney they believed no
DNA evidence would be present.
Standard of Review
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;
(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).
Supreme Court construed § 2254(d) in Williams v.
Collins, 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.
raises twenty-two grounds for relief. The undersigned will
discuss these claims in turn.
first ground for relief, Watson argues that the
prosecutor's comments during closing argument improperly
shifted the burden of proof to the defense.
following remarks are at issue:
If you are on trial for this, for something like this, and
you didn't commit, you want to prove your innocence. You
absolutely do. Obviously the defendant wanted to tell you he
was innocent. He trots out medial records of a knee. But if
you are faced with an offense that requires sexual activity,
and you can't perform it regularly. And you've
allegedly have medical documentation to that effect, but what
you actually bring to a show-to show to the jury is a knee
problem? They weren't thinking. And again, because they
are trying so hard to make people look like liars, that they
have lost their common sense.
(Respt's Ex. A at 630-31.)
prosecutor was referring to Watson's defense theory that,
due to various injuries and medications he was taking, he was
unable to maintain an erection during sexual intercourse
unless he was positioned with the woman on top of him.
Id. at 518-19, 569-71. Watson argued that it was
physically impossible for him to have sexual intercourse with
Victim, because she testified that Watson was always on top
of her during intercourse. Id. In support of this
defense theory, Watson introduced medical records relating to
a knee surgery he underwent, but introduced no evidence
documenting any erectile dysfunction. Id.
counsel, in his closing, reminded the jury that the State had
the burden of proof, and that it was not up to Watson to
prove his erectile dysfunction. Id. at 643. In his
rebuttal, the prosecutor stated as follows:
And I admit, the burden is always on the State in a criminal
case. However, the trick is, once the defendant opens his
mouth, it's fair game. So he trots in medical records to
show his condition. I mean he thought that was so important
that he showed you about his knee, that he brought the
records. Why on earth is that important? His knee? When the
actual records that would actually poke holes in her case,
the erectile dysfunction, weren't given. So yeah, I do
still have the burden of proof, but don't get confused
for a second. The second they opened their mouth, it's
Id. at 651-52.
challenged the prosecutor's statements in his direct
appeal, arguing that the trial court plainly erred by failing
to sua sponte intervene. The Missouri Court of
Appeals held as follows:
In light of the whole record, we do not see plain error in
the trial court's decision not to intervene in this
argument absent a defense objection. While Defendant
correctly points out that intentional misstatements of the
burden of proof are plain error, we do not see such
misstatements present in the context of the whole record.
Cf. State v. Jackson, 155 S.W.3d 849, 854 (Mo. App.
W.D. 2005). Rather, the State correctly represented the
burden of proof in its initial closing and in rebuttal. The
State then clarified that once Defendant testified, the State
was at liberty to attack Defendant's conclusions
regarding the evidence and point out Defendant's own
inconsistencies, despite Defendant's attempt to show
himself innocent. See State v. Taylor, 831 S.W.2d
266, 269-70 (Mo. Ap. E.D. 1992). These are not misstatements
of the law. See Id. We see no evident, obvious, and
clear error on the part of the trial court, and thus we need
not determine whether any error caused manifest injustice.
See Irby, 254 S.W.3d at 192. Point denied.
(Respt's Ex. E at 14.)
Court may grant Watson habeas relief only if “the
prosecutor's closing argument was so inflammatory and so
outrageous that any reasonable trial judge would have sua
sponte declared a mistrial.” James v.
Bowersox, 187 F.3d 866, 869 (8th Cir. 1999). With
“the strict due process standard of constitutional
review, the deferential review mandated by the AEDPA, and
[this Court's] less reliable vantage point for gauging
the impact of closing argument on the overall fairness of a
trial, ” the Court's review of whether the
State's closing argument violated Watson's right to
due process is “exceptionally limited.” Id.;
see also Sublett v. Dormire, 217 F.3d 598, 600 (8th Cir.
State court's determination was neither contrary to nor
an unreasonable application of clearly established Federal
law. The prosecutor did not misstate the State's burden
of proof. Rather, the prosecutor simply attacked the
reasonableness of Watson's testimony, while clarifying on
rebuttal that the burden of proof remained with the State.
Thus, the prosecutor's remarks did not violate
Watson's Due Process rights. Accordingly, Ground One is
second ground for relief, Watson argues that the trial court
abused its discretion in submitting jury instruction 9, over
Watson's objection. He contends that the instruction
could have allowed the jury to convict without a unanimous
State submitted Instruction No. 9 pursuant to State v.
Celis-Garcia, 344 S.W.3d 150, 154-55 (Mo. banc 2011).
(Respt's Ex. D at 28.) Instruction 9 reads as follows:
The State of Missouri, County of Jefferson alleges that the
defendant committed acts of Statutory Rape in the First
Degree, to wit: the defendant had sexual intercourse with
[K.W.], who was less than fourteen years old, on multiple
occasions in Instruction Number 8. To convict the defendant
of Statutory Rape in the First Degree, one particular act of
Statutory Rape in the First Degree, to wit: having sexual
intercourse with K.W., must be proved beyond a reasonable
doubt, and you must unanimously agree as to which act has
been proved. You need not unanimously agree that the
defendant committed all the acts of Statutory Rape in the
Id. (emphasis added). The same Celis-Garcia
instruction was repeated for each offense in Instruction Nos.
11, 13, 15, and 17. Id. at 30, 32, 34, 36.
the instructions conference, Watson objected to all of the
Celis-Garcia instructions because they
“confuse the jury, and [provide] fair grounds to either
be confused or wrongfully convict [his] client of these
offenses.” (Respt's Ex. A at 610.) The court denied
Watson's request to remove those instructions from the
packet. Id. at 611.
I, § 22(a) of the Missouri Constitution guarantees a
criminal defendant the right to a unanimous jury verdict.
Celis-Garcia, 344 S.W.3d at 155 (Mo. banc 2011)
(citing State v. Hadley, 815 S.W.2d 422, 425 (Mo.
banc 1991)). “For a jury verdict to be unanimous, the
jurors must be in substantial agreement as to the
defendant's acts, as a preliminary step to determining
guilt.” Id. The issue of jury unanimity is
implicated in “multiple acts” cases, which arise
“when there is evidence of multiple distinct criminal
acts, each of which could serve as the basis for a criminal
charge, but the defendant is charged with those acts in a
single count.” Id. at 155-56. The Missouri
Supreme Court in Celis-Garcia clarified the
requirements of a unanimous verdict in these types of cases.
Court instructed that a defendant's right to a unanimous
jury verdict would be protected in a multiple acts case by
either: (1) the State “electing the particular criminal
act on which it will rely to support the charge;” or
(2) the verdict director “specifically describing the
separate criminal acts presented to the jury and the jury
being instructed that it must agree unanimously that at least
one of those acts occurred.” Id. at 157. The
Court declined to address the State's argument
“that requiring the [S]tate to differentiate between
multiple acts would make it impossible to prosecute sexual
abuse cases involving repeated, identical sexual acts
committed at the same location and during a short time span
because the victim would be unable to distinguish
sufficiently among the acts.” Id. at 157 n.8.
Rather, the Court ...