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Watson v. Godert

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

March 28, 2019

TERRY G. WATSON, Petitioner,



         This matter is before the Court on the Petition of Terry G. Watson for a writ of habeas corpus under 28 U.S.C. § 2254.

         I. Procedural History

         Watson 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.

         In his 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.)

         Watson 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.

         In his 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.)

         Watson 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.)

         Respondent 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.)

         II. Facts[1]

         The 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.

         At some 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.

         Sometime 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.

         At some 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.

         When 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 of 2009.

         Victim's 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.

         Victim 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.

         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 § 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.

         IV. Petitioner's Claims

         Watson raises twenty-two grounds for relief. The undersigned will discuss these claims in turn.

         A. Ground 1

         In his first ground for relief, Watson argues that the prosecutor's comments during closing argument improperly shifted the burden of proof to the defense.

         The 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.)

         The 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.

         Defense 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 fair game.

Id. at 651-52.

         Watson 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.)

         This 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. 2000).

         The 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 denied.

         B. Ground 2

         In his 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 verdict.

         The 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 First-Degree.

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.

         During 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.

         Article 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. Id.

         The 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 ...

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