Tokar v. Bowersox
| Decision Date | 19 March 1998 |
| Docket Number | No. 4:96CV2255 CDP.,4:96CV2255 CDP. |
| Citation | 1 F.Supp.2d 986 |
| Court | U.S. District Court — Eastern District of Missouri |
| Parties | Jeffrey Lane TOKAR, Petitioner, v. Michael BOWERSOX, Respondent. |
Michael J. Gorla, St. Louis, MO, Elizabeth Unger Carlyle, Lees Summit, MO, for Jeffrey Lane Tokar, petitioner.
Frank A. Jung, Assistant Attorney General, Jefferson City, MO, for Michael Bowersox, respondent.
Before the Court is Jeffrey Lane Tokar's petition for a writ of habeas corpus under 28 U.S.C. § 2254, and his request for an evidentiary hearing and for funds for an expert witness. For the reasons that follow, the Court will deny the petition for writ of habeas corpus and the related motions.
Petitioner Jeffrey Lane Tokar was sentenced to death for the murder of Johnny Douglass. Douglass was killed with his own shotgun on March 11, 1992, when he and his two children interrupted a burglary at their rural Audrain County, Missouri, home.
The guilt phase of petitioner's trial began on Monday, May 3, 1993, and lasted five days, with jury selection taking two days. Among the witnesses who testified at the trial were petitioner's girlfriend/accomplice Sandra Stickley, who testified that although she did not witness the shooting, she was assisting petitioner in the burglary of the Douglass home when the victim and his children arrived. Stickley testified that petitioner loaded the shotgun and walked, gun in hand, toward the garage. She heard conversation between the victim and petitioner and heard two gunshots; she testified that petitioner later told her he had killed the victim. Jarad Douglass, petitioner's eight year old son, identified petitioner as the man he saw pointing the gun at his father immediately before he was killed, and identified petitioner's car as the one the family discovered parked in their drive when they returned home and surprised the intruders. Mr. Douglass's five year old daughter, who was standing next to her father when he was shot, did not testify. The state called sixteen witnesses and defendant called nine witnesses during the guilt phase of the trial. On Friday, May 7, 1993, the jury found petitioner guilty after hearing evidence for three days and deliberating for approximately three hours.
The penalty phase of the trial was conducted on Saturday, May 8, 1993. The state called six witnesses during the penalty phase, and defendant called eight witnesses. The jury then recommended that petitioner be put to death, after deliberating for two hours and fifteen minutes. After denying petitioner's motion for a new trial, the trial court entered a sentence of death.
Petitioner filed a pro se motion for post-conviction relief under Missouri Supreme Court Rule 29.15. With assistance of counsel, petitioner filed an amended motion and request for an evidentiary hearing, and a hearing was held on December 12, 1994. Petitioner was not permitted to appear at this hearing, and refused to testify at his deposition prior to the hearing. On February 10, 1995, the court denied petitioner's motions for post-conviction relief. Appeals from this judgment and from the denial of petitioner's motion for a new trial were consolidated to the Missouri Supreme Court, which has exclusive appellate jurisdiction over cases in which a sentence of death is imposed. On March 26, 1996, that court entered its judgment affirming petitioner's conviction, the sentence, and the denial of his post-conviction relief motion. State v. Tokar, 918 S.W.2d 753 (Mo. banc 1996). Subsequently, the court denied petitioner's motions for rehearing and to recall the mandate. The United States Supreme Court denied certiorari on October 15, 1996. ___ U.S. ___, 117 S.Ct. 307, 136 L.Ed.2d 224 (1996).
Petitioner now seeks federal habeas corpus relief, raising the following grounds:
(1) Petitioner was denied effective assistance of counsel at trial and sentencing as follows:
(a) Counsel failed to object to evidence obtained when petitioner was arrested on the ground that there was no probable cause to arrest petitioner, no written probable cause statement supported the arrest warrant, the affidavit in support of the search warrant did not provide probable cause and contained material misstatements of fact, and no exigent circumstances justified the warrantless arrest.
(b) Counsel failed to object to the following improper statements or conduct by the prosecutor during the guilt and penalty phases:
(i) The prosecutor stated that the jurors should pray that their children should not have to experience what the victim's children went through.
(ii) The prosecutor expressed his personal opinion that the death penalty was warranted.
(iii) The prosecutor stated that petitioner, who did not testify, failed to show remorse.
(iv) The prosecutor stated that petitioner's accomplice, his girlfriend, was "not a murderer," and would serve twenty years in prison.
(v) The prosecutor personally vouched for the credibility of petitioner's accomplice.
(vi) The prosecutor stated that petitioner killed the victim as he was begging for his children's lives in their presence, which misstated the evidence.
(vii) The prosecutor stated that the jury was entitled to wreak upon petitioner the vengeance which the victim's family desired.
(c) Counsel failed to investigate and present evidence that the testimony of the state's witnesses as to petitioner's whereabouts was inconsistent with his presence at the murder scene at the time of the crime.
(d) Counsel failed to object to evidence of identification from an impermissibly suggestive line-up.
(e) Counsel failed to object to the following improper conduct of the prosecutor during his opening statement:
(i) The prosecutor stated that the victim was shot in front of his children, when no evidence was presented to support this.
(ii) The prosecutor repeated three times, "We've got the right guy."
(iii) The prosecutor stated that the state had evidence that a tennis shoe print taken at the scene matched petitioner's shoes, although the state's expert was unable to testify to that effect.
(iv) The prosecutor stated that the state had evidence that petitioner had been seen "only a couple of miles" from the victim's home, when the actual distance was twenty-two miles.
(v) The prosecutor misquoted a statement made by petitioner's accomplice concerning what petitioner had told her about the crime, and thus possibly caused the jury some misapprehension on the issue of deliberation.
(f) Counsel failed to investigate and present mitigating evidence that petitioner was suffering from paranoid personality disorder at the time of the crime.
(g) Counsel failed to investigate and present evidence that petitioner was suffering from paranoid personality disorder at the time of trial, which rendered him incompetent to proceed.
(2) Petitioner's arrest was invalid under the fourth amendment.
(3) The following statements made by the prosecutor in his opening statement were improper and denied petitioner due process of law and the right to be free from cruel and unusual punishment in violation of the eighth and fourteenth amendments:
(a) The prosecutor stated that the victim was shot in front of his children, although no evidence was presented that this was the case.
(b) The prosecutor thrice said, "We've got the right guy."
(c) The prosecutor stated that the state had evidence that a tennis shoe print taken at the scene matched petitioner's shoes, although the state's expert was unable to testify to that effect.
(d) The prosecutor stated that the state had evidence that petitioner had been seen "only a couple of miles" from the victim's home, when the actual distance was twenty-two miles.
(e) The prosecutor misquoted a statement made by petitioner's accomplice concerning what petitioner had told her about the crime, and thus possibly caused the jury some misapprehension on the issue of deliberation.
(4) The following statements made by the prosecutor in his final argument denied petitioner due process of law and the right to be free from cruel and unusual punishment in violation of the eighth and fourteenth amendments:
(a) The prosecutor told the jurors that they should pray that their children should not have to experience what the victim's children went through.
(b) The prosecutor expressed his personal opinion that the death penalty was warranted.
(c) The prosecutor stated that petitioner, who did not testify, failed to show remorse.
(d) The prosecutor stated that petitioner's accomplice, his girlfriend was "not a murderer," and would serve twenty years in prison.
(e) The prosecutor personally vouched for the credibility of the petitioner's accomplice.
(f) The prosecutor stated that petitioner killed the victim as he was begging for his children's lives in their presence, which misstated the evidence that the victim was on his feet when the final shot was fired and the children were not present.
(g) The prosecutor told the jury that it was entitled to wreak upon petitioner the vengeance which the family of the victim desired.
(5) The prosecutor's use of an analogy about a hallway with three doors during jury selection limited the jurors' consideration of mitigating evidence at sentencing, and deprived the petitioner of due process of law and subjected him to cruel and unusual punishment in violation of the eighth and fourteenth amendments.
(6) The admission of evidence that the petitioner has AIDS violated his rights to due process of law and to be free from cruel and unusual punishment in violation of the eighth and fourteenth amendments.
(7) The trial court's instruction to the jury that it must consider evidence in aggravation before considering evidence in mitigation violated petitioner's rights to due process of law and to be free from cruel and unusual punishment in...
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