Gee v. Groose

• Decision Date: 29 May 1997
• Docket Number: No. 96-2668,96-2668
• Citation: 110 F.3d 1346
• Parties: Terry GEE, Appellant, v. Michael GROOSE, et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1346

110 F.3d 1346

Terry GEE, Appellant, v. Michael GROOSE, et al., Appellees.

No. 96-2668.

United States Court of Appeals,Eighth Circuit.

Submitted Jan. 17, 1997.

Decided April 11, 1997.

Rehearing and Suggestion for Rehearing En Banc Denied May 29, 1997.

Julia J. Lilly, argued, St. Louis, MO, for appellant.

Stephen Hawke, argued, Jefferson City, MO (Michael J. Spillane, on the brief), for appellees.

Before MURPHY, Circuit Judge, JOHN R. GIBSON, Senior Circuit Judge, and KYLE, ¹ District Judge.

KYLE, District Judge.

Terry Gee ("Gee") appeals the District Court's ² denial of his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. We affirm.

Background

On April 18, 1990, Gee was convicted by a jury in Missouri Circuit Court of three counts of first degree robbery and three counts of armed criminal action. The trial court denied Gee's motion for a new trial, finding that there was no probable cause to believe that his trial counsel had been ineffective. Gee then filed a timely notice of appeal; in addition, he filed an motion for postconviction relief under Missouri Supreme Court Rule 29.15, which was denied because of its untimely filing.

His consolidated appeal challenged his conviction, sentence, and the denial of his Rule 29.15 motion. The Missouri Court of Appeals affirmed the conviction and the denial of his Rule 29.15 motion, but remanded for a correction of sentence.

Gee then filed state habeas corpus petitions in the Circuit Court of Cole County, the Missouri Court of Appeals, and the Missouri Supreme Court. Each was denied. He subsequently filed a federal habeas petition which was dismissed except as to the Batson issue, ³ which was referred to a magistrate judge for a Report and Recommendation ("R & R").

The Magistrate Judge ⁴ held an evidentiary hearing on the Batson claim and issued his R & R recommending that the claim be denied. The District Court adopted the R & R, and dismissed the case with prejudice. This appeal followed.

Discussion

In support of his appeal, Gee alleges the following: 1) he was denied his Sixth Amendment right to confrontation and cross-examination, as well as his due process right to a fair trial when the trial court received a detective's hearsay testimony connecting him to the crimes being tried; 2) he was denied his right to equal protection when the trial court over-ruled his Batson challenges; 3) he was denied his right to equal protection and due process when the trial court dismissed his Rule 29.15 motion as untimely; and 4) he was denied his right to effective assistance of counsel.

The Applicable Law of Habeas

Before turning to Gee's arguments, we must first address the issue of the substantive law applicable to our review. On April 24, 1996, 28 U.S.C. § 2254 ("the Act") was amended by the Antiterrorism and Effective Death Penalty Act of 1996. Pub.L.No. 104-132, 110 Stat. 1214. ⁵ Gee's appeal was pending at the time of the modification. The parties disagree as to which version of the Act applies. The Government seeks application of the amended version of the Act, while Gee maintains the amendment should not be applied.

Our Circuit has not yet decided the issue of the applicability of the new Act to cases pending on appeal at the time of its enactment. See, e.g., Preston v. Delo, 100 F.3d 596, 599 n. 4 (8th Cir.1996) ("We have not yet taken a position on whether the amendments to section 2254 apply to cases that were pending on April 24, 1996."), Oliver v. Wood, 96 F.3d 1106, 1108 n. 2 (8th Cir.1996), Cert denied, --- U.S. ----, 117 S.Ct. 992, 136 L.Ed.2d 872 (1997) ("We have not yet determined to what extent the new Act applies to noncapital cases pending on appeal."). Instead, we have been faced with cases in which the claims presented were "either procedurally barred or fail[ed] under the more lenient provisions of the old law." Preston, 100 F.3d at 599 n. 4; see also Bannister v. Delo, 100 F.3d 610, 612 (8th Cir.1996) ("Because we hold that Bannister is not entitled to relief under the prior more lenient habeas law, we do not address the state's contention that the [new] Act is applicable to this appeal and precludes relief.")

The case at bar is no different. We find that here, too, Gee's claims fail under even the less restrictive provisions of the Act prior to its 1996 amendments. Therefore, we need not reach the issue of the amended Act's applicability to cases pending on appeal. We will assess Gee's arguments under the old Act.

Hearsay Statements

Gee's first argument concerns the admissibility of Detective Lewis Clayton's ("Clayton") testimony. Clayton testified that he received a dispatch informing him of the robberies and stating that a brown Cadillac with Nebraska license plates had been used. He canvassed the area where the robberies had occurred, noticed a brown Cadillac, and knocked on the doors of homes near the Cadillac. He spoke with an unidentified woman who told him that someone had parked the Cadillac around 1:00 am and then had walked toward a neighboring building. She also stated that a man named Ralph Jordan ("Jordan") lived in that building. Clayton returned to the building the next day and questioned Jordan.

In court, Clayton identified a photo of the Cadillac as "the car that I observed parked ... that was found to have been stolen and used in the three robberies." He also testified that Jordan told him that Gee, a friend of his, had committed the robberies. The court ordered this testimony stricken and instructed the jury to disregard it. Jordan also told Clayton that Gee had been driving the brown Cadillac. Jordan was not called as a witness.

Gee asserts that the testimony regarding Jordan's statements was inadmissible hearsay, the admission of which a) violated his Sixth Amendment right to confrontation and cross-examination, and b) his fundamental right to a fair trial. At the outset, we note that the jury was instructed to disregard Clayton's testimony that Jordan told him that Gee was one of the robbers. We presume that the jury followed this instruction. See, e.g., United States v. Farmer, 73 F.3d 836, 844 (8th Cir.) (noting presumption that jury follows admonitions), cert. denied, --- U.S. ----, 116 S.Ct. 2570, 135 L.Ed.2d 1086 (1996); United States v. Thornberg, 844 F.2d 573, 579 (8th Cir.1988) ("We presume that the jury obeyed these limiting instructions ...").

The only remaining testimony relevant for our purposes is the statement that Jordan told Clayton that Gee was driving the brown Cadillac involved in the robberies. ⁶ "[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991); see also Oliver v. Wood, 96 F.3d 1106, 1108 (8th Cir.1996) ("We will not re-examine whether evidence was properly admitted under state law ... Rather, we will only consider whether Gee's conviction was obtained in violation of the United States Constitution.") (citations omitted). Thus, our inquiry here is not whether the statement was properly admitted under the Missouri Rules of Evidence, but whether its admission violated Gee's constitutional rights.

Sixth Amendment Violation

Gee first argues that the admission of this testimony violated his Sixth Amendment rights to confrontation and cross-examination. Our review of the record satisfies us that, in light of the quantum of evidence linking Gee to the Cadillac, and otherwise supporting his guilt, the admission of this statement, even if hearsay, was harmless error.

In Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674, (1986), the United States Supreme Court noted that "the constitutionally improper denial of a defendant's opportunity to impeach a witness for bias, like other Confrontation Clause errors, is subject to ... harmless-error analysis." (emphasis added). "The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt." Id. To make this determination, courts should assess factors such as, "the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting" the witness' testimony, and "the overall strength of the prosecution's case." Id.

Gee was convicted based on the identification of three eyewitnesses to the robberies. More than one testified to seeing a brown Cadillac used in the robberies. Additionally, identification by Gee's friend and former employer, Joe Davis, who had known Gee since he was eight years old, placed Gee in the very brown Cadillac used in the robberies on the day of the robberies. Thus, we find that Clayton's testimony regarding Jordan's statements linking Gee to the Cadillac was merely cumulative. It did not constitute the only evidence on an essential element of the prosecution's case, nor did it constitute the only evidence linking Gee to the Cadillac. In light of the overall strength of the prosecution's case, the admission of this testimony was harmless error beyond a reasonable doubt.

Fundamental Right to a Fair Trial

Gee also argues that the admission of these statements violated his right to a fair trial. This argument is also without merit. We grant habeas relief on a state court evidentiary ruling only "if the alleged error was so conspicuously bad that it fatally infected the trial and rendered it fundamentally unfair." Troupe v. Groose, 72 F.3d 75, 76 (8th Cir.1995). "To carry that burden, the petitioner must show that there is a reasonable probability that the error complained of affected the outcome of the trial--i.e., that absent the...