Basile v. Bowersox
| Decision Date | 16 December 1999 |
| Docket Number | No. 497CV1110ERW.,497CV1110ERW. |
| Citation | 125 F.Supp.2d 930 |
| Parties | Daniel BASILE, Petitioner, v. Michael BOWERSOX, Superintendent, Potosi Correctional Center, Respondent. |
| Court | U.S. District Court — Eastern District of Missouri |
Daniel Basile, Mineral Point, MO, pro se.
Eric W. Butts, Philip M. Horwitz, Swaney and Ram, St. Louis, MO, for petitioner.
Michael J. Spillane, Attorney General of Missouri, Assistant Attorney General, Jefferson City, MO, for respondent.
This matter is before the Court on Petitioner Daniel Basile's Petition for Writ of Habeas Corpus by a Petitioner in State Custody Under a Sentence of Death [document # 6].
Under the AEDPA, a presumption of correctness attaches to state court findings of fact. 28 U.S.C. § 2254(e)(1); Tokar v. Bowersox, 198 F.3d 1039, 1044 (8th Cir. 1999). A petitioner has "the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). Basile has set forth no clear and convincing evidence challenging the state courts' findings of fact. Accordingly, the Court accepts the following facts as stated by the Missouri Supreme Court in State v. Basile, 942 S.W.2d 342, 347-49 (Mo. banc 1997). See Poree v. Cain, 1999 WL 518843, at *6 (E.D.La. July 20, 1999) ().
The events leading up to the murder began on January 10, 1992, when James Torregrossa went to get a tire for his ex-girlfriend at the Old Orchard service station in Webster Groves. Richard DeCaro worked at the station. Torregrossa and DeCaro knew each other because they both belonged to Gold's Gym. DeCaro told Torregrossa that he had heavy payments on his van and asked Torregrossa if he knew of anyone that could "take it off his hands." In the same conversation, DeCaro asked if Torregrossa knew anyone who could "put a hit on somebody" for him. DeCaro also stated that his wife thought he was having an affair with his secretary and that he would not wish marriage on anyone. Ten days later, DeCaro purchased a $100,000 life insurance policy on behalf of his wife, Elizabeth, listing himself as the primary beneficiary. On January 26, 1992, Richard DeCaro struck Elizabeth with their van, knocking her through the garage wall into the kitchen. She sustained severe bruising. The insurance company paid Richard DeCaro over $30,000 as a result of this incident. In January of 1992, DeCaro asked Craig Wells, a manager at Old Orchard service station, if he knew anyone who could steal his van. Wells introduced DeCaro to Basile. The two met, and DeCaro offered Basile $15,000 to steal the van and kill Elizabeth. On February 8, 1992, Basile stole the van, drove it to Jackson, Missouri, and burned it. He received $200 for this job.
On February 28, 1992, Basile asked his friend, Jeffrey Niehaus, for a stolen gun that was not traceable. On March 4, Basile showed his half-brother, Doug Meyer, a .22 caliber semi-automatic pistol with pearl-like grips. He claimed that he bought the gun from his father for $100. On March 5, Basile asked another friend, Susan Jenkins, to get him some latex gloves from the doctors offices in which she worked. On March 6, Basile told Meyer that he could not work that day because he was working for Richard DeCaro.
On March 6, 1992, Richard DeCaro picked up two of his four children from school and then went home to pick up the other two. He drove all four of the children and the family dog to the Lake of the Ozarks, leaving St. Louis a little after noon. They checked into the Holiday Inn at the lake at 2:59 p.m. Two of the children testified that they saw their mother alive before they went to school that morning. They testified that the dog would always bark at strangers.
Between 2:00 and 2:30 p.m., a witness noted that the DeCaro garage door was closed. Elizabeth DeCaro left work at 2:20 p.m. At 3:15 p.m., a neighbor stopped by and noticed the garage door was open and that the DeCaros' Blazer with personalized license plates reading "RIK-LIZ" was in the garage, but no one answered the doorbell.
At 4:15 p.m., Basile was seen driving the DeCaro's Blazer in St. Charles. That evening around 6:30 to 7:00 p.m., Basile called an ex-roommate for a ride, stating At 7:00 p.m., Basile called Doug Meyer and asked if Meyer had garage space where Basile could work on his car. Basile drove the Blazer to Richard Borak's home in Florissant and gave him a "boom box" stereo stolen from the DeCaro residence as a birthday gift. Basile told Borak that he "did this lady." Just after 8:00 p.m., the Blazer was spotted heading south on Interstate 270. At 10:30 p.m., Basile went to Meyer's house, where they ate pizza before going out for drinks.
Elizabeth DeCaro had planned to meet her sister, Melanie Enkleman,1 for dinner at 5:00 p.m. When the victim failed to show up for dinner or answer her telephone, Enkleman and a mutual friend went to the DeCaro home. They went in through an open side door in the garage and then through an open door leading into the house. They found Elizabeth DeCaro lying face-down on the kitchen floor. Enkleman called 911 at around 8:00 p.m.
Elizabeth DeCaro had two gunshot wounds in the back of her neck and bruises on her body. When she was shot, the gun was in contact with her body, and she was either kneeling or lying down. The bullets recovered from her body were .22 caliber. Police found no signs of forced entry. Audio-visual equipment had been removed from the home, but the cables and wires had been carefully unplugged or unscrewed from the walls.
On March 7, 1992, after reading about the DeCaro death in the paper, Basile called Craig Wells and stated, "It looks like I've gotten set up." On March 9, Meyer found the DeCaro's dismantled Blazer in the garage that he had provided for Basile. Meyer helped Basile take parts of the Blazer to the dump. Meyer realized that the Blazer belonged to DeCaro and confronted Basile. Basile admitted to Meyer that he stole the Blazer. At trial, Meyer testified that Basile told him "it was either him or her, and he wasn't going back to jail." Basile told Meyer that he was a thief, not a murderer. On March 11, Meyer contacted the police.
On March 12, 1992, Basile went to Kenneth Robinson's trailer and told Robinson that he was in trouble because the police thought that he had "done the van and the lady." Robinson contacted the police. The police arrested Basile a few hours later.
In the investigation, police found a license plate from the stolen and burned van in Cape Girardeau County. They also found the van itself. The dismantled remains of the DeCaro's Blazer was found in an apartment garage near Fenton, Missouri. Also in the garage was a portable stereo unit. Police later recovered the DeCaro's stolen "boom box" from Ricky Borak's apartment.
Basile did not testify on his own behalf during trial. He presented the testimony of four witnesses. The jury found Basile guilty of first degree murder. Basile also did not testify in the penalty phase. According to a stipulation, he had prior convictions for burglary, stealing and assault. There was testimony that Basile had strangled his neighbor on one occasion and threatened to kill an ex-girlfriend's husband. Elizabeth DeCaro's mother and sister testified about the victim's life and how her loss impacted the family.
Basile was tried in the Circuit Court of St. Charles County, Missouri, by a Montgomery County jury for the murder of Elizabeth Ann DeCaro. State of Missouri v. Daniel Anthony Basile, Cause No. CR129-65F. The trial began on April 25, 1994 and concluded on May 7, 1994, with the jury's verdict convicting Basile of first degree murder. The jury found that Basile murdered Elizabeth DeCaro for another for the purpose of receiving money or other things of value, and that Basile murdered DeCaro as an agent or employee of Richard DeCaro. See R.S. Mo. § 565.032(4) and (6) (1986). Based on these aggravating circumstances, the jury assessed and declared the penalty of death. Id. On July 1, 1994, Judge Lucy Rauch sentenced Basile to death.
On January 23, 1996, following an evidentiary hearing, Judge Rauch denied Basile's timely filed Rule 29.15 motion. The Missouri Supreme Court affirmed both the denial of post-conviction relief and Basile's conviction and sentence, State of Missouri v. Daniel Basile, 942 S.W.2d 342 (Mo. 1997), and subsequently denied Basile's motion for rehearing. The United States Supreme Court denied certiorari on July 8, 1997. Basile v. Missouri, 522 U.S. 883, 118 S.Ct. 213, 139 L.Ed.2d 148 (1997).
On October 7, 1997, Basile filed a pro se motion to appoint counsel in this Court, and the Court appointed counsel to represent Basile on the same day. On July 1, 1998, Basile filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, raising thirteen grounds for relief. Respondent concedes that Basile has exhausted his available state remedies. (Resp. at 7-8.) Basile's Petition was fully briefed on November 19, 1998. The Court denied Basile's motion for evidentiary hearing on January 13, 1999.
A state prisoner may petition for a writ of habeas corpus "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A state prisoner is entitled "to relief on federal habeas corpus only upon proving that [his] detention violates the fundamental liberties of the person, safeguarded against state action by the Federal Constitution." Wessling v. Bennett, 410 F.2d 205, 209 (8th Cir.1969) (quoting Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963)).
"`[I]t is not the province of a federal habeas court to re-examine state-court determinations of state-law questions.'" Gee v....
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