198 F.3d 1039 (8th Cir. 1999), 98-3031, Tokar v Bowersox

Docket Nº:98-3031
Citation:198 F.3d 1039
Party Name:JEFFREY TOKAR, APPELLANT, v. MICHAEL BOWERSOX, APPELLEE.
Case Date:December 08, 1999
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 1039

198 F.3d 1039 (8th Cir. 1999)

JEFFREY TOKAR, APPELLANT,

v.

MICHAEL BOWERSOX, APPELLEE.

No. 98-3031

United States Court of Appeals, Eighth Circuit

December 8, 1999

Submitted: September 13, 1999

Rehearing and Rehearing En Banc

Denied Feb. 3, 2000

Appeal from the United States District Court for the Eastern District of Missouri.

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Before Richard S. Arnold, Beam, and Hansen, Circuit Judges.

Beam, Circuit Judge.

Jeffrey Tokar was convicted in Missouri state court for the murder of Johnny Douglass and was sentenced to death. Tokar appeals from the district court's1 denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. We affirm.

I. BACKGROUND

On the afternoon of March 11, 1992, Jeffrey Tokar, driving a yellow Subaru station wagon, picked up his girlfriend, Sandra Stickley, from her place of employment at the Budgetel Inn in Columbia, Missouri. They went driving in a rural area outside the city limits of Centralia, Missouri, looking for vacant houses to burglarize. Tokar stopped at the residence of Linda Benoit and asked Benoit for directions to a neighbor's residence. He told Benoit that he was planning to buy a car for his girlfriend from the neighbor. Shortly after leaving Benoit's home, Tokar and Stickley stopped at the Douglass home located two and a half miles away.2

After parking his car in the Douglass driveway, Tokar knocked on the front door but received no answer. He then went inside the house through an open garage door. After a few minutes, Tokar opened the front door and motioned for Stickley to come in. Stickley testified that Tokar had a shotgun and was holding a shell in his mouth. Tokar and Stickley then proceeded to ransack the house and stuff various items into empty pillowcases.

Eight-year-old Jarad Douglass, four-year-old Lynzie Douglass and their father, Johnny Douglass, returned to their home while the burglary was in progress. They had been checking on cattle in a nearby pasture. Upon arriving back at their

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house, they noticed the yellow station wagon in the driveway. Johnny Douglass told his children to stay in the truck and went to investigate. At some point, however, both children left the truck to follow their father. In the garage, Johnny Douglass was met by Tokar, armed with a loaded shotgun. Although Stickley did not witness the shooting, she testified that she heard Jarad say "Mister, please don't hurt my daddy" and Johnny Douglass, himself, plead: "Mister, please don't hurt me. I'll do anything you say." She further testified that Tokar told Johnny Douglass not to look at him and afterwards heard one shot and then a second shot. Jarad testified that during this time, his sister Lynzie was holding her father's hand and crying and screaming. After the shooting, both Tokar and Stickley sped away in the yellow station wagon. Tokar stopped to throw the shotgun and a spent shell in a nearby farm pond. Meanwhile, Jarad ran next door to neighbor Eva Yager's house for help.

When the police arrived at the scene they found Johnny Douglass lying on the garage floor in a pool of blood, with one gunshot wound to his left cheek and one to the back of his head. The interior of the Douglass home was ransacked. Drawers had been pulled out, electronic equipment was piled on a table, and pillowcases were stuffed with items including clothing and toiletries.

Sheriff Stuart Miller of Audrain County requested the Mid-Missouri Major Case Squad be assembled to work on the case.3 That evening, Officer McPike interviewed Jarad, Jarad's grandmother, Rebadell Douglass, and Eva Yager to get information about the suspect to disseminate to area law enforcement. From this interview, McPike obtained a description of the suspect as a white male with a yellowish mustache wearing a tan jacket, blue jeans, and a black billed cap. He was also told that the suspect was fairly tall and slender, weighing between 160 and 170 pounds. Furthermore, McPike was told that the suspect had been driving an older yellow station wagon.4 This information was immediately dispatched over the radio to police headquarters.

Later that night, Sheriff Miller received information from the sheriff's department of neighboring Boone County that pointed to Tokar as a possible suspect. In searching their computer records for former prisoners who drove yellow station wagons, Boone County authorities had come up with the names of three suspects. Two of these were still in the Missouri Department of Corrections. However, the third suspect, Tokar, had been released from prison five days earlier, where he had been serving time for receiving stolen property from residential burglaries. Boone County records confirmed that Tokar drove a yellow Subaru station wagon bearing a Missouri license plate issued to his mother, Nora Burgan, at a Centralia address. Sheriff Miller also received information that Tokar preferred to burglarize earth contact homes and that in past burglaries had stolen items such as toiletries and clothing.

As a part of the investigation, Linda Benoit was interviewed by officers on the night of the murder and the next day. In statements given to the officers, she indicated that sometime between 5:25 and 5:45 p.m. on the night of the murder, a man with blond hair, approximately 5'8" or 5'9" in height and weighing about 155 pounds, had come to her house asking for directions. She told the officers that the

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man had acted strange, going first to her front door and then to her back door. She further informed them that the man had left driving down Route C in the direction of the Douglass home, in either a tan or yellow car.

In a separate incident, four days before the Douglass murder and the day after Tokar had been released from prison, Daniel Miller, a farmer in Audrain County, had helped Tokar pull a yellow station wagon from a ditch. Tokar had been accompanied by Stickley. At first, Tokar told Miller that his name was "John Johnson." After Miller asked Tokar whether he was driving without a license, Tokar showed Miller his license renewal slip which listed Tokar's real name, date of birth, and social security number. Miller, a former part-time police officer and the father of Sheriff Miller, wrote down this information as well as the vehicle's make and license number. When Miller learned that the police were searching for a yellow station wagon in connection with the Douglass murder, he notified Sheriff Miller on March 12, the day after the murder, of the earlier incident. When Miller went to the station later that day to give a statement, he identified Tokar from a photograph posted in the police station.

Tokar was arrested outside his grandmother's house in Columbia on the morning of March 13, less than thirty-six hours after the Douglass murder. Sandra Stickley, who had been living with Tokar at his grandmother's residence, was also arrested. At first, Stickley denied knowing about the murder, but later confessed to being with Tokar during the incident. She entered into a plea agreement with the government and was given a twenty-year sentence for murder in the second degree.

At Tokar's trial, the State called many witnesses to establish Tokar's guilt. Jarad Douglass, the victim's son, testified that he witnessed Tokar pointing the gun at his father while his sister Lynzie held her father's hand. He testified that he heard the gun shots and ran to Yager's house for help. Sandra Stickley testified that after Tokar picked her up from the Budgetel Inn, they drank beer and smoked cocaine while they drove around in the countryside. She testified that she helped Tokar burglarize the Douglass residence. She also testified, as indicated, that she heard Johnny Douglass and his children plead for his life and heard Tokar tell Douglass "don't look at me" before he shot him. Finally, she testified that the evening of the murder, Tokar told her that he had killed Johnny Douglass by shooting him twice and further stated that he "should have killed the kids so no one could testify and say that we were there." A medical examiner testified, consistent with Stickley's testimony, that Douglass died as a result of two gunshot wounds to the head. Based upon information provided by Stickley, the police recovered a .410 single-shot shotgun and spent shell from a nearby pond. The serial number on the gun found in the pond matched that of a gun owned by Johnny Douglass. Finally, there was also testimony from a forensic expert that the shell found in the pond as well as a shell found at the Douglass residence had markings which established that they had been fired from the Douglass gun.

A jury convicted Tokar of first degree murder in May 1993, after three hours of deliberation. After evidence presented during the penalty phase, the jury imposed the death sentence. The trial court denied Tokar's motion for a new trial and entered a sentence of death. Tokar then filed a pro se motion for post-conviction relief under Missouri Supreme Court Rule 29.15. With assistance of counsel, Tokar filed an amended motion and request for an evidentiary hearing. A hearing was held and the trial court subsequently denied Tokar's motion for post-conviction relief. The Missouri Supreme Court affirmed Tokar's conviction, sentence, and the denial of post-conviction relief. See State v. Tokar, 918 S.W.2d 753 (Mo. 1996) (en banc). Tokar then filed for federal habeas corpus relief pursuant to 28 U.S.C. § 2254. The district

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court denied his habeas petition, but issued a certificate of appealability on four grounds. See Tokar v. Bowersox, 1 F. Supp.2d 986 (E.D. Mo. 1998). This court granted a certificate of appealability on five...

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