Stephens v. O'Dea
| Decision Date | 21 October 1993 |
| Docket Number | No. 93-5288,93-5288 |
| Citation | 9 F.3d 109 |
| Parties | NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. John Lee STEPHENS, Petitioner-Appellant, v. Michael O'DEA, Warden, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before: MILBURN and NELSON, Circuit Judges; and GILMORE, Senior District Judge. *
Petitioner John Lee Stephens, a Kentucky prisoner, appeals from the judgment of the district court dismissing his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. Sec. 2254. On appeal, the sole issue presented for review is whether the district court erred in denying habeas corpus relief upon Stephens' claim that his due process right to a fair trial was violated by the trial court's admonition to his counsel during closing argument. For the reasons set out below, we affirm.
On April 19, 1990, a grand jury, in Lewis County, Kentucky, returned a six-count indictment against John Lee Stephens and one co-defendant. 1 Stephens was indicted for two counts of first degree burglary in violation of Ky.Rev.Stat. Sec. 511.020; one count of attempted murder in violation of Ky.Rev.Stat. Secs. 506.010 and 507.020; one count of receiving stolen property over $100 in violation of Ky.Rev.Stat. Sec. 514.110; one count of theft by unlawful taking over $100 in violation of Ky.Rev.Stat. Sec. 514.030; and one count of possession of a handgun by a convicted felon in violation of Ky.Rev.Stat. Sec. 527.040. Following arraignment and the filing of various pre-trial motions, a jury trial commenced on August 9, 1990 in the Lewis County, Kentucky, Circuit Court, Judge James W. Lyon, Sr. presiding.
After several days of trial, the jury returned a verdict against Stephens finding him guilty of attempted murder, burglary in the first degree, possession of a handgun by a convicted felon, theft by unlawful taking over $100, and receiving stolen property over $100. The trial court sentenced petitioner Stephens to an aggravated sentence of imprisonment for forty (40) years on the above convictions as follows: (1) a twenty year sentence on the conviction for attempted murder; (2) a fifteen year consecutive sentence on the conviction for burglary in the first degree; (3) a five year sentence on the conviction for possession of a handgun by a convicted felon, to run consecutively to the sentences for attempted murder and burglary in the first degree; (4) a five year sentence on the conviction for unlawful taking over $100, to run concurrently with the attempted murder sentence; and (5) a five year sentence on the conviction for receiving stolen property over $100, to run concurrently with the sentence for attempted murder.
After a final judgment and sentence was entered, petitioner Stephens filed a direct appeal to the Supreme Court of Kentucky. On appeal to the Supreme Court of Kentucky, Stephens argued, inter alia, that the trial court improperly admonished his trial counsel for making inaccurate statements concerning evidence during closing argument. The admonition at issue before the Supreme Court of Kentucky, which also forms the basis for Stephens' appeal to this Court, occurred as follows during the closing argument of defense counsel:
MR. CURTIS [counsel for defense]: ... But, the most important thing about Mr. Gleason's testimony was who were suspects. He had been investigating Talbert and Marshall ever since 1988, and that he suspected them to be involved in a burglary ring. Did he ever mention John Lee Stephens' name as being a suspect in any burglary? No. But, you can rest assured that if he had any information that Mr. Stephens was a suspect in a burglary, the Commonwealth would have presented that to you, ladies and gentlemen.
MR. DOUGLAS [counsel for the Commonwealth]: Judge, I'm going to object to that. That's an inaccurate statement.
Objection sustained. Mr. Curtis, I admonish you to not make any more reference to Mr. Gleason did not have John Lee Stephens as a suspect. As I recall, Mr. Douglas did ask a question, and there was an objection, and I sustained that objection.
MR. CURTIS: Your Honor, I object to that characterization.
J.A., 161-162. Although the trial court's admonition was arguably erroneous, the Supreme Court of Kentucky affirmed the judgment of conviction. In an unpublished opinion issued on October 24, 1991, the Court rejected Stephens' claims of error, including his claim that the trial judge improperly admonished defense counsel during closing argument.
Thereafter, on April 3, 1992, petitioner Stephens filed his petition for writ of habeas corpus in federal district court. In his petition, Stephens raised the same challenges to the district court that had been rejected by the Supreme Court of Kentucky. Petitioner alleged five errors including, inter alia, that the trial court improperly admonished his trial counsel for making inaccurate statements during closing argument. Respondent O'Dea filed his answer to the habeas petition on June 9, 1992, seeking dismissal of the petition or alternatively for summary judgment, and the matter was referred to a magistrate judge.
In a report and recommendation filed on January 21, 1993, the magistrate judge recommended that the habeas petition be dismissed. In his exceptions to the report and recommendation, Stephens dispensed with four of his five grounds for relief, and challenged only that portion of the report dealing with the trial court's admonition during defense counsel's closing argument. After a de novo review, the district court entered an order adopting the report and recommendation, and denying Stephens' habeas petition with prejudice. The district court also issued a certificate of probable cause for this appeal in its order dismissing the habeas petition. This timely appeal followed.
The record reveals that several witnesses testified at Stephens' trial. Jeffrey Talbert described the events of April 1, 1990. Talbert testified that he and Stephens left Stephens' home in Greenup County, Kentucky, and set out for Grayson, Kentucky to look for women. When they got into the vicinity of Grayson, they started a burglary spree which continued into Lewis County, Kentucky, and ended up in Greenup County, Kentucky. Talbert further testified that near Vanceburg, Kentucky, he and Stephens stopped at the home of Howard Reis. According to Talbert, while Stephens was walking toward the house, he drove to a local grocery store for a soda and a snack.
Howard Reis, the victim of the attempted murder conviction, testified at Stephens' trial. Mr. Reis identified Stephens as the person who had been in his house and who had shot at him both in the house and from the fence outside the house. Nothing was stolen from the Reis residence, apparently because Stephens was caught in the act of gathering up the goods that he intended to steal.
Deputy Sheriff Joe Gleason also testified at Stephens' trial. Deputy Gleason testified that he received a radio transmission on April 1, 1990, that a car had been involved in a burglary in Lewis County, and was headed for Greenup County. The radio transmission also included the license plate number of the car driven by Jeffrey Talbert. Deputy Gleason told the jury that he saw Talbert's car drive past him. He then stopped the car, questioned Talbert and took Talbert into custody. Deputy Gleason stated that he found coins, pillowcases full of goods, and loaded weapons in Talbert's car.
Dean Switzer testified that on the morning of April 2, 1990, he started his mail truck so that it could warm up prior to his deliveries. Switzer testified that while he was inside his house drinking coffee, someone stole the mail truck and headed toward Greenup County in an easterly direction. Switzer did not see the individual who stole the truck, but he notified the Kentucky State Police who set up a roadblock in Greenup County.
Kentucky State Police Trooper Richard Ledford testified that he was part of the roadblock in Greenup County on the morning of April 2, 1990. The police suspected that Stephens was the driver of the stolen truck, and the roadblock had been set up near the residence of Stephens' father, Lester Stephens. Trooper Ledford recalled that when the stolen mail truck approached the roadblock, one of the state troopers accidentally turned on the blue lights on his squad car. Thereafter, the mail truck sped away, and a chase ensued. Trooper Ledford further testified that he chased the truck until the truck ran into the wall of a garage. At that point, the driver of the truck fled the scene on foot, and then entered a briar thicket. Trooper Ledford stated that he pursued the individual on foot, but that he did not continue his pursuit into the briar thicket.
The next morning, April 3, 1990, Stephens turned himself in at the Greenup County Sheriff's department. Trooper Ledford, who was present when Stephens turned himself in, told the jury that Stephens was badly scratched at that time.
The record reveals that on direct examination, the Commonwealth attorney never directly asked Deputy Gleason whether Stephens was a suspect of the burglary ring investigation. However, he did ask Deputy Gleason who was a suspect in relation to the stolen mail truck. To that question, Deputy Gleason replied, "John Stephens." On cross-examination, defense counsel asked Gleason about other suspects in the burglary ring, without inquiring whether Stephens was a suspect.
During his closing argument, Stephens counsel discussed the testimony of Deputy Gleason. At one point in the closing argument, the trial judge admonished defense counsel for making inaccurate...
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