Sizemore v. Fletcher, s. 89-6144

• Citation: 921 F.2d 667
• Decision Date: 20 December 1990
• Docket Number: 89-6226,Nos. 89-6144,s. 89-6144
• Parties: Steve SIZEMORE, Petitioner-Appellee, Cross-Appellant, v. Lloyd FLETCHER, Warden, Respondent-Appellant, Cross-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 667

921 F.2d 667

Steve SIZEMORE, Petitioner-Appellee, Cross-Appellant, v. Lloyd FLETCHER, Warden, Respondent-Appellant, Cross-Appellee.

Nos. 89-6144, 89-6226.

United States Court of Appeals Sixth Circuit.

Argued and Submitted Sept. 27, 1990.

Decided Dec. 20, 1990.

John L. Barton, Mary Lewis Chandler Law Office, Paintsville, Ky., for petitioner-appellee cross-appellant.

Steve Sizemore, Wooton, Ky., pro se.

Vickie L. Wise, Asst. Atty. Gen., Carol C. Ullerich (argued), Frankfort, Ky., for respondent-appellant cross-appellee.

Before KEITH and KRUPANSKY, Circuit Judges, and ENGEL, Senior Circuit Judge.

ENGEL, Senior Circuit Judge.

Respondent-appellant Lloyd Fletcher, Warden, appeals a judgment of the United States District Court for the Eastern District of Kentucky, granting a writ of habeas corpus to Petitioner-appellee Steve Sizemore on the ground that prosecutorial misconduct denied Sizemore his right to due process of law, as guaranteed by the fourteenth amendment. Sizemore was convicted of two counts of first degree murder (Ky.Rev.Stat.Ann. Sec. 507.020), and received two concurrent twenty-year sentences. After considering the nature of the alleged constitutional violations raised by the petitioner, we affirm the issuance of the writ.

I.

On December 18, 1980, local independent coal truck drivers in Clay County, Kentucky met near the Big K Coal Company's processing plant to protest the company's hiring of out-of-state truck drivers to transport coal from the plant. Petitioner Sizemore, who owned an interest in the company, drove toward the plant, where he encountered ten to twelve truckers congregated on a roadway. Sizemore stepped from his truck, armed with a pistol. Willard Morris, a manager of Big K Coal Company, was also present and armed. The independent coal drivers testified at trial that they were unarmed, though Sizemore testified that the drivers were carrying guns. Shots were fired into the group of drivers, and two of them, Ernest Begley and Ray Broughton, were killed.

Sizemore remained at the scene of the shooting, and spoke with the deputy sheriff who arrived soon thereafter. Larry Allan, an attorney who represented Sizemore, also arrived at the coal plant soon after the shooting, and met with Sizemore for about an hour.

On December 19, 1980, a Clay County, Kentucky grand jury returned a two-count indictment against Sizemore, charging him with first degree murder in violation of Ky.Rev.Stat.Ann. Sec. 507.020. Sizemore was tried before a Clay County Circuit Court jury in August 1982. The trial judge declared a mistrial when the jurors voted 11-1 in favor of acquittal, but could not reach a unanimous verdict.

Following a change of venue, Sizemore was tried before a Lee County (Kentucky) Circuit Court jury in July 1983, and convicted on both counts of murder. The court sentenced Sizemore to two concurrent twenty-year terms.

Sizemore appealed his conviction, alleging that prosecutorial misconduct during the closing argument to the jury had created prejudicial error. On October 25, 1984, the Supreme Court of Kentucky affirmed the judgment of the Lee County Circuit Court, finding that the prosecutor's comments were inappropriate but had not denied Sizemore a fair trial.

On October 21, 1985, Sizemore filed a pro se motion in the Lee Circuit Court to vacate his sentence under Kentucky RCr 11.42 and a motion for a new trial under CR 60.02. The motion for a new trial was untimely under CR 60.02, and the circuit court did not address that motion. On June 18, 1986, the circuit court denied the merits of Sizemore's RCr 11.42 motion, which alleged that the venue of his second trial was improper, that he had been denied effective assistance of counsel, and that he had been subjected to double jeopardy.

The Kentucky Court of Appeals affirmed the circuit court's decision, except with respect to the ineffective assistance of counsel claim in the RCr 11.42 motion, which the circuit court had failed to analyze under the test set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The court of appeals remanded this question to the circuit court for reconsideration under the Strickland standard. None of the matters raised in Sizemore's RCr 11.42 motion has been considered by the Kentucky Supreme Court, which addressed only the question of prosecutorial misconduct.

On August 26, 1988, Sizemore petitioned the United States District Court for the Eastern District of Kentucky for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254, alleging that prosecutorial misconduct at his trial violated his due process rights under the fourteenth amendment, that he had been denied effective assistance of counsel, and that his second trial should have been barred by double jeopardy principles. On January 24, 1989, the district court granted Sizemore's motion to amend his petition by striking the unexhausted ineffective assistance of counsel claim.

By report and recommendation dated July 6, 1989, the United States Magistrate recommended that the petition for a writ of habeas corpus be granted. The magistrate found that the prosecutor's comments had denigrated the credibility of Sizemore's attorneys without any basis in fact, had suggested that Sizemore's speedy consultation with counsel was suspect, and had appealed to class prejudice by referring to Sizemore's wealth and his ability to hire several attorneys.

Both Sizemore and Respondent Fletcher filed objections to the magistrate's report in July 1989. By order dated August 9, 1989, the United States District Court for the Eastern District of Kentucky adopted the magistrate's report and granted the writ of habeas corpus, directing the Respondent to release Sizemore from custody unless the Commonwealth of Kentucky began efforts to retry him within 60 days thereafter. Sizemore and Fletcher appeal, with Fletcher challenging the issuance of the writ, and Sizemore arguing that double jeopardy principles bar his retrial. Sizemore is currently on parole.

II.

In both his direct appeal to the Kentucky Supreme Court and in his application for a writ of habeas corpus, Sizemore raised 68 instances of alleged prosecutorial misconduct during his trial. His primary objections focus upon the Commonwealth of Kentucky's closing argument. In her closing argument, the prosecutor, Julie Goodman, stated:

It happens in all cases. After I hear the defense attorney, I wonder what trial I have been to when they start relaying the evidence to me because I don't half of ... I never heard half of what they tell the jury and I start thinking, "where do we get this fairy tale; what fantacy [sic] is this?" Then I thought, "How appropriate that we are hearing fairy tales from Mr. Burns...."

In response, Lester Burns, one of Sizemore's attorneys, objected to the prosecutor's use of the words "fairy tales and fantacy".

Contrasting her sole effort as prosecutor to that of the seven attorneys employed by Sizemore during the trial, the prosecutor then told the jury that the lawyers "must look to you all ... like Snow White and the seven dwarfs...."

In describing the series of events following the shooting incident, the prosecutor stated:

And then he [Sizemore] snuck out, went out the back way. Did he go to the KSP [Kentucky State Police] Post and give a statement like the truckers did? No. He went out the back way, and how convenient. Who did he go out with? I think we probably stipulated it and we probably all know a thousand times. He went out with his own special convenient attorney, Larry Allen.

MR. BURNS: I object to the complementary [sic] description.

THE COURT: Overruled.

MR. BURNS: Move to set aside the swearing of the jury.

THE COURT: Overruled.

(Ms. Goodman continued) ... who had been with him from within five minutes of the killing to the very end.

And then on the stand today when Stevie said, "Well, I don't have my gun. I think Larry has it." How convenient. Good old Larry takes care of everything.

MR. BURNS: I object.

MR. ALLEN: Your Honor, I do object to that and I move to set aside the swearing of the jury and continue the case.

THE COURT: Overruled.

MR. ALLEN: It's highly prejudicial.

MR. BURNS: Move to admonish the jury.

(Ms. Goodman continued) I think it's highly unethical ...

MR. BURNS: I move to admonish the jury, Your Honor.

(Ms. Goodman continued) I think it's highly wrong ...

THE COURT: The jury has heard the testimony and they know what the testimony is. They're not going to pay any attention to the attorneys' statements.

MS. GOODMAN: Well, thanks, Judge.

THE COURT: Go ahead.

Describing a meeting between Sizemore, his attorney and two witnesses to the shooting, the prosecutor told the jury:

... Just like he [Sizemore] and L.A. White and Gene Cobb did, and Larry Allen, when they all went up to the tipple to talk about what happened.

MR. BURNS: I object.

(Ms. Goodman continued) Got to get our alibi, got to get our story straight.

MR. BURNS: Move to set aside the swearing of the jury.

THE COURT: Objection sustained. I don't think ... I think the testimony was that they didn't go up there to talk about it, the best that I remember. The jury heard the testimony, though, and they can decide what happened.

Objection overruled.

Referring to the ability of Sizemore to present high quality photographic exhibits as part of his defense, the prosecutor said:

He [Sizemore] wants you to know the truth so much. A man with his money, his coal trucks....

MR. BURNS: I object to "his money."

....

THE COURT: Overruled.

Speaking of the state's photographs, the prosecutor stated, "They're not fancy, they're not expensive aerial photographs, they're not big color simulations."

The prosecutor also stated that Sizemore's witnesses had not spoken to the authorities, but had "talked to the defendant and one of his multitude of attorneys." Defense counsel again objected, and the prosecutor continued, "I'll change that to one...