Bannister v. Armontrout

• Decision Date: 30 April 1992
• Docket Number: No. 87-0637-CV-W-9.,87-0637-CV-W-9.
• Parties: Alan J. BANNISTER, Petitioner, v. Bill ARMONTROUT, et al., Respondents.
• Court: U.S. District Court — Western District of Missouri

807 F. Supp. 516

Alan J. BANNISTER, Petitioner, v. Bill ARMONTROUT, et al., Respondents.

No. 87-0637-CV-W-9.

United States District Court, W.D. Missouri, W.D.

August 23, 1991.

Order Denying Motion to Alter, Amend or Reconsider April 30, 1992.

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Bruce E. Baty, Morrison & Hecker, Kansas City, MO, for petitioner.

Stephen D. Hawke, Patrick Leroy King, Missouri Atty. Gen.'s Office, Jefferson City, MO, for respondents.

ORDER DENYING PETITIONER'S REQUEST FOR A WRIT OF HABEAS CORPUS

BARTLETT, District Judge.

I. Procedural History

Petitioner Alan J. Bannister (Bannister) was convicted of the capital murder of Darrell Ruestman and sentenced to death in the Circuit Court of McDonald County, Missouri, on March 10, 1983. The Missouri Supreme Court affirmed his conviction and sentence. State v. Bannister, 680 S.W.2d 141 (Mo.1984). Thereafter, Bannister filed a motion under Missouri Supreme Court Rule 27.26 which the sentencing court denied on December 17, 1985. Bannister's appeal from that denial was unsuccessful. Bannister v. State, 726 S.W.2d 821 (Mo. App.1987). On July 16, 1987, Bannister filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. ž 2254. On July 23, 1987, Bannister's execution was stayed in order to review his habeas petition. On July 29, 1987, attorney Bruce Baty was appointed to represent Bannister.

On September 17, 1987, Bannister was granted leave to amend his habeas petition and his first amended habeas petition was filed. On December 14, 1987, the State responded to the Order to Show Cause. On February 22, 1988, Bannister again filed a motion to amend his habeas petition and to hold his habeas petition in abeyance pending resolution in state court of his second Rule 27.26 motion which was filed in the Circuit Court of McDonald County, Missouri, on February 26, 1988. On July 19, 1988, I issued an order dismissing Bannister's petition for a writ of habeas corpus without prejudice in favor of exhaustion of state remedies.

Bannister's second Rule 27.26 motion was denied by the state trial court on April 12, 1988. A notice of appeal was filed from that adverse ruling on April 13, 1988, and the case was transferred to the Missouri Court of Appeals, Southern Division. On June 30, 1988, the appeal was transferred to the Missouri Supreme Court at its direction. On September 1, 1988, the Missouri Supreme Court affirmed the judgment of the second Rule 27.26 stating that "all state remedies have been exhausted relating to Alan Bannister's conviction, sentence and judgment."

On September 8, 1988, Bannister filed supplemental suggestions in support of his August 1, 1988, motion to amend or alter judgment requesting that I vacate the July 19, 1988, order dismissing Bannister's petition because all claims had been exhausted. On October 26, 1988, Bannister filed a motion for stay of execution to provide an opportunity to review his habeas petition.

On October 28, 1988, I issued an order staying execution. Also on October 28, 1988, I issued an order granting Bannister's motion to amend or alter judgment in which I vacated the July 19, 1988, order and reinstated Bannister's request for habeas review. On January 12, 1989, I granted Bannister's February 22, 1988, motion for leave to file a second amended habeas petition because all claims raised therein had been exhausted. Furthermore, in a memorandum filed on January 12, 1989, I deferred ruling on all pending discovery motions until the State's response and Bannister's traverse had been filed and examined. Pending resolution of these discovery motions, I ordered certain discovery collected and preserved.

On January 13, 1989, Bannister filed his second amended habeas corpus petition in which he raised additional claims raised in his second Rule 27.26 motion. On February 9, 1989, the State filed a supplemental response to its initial response filed on December 14, 1987. Bannister filed a traverse on March 20, 1989. The State filed a second supplemental response on May 5, 1989. On October 19, 1989, I issued an Order Permitting Further Briefing by Bannister on the issue of whether Ground 21 of his Second Amended Petition for Writ of Habeas Corpus was procedurally barred. On November 6, 1989, Bannister filed a supplemental brief in response to the State's contention that Ground 21 was procedurally barred.

II. Background

In August 1982, Bannister was asked by a man named Ronald Rick Wooten, also known as "Indian," whether he would like to make some money by killing a man. Indian explained that a man whose wife left him for another man wanted to have the latter killed. If Bannister accepted the job, he would receive $4,000 to commit the murder ÔÇö $1,500 in advance and the remainder upon proof of death with a newspaper report. Indian would provide a gun and transportation. Bannister accepted the offer.

The victim was Darrell Reustman. He was living at the Shady Lane Mobile Home Park in Joplin, Missouri. Also living with Reustman was Linda McCormick who was then married to Richard McCormick.

On August 20, 1982, Bannister arrived in Joplin and registered at a motel under a name different from his own. On August 21, 1982, at approximately 10:00 p.m., Linda McCormick was awakened by knocking at the door of the trailer where she and Reustman were living. When Reustman answered the door, Bannister fatally shot him.

At approximately 5:00 a.m. on August 22, 1982, Bannister was arrested by Joplin and Newton County police officers for the murder of Darrell Reustman. Bannister was identified in a lineup by McCormick and two other witnesses as a man seen near the Reustman trailer shortly before the murder. Subsequently, Bannister revealed to the police many details of the crime and led officers to certain pieces of physical evidence including the murder weapon.

On February 3, 1983, a jury found Bannister guilty of capital murder and later that evening recommended the death penalty. The aggravating circumstances designated by the jury were that Bannister had a history of serious assaultive convictions and that Bannister murdered Darrell Reustman for the purpose of receiving money.

III. Discussion

In the discussion that follows, the grounds for relief are numbered according to their number in Bannister's Second Amended Petition. I will address Bannister's claims in the order in which Bannister presents them in his Traverse. Bannister grouped them by subject matter rather than by following the order in which they were set out in his Second Amended Habeas Corpus Petition. I will depart from that organizational scheme primarily when addressing grounds for relief that Bannister first raised in his second Rule 27.26 motion.

In his Traverse, Bannister states that he is abandoning Grounds 1, 8, 16 and 20. Also, Grounds 3, 5, 12, 14, 17 and portions of 13 are deemed abandoned because Bannister does not discuss them in his Traverse or provide any reasons anywhere in the record why relief should be granted on those grounds.

A. Jury Panel Claims

Ground 11

Bannister was not denied his right to due process and an impartial jury where the trial court limited the scope of voir dire examination

Bannister argues that the trial court denied his right to due process and an impartial jury by refusing to permit him to use open-ended questions to determine a prospective juror's true feelings about the death penalty.

Bannister's claim that his rights to due process and to an impartial jury were violated is based on the following excerpts from the voir dire:

Mr. Gordon defense counsel: Let me just ask you, what religious persuasion do you follow?

Venireman Christerson: Methodist.

Mr. Gordon: Do you know if the Methodist Church of the National Institution has any declared policy on the death penalty? Venireman Christerson: No, I don't.

Mr. Gordon: You're not aware of that? Venireman Christerson: I don't know if they do or not.

Mr. Lentz prosecutor: Your Honor, may we approach the bench?

(The following proceedings were had out of the hearing of the jury panel:) Mr. Lentz: Your Honor, at this time I would object to voir diring on the death penalty. I followed the case, I believe the only question permissible on that attitude. I'd ask the court to make a ruling on it now. They are apparently going to voir dire on what their church or anybody else feels about the death penalty. I think the question is extremely limited to the question as I gave it to the jury out of the leading case in the matter.

Mr. Gordon: If it pleases the court, I'm not aware that only one question can be asked, and I would suggest that there are at least two areas, one challenge is for cause, and the other challenge is for peremptory challenges, and that in fairness, I ought to be able to delve into this just a little bit further to determine if there is a basis for an intelligent decision on my part, and at least for peremptory challenges.

Mr. Lentz: Your Honor, I have this case here, it's 447 477 SW 2d 552, and it says that the provision, 546.1300, which allows the State to, and the defense to voir dire the parties on their decision on the death penalty, it follows Witherspoon, and I think it's clear that the question anymore is of conscientious and religious scruples which would make it difficult for them too. That would be religious or moral or conscientious scruples, and I feel that the question is if they could never vote to impose the death penalty and it has been answered, and I would ask the Court to limit it, if not in this case, limit him carefully on this because I'm not allowed to go into it.

The Court: I think I'll let you go into the further area as to their religious affiliation if you desire to do that. The thing that would bother me is that if you are just asking an open-ended question here that would in effect let the juror go into some kind of discourse. I think we're going to be here a long time if

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