Boothe v. Wyrick, 77-0830-CV-W-4.

• Citation: 452 F. Supp. 1304
• Decision Date: 19 June 1978
• Docket Number: No. 77-0830-CV-W-4.,77-0830-CV-W-4.
• Parties: Raymond BOOTHE, Petitioner, v. Donald W. WYRICK, Warden, Missouri State Penitentiary, Respondent.
• Court: U.S. District Court — Western District of Missouri

452 F. Supp. 1304

Raymond BOOTHE, Petitioner, v. Donald W. WYRICK, Warden, Missouri State Penitentiary, Respondent.

No. 77-0830-CV-W-4.

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

June 19, 1978.

COPYRIGHT MATERIAL OMITTED

Raymond Boothe, pro se.

Philip M. Koppe, Asst. Atty. Gen., Jefferson City, Mo., for respondent.

MEMORANDUM AND ORDER

ELMO B. HUNTER, District Judge.

Petitioner, presently confined at the Missouri State Penitentiary, Jefferson City, has filed a pro se habeas corpus petition pursuant to 28 U.S.C. § 2254 challenging two convictions for first degree murder in the Circuit Court of Jackson County, Missouri. Petitioner was indicted for the murders during the March 1970 term of the state grand jury, and tried before a jury in February 1971. The jury returned guilty verdicts on February 5, 1971, and, in accord with Missouri law, fixed the punishment as death. On appeal, the Missouri Supreme Court overturned the imposition of the death penalty, State v. Boothe, 485 S.W.2d 11, 15 (Mo.1972) (en banc), citing Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), but it affirmed petitioner's conviction in all other respects. Sometime later, petitioner filed a motion under Missouri Rule 27.26. The Circuit Court denied the motion after a hearing, and its decision was affirmed on appeal. Boothe v. State, 534 S.W.2d 74 (Mo.App.1976). This action followed.

On direct appeal, the Missouri Supreme Court set forth the facts underlying this case. During the evening of January 8, 1970, an intruder entered the mobile home of James Richard Lindsay (hereinafter Richard) and his wife. Richard approached the intruder and a struggle occurred. Two other men entered the mobile home to aid the intruder, and Richard's wife saw one of them stand over Richard with a handgun pointed at him. Richard's wife ran to the home of Richard's father, James William Lindsay (hereinafter William), for help. William told his younger son to get their shotgun and went to the trailer. When the younger son arrived, he saw three men leaving the scene. He found Richard and William mortally wounded by gunshots. Ruben Parker, a neighbor, heard the shots and saw three men leave the area.

Andrew Hansen, his wife, and son lived across the street from the Lindsay residence. Shortly after the shooting, Mrs. Hansen heard a loud knock on her back door and voices saying "Let us in, let us in." Two strangers came to the door. One, later identified as petitioner, said "We have been in a bad accident. My friend's hurt. We have to get him to a hospital." Mrs. Hansen awoke her husband who dressed and prepared to take the two men to the hospital. Petitioner admonished Hansen to hurry. According to the Hansens, petitioner's mouth was bleeding as though his teeth were "bashed in," and the other man's hands bled badly.

When Mr. Hansen and the two strangers went to the garage, Hansen noticed two police cars across the street at the Lindsay house. He suggested to petitioner and his companion that the police could provide faster transportation to the hospital. Petitioner then pressed a gun into Hansen's ribs and ordered him to start driving. Hansen drove several blocks before he was told to stop, and after being ordered out of the car, Hansen watched the two men drive off.¹ State v. Boothe, 485 S.W.2d 11, 12-13 (Mo. 1972).

On several occasions after the incidents described above, the police showed the Hansens different groups of photographs. Before making a positive identification of petitioner, the Hansens picked out several photographs of similar persons. On April 6, 1970, the Hansens saw a lineup which included petitioner, Cuckovich, a co-defendant, and four other men. State v. Cuckovich, 485 S.W.2d 16, 21 (Mo.1972), contains a detailed description of the lineup participants:

As to the lineup it should be noted that No. 4 in the lineup was petitioner, and it was proper that some of the men in the lineup should resemble him. Cuckovich was No. 2. The ages of the men in the lineup in order were 55 years, 57 years, 52 years, 40 years, 58 years, and 38 years. Their heights were 5'9", 5'8", 5'11", 5'11", 5'9½", and 6'3". All the men were white and all were at least partially gray.

At the lineup each member of the Hansen family identified petitioner as one of the men who came to their house on the night of the murder. Each member of the Hansen family also positively identified petitioner at trial. Tr. 619, 642, 665.

The original indictment in this case charged that petitioner, "on the 8th day of January, 1970, . . . did . . . unlawfully, wilfully, feloniously, premeditatedly and of his malice aforethought, kill one James Richard Lindsay with a dangerous and deadly weapon . . . ." Id. at 2. The indictment was dated April 17, 1970, and signed by the grand jury foreman. At a pre-trial hearing on December 14, 1970, the prosecutor asked leave to amend the indictment against petitioner by interlineation. The first interlineation added the words "either alone or acting in concert with others", and the second added "or during the commission of a burglary." After these additions, which were permitted by the state court over objection by petitioner's counsel, the indictment against petitioner read, ". . . On the 8th day of January, 1970, one Raymond Boothe . . either alone or acting in concert with others did . . . unlawfully, wilfully, feloniously, premeditatedly and deliberately and of his malice aforethought or in commission of a burglary kill James Richard Lindsay . . .."² Trial on the charges began on February 1, 1971, some 48 days after the amendments.

Petitioner raises nine challenges to his conviction:

1. He was denied due process when the trial court permitted amendment of the indictment in that the amendments prevented the jury from considering any lesser included offense.

2. He was denied effective assistance of counsel because his attorneys did not move for a continuance in order to prepare a defense to the two new elements in the indictment or make any investigation that would enable counsel to defend against the amended indictments.

3. He was denied a fair trial because the trial court refused to give three instructions (See Tr. 846-48.) relating to the prosecution's burden of proof and the lesser offense of second degree murder.

4. He was denied due process because the amended indictment was ambiguous and charged nothing, was null and void on its face, and conferred no jurisdiction on the trial court.

5. He was denied a fair trial in that the state courts erroneously applied Missouri's jeofails statute, RSMo § 545.030, to allow amendment of the indictment, thereby denying petitioner the right to instructions on second degree murder and manslaughter and allowing the indictment to charge both conjunctively and disjunctively.

6. He was denied due process when the trial court failed to suppress the identifications used against him, because the identification procedures were unnecessarily suggestive and because he was without counsel.

7. He was denied a fair trial when the prosecutor improperly placed his character and reputation in issue.

8. He was denied a fair trial when, over the objection of counsel, the trial court allowed a .38 caliber revolver allegedly used in the murder to be admitted into evidence.

9. He was denied a fair trial because there was insufficient evidence to convict him.

In response to the Court's order of January 23, 1978, petitioner also asserted that the amended indictment "was invalid to place petitioner on `notice' that he could be convicted without the State having to prove deliberation and malice aforethought, and/or that as a result of the amended indictment petitioner would be precluded from a second degree and manslaughter instruction." He also asserted that the amended indictment was inadequate to provide him with adequate notice of the nature and cause of the allegations against him.

Respondent initially argues that several of the grounds in this action have not been presented to any state appellate court prior to the filing of this petition. In particular, respondent argues that petitioner has not presented his claim concerning the failure to give a cautionary instruction on the prosecution's burden of proof to any state appellate court. Respondent also contends that petitioner presented his ineffective assistance of counsel claim to the Circuit Court in his Rule 27.26 motion but that he did not appeal from the Circuit Court's adverse ruling on the point. Thus, respondent asserts that these claims must be dismissed for failure to exhaust state remedies.

It is axiomatic that a state prisoner seeking federal habeas corpus relief must present each of his claims to the state appellate courts for determination before he files his federal habeas petition. See, e. g., Pitchess v. Davis, 421 U.S. 482, 95 S.Ct. 1748, 44 L.Ed.2d 317 (1975); Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1972). The determination as to whether a claim has been presented to the state courts must be based upon the record and pleadings before those courts. United States ex rel. Geisler v. Walters, 510 F.2d 887 (3rd Cir. 1975); Martin v. Parratt, 412 F.Supp. 544 (D.Neb.1976).

From state court records, it is clear that petitioner has never presented his claim concerning the alleged failure to give a cautionary instruction to any state appellate court in any direct or collateral proceeding. Petitioner did present his claim of ineffective assistance of counsel to the Circuit Court in his Rule 27.26 motion, but did not appeal the adverse ruling on that point. See Boothe v. State, 534 S.W.2d 74, 75 (Mo.App.1975). The Court therefore finds that petitioner has not exhausted state remedies on his claim regarding the failure to give a cautionary instruction because he has never presented it to a state court. The Court also finds that petitioner has not exhausted his claim concerning the ineffective assistance of cou...