Brown v. Baldwin

• Decision Date: 08 March 1973
• Docket Number: No. 72 C 665(3).,72 C 665(3).
• Citation: 356 F. Supp. 831
• Court: U.S. District Court — Eastern District of Missouri
• Parties: Kerry BROWN, Petitioner, v. August H. BALDWIN, Superintendent (Missouri Training Center for Men, Moberly, Missouri), Respondent.

356 F. Supp. 831

Kerry BROWN, Petitioner, v. August H. BALDWIN, Superintendent (Missouri Training Center for Men, Moberly, Missouri), Respondent.

No. 72 C 665(3).

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

March 8, 1973.

COPYRIGHT MATERIAL OMITTED

Louis Gilden, St. Louis, Mo., for petitioner.

John C. Danforth, Atty. Gen., State of Missouri, Preston Dean, Asst. Atty. Gen., Jefferson City, Mo., for respondent.

MEMORANDUM AND ORDER

WEBSTER, District Judge.

Kerry Brown, a state prisoner, petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted of assault with intent to kill with malice aforethought in the Circuit Court of the City of St. Louis, Missouri and is presently serving a sentence of forty-five (45) years in the Missouri Training Center for Men at Moberly, Missouri. An Order to Show Cause was entered November 3, 1972, and a Response was filed December 5, 1972. An attorney entered his appearance for petitioner on January 8, 1973 and filed a Reply to the Response on January 15, 1973.

Petitioner alleges the following grounds for the writ:

A. The Circuit Court lacked jurisdiction because petitioner was a minor at the time the offense was committed;

B. Denial of a fair trial because one witness for the State was brought into court on a stretcher, accompanied by a uniformed nurse, and was permitted to present cumulative and unnecessary testimony which inflamed and prejudiced the jury and because prejudicial publicity was communicated to the jury;

C. The verdict was against the weight of the evidence because the state failed to prove petitioner was at the scene of the crime on the day in question;

D. The court invaded the province of the jury when, after the jury had deliberated five (5) hours and was unable to reach a verdict, it submitted an instruction (number 6) that if the jury had agreed upon the guilt of the defendant but was unable to agree on punishment, then the jury could return the verdict and the court would set the punishment;

E. Denial of a fair trial by an impartial jury because the prosecutor peremptorily struck all Negroes from the panel of veniremen solely because of their race;

F. Denial of effective assistance of counsel because counsel was not adequately prepared and made no attempt to secure witnesses in defense.

Points A, B, C and D were decided adversely to petitioner by the Supreme Court of Missouri on direct appeal of his conviction. State v. Brown, 443 S. W.2d 805 (Mo. en banc 1969). Points E and F were decided adversely to petitioner by the Supreme Court of Missouri in his appeal from a denial of a motion for post-conviction relief under Missouri Supreme Court Rule 27.26 (V.A.M.R.). Brown v. State, 470 S.W.2d 543 (Mo. 1971). Therefore, as to these issues, petitioner has exhausted all available state remedies as required by 28 U.S.C. § 2254(b).

The Missouri Supreme Court summarized the factual background of this case as follows:

"The evidence showed that on the 25th day of February, 1967, at about 4:30 p. m., a man entered a jewelry store owned by William Simpkins at 5927 Easton in St. Louis. He held a .38 caliber revolver in his hand and announced a holdup. Also present in the store was Conrad Rodgers, a police officer off duty, Henry Levin, manager of a neighboring store, and Lloyd Fiehler, an accountant, who was working on the books of the store.

"Simpkins, who was seated at a watchmaker's bench in the back of the store, fell onto a burglar alarm on the floor. The robber, identified by Rodgers, Levin and Fiehler as Kerry Brown, then reached over the counter and shot Simpkins in the neck. There was an exchange of gunfire between Officer Rodgers and the holdup man, both of whom received serious injuries.

"The man left the store and was observed entering a certain type of automobile near the jewelry store. The defendant was seen to enter the same car when he left a doctor's office a few minutes later. A police officer stopped the same car within one hour after the assault, found the defendant in the car suffering from bullet wounds and took him to the hospital. The defendant denied being present at the jewelry store at the time of the assault. He testified that he had received his gunshot wounds in a fight with his brother."

State v. Brown, 443 S.W.2d 805, 807 (Mo. en banc 1969)

A.

Petitioner's first ground is that the Circuit Court lacked jurisdiction because petitioner was a minor at the time the offense was committed. Section 211.031(2) R.S.Mo., V.A.M.S. (1959) provides that the juvenile court shall have exclusive jurisdiction of a minor who is alleged to have violated a law "prior to having become seventeen years of age." The evidence is undisputed that the offense occurred February 25, 1967 at 4:30 p. m. and that defendant was born February 25, 1950 at 6:32 p. m. No Missouri statute provided a rule for computing a person's age and therefore the Missouri Supreme Court was required to apply the common law. § 1.010, R.S.Mo. (1959). The Missouri Supreme Court correctly concluded that on the basis of either of two common law rules,¹ the petitioner had reached seventeen years of age at the time of the offense and consequently the juvenile court did not have jurisdiction. State v. Brown, 443 S.W.2d 805, 806-807 (Mo. en banc 1969). Petitioner does not point out how that interpretation of § 211.031(2), R.S.Mo. (1959) has placed him "in custody in violation of the Constitution or laws . . . of the United States." 28 U.S.C. § 2254(a).² This contention is without merit.

B.

Petitioner's second ground is that he was denied a fair trial because (1) a witness for the state (Officer Rodgers) was brought into court on a stretcher, accompanied by a uniformed nurse, and was permitted to present cumulative and unnecessary testimony which inflamed and prejudiced the jury and (2) prejudicial publicity was communicated to the jury.

(1)

The Supreme Court of Missouri accurately summarized what transpired concerning the testimony of Officer Rodgers:

"When the trial started, the assistant circuit attorney advised the judge and counsel for defendant that Officer Rodgers would be brought to court on a stretcher and that his doctor wanted a nurse to remain nearby in case he should become ill. Counsel for defendant objected on the basis that this would tend to limit vigorous cross-examination, if necessary, and that the officer's appearance on a stretcher would be inflammatory and would prejudice the jury against defendant. This objection was overruled. Subsequently, during Rodgers' direct testimony, counsel for defendant, out of the hearing of the jury, moved for a mistrial on the basis that tears had appeared in Rodgers' eyes and that this would elicit sympathy of the jury for Rodgers and be prejudicial to the defendant. The request for a mistrial was denied."

State v. Brown, 443 S.W.2d 805, 807-08 (Mo. en banc 1969)

The court concluded:

"These objections relate to an area in which the trial court necessarily has considerable discretion. He could observe at first hand whether the fact that Officer Rodgers was on a stretcher unduly and unfairly prejudiced the jury against the defendant. He concluded that it did not, and also decided that the fact that tears appeared in Rodgers' eyes during his testimony was not a basis for the declaration of a mistrial. These questions were raised again by defendant's motion for new trial. Again, the trial court declined to give relief, and we cannot say that he was wrong or that he abused his discretion. The trial court was present and was in a much better position to judge these matters than are we on the basis of the record presented to us on appeal." Id. at 808. (Emphasis supplied).

It is well settled that evidentiary matters are not grounds for relief by way of habeas corpus unless a specific provision of the Constitution is violated or an error is of such magnitude as to violate the due process clause of the Fourteenth Amendment. Atwell v. Arkansas, 426 F.2d 912, 915 (8th Cir. 1970); Taylor v. Minnesota, 466 F.2d 1119 (8th Cir. 1972); Tomlin v. Baldwin, 72 C. 507(3) at 2 (E.D.Mo.1972). The bare facts from the record do not demonstrate that what transpired rendered petitioner's trial fundamentally unfair or that the trial judge, who actually observed the situation, was plainly incorrect in reaching the same conclusion. Petitioner argues, additionally, that what transpired rendered his trial fundamentally unfair in the circumstances because Officer Rodgers' testimony was cumulative and unnecessary. Officer Rodgers and two other eyewitnesses identified petitioner as the perpetrator of the crime. William Simpkins, the store owner who was seriously wounded, was unable to identify petitioner. Petitioner's defense in the trial court and on appeal (and one of the grounds urged here for the writ) was that the evidence was insufficient to show that he was even present at the scene of the crime. State v. Brown, 443 S.W.2d 805, 808 (Mo. en banc 1969). Petitioner also asserted an alibi defense. Id. The Supreme Court correctly concluded that it was not fundamentally unfair for the state to call Officer Rodgers as a witness.³

(2)

Petitioner's contention that his trial was rendered unfair because prejudicial publicity was communicated to the jury is based on the fact that the jury was not sequestered prior to final submission of the case and his conclusion that the trial received undue and excessive publicity. The Supreme Court of Missouri summarized the publicity the trial received:

"A hearing was held on the defendant's motion for new trial. At that hearing the only evidence offered relating to this issue consisted of two issues of the St. Louis Globe-Democrat dated September 20 and 22, 1967. The issue of September 20 contains an account of testimony heard during the trial and included a photograph of Officer Rodgers on a stretcher entering the courtroom. The issue of September 22 makes no reference

...