Campbell v. Bowersox, Case No. 11-3209-CV-S-RED-P

CourtU.S. District Court — Western District of Missouri
Writing for the CourtRICHARD E. DORR
PartiesLUCAS CAMPBELL, Petitioner, v. MICHAEL BOWERSOX, Respondent.
Decision Date28 February 2012
Docket NumberCase No. 11-3209-CV-S-RED-P


Case No. 11-3209-CV-S-RED-P


Dated: February 28, 2012


Petitioner, Lucas Campbell, filed this pro se habeas corpus petition pursuant to 28 U.S.C. § 2254 on June 10, 2011, seeking to challenge his 2006 conviction and sentence for murder in the first degree, which was entered in the Circuit Court of Greene County, Missouri.

Petitioner raises eight grounds for relief: (1) that the trial court erred in admitting a videotaped statement of a witness from a pre-trial interview because such evidence bolstered the witness's testimony; (2) that the trial court erred in admitting six exhibits that were irrelevant and prejudicial; (3) that trial counsel was ineffective; (4) that the prosecutor's actions constituted misconduct; (5) that the trial court lacked jurisdiction; (6) that the trial court erred when it refused to allow the jury to consider a lesser offense; (7) that the trial court erred in granting the state's motion in limine which hindered the defense from presenting evidence that might suggest the crime was committed by another party; and (8) that the trial court erred in allowing the state to present evidence that petitioner was known for selling drugs. Respondent contends that grounds 1, 2, and part of 3 are without merit, and grounds 4, 5, 6, 7, 8, and remaining parts of ground 3 are procedurally defaulted.

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On direct appeal, the Missouri Court of Appeals summarized the facts as follows:

[Petitioner], Nick Gamblin, and their girlfriends lived together. Gamblin, who was on probation, was selling drugs as a middleman for [petitioner]. People regularly came to their house to use drugs, usually marijuana. Bobby Wilson ("Victim") came one day with a lot of marijuana. After smoking awhile, Gamblin, [petitioner] and his girlfriend, and Victim borrowed a car to drive around and smoke some more.
Victim wanted to sell some of his marijuana. [Petitioner] directed Gamblin, who was driving, to Sarena Hart's rural home. [Petitioner] took Victim's marijuana, and along with Gamblin, went inside. Victim and [petitioner's] girlfriend stayed in the car.
Instead of mentioning the marijuana to Hart, his former girlfriend, [petitioner] asked if she would stay his friend if he had done something really bad. Hart jokingly asked [petitioner] who he had killed. [Petitioner] replied no one "yet." [Petitioner] asked Hart to leave for a little while. When she refused, he asked if he could hide a body on her property. He told Hart not to go outside when they left. She did so anyway, waved at the other two in the car, and Victim smiled and waved back.
The group left, drove around, and smoked more. Gamblin was driving down a farm road when [petitioner] said to pull over so he could urinate. All three men got out. Gamblin finished first and returned to the driver's seat. He heard a gunshot and saw Victim lying near the ditch. [Petitioner] returned to the car, holding a .40 caliber gun Gamblin had seen him carry before. [Petitioner] said he was sorry to do that in front of them, but he thought Victim was a "snitch." [Petitioner] took over the driver's seat, warning Gamblin to keep his mouth shut or he would be killed. [Petitioner] drove to an acquaintance's trailer, left the gun there, and drove home after stopping for something to eat.
Gamblin was scared and shaking when they returned. He called Richard Stacey, a friend who sold drugs and had known [petitioner] for years. Without going into details, Gamblin told Stacey that [petitioner] had done something bad and Stacey needed to talk to him. Stacey found [petitioner], who (in two conversations with

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Stacey) said he "popped" Victim in the back of the head, "blew half his face off[,]" and dropped the gun off afterwards because he thought Victim was a police informant.
Ironically, Stacey was a police informant. He relayed [petitioner's] statements to law enforcement, which linked that information to Victim's death at the crime scene. Police eventually found the car, which Gamblin had hidden, and arrested Gamblin on a probation violation warrant. They recovered [petitioner's] gun, still holding eight live .40 caliber hollow-point rounds. n.1
n.1 The gun had a ten-round capacity.
They forensically established that the same gun fired a spent casing found at the crime scene. Police searched [petitioner's] bedroom after his arrest and found a holster fitting a .40 caliber handgun, and a cash box holding ammunition, including one .40 caliber cartridge matching the live rounds still in the murder weapon. There was trial testimony that [petitioner] always carried a .38 or .40 caliber handgun. The autopsy showed Victim was shot in the back of the head with a bullet of similar caliber that cut his brain stem in half.
[Petitioner] did not testify at trial. The jury found him guilty of first-degree murder, and he was sentenced to life without parole.

(Respondent's Exhibit E, pp. 2-4).

Before the state court findings may be set aside, a federal court must conclude that the state court's findings of fact lack even fair support in the record. Marshall v. Lonberger, 459 U.S. 422, 432 (1983). Credibility determinations are left for the state court to decide. Graham v. Solem, 728 F.2d 1533, 1540 (8th Cir. en banc 1984). It is petitioner's burden to establish by clear and convincing evidence that the state court's findings are erroneous. 28 U.S.C. § 2254(e)(1).1 Because the state court's findings of fact have fair support in the record and because petitioner has failed to

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establish by clear and convincing evidence that the state court findings are erroneous, the Court defers to and adopts those factual conclusions.


In ground 1, petitioner contends that when the trial court allowed the state to show Gamblin's video recorded testimony, the effect was improper bolstering, and therefore was an abuse of discretion. In ground 2, petitioner contends that the trial court abused its discretion in admitting six pieces of evidence—a cash box, ammunition, a holster, and photographs thereof.

On direct appeal, the Missouri Court of Appeals disposed of petitioner's claims as follows:

Gamblin was a key prosecution witness. The defense focused on his plea bargain to discredit his testimony. In opening statement, for example, defense counsel told the jurors that Gamblin made a deal to protect himself from prosecution; Gamblin would accrue benefits from testifying; and that:
You will hear how Nick Gamblin is going to walk out of this courtroom a free man because of a plea agreement he had made with the State. Even from his own testimony that you will hear, he is in the car, sees a murder, hides essential evidence, does not notify law enforcement before they find him, and faces only one Class D felony of tampering with evidence. That's it. And as long as his testimony satisfies the State, he walks out of here a free man. Not even on probation. He will be

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