Carter v. Armontrout, 90-1416

• Decision Date: 30 May 1991
• Docket Number: No. 90-1416,90-1416
• Parties: Ricky CARTER, Appellant, v. Bill ARMONTROUT, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1294

929 F.2d 1294

Ricky CARTER, Appellant, v. Bill ARMONTROUT, Appellee.

No. 90-1416.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 12, 1990.

Decided April 9, 1991.

Rehearing and Rehearing En Banc

Denied May 30, 1991.

E. Michael Murphy, St. Louis, Mo., for appellant.

Ronald Jurgeson, Asst. Atty. Gen., Jefferson City, Mo., for appellee.

Before McMILLIAN, and BEAM, Circuit Judges, and ROSENBAUM, ^* District Judge.

BEAM, Circuit Judge.

Ricky Carter appeals from the district court's denial of his petition for a writ of habeas corpus. See 28 U.S.C. Sec. 2254 (1988). He asserts that the district court erroneously denied relief on two of the claims raised in his petition and incorrectly found that two other claims were procedurally barred. We affirm.

In May of 1984, Carter was convicted in Missouri state court of forcible rape and sentenced, as a persistent sexual offender, to thirty years imprisonment. At trial, the victim's testimony revealed that Carter, Larry Walker and several other men forced her to engage in various sexual acts. The victim stated that she initially had sexual intercourse with Carter after he threatened: "[I]f you don't co-operate, I'll bust your brains out with that hammer." ¹ Trial Transcript at 31. The assault, which occurred at Larry Walker's home, continued for several hours.

The Missouri Court of Appeals affirmed Carter's conviction. State v. Carter, 689 S.W.2d 780 (Mo.Ct.App.1985). His state court motion for post-conviction relief was denied. Carter v. State, 758 S.W.2d 150 (Mo.Ct.App.1988). He then filed this action, and the district court, adopting the report and recommendation of the magistrate judge, denied relief. Carter takes exception to the district court's adverse rulings on three points: 1) whether the trial court's failure to declare a mistrial following the introduction of a hearsay statement denied him a fair trial; 2) whether his counsel's failure to request a jury instruction defining "serious physical injury" constituted constitutionally ineffective assistance of counsel; and 3) whether his claims that his attorney continued to represent him despite a conflict of interest and that the victim's underpants were improperly received into evidence were procedurally barred.

A. Due Process

Carter asserts that his right to a fair trial was violated when the trial court failed to order a mistrial after a police officer, in response to questioning about why he did not enter Walker's house to seize the hammer allegedly used during the assault, stated: "It was his residence and at the time we did not have a search warrant but he [Walker] said he would obtain the weapon that was used during the incident and return it and bring it to us." Trial Transcript at 218-19. Carter objected after the statement was made, but did not request a mistrial. The court sustained the objection and directed the jury to disregard the statement. Carter argues that the statement was the only corroboration for the victim's testimony. He contends that he was denied a fair trial because the jury could have inferred from this statement that an eyewitness, Walker, who did not testify, corroborated her story.

Under 28 U.S.C. section 2254 this court's power to review state convictions is limited. Habeas corpus relief is available only where errors of constitutional magnitude have occurred. See Newlon v. Armontrout, 885 F.2d 1328, 1336 (8th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 3301, 111 L.Ed.2d 810 (1990). Whether evidence was properly admitted is a question of state law reviewable on habeas only when a specific constitutional right is infringed "or [the evidence] is so prejudicial that it amounts to a denial of due process." Manning-El v. Wyrick, 738 F.2d 321, 322 (8th Cir.), cert. denied, 469 U.S. 919, 105 S.Ct. 298, 83 L.Ed.2d 233 (1984). A petitioner must show more than error requiring reversal on direct appeal to obtain relief. He must show that the alleged error rendered the entire trial fundamentally unfair--"that there is a 'reasonable probability that the error complained of affected the outcome of the trial--i.e., that absent the alleged impropriety, the verdict probably would have been different.' " Newlon, 885 F.2d at 1337 (quoting Hamilton v. Nix, 809 F.2d 463, 470 (8th Cir.) (en banc), cert. denied, 483 U.S. 1023, 107 S.Ct. 3270, 97 L.Ed.2d 768 (1987)).

Here, the trial court sustained Carter's objection and instructed the jury to disregard the statement. This was the sole relief Carter requested. In fact, Carter's trial counsel testified at the state post-conviction proceeding that she did not want a mistrial at that point. 27.26 Hearing Transcript at 57. Further, in light of the other evidence received--the hammer itself and the victim's testimony--and the curative instruction which was given, there is no reasonable probability that the verdict would have been different had the jury not heard the statement. We doubt that the trial court erred in not sua sponte granting a mistrial. ² In any event, Carter's trial was not fundamentally unfair.

B. Ineffective assistance of counsel

Carter also contends that his trial attorney was constitutionally ineffective because she failed to request a jury instruction defining "serious physical injury." Instruction Five, which was the verdict director for forcible rape, provided, in part, that the jury could convict Carter if the jury found that he had sexual intercourse with the victim "without her consent by the use of forcible compulsion." Forcible compulsion was defined in Instruction Nine as "either (a) Physical force that overcomes reasonable resistance, or (b) A threat, expressed or implied, that places a person in reasonable fear of death, serious physical injury or kidnapping of herself or another person." At the time of Carter's trial, serious physical injury was defined as "physical injury that creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ." Missouri Approved Instructions--Criminal Sec. 33.01 (2d ed. 1979) (MAI-CR 2d). The accompanying Notes on Use required that serious physical injury be defined whenever the phrase appeared in jury instructions. Id. Sec. 20.02.1 n. 3. Carter asserts that, under Missouri law, serious physical injury was not a phrase of common usage and his attorney was ineffective in not requesting that it be defined.

Under Missouri law, the trial court's failure to define serious physical injury was error. ³ See State v. Rodgers, 641 S.W.2d 83, 84 (Mo.1982) (en banc). However, whether such error warrants reversal depends on its prejudicial effect. See id. at 84-85. Carter asserts that the failure to define serious physical injury in this instance was reversible error. ⁴ Thus, he claims that he was prejudiced by his attorney's failure to make sure that the instruction was given. Carter, however, fails to recognize that the standard for overturning a state court conviction on federal habeas review is more stringent than the standard for reversal on direct appeal.

In Rodgers, the court held: "It may well be the jury found something less than that required by statute in finding the defendant had inflicted serious physical injury.... While evidence in the record may support the verdict, it cannot be said that the jury would have so found had they been fully instructed." Id. at 85. Under Missouri law, an incomplete or incorrect jury instruction is prejudicial if the jury " 'may have been adversely influenced' " by the error. Id. (quoting State v. Aitkens, 352 Mo. 746, 179 S.W.2d 84, 94 (1944)). In contrast, to obtain habeas relief in federal court based on ineffective assistance of counsel, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2062, 80 L.Ed.2d 674 (1984).

To prove a violation of his sixth amendment right to effective assistance of counsel, a petitioner must show both that his attorney's performance was deficient and that the deficient performance prejudiced his defense. Id. at 687, 104 S.Ct. at 2064. The Supreme Court indicated in Strickland that the performance component of the claim need not be addressed before a court reaches the prejudice component. In fact, when a petitioner fails to demonstrate sufficient prejudice from the alleged ineffectiveness, the court need not analyze the performance component. Id. at 697, 104 S.Ct. at 2069-70. Thus, we review only the district court's conclusion that Carter suffered no prejudice from the alleged ineffectiveness.

Carter argues that the jury's verdict might have been based on a finding that he threatened to inflict injury less severe than that required under the proper definition of serious physical injury. On the instructions given, the jury could have convicted Carter upon finding that he exerted physical force sufficient to overcome the victim's reasonable resistance, that he placed the victim in reasonable fear of death, or that he placed the victim in reasonable fear of serious physical injury. Only the third alternative creates any possible concern here.

The victim testified that Carter threatened to kill her and that he used a weapon. ⁵ The evidence amply supports a finding that the victim's reasonable resistance was overcome by physical force. Further, although no evidence of physical injury was presented, the evidence supports a finding that Carter placed the victim in reasonable fear of physical injury that "creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ." MAI-CR 2d Sec. 33.01. See State v. Pippenger, 708 S.W.2d 256,...