Clay v. Bowersox, 02-2419.

• Decision Date: 17 May 2004
• Docket Number: No. 02-2419.,No. 02-2522.,02-2419.,02-2522.
• Citation: 367 F.3d 993
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: Richard D. CLAY, Petitioner — Appellee/Cross Appellant, v. Michael BOWERSOX, Respondent — Appellant/Cross Appellee.

367 F.3d 993

Richard D. CLAY, Petitioner — Appellee/Cross Appellant, v. Michael BOWERSOX, Respondent — Appellant/Cross Appellee.

No. 02-2419.

No. 02-2522.

United States Court of Appeals, Eighth Circuit.

Submitted: November 20, 2003.

Filed: May 17, 2004.

COPYRIGHT MATERIAL OMITTED

Counsel who presented argument on behalf of the appellant/cross-appellee was Frank Jung, AAG, of Jefferson City, MO.

Counsel who presented argument on behalf of the appellee/cross-appellant were Jennifer Herndon of St. Louis, MO and Elizabeth Unger Carlyle of Lee's Summit, MO.

Before LOKEN, Chief Judge, WOLLMAN and COLLOTON, Circuit Judges.

LOKEN, Chief Judge.

A Missouri state court jury found Richard Clay guilty of the first degree murder of Randy Martindale. A few months later, a second jury convicted Martindale's estranged wife Stacy of hiring the murderer. The Missouri Supreme Court affirmed Clay's conviction and death sentence and the denial of state post-conviction relief. State v. Clay, 975 S.W.2d 121 (Mo.1998) (en banc). Clay then filed this petition for a federal writ of habeas corpus, bolstering many of his state court contentions with new evidence and legal theories. The district court granted the writ on the grounds that the guilt phase of Clay's trial was tainted by three Brady violations, one of which was aggravated by the prosecutor's improper closing argument, and by the ineffective assistance of trial counsel. The State appeals those rulings. Clay cross-appeals the denial of relief on five other grounds. Concluding that Clay failed to show Brady materiality or Strickland prejudice, we reverse the grant of habeas relief. We affirm the rulings challenged on cross appeal and remand with instructions to deny the writ.

FACTUAL BACKGROUND

Stacy and Randy Martindale separated in late April 1994. On May 19, Randy took their two sons to an evening baseball game, returning the boys to Stacy's home around 10:00 p.m. Stacy invited Randy to spend the night. At approximately 11:35 p.m., Randy was shot four times as he sat in Stacy's bedroom. The first three shots were fired from across the room and disabled Randy. The fourth was fired into his head and neck from close range. Randy bled to death. Stacy ran from the room and woke her neighbors, screaming, "they shot him."

Shortly thereafter, New Madrid police officer Claude McFerren saw Stacy's red Camaro proceeding slowly away from the Martindale home, emitting sparks because a child's tractor was lodged beneath the car. McFerren pursued, suspecting an intoxicated driver, and activated his emergency lights when the Camaro accelerated. McFerren caught up with the car stopped on a gravel road with the engine running and both doors open. When Randy's homicide was reported, the police began a twelve-hour manhunt for the person whose footprints were traced from the passenger door into adjacent fields, past commercial premises, and ultimately into a swamp. During the search, Highway Patrol Officer Greg Kenley found a dry .380 caliber cartridge lying in dew-covered grass. At trial, a police expert testified that the bullet came from the same ammunition clip as the casings found at the crime scene.

The search continued through the night. The next day, an officer saw Clay run into the woods carrying a black shaving kit. As officers approached, Clay emptied the kit and eluded them. Some time later, an officer saw Clay's face surface for air from chest-high swamp water. The police arrested Clay and found his empty black kit. Clay's Reebok shoes matched the footprints leading from the Camaro. The murder weapon was never found.

At trial, Clay's friend, Charles Sanders, testified that he had a long-standing affair with Stacy Martindale. In February of 1994, Sanders testified, Stacy first asked him to kill her husband. Sanders denied intending to do so but admitted leading Stacy to think otherwise. Sanders borrowed a gun, purchased ammunition, and practiced firing it with Stacy. At one point, Stacy offered Sanders $10,000 to kill Randy and gave him a check for $4,996.36 as a down payment. Sanders kept the check a few weeks before he returned it to Stacy, saying he could not do the killing. (Sanders misplaced a carbon copy of the check, which was turned in to the police shortly after Randy's murder.) Sanders further testified that he told Clay about Stacy's request. Clay replied it was a "crazy" idea. According to Sanders, Clay frequently borrowed Sanders's car and twice removed the gun from the car and left it with a friend without Sanders's permission.

Sanders testified that, on the afternoon of the murder, he and Clay sat in Sanders's car outside the store where Sanders worked, waiting for Stacy. She arrived and insisted that Sanders kill her husband. He refused, they argued heatedly, and Stacy said she would ask Clay to do it. Stacy and Clay then drove off in her car to a nearby restaurant. A few minutes later, Sanders briefly talked with Clay in the restaurant parking lot but did not see him again that night. Sanders did not testify to any incriminating statements by Clay or otherwise corroborate the State's theory — that Clay went to a friend's trailer home and left with the black shaving kit; that Stacy picked up Clay at a local hotel and drove him to her home; and that Clay hid in a bedroom closet until shooting Randy and then fled alone in Stacy's car.

After the State rested, Clay took the stand in his own defense. He admitted riding to the restaurant alone with Stacy but denied they discussed killing Randy. Later that evening, Clay testified, a friend drove him to a local hotel where he bought illegal drugs on consignment from two out-of-town suppliers. While he was phoning potential drug customers from the hotel, Sanders arrived. When Clay said he got the drugs, the two went to the hotel parking lot where Stacy was waiting. Stacy did not have cash to buy drugs with her, so the trio proceeded in Stacy's car to her home. While Clay and Sanders waited in the Camaro, Randy returned home with the boys and ordered Clay and Sanders to leave. After Randy entered the house, Stacy came to the door, gave Sanders the keys to the Camaro, and told him to return it after getting his own car. Clay and Sanders left in the Camaro, with Sanders driving. When a police car began pursuing, Clay told Sanders to stop and ran from the passenger side to avoid being caught with the drugs in his black shaving kit. The next morning, he threw the drugs into the swamp and abandoned the empty shaving kit. He did not learn of Randy's murder until after his arrest.

I. THE STATE'S APPEAL

A. Sanders Plea Agreement Issues. The district court granted relief on Clay's claim that he was denied due process because the prosecution did not accurately disclose its plea agreement with Sanders and misled the jury about the terms of that agreement in closing argument.

1. The Trial Testimony. Some weeks after the murder, Sanders was charged with first degree murder, conspiracy to commit murder, and armed criminal action. He surrendered in early July and agreed to cooperate. On July 18, 1994, prosecutor Riley Bock and Sanders agreed in writing that the State would dismiss the pending charges, file a single class D felony charge of hindering prosecution, and recommend a five-year suspended sentence and five years of supervised probation provided that Sanders gave "complete, truthful and verifiable information" and pleaded guilty to that charge at the conclusion "of all proceedings against all other defendants." That same day, Sanders gave a lengthy statement to the police. The next day, he disclosed that after the murder he hid the rest of the box of ammunition he had bought for the borrowed gun. The shells were recovered and were identified at trial as identical to the shell found during the search for Clay and to the casings found at the crime scene. Prosecutor Bock took the position that this nondisclosure justified revoking the plea agreement; Sanders's attorney disagreed.

Before Sanders testified at Stacy's preliminary hearing on September 26, 1994, his attorney placed a revised plea agreement on the record:

That in exchange for Mr. Sanders' complete and truthful testimony here today [and] at any future proceedings as relates to Stacy Martindale and [Clay], the State will recommend a term of incarceration on an amended charge of homicide of a term of either 5 years in the Department of Corrections, or 10 years in the Department of Corrections.... In the event that the 85 percent rule [in a recently enacted crime bill, MO. STAT. § 558.019] applies to Mr. Sanders, the recommendation will be 5 years. In the event that that 85 percent rule does not apply, the recommended term will be 10 years.

Counsel also filed a motion to enforce the more lenient July 18 plea agreement, arguing that Sanders had complied with its obligations and detrimentally relied on the prosecutor's written promise to recommend a probation sentence. When Clay's attorney deposed Sanders two months before Clay's June 1995 trial, Sanders disclosed the initial plea agreement, accurately described the revised agreement, and testified that he understood the revised agreement was still in effect.

At Clay's trial, Sanders initially described the revised plea agreement on direct examination:

A. My understanding of the current agreement is if I tell what I know truthfully that it would be recommended that I receive 10 years in the State penitentiary for an unspecified crime.

Q. Not probation, but 10 years?

A. 10 years in prison, yes.

Q. You understand that?

A. Yes, sir.

Clay's attorney cross-examined Sanders on this issue, seeking to establish that he expected to be treated more leniently:

Q. Isn't it your position that you have a deal to receive probation from the State?

A. We have a motion to that effect. My attorney does have a motion, yes.

. . . . Q. When you made a statement to the police on July 18th of 1994, had you entered into an...