Franco v. Wyrick
| Decision Date | 21 February 1979 |
| Docket Number | No. 78-0412-CV-W-3.,78-0412-CV-W-3. |
| Parties | David S. FRANCO, Jr., Petitioner, v. Donald W. WYRICK, Warden, Missouri State Penitentiary, Respondent. |
| Court | U.S. District Court — Western District of Missouri |
Robert G. Duncan, Gladstone, Mo., for petitioner.
Philip M. Koppe, Asst. Atty. Gen., Jefferson City, Mo., for respondent.
Petitioner, presently confined at the Missouri State Penitentiary, has filed a habeas corpus petition under 28 U.S.C. § 2254 through his retained counsel.1 He challenges two convictions for second degree murder imposed after a single jury trial in the Circuit Court of Jackson County, Missouri in late 1974. A direct state appeal was unsuccessful. State v. Franco, 544 S.W.2d 533 (Mo.1976) (en banc), cert. denied, 431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275 (1977). This action followed.
This case presents two allegations:
During the processing of this litigation, the parties submitted briefs on each issue and agreed that no hearing was necessary on petitioner's due process claim. On the confrontation claim, however, the parties were divided as to the necessity for a hearing on the question of whether defense counsel properly objected to introduction of testimony from the witnesses who chose to exercise their Fifth Amendment rights. The parties have suggested that as a substitute for a hearing, the Court might utilize affidavits detailing the circumstances of defense counsel's objection to the allegedly improper testimony.
The Court has considered the parties' suggestions, and, in connection with its reading of the entire transcript, examined the testimony that now forms the basis for the confrontation claim. From this analysis, it is apparent that the factual circumstances surrounding the challenged testimony are clear on the face of the record and require no further hearing for development. A hearing is necessary only to determine if petitioner has deliberately bypassed state remedies on the confrontation claim. As is noted more fully below, however, the Court's determination of the merits of the confrontation claim obviates the need for any discussion of the bypass issue. Given these circumstances, the Court has determined that no further evidentiary hearings are required in this case and that the matter may be decided on the basis of the trial transcript, the opinions of the state appellate courts and the cogent written arguments of the parties.
The Court will discuss each claim in the petition separately.
Petitioner first argues that he was denied due process when the state trial court refused to submit the lesser included offense of manslaughter to the jury because of a Missouri rule requiring petitioner to come forward with some evidence supporting submission of the charge before it was required.2
On February 6, 1974, petitioner was indicted on two counts of first degree murder, RSMo § 559.010, for the killings of Terry Ott and Linda Baber. Trial began on July 15, 1974. As summarized by the Missouri Supreme Court, the State presented the following evidence:
On January 2, 1974, petitioner possessed a key to a house owned by Sherry Edelbaum, with whom he had shared an intimate relationship. On January 31, 1974, the bodies of Ott and Baber were found under a pile of awnings in the Edelbaum house. Ott and Baber, who had lived together, were last seen alive on January 2, 1974; a forensic pathologist testified that the two had been dead for approximately one month at the time their bodies were found. The pathologist testified that the deaths of Ott and Baber were caused by gunshot wounds in the chest and massive hemorrhages resulting from the shots. Two .380 caliber bullets were recovered from Baber's body. These bullets matched a bullet known to have been fired from a .380 caliber Llama brand pistol owned by Ronald Palermo. The pistol was stolen from Palermo's home in mid-December 1973.
The state's evidence tended to show that petitioner owed Terry Ott approximately $2,000, and that some two or three months prior to January 2, 1974, a heated dispute had erupted between the two concerning repayment of the money.
At about 8:30 a. m., January 2, 1974, petitioner called Baber's mother in an attempt to reach Ott. Petitioner left the telephone number of the Edelbaum house with Baber's mother as a number where he could be reached. A person who lived near the Edelbaum house testified that he heard sounds like exploding "firecrackers" sometime between 9:00 a. m. and 1:15 p. m. on January 2, 1974.
Sherry Edelbaum met petitioner within two blocks of her home as she returned from an art class at 12:30 p. m., January 2, 1974. Petitioner stopped her and invited her to join him for lunch. Edelbaum accepted, and drove to her house. Petitioner followed in his car. Edelbaum started into her house to leave her art supplies, but was dissuaded by petitioner, who suggested that she leave them in the car and that they go immediately to lunch.
As petitioner and Edelbaum drove to lunch, Edelbaum noticed some Indian jewelry in petitioner's car. She expressed admiration for a particular belt buckle which had a missing stone, and petitioner gave it to her. At trial, Ott's brother testified that he had owned the buckle and given it to his brother before January 2, 1974. While in petitioner's car, Edelbaum also noticed a box in the back seat that smelled like marijuana. Petitioner refused to answer questions concerning the contents of the box. Ott was reputed to be a dealer of marijuana.
There was testimony that Ott regularly carried large amounts of money on his person. When his body was discovered, no cash was found. Between January 2 and January 31, 1974, petitioner went to California with several other persons. During that trip, petitioner was observed to possess large amounts of cash.
On the date that the victims' bodies were discovered, police officers discovered Baber's purse partially concealed among the rafters in the basement of the Edelbaum house. Petitioner later told police officers that he had never touched Baber's purse although he had been with the two several times prior to their deaths. Police experts removed a latent fingerprint matching that of petitioner's left ring finger from the purse discovered in the basement. State v. Franco, 544 S.W.2d 533, 535-36 (Mo.1976) (en banc).
At the close of the evidence, the trial judge gave the following instructions to the jury:
M.A.I.-CR Instruction 3.20 Tr., 586-88, 591-92.
The trial court gave identical instructions with respect to Count II, which charged petitioner with the murder of Linda Baber. Id. at 589-90, 592. The court also gave a circumstantial evidence instruction:
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Greenhaw v. Wyrick, 78-0967-CV-W-1.
...(8th Cir. 1979); United States v. Scharf, 558 F.2d 498 (8th Cir. 1977); DeBerry v. Wolff, 513 F.2d 1336 (8th Cir. 1975); Franco v. Wyrick, 465 F.Supp. 679 (W.D.Mo.1979); Boothe v. Wyrick, 452 F.Supp. 1304 (W.D.Mo.1978); Young v. Wyrick, 451 F.Supp. 576 (W.D.Mo.1978). Petitioner is not entit......