Herndon v. Norman

• Court: U.S. District Court — Western District of Missouri
• Writing for the Court: DEAN WHIPPLE
• Decision Date: 06 June 2012
• Docket Number: Case No. 12-0206-CV-W-DW-P
• Citation: Herndon v. Norman, Case No. 12-0206-CV-W-DW-P (W.D. Mo. Jun 06, 2012)
• Parties: RAYMOND HERNDON, Petitioner, v. JEFF NORMAN, Respondent.

RAYMOND HERNDON, Petitioner,

v.JEFF NORMAN, Respondent.

Case No. 12-0206-CV-W-DW-P

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION

Dated: June 6, 2012.

OPINION AND ORDER DENYING WRIT OF HABEAS CORPUS AND DENYING A

CERTIFICATE OF APPEALABILITY

Petitioner, a convicted state prisoner currently confined at the Jefferson City Correctional Center in Jefferson City, Missouri, has filed pro se a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2005 convictions and sentences for five counts of first-degree child molestation, two counts of first-degree sexual misconduct, four counts of first-degree statutory sodomy, two counts of second-degree statutory sodomy, and one count of second-degree statutory rape, which were entered in the Circuit Court of Jackson County, Missouri. Petitioner's conviction was affirmed in part and reversed and remanded in part on direct appeal ((State v. Herndon, 224 S.W.3d 97 (Mo. App. 2007); (Respondent's Exhibit G)), and the denial of his motion for post-conviction relief filed pursuant to Mo. Sup. Ct. R. 29.15 was upheld on appeal thereof (Respondent's Exhibit M). Petitioner raises three (3) grounds for relief. Respondent contends that all three grounds are without merit.

FACTUAL BACKGROUND

In affirming the motion court's denial of petitioner's 29.15 motion, the Missouri Court of Appeals, Western District, set forth the following facts:

Herndon was charged by indictment in the Circuit Court of Jackson County with six counts of first-degree child molestation, two counts of first-degree sexual misconduct, five counts of statutory sodomy in the first degree, one count of second-degree statutory rape, and one count of second-degree statutory sodomy. An information in lieu of indictment was subsequently filed, reducing one of the counts of statutory sodomy from first to second degree. Immediately prior to trial, one count of child molestation was dismissed.

Trial began on June 6, 2005. The jury found Herndon guilty on all counts submitted to it. Herndon waived jury sentencing, and was sentenced by the court to five years on three child molestation counts, eight years on two other child molestation counts, twenty years for each first-degree statutory sodomy count, five years for the second-degree statutory sodomy and statutory rape counts, and one year in the county jail on the sexual misconduct counts, all to be served concurrently.

On direct appeal, this court affirmed all of the counts except for count 6, a charge of statutory sodomy in the first degree. State v. Herndon, 224 S.W.3d 97 (Mo. App. 2007). On that count, we concluded that the evidence was insufficient to establish penetration of the victim's vagina by Herndon's penis as necessary to sustain the conviction, but found that the evidence was sufficient to convict him of the lesser-included offense of first-degree child molestation. Id. at 99-100. We accordingly remanded to the circuit court to enter judgment on count 6 on the lesser-included offense.

Respondent's Exhibit M, p. 2 (footnote omitted).

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), cert. denied, 469 U.S. 842 (1984). It is petitioner's burden to establish by clear and convincing evidence that the state court 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 becausepetitioner has failed to establish by clear and convincing evidence that the state court findings are erroneous, the Court defers to and adopts those factual conclusions.

GROUND ONE

In Ground One, petitioner contends that the trial court erred in denying his motion for a new trial on the ground that jurors made personal or business telephone calls during deliberations. Doc. No. 1, p. 6. Furthermore, petitioner claims that one juror called a discharged alternate juror from the bathroom and discussed the ongoing deliberations. Doc. No. 1, p. 7. The Missouri Court of Appeals, Western District, denied Ground One as follows:

Herndon also contends that the circuit court erred in denying his motion for new trial and in entering its judgment of conviction because jurors engaged in misconduct and were subjected to outside influences during deliberations. In particular, the evidence established that during deliberations some jurors used their cellular telephones to make personal or business calls and that one juror spoke to an alternate juror, who, although not participating in the jury's deliberation, expressed her opinion that Herndon was innocent.

"[T]he primary if not exclusive purpose of jury privacy and secrecy is to protect the jury's deliberations from improper influence." U.S. v. Olano, 507 U.S. 725, 737-38, 113 S. Ct. 1770, 123 L.Ed.2d 508 (1993). "'Private communications, possibly prejudicial, between jurors and third persons, or witnesses, or the officer in charge, are absolutely forbidden, and invalidate the verdict, at least unless their harmlessness is made to appear.'" State v. Quinn, 405 S.W.2d 895, 896 (Mo.1966) (quoting Mattox v. U.S., 146 U.S. 140, 150, 13 S. Ct. 50, 36 L.Ed. 917 (1892)).

The courts presume prejudice when a non-juror has unauthorized communication with jurors. State v. Babb, 680 S.W.2d 150, 152 (Mo. banc 1984). When the improper communication intrudes on the jury's deliberations, the state can avoid a new trial only by establishing that the defendant was not prejudiced by the communication. State v. Hayes, 637 S.W.2d 33, 38 (Mo. App. 1982); State v. White, 138 S.W.3d 783, 786 (Mo. App. 2004). In the face of prima facie evidence of improper communication between jurors and third persons, the state's burden is to show that the communication did not influence the jurors. Quinn, 405 S.W.2d at 896; White, 138 S.W.3d at 786.

The circuit court may grant a new trial for juror misconduct when such misconduct tends to prevent "a fair and due consideration of the case [.]" Section §547.020(2), RSMo 2000. The circuit court has broad discretion in determining whether or not the state has met its burden of establishing that the communication was harmless. State v. Klaus, 730 S.W.2d 571, 580 (Mo. App. 1987). Our standard in reviewing the circuit court's ruling is an abuse of discretion standard. State v. Carr, 610 S.W.2d 296, 300 (Mo. App. 1980). The circuit court abuses its discretion when its ruling "is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration." State v. Rutter, 93 S.W.3d 714, 729 (Mo. banc 2002), cert. denied, 540 U.S. 812, 124 S. Ct. 61, 157 L.Ed.2d 26 (2003).

In seeking to rebut the presumption of prejudice, the state presented the testimony of all 12 jurors and the two alternates at the hearing on Herndon's motion for new trial. Juror Carmen Lopez-Palacio testified that she used her cellular telephone during deliberations to telephone a member of her family to inform him or her that the jury "would be [deliberating] longer." She also said that Bobbi Andujar, an alternate juror, called her during deliberations to ask what the jury was doing. Lopez-Palacio responded that she could not discuss anything with her. According to Lopez-Palacio, Andujar replied that she wished the jury "luck" but opined that Herndon was not guilty and that she did not believe the evidence regarding an incident involving the victim's using a vibrator on Herndon. Lopez-Palacio said that Andujar told her that the victim appeared to be lying about the vibrator because Herndon had testified that he had hemorrhoids and the victim never mentioned anything about using a lubricant when she testified that Herndon had her stick a vibrator in his anus. Lopez-Palacio said that she did not share Andujar's conversation with anyone on the jury, but she acknowledged that, because her cellular phone was loud, anyone sitting next to her could have heard both sides of the conversation. Lopez Palacio said that her conversation with Andujar did not influence her decision as a juror in any way. She said that she was not aware of any other communications that any other juror had with any other person during deliberations.

Andujar testified that, about an hour after the jury began deliberations, she telephoned and left a message on Lopez-Palacio's cellular telephone because she assumed that the jury would have been finished with its verdict by then. Andujar left a message telling Lopez-Palacio to telephone her when the jury had finished. Andujar said that about 45 minutes later, Lopez-Palacio telephoned her. According to Andujar, Lopez-Palacio said that she was in the bathroom and that she did not know whether or not she was supposed to be using her telephone. Andujar said that Lopez-Palacio telephoned her to let her know "how it was going" and to let her know that the jury was split "50-50." Andujar said that she asked Lopez-Palacio whether or not they were considering the evidence and that Lopez-Palacio said they were going over everything. Andujar said that she told Lopez-Palacio that there was quite a bit of reasonable doubt and that the victim appeared to be lying about certain things, particularly the vibrator incident. Andujar said that she told Lopez-Palaciothat she would let her get back to what she was doing but admonished her to "please look at all the evidence" because "this is somebody's life we're talking about." Andujar said that she expressed surprise by the jury's verdict to Lopez-Palacio when Lopez-Palacio called that night after the jury had reached a verdict.

Juror Alversia Pettigrew testified that she used her cellular telephone during deliberations to telephone

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