Johnston v. Bowersox

• Decision Date: 02 November 2000
• Docket Number: No. 4:98CV452-DJS.,4:98CV452-DJS.
• Parties: Timothy JOHNSTON, Petitioner, v. Michael BOWERSOX, Respondent.
• Court: U.S. District Court — Eastern District of Missouri

Page 971

119 F.Supp.2d 971

Timothy JOHNSTON, Petitioner, v. Michael BOWERSOX, Respondent.

No. 4:98CV452-DJS.

United States District Court, E.D. Missouri, Eastern Division.

November 2, 2000.

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Timothy Johnston, Mineral Point, MO, pro se.

Michael J. Gorla, St. Louis, MO, Christopher E. McGraugh, Leritz and Plunkert, St. Louis, MO, for Timothy Johnston.

Frank A. Jung, Attorney General of Missouri, Asst. Atty. Gen., Jefferson City, MO, for Michael Bowersox.

MEMORANDUM OPINION AND ORDER

STOHR, District Judge.

In the early morning hours of June 30, 1989, Nancy Johnston, the wife of petitioner Timothy Johnston, died after being brutally beaten. The victim was declared dead at the scene by paramedics responding to a 911 call placed by petitioner from their home. On May 16, 1991, a jury in the Circuit Court of the City of St. Louis found petitioner guilty of first degree murder and armed criminal action, and on May 18 the jury returned sentences of death for the murder offense and life imprisonment for the armed criminal action offense. Judgment and sentence in accordance with the jury's verdicts were rendered by the court on July 26, 1991. No relief was granted petitioner in either his direct appeal or postconviction proceedings in the state courts. The United States Supreme Court denied Johnston's petition for a writ of certiorari.

Petitioner, with the assistance of appointed counsel, has now filed in this Court a motion for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 asserting thirty-three grounds for relief from his conviction and sentence. One claim, Ground 32, has been voluntarily dismissed. See Order of October 1, 1998 [Doc. # 14]. The matter is fully briefed. The State expressly concedes that the requirement of exhaustion of state remedies has been met for each of petitioner's remaining grounds for relief. The petition having been filed on August 14, 1998, federal law as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("the AEDPA") applies unless otherwise noted.

Ground 1: The Exclusion for Cause of Juror Osborne Brown

In Ground One, petitioner challenges the trial court's striking venire member Osborne Brown for cause based on his views concerning the death penalty. Brown's initial responses to the prosecutor's voir dire questions suggested an inability to impose the death penalty under any circumstances. In essence, petitioner argues that the juror was effectively rehabilitated by the defense's questioning and the resulting shift in the juror's responses to indicate a willingness to consider the death penalty. The State's response relies upon Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), in which the Supreme Court clarified the standard for determining when a venire member in a capital case may be excluded for cause based on his views concerning the death penalty. The Court held that such a strike is permissible when the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with the jury instructions and his oath. Id. at 424, 105 S.Ct. 844. In addition, the Court held that the existence of such a bias supporting a strike for cause need not be proved with "unmistakable clarity." Id. Instead, the Court acknowledged that even in the absence of clarity in the printed record, "there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law." Id. at 425-26, 105 S.Ct. 844.

Witt further addresses the degree of deference a federal habeas court owes to state court determinations concerning juror bias. Construing the pre-AEDPA standard of 28 U.S.C. § 2254(d), the Supreme Court held that a trial court's determination of juror bias concerning capital punishment is a credibility-based fact determination subject to § 2254(d)'s presumption of correctness. Subject to certain limitations, then-section 2254(d) applied a presumption of correctness to any "determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction...evidenced by a written finding, written opinion, or other reliable and adequate written indicia." As amended by the AEDPA, § 2254(e)(1) more simply provides that "a determination of a factual issue made by a State court shall be presumed to be correct," and that the petitioner's burden is to rebut the presumption "by clear and convincing evidence."

The trial court determined that juror Brown's initial statements of opposition to capital punishment evinced sufficient "equivocation" and "vacillation" as to his ability to follow the law as instructed to justify excusing him for cause. Resp. Exh. A-II, p. 454. Both in the first and last of the three rounds of questioning by counsel, juror Brown stated that he did not "believe in" the death penalty, but his responses as to whether he could consider it in light of the evidence did shift during the course of voir dire. Id. at 427-430, 443, 448-450. On this record, if this Court's review were for error in the trial court's determination, the Court would find none. As the trial court stated, juror Brown's answers were "illogical and inconsistent" so as to reasonably support a conclusion that his views would substantially impair the performance of his duties as a juror. Subjecting the issue to the presumption of correctness which applies pre- or post-AEDPA further bolsters the denial of habeas corpus relief. Furthermore, "where the record does not indicate the standard applied by a state trial judge, he is presumed to have applied the correct one." Witt, 469 at 431, 105 S.Ct. 844. Petitioner makes no showing by clear and convincing evidence that the trial court's factual determination was incorrect or that it applied an erroneous legal standard to the issue.

Ground 2: The Refusal of Strikes for Cause Against Jurors Flamm, Grawitch and Ewertz

In Ground Two, petitioner argues that venire members Flamm, Grawitch and Ewertz each displayed a bias in favor of capital punishment which should have resulted in strikes for cause. Under the Witt standard previously enunciated in connection with Ground 1, these jurors were subject to strikes for cause if the record supported a determination that they would be unable to faithfully and impartially apply the law. Petitioner's contrary evaluation of the record responses of these prospective jurors does not constitute clear and convincing evidence to overcome the finding of the trial court, affirmed by the Missouri Supreme Court, that the jurors did not have a bias requiring them to be struck for cause. This finding is therefore presumed to be correct pursuant to 28 U.S.C. § 2254(e)(1). Furthermore, as with Ground 1, were the Court to engage in its own evaluation of the correctness of the trial court's determination, it would conclude that the record of these jurors' voir dire responses adequately supports the determination that the jurors need not be struck for bias.

Ground 3: Batson Issues

Petitioner's third ground for relief is that the prosecution violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), when it exercised peremptory challenges against five female African-American venire members — Retha Bornett, Doris Young, Gloria Cunningham, Marcia Cashaw, and Yvette Billington. The State contends that as to venire member Billington this ground is procedurally defaulted because it was not raised in the state courts on direct appeal or on appeal from the denial of petitioner's postconviction motion, but petitioner explains that the challenge was made and addressed in those proceedings although the accidental references to juror Billington by her first rather than last name make the issue more difficult to locate in the state court record.

The parties cite different United States Supreme Court decisions for contrary principles concerning the deference a federal habeas court owes to a state trial court's determination of pretext. The State's citation to Purkett v. Elem, 514 U.S. 765, 769, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995), is the pertinent one, as it specifically considers the presumption of correctness as to a Batson pretext finding. Petitioner cites only a generalized discussion of fact findings subject to the presumption in Thompson v. Keohane, 516 U.S. 99, 110, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995). The Eighth Circuit has subsequently cited Elem for the proposition at issue:

Whether a race-neutral explanation is pretextual for discrimination is a question of fact ... and in "habeas proceedings in federal courts, the factual findings of state courts are presumed to be correct, and may be set aside, absent procedural error, only if they are `not fairly supported by the record.'" Purkett, 514 U.S. at [769], 115 S.Ct. at 1771.

Gibson v. Bowersox, 78 F.3d 372, 374 (8th Cir.1996). As with the preceding two grounds largely controlled by a presumption of correctness, petitioner's argument that the factual issue was wrongly decided does not constitute clear and convincing evidence that the trial court's factual finding was erroneous, as required under the AEDPA to overcome the presumption. The Court has reviewed those portions of the trial transcript pertinent to these issues, and is persuaded that the trial court's rejection of the defense's Batson challenges is fairly supported by the record.

Ground 4: Jury Selection Closed to the Public

In Ground Four, petitioner asserts that his right to a public trial was violated when the trial court conducted voir dire on the state holiday for Harry S Truman's birthday, when the courthouse was closed to the public. The State argues that the Missouri Supreme Court's refusal to conduct plain error review of this claim, which was not properly preserved for appellate review, constitutes a...