Kennedy v. Kemna

• Citation: 666 F.3d 472
• Decision Date: 22 March 2012
• Docket Number: No. 11–1218.,11–1218.
• Parties: Christopher KENNEDY, Petitioner–Appellant, v. Mike KEMNA, Respondent–Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

666 F.3d 472

Christopher KENNEDY, Petitioner–Appellant,

v.Mike KEMNA, Respondent–Appellee.

No. 11–1218.

United States Court of Appeals, Eighth Circuit.

Submitted: Sept. 19, 2011.Filed: Jan. 20, 2012.Rehearing and Rehearing En Banc Denied March 22, 2012.

Kent E. Gipson, Law Office of Kent Gipson, LLC, Kansas City, MO, argued, for appellant.

Terrence M. Messonnier, Asst. Atty. Gen., Kansas City, MO, argued (Chris Koster, Atty. Gen., Jefferson City, MO, on the brief), for appellee.

Before LOKEN, BEAM, and MURPHY, Circuit Judges.

BEAM, Circuit Judge.

Christopher Kennedy appeals the district court's ¹ denial of his 28 U.S.C. § 2254 petition for habeas corpus. The district court certified nine claims for appeal and, upon review of these claims, we affirm the denial of relief.

I. BACKGROUND

The evidence at trial revealed that, on the evening of October 3, 1999, Frederick Darrington, and brothers Ryan, Rodja, and Raphael Pearson attended a comedy show at the Beaumont Club in Kansas City, Missouri. After the show, Darrington and the Pearsons left the club and were ambushed by two gunmen. Darrington and Ryan Pearson suffered mortal gunshot wounds, Rodja Pearson was shot in the leg and survived, and Raphael Pearson escaped without injury. A nearby shopkeeper, Philip Bender, received a non-life-threatening gunshot wound to the arm. At the scene, officers located spent .38 caliber bullets and 9mm shell casings, but no firearms were recovered.

The morning after the shooting, Rodja Pearson (who died before trial due to unrelated causes) identified Kennedy as one of the shooters during a police interview.² Investigators then created a photo lineup including a picture of Kennedy and showed it to Darren Miller, an innocent bystander who witnessed the shooting. Miller, who did not know Kennedy, identified Kennedy as the shooter in the lineup and explained at trial that he observed the shooter's face for about fifteen to thirty seconds from a distance of four to five feet. Miller unwaveringly testified that he was “positive” Kennedy was the shooter. Raphael Pearson, who had previously known Kennedy as a “drinking buddy,” also identified Kennedy in a photo lineup and testified that he had “no doubt” that Kennedy was the shooter.³ Raphael also asserted that he saw Kennedy in the Beaumont Club before the shooting. Bender testified that he did not get a good look at the shooter, but stated that the shooter was approximately six feet tall and “on the heavy side.” At the time of the shooting, Kennedy was six feet tall and weighed approximately 250 pounds.

Over Kennedy's objection, the state also introduced evidence that, in 1992, Kennedy and his “cousin through marriage” were shot inside Rodja Pearson's house. After taking the stand, Kennedy explained that he was shot five or six times during the incident, but asserted that he was shot by someone other than Rodja Pearson. Kennedy conceded, however, that his cousin was shot and killed by Rodja during the same attack. Police identified Rodja and another man as suspects in the crime, but no charges were ever filed.

Kennedy, through counsel Frank Smith, presented an alibi defense at trial. Specifically, Kennedy called his girlfriend, Sherice Banks, and her friend, Tova Jefferson, to testify that Kennedy was with Banks at a Kansas City hotel at the time of the shooting. Jefferson explained that she drove Banks to the hotel at about 7:00 p.m. on the night of the shooting, and Banks verified that she remained with Kennedy inside the hotel until the next morning. A hotel employee, Kelly Kun, also testified that Kennedy frequently stayed at the hotel but she had not checked hotel records to determine whether he was registered at the hotel on the date of the shooting. Finally, Kennedy took the stand and asserted that he was with Banks at the hotel when the shooting occurred.

After hearing such evidence, the jury convicted Kennedy of two counts of second-degree murder, one count of first-degree assault, and three counts of armed criminal action, and Kennedy was sentenced to life imprisonment. The Missouri Court of Appeals affirmed Kennedy's conviction and sentence on direct appeal. State v. Kennedy, 107 S.W.3d 306 (Mo.Ct.App.2003). Kennedy's Rule 29.15 motion for post-conviction relief, in which he raised numerous claims of ineffective assistance of counsel, was also denied by the trial court, and the denial was affirmed on appeal. Kennedy v. State, 199 S.W.3d 830 (Mo.Ct.App.2006) (per curiam).

In his petition for habeas corpus relief, Kennedy raised numerous claims. The district court denied the petition, and the following claims are certified for appeal: (Claim 1) an ineffective assistance claim regarding trial counsel's failure to investigate or present ballistics evidence; (Claim 2) a conflict-of-interest claim based on the conflict of a member of the defense team; (Claim 3) an ineffective assistance claim regarding trial counsel's preparation and presentation of alibi witnesses; (Claim 4) a confrontation claim based on the introduction of Rodja Pearson's out-of-court identification of Kennedy at trial and an ineffective assistance claim regarding trial counsel's failure to properly object to such testimony; (Claim 5) a prosecutorial misconduct claim pertaining to statements made during closing arguments and an ineffective assistance claim based on trial counsel's failure to properly object to such comments; (Claim 6) an ineffective assistance claim based on trial counsel's failure to effectively impeach Raphael Pearson; (Claim 7) an ineffective assistance claim regarding trial counsel's failure to disclose the extent of his health problems to Kennedy; (Claim 8) an ineffective assistance claim based on trial counsel's failure to object to the prosecutor's cross-examination of Sherice Banks; and (Claim 9) a claim asserting that the cumulative effect of trial counsel's errors denied Kennedy the right to a fair trial and that trial counsel's failure to preserve issues in trial court prejudiced the outcome of Kennedy's direct appeal.

II. DISCUSSION

In this habeas corpus action, we review the district court's legal conclusions de novo and its factual findings for clear error. Cole v. Roper, 623 F.3d 1183, 1187 (8th Cir.2010), cert. denied, ––– U.S. ––––, 132 S.Ct. 147, 181 L.Ed.2d 65 (2011). Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), we may not grant relief for claims adjudicated on the merits in state court unless the adjudication was contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent, or was an unreasonable determination of the facts in light of the evidence presented in state court. 28 U.S.C. § 2254(d). Importantly, “[a] state court decision may be incorrect, yet still not unreasonable, and we will grant relief only if the state court decision is both incorrect and unreasonable.” Cole, 623 F.3d at 1187 (emphasis in original).

A. Trial Counsel's Failure to Investigate or Present Ballistics Evidence (Claim 1)

Kennedy contends that trial counsel, Frank Smith, rendered ineffective assistance because he failed to investigate or present ballistics evidence linking one of the murder weapons to a previous shooting that did not involve Kennedy. Ineffective assistance of counsel claims are governed by the performance and prejudice standards set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Specifically, to prevail on an ineffective assistance claim, a defendant must demonstrate (1) that “counsel's representation fell below an objective standard of reasonableness,” id. at 688, 104 S.Ct. 2052; and (2) “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different,” id. at 694, 104 S.Ct. 2052. Under the prejudice prong, “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

Before trial, Smith received police reports stating that the 9mm shell casings recovered at the scene of the shooting matched casings recovered at the scene of a shooting that occurred a year before. According to the reports, in October 1998, Jermaine Mitchell and Kareem Johnson confronted a man in Kansas City, Missouri, who had previously assaulted Mitchell. Mitchell told investigators that Johnson gave him a 9mm handgun and he fired it in the air multiple times before giving the gun back to Johnson. Johnson confirmed to investigators that he was with Mitchell at the time, but he denied giving Mitchell a handgun and stated that no shots were fired. Smith did not attempt to introduce such evidence at trial. At Kennedy's Rule 29.15 hearing, Smith discounted the probative value of the reports, testifying that, in his experience, handguns are often exchanged between individuals.

The Missouri Court of Appeals denied relief on this point, holding that Kennedy failed to demonstrate Strickland prejudice. See id. at 697, 104 S.Ct. 2052 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed.”). The court emphasized the strength of the state's case at trial and that the ballistics evidence is, at best, minimally probative. As stated above, our question under § 2254(d) is “not whether [we] believe[ ] the state court's determination under the Strickland standard was incorrect but whether that determination was unreasonable—a substantially higher threshold.” Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 1420, 173 L.Ed.2d 251 (2009) (internal quotations omitted).

The Missouri Court of Appeals' adjudication of this claim was not an unreasonable application of, nor was it contrary to, Strickland. Kennedy asserts that if Smith would have further investigated the police reports in his possession, he would have discovered additional ballistics reports that also connected the murder weapon to the 1998 assault. But,...