Lenza v. Wyrick

Decision Date02 December 1981
Docket NumberNo. 81-1097,81-1097
Citation665 F.2d 804
PartiesMichael LENZA, Appellant, v. Donald W. WYRICK, Warden; Attorney General of the State of Missouri, Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

Gray & Ritter, Paul J. Passanante, argued, St. Louis, Mo., for appellant.

John Ashcroft, Atty. Gen., Jerry Short, Asst. Atty. Gen., argued, Jefferson City, Mo., for appellees.

Before LAY, Chief Judge, and STEPHENSON and McMILLIAN, Circuit Judges.

McMILLIAN, Circuit Judge.

Michael Lenza appeals from the final judgment entered in the District Court for the Eastern District of Missouri 1 denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Lenza was convicted by a jury of murder in the second degree in violation of Mo.Rev.Stat. § 559.020 (1969) in the Circuit Court of St. Louis County, Missouri, and sentenced to life imprisonment pursuant to Mo.Rev.Stat. § 559.009 (1975). His conviction was affirmed on direct appeal to the Missouri Court of Appeals. State v. Lenza, 582 S.W.2d 703 (Mo.App.1979). Subsequent motions for transfer to the Missouri Supreme Court were denied. Lenza's petition for writ of certiorari to the United States Supreme Court was also denied. Lenza v. Missouri, 444 U.S. 1021, 100 S.Ct. 678, 62 L.Ed.2d 652 (1980).

In this appeal Lenza argues that the district court erred in (1) finding that he had been given an opportunity for full and fair consideration of his fourth amendment claim by the state, (2) finding that he had failed to exhaust available state remedies before asserting his claim that hearsay testimony admitted into evidence at his trial violated the sixth amendment 2 and that the introduction of the testimony did not justify habeas relief, and (3) finding that his claim of insufficiency of the evidence did not justify habeas relief. In response the state argues generally that Lenza's claims are without merit and that Lenza failed to exhaust available state remedies regarding his confrontation claim. 3

For the reasons discussed below, we affirm the judgment of the district court.

A complete statement of the facts is set forth in State v. Lenza, supra, 582 S.W.2d at 705. The relevant facts are as follows. On December 12, 1975, Tina Lenza, petitioner's wife, was found dead in a bathtub at the home of her parents, Robert and Beverly Wolff. Tina Lenza had been living with her parents since her separation from petitioner. Petitioner had been forbidden to enter the Wolff home by Robert Wolff. On the date of her death, Tina had planned to take her step-grandfather, Kenneth Nelson, Christmas shopping. Beverly Wolff was to accompany Tina to the Nelsons' home so that she could care for Mrs. Nelson. Tina spoke with Kenneth Nelson by telephone between 10:30 and 11:00 a.m. and indicated that she and her mother would be there as soon as her mother returned from a job interview.

At approximately 11:50 a.m., Alicia Snider, Tina's sister, arrived at the Wolffs' home for lunch. On arrival she noticed her mother's and sister's cars parked in front of the house. Ms. Snider testified that she saw petitioner standing inside the house. At the time she first observed him, petitioner was rolling a large cardboard barrel towards the back door. After saying "hi" to Ms. Snider, petitioner picked up the barrel and walked down the back steps. Ms. Snider then entered the house, heard water running and went upstairs into the bathroom. She found Tina Lenza lying in the bathtub with her head under water and the shower running. Ms. Snider ran next door for help. As she was returning with a neighbor she saw petitioner get into his van that was parked in the alley. Members of the Richmond Heights Fire Department arrived shortly after 12:00 p.m. The firemen removed Tina's body and unsuccessfully attempted resuscitation. The tub was then one-half to three-quarters full of water. A wash cloth had been stuffed into the bathtub drain.

A search of the home revealed that the glass panel in the rear door nearest the lock had been broken. The leather coat that Mrs. Wolff had been observed wearing was on the couch. The light next to the chair in the family room and the television set were on. Tina's glasses were found on the floor under the television set. A key to the apartment that the Lenzas had occupied prior to their separation was found on the floor of the family room. Fruit jars were stacked in the basement. Robert Wolff testified that the fruit jars had been stored in the barrel that petitioner had been observed carrying from the home. No other objects were missing.

Neither Mrs. Wolff nor the barrel have been seen since the date of Tina's death.

Petitioner was arrested in Columbia, Missouri, on December 13, 1975. At trial he did not take the stand in his own behalf.

Fourth Amendment Claim

In his petition for writ of habeas corpus petitioner alleged that the state trial court erred in admitting the fruit of an unconstitutional search and seizure into evidence against him and that the state appellate court erred in refusing to consider his claim due to an improper brief. The district court held that petitioner's claim pertaining to the appellate court's dismissal of the claim did not state an independent ground for habeas relief and further that petitioner had not been denied a full and fair opportunity to litigate his claim by the state.

The facts relevant to the claim are as follows. On December 13, 1975, petitioner's landlord, James Reid, heard a news broadcast relating to Tina Lenza's death. Reid telephoned the Richmond Heights Police Department, identified himself as the owner of the premises, and told the police that he would let them into the house. Personnel from the Richmond Heights Police Department telephoned an assistant state prosecuting attorney and asked for a search warrant. The officers were advised by the attorney that they should proceed with the search immediately without a search warrant. Accompanied by Reid, the police entered petitioner's rented house without his permission and without a search warrant. They did not announce themselves, but proceeded with guns drawn to search the premises. During the search the police observed an envelope addressed to petitioner bearing the return address of Carolyn A. Schaefer in Columbia, Missouri, and a large empty cardboard barrel with cobwebs inside. The police used the information on the envelope to find and arrest petitioner later that morning at the residence of Ms. Schaefer in Columbia, Missouri. Testimony at trial established that the barrel observed during the warrantless search could not have been the same barrel that petitioner had been observed carrying from the Wolffs' residence. 4

Initially we note that petitioner had exhausted his available state remedies prior to bringing this claim in a federal habeas petition as required by 28 U.S.C. § 2254(c). Petitioner filed a pre-trial motion to suppress and objected to the admission of the evidence at trial. The state trial court overruled the objection. On direct appeal the Missouri appellate court ruled that it would not consider the claim because petitioner's point relied on did not state wherein and why the trial court erred as required by Rule 84.04(d) of the Missouri Rules of Civil Procedure. State v. Lenza, supra, 582 S.W.2d at 709. We note that this was a procedural defect and that the substance of petitioner's complaint was before the state appellate court. Petitioner then filed a motion for rehearing or transfer to the Supreme Court of Missouri in the appellate court, a motion for transfer in the Supreme Court of Missouri, and a petition for writ of certiorari in the Supreme Court of the United States. All these motions raised the legality of the search and the admissibility of the evidence derived therefrom; all were denied.

Exhaustion is a rule of comity which requires that the state courts have had a clear opportunity to correct any constitutional errors before federal court intervention. Where state courts have had such an opportunity, it is generally held that there has been a sufficient vindication of the state's interest and federal courts can entertain said issues in a § 2254 proceeding. E.g., Tippett v. Roberts, 587 F.2d 373, 374 (8th Cir. 1978). The doctrine need not be applied when the state court has refused to pass upon the merits of the claim. E.g., Austin v. Swenson, 522 F.2d 168 (8th Cir. 1975). In order to determine whether the issue has been fairly presented in state court, it is necessary to examine the petitioner's brief in state court. Houston v. Estelle, 569 F.2d 372, 375 (5th Cir. 1978), citing Smith v. Digmon, 434 U.S. 332, 98 S.Ct. 597, 54 L.Ed.2d 582 (1978) (per curiam).

We are convinced that the district court properly proceeded to the merits of petitioner's claim. We have examined petitioner's state appellate brief and find that petitioner's point relied on clearly set out petitioner's complaint that the evidence derived from the search should have been suppressed. The Missouri Court of Appeals was faced with the substance of the claim when it refused to pass on the merits. Therefore, we hold that Lenza's claim is properly before us. Cf. Houston v. Estelle, supra, 569 F.2d 372 (state appellate court's refusal to pass on the merits because the listing of grounds of error lacked reference to specific pages of the record).

Petitioner contends that the denial of the opportunity to challenge the admissibility of the evidence on appeal in state court constitutes a separate and independent ground for habeas relief. We disagree. Petitioner's substantive claim is that his fourth amendment rights were violated when the fruits of an unconstitutional search were admitted into evidence against him. The only issue before this court is whether petitioner was afforded a full and fair opportunity to litigate his fourth amendment claim in the state courts of Missouri. Stone v. Powell, 428 U.S. 465, 96 S.Ct....

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