Marcrum v. Luebbers

Decision Date07 December 2007
Docket NumberNo. 05-3930.,05-3930.
Citation509 F.3d 489
PartiesRichard Louis MARCRUM, Petitioner-Appellee, v. Al LUEBBERS, Respondent-Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Stephen D. Hawke, AAG, argued, Jefferson City, MO, for appellant.

Kenneth Lee Marshall, argued, St. Louis, MO (Bruce LaPierre, Washington University School Law, Paul C. Evans, Jeremy J. Gray, Patrick M. Otlewski, Morgan M. Russell, on the brief), for appellee.

Before LOKEN, Chief Judge, JOHN R. GIBSON, and COLLOTON, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.1

The Superintendent of the Potosi Correctional Center, Al Luebbers, appeals from the district court's grant of a writ of habeas corpus to petitioner Richard Louis Marcrum. The district court granted the writ on the ground that Marcrum's Sixth Amendment rights were violated by ineffective assistance of counsel at his trial for murder and armed criminal action in connection with the 1994 killing of Kenneth Reeves. The district court held that trial counsel's failure to introduce witnesses and medical records establishing that Marcrum was psychotic on the day of the killing and to cross-examine the prosecution's expert fell below the level of legal representation to which Marcrum was entitled under the Sixth Amendment and that there was a reasonable probability that the result of Marcrum's trial would have been different without counsel's errors. The Superintendent contends that trial counsel's actions regarding the witnesses and records and his decision not to cross-examine the expert were not errors but strategic decisions; that there is no reasonable probability these actions affected the trial's result; and that in any case, the state courts' resolution of these questions was not so unreasonable as to warrant federal habeas relief. He also contends that Marcrum's petition was time-barred. We reverse.


There is overwhelming evidence that on June 3, 1994, Marcrum took a fireplace poker and killed a Presbyterian minister named Kenneth Reeves. The state's theory was that Marcrum had been blackmailing Reeves and killed Reeves when Reeves balked at giving him money. Marcrum's theory was that he was at Reeves's house because they were lovers, and he denied killing Reeves. At the same time, Marcrum also raised the defense that he was insane because of a seizure disorder that rendered him psychotic on that day. The district court held that Marcrum's trial counsel was ineffective in presenting his insanity and diminished capacity defenses.

Because the legal issues in this case depend on the difference between what facts were known to the jury at Marcrum's trial, to Marcrum's trial counsel, and to the state court hearing Marcrum's motion for postconviction relief, we must tell this story in layers. We begin with the evidence at Marcrum's trial.

A. The trial

Around 2:00 to 3:00 in the afternoon of June 3, 1994, Gary and Donna Paszkiewicz drove by the home of their neighbors Kenneth and Katie Reeves in Imperial, Missouri. They saw the petitioner, Richard Marcrum, standing in the road near a blue-gray car, and as they passed him, he seemed to want to talk to them. Gary Paszkiewicz rolled down the window of his truck and Marcrum said to him, "Praise the Lord, I just killed one sorry son-of-a-bitch," and "I'm going to kill another." Discomfited by this exchange, the Paszkiewiczes drove on, but they soon returned to check on their neighbors. They found Kenneth Reeves lying on the floor by his wheelchair in a pool of blood. His skull had been crushed, and a bloody fireplace poker was on the floor. Reeves died of his injuries two days later.

When police contacted Reeves's wife, Katie, she tipped them to investigate Marcrum. Police Captain Edward Kemp arrived at Marcrum's house to find that he had been taken to the emergency room of St. Louis Regional Medical Center in an ambulance. Kemp found Marcrum on a gurney in an examining room. As soon as Marcrum caught sight of Kemp, he said, "I know why you're here. It's because of George. . . . I killed George in Kimmswick. He also goes by the name of Kenny Reeves." Marcrum said that Reeves was "evil." Kemp saw blood splatters on Marcrum's clothes. Those clothes were later introduced as exhibits at trial, and DNA samples taken from blood on the clothing were identified as being Kenneth Reeves's DNA.

Katie Reeves testified that Reeves was a Presbyterian minister who often helped the poor using the Reeveses' own money. Reeves had been paralyzed after falling from a tree and was a paraplegic. She said Reeves had employed Marcrum in 1987 or 1988 to refinish some furniture; Reeves had paid Marcrum the promised amount, but Marcrum never finished the job. Nevertheless, Marcrum had telephoned the couple demanding more money. The jury heard a tape of telephone conversations between Marcrum and Katie Reeves in which Marcrum demanded money and made threats to expose Reeves as a homosexual if they didn't pay him. Katie Reeves also testified that after her husband's death, she found that he had drawn checks on their checking account that were not reflected in the register, though the balance was adjusted surreptitiously to compensate for the amounts drawn. Katie Reeves was a schoolteacher, and she testified that in the year or so before his death, Reeves would call her at school before she left in the afternoon just to find out if she was still at school. She testified that after Reeves's death, she learned that Reeves had co-signed an auto loan with Marcrum shortly before he was killed.

A teller from the local bank testified that Kenneth Reeves came through the drive-through often during the winter and spring of 1994 cashing checks for hundreds of dollars at a time. She said that Marcrum brought in checks signed by Reeves "more than several times" and that her supervisor had checked with Reeves and had given her permission to cash the checks for Marcrum.

Marcrum testified in his own defense. He described a ten-year sexual relationship with Kenneth Reeves that began when Marcrum was about twenty years old and Reeves picked him up at Tower Grove Park in St. Louis. Marcrum testified that he had trysts with Reeves as often as two or three times a week and that Reeves had given him an estimated $90,000 over the course of their relationship. He said that Reeves had bought him at least four cars over the years.

Marcrum testified that he had suffered from seizures since the age of 16, when he went through a windshield in a car wreck. He said he had been hospitalized "a time or two" for psychiatric problems.

Marcrum said that he did not remember going to Reeves's house the day of the killing, and in fact did not remember that day at all. He was roundly impeached with prior inconsistent statements he had made that he remembered having drinks with Reeves at Reeves's house that day, and that he had a seizure, woke up to find Reeves in a pool of blood, and fled the house. The prosecutor cross-examined Marcrum about the effects of a seizure and Marcrum conceded that when he has a seizure he is "basically helpless"he loses control of his bladder and bowels and would not be able to drive a car. The prosecutor asked, "Your seizures and after effects are passive, of a nonviolent nature?" and Marcrum answered, "That's what I've been told, yes."

Beginning with Marcrum's mother, Marcrum's lawyer put on a number of witnesses and asked them whether they saw blood on Marcrum on June 3. Marcrum's mother, father, and brother all said they did not see blood on him, despite having checked him when he came into the house. Judy and Don Paszkiewicz, the Reeveses' neighbors, both said they did not notice any blood on him, either.

Marcrum's counsel introduced testimony of a car dealer who had sold Kenneth Reeves a gray-blue Buick shortly before the killing. Reeves paid $500 down for the car and co-signed an installment contract for the remainder of the purchase price with Marcrum. Marcrum's father, mother, brother, and friend Judith Quick all testified that they saw Reeves pick Marcrum up many times. They said Reeves would routinely pick Marcrum up around 8:30 in the morning and bring him home about 1:00 in the afternoon. Marcrum's former girlfriend, Marilyn McManus, testified that when Marcrum lived with her, Reeves used to come by and bring Marcrum money, or else she and Marcrum would go to Reeves's house or church to pick up money. McManus said that Marcrum did not have to work because Reeves gave him money. Marcrum's mother said that every time Marcrum left with Reeves, he would come home with several hundred dollars. Judith Quick said she saw Marcrum with checks from Reeves for hundreds of dollars.

Marcrum's mother, father, brother, and Marilyn McManus and Judith Quick, all testified about Marcrum's seizures and about Marcrum's bizarre behavior, which they associated with the seizures. Each of these lay witnesses had his or her own interpretation of Marcrum's behavior. Marilyn McManus had her own elaborate typology, classifying Marcrum's seizures into types, ranging from mild (in which he was disoriented) to moderate (in which he would jerk, wet himself, vomit, and foam at the mouth) to severe (in which he would make sounds like a rabid dog and sleep for a week afterward, not even waking up when he relieved himself in the bed). McManus described an "aftermath" of the seizures when "Rickie would say he was God, he was Jesus, he's taking the children to his kingdom." McManus said the aftermath could last as long as three or four days, and when Marcrum woke up, he would not remember anything. She later broke the "aftermath" into two stages: first Marcrum was "God and Jehovah and Jesus," but then he would be "very nice" and "like an angel" and would clean the house obsessively. Later, however, she described an occasion when he twisted her arm when he was in an "aftermath." The witnesses said that the bizarre behavior could happen before a...

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