McCord v. Norman
| Decision Date | 30 March 2012 |
| Docket Number | Case no. 4:09cv0428 TCM |
| Parties | LEONARD ALLEN McCORD, Petitioner, v. JEFF NORMAN and CHRIS KOSTER, Attorney General for the State of Missouri, Respondents. |
| Court | U.S. District Court — Eastern District of Missouri |
Leonard Allen McCord (Petitioner), a Missouri prisoner, petitions the United States District Court for the Eastern District of Missouri for federal habeas corpus relief from a 2005 conviction following a jury trial. See 28 U.S.C. § 2254.
This matter is before the undersigned United States Magistrate Judge for review and final disposition of the petition.2 Finding that the pending federal habeas petition presentsfour grounds for relief, that the second ground is not cognizable in a federal habeas proceeding, and that the other three claims lack merit, the Court will deny the petition without further proceedings.
Petitioner was charged with committing, on July 14, 2004, the class A felony of murder in the second degree, in violation of Mo. Rev. Stat. § 565.021, and the felony of armed criminal action,in violation of Mo. Rev. Stat. § 571.015, by knowingly shooting a neighbor (Victim). (See Superseding Indictment in lieu of Information, Legal File, Resp'ts Ex. D, at 22-25.)
At the jury trial, in addition to introducing numerous exhibits (including a gun, .357 magnum bullets, and a tape recording of Petitioner's 911 call after the shooting), the State presented the testimony of fourteen witnesses, including eight law enforcement officials who helped investigate the shooting, the paramedic who took Victim to the hospital, the surgeon who operated on Victim, the assistant medical examiner who performed the autopsy, Petitioner's cousin, Victim's fiancee, and a person who was in custody with Petitioner prior to Petitioner's trial.
Larry Robinson, Petitioner's cousin who lived with Petitioner, testified that Victim was invited over for a barbecue, the three of them ate and drank, and Victim and Petitioner got in a physical fight; that Victim apologized to Petitioner; that he and Victim talked in the kitchen after Petitioner went into his bedroom; that he and Victim then heard a sound and Victim headed toward Petitioner's bedroom; that Victim and Petitioner were struggling oversomething, and he heard Petitioner say to him, ; and that Robinson left the house then and got Carrie K. Nelson, Victim's fiancee and Petitioner's neighbor; and, as they walked toward Petitioner's home, they heard two shots about five seconds apart. (Trial Tr., Resp'ts Ex. E, at 261-94.)
Nelson, Victim's fiancee, who lived across the street from Petitioner with Victim, testified that she was awakened by Robinson, and heard two gunshots as she and Robinson walked toward Petitioner's home; and that she then saw Petitioner leave his house and go to his truck to make a call for an ambulance because there had been a shooting. (Id. at 216-25.)
Chris Ellis, an officer with the Wentzville Police Department, who responded to the emergency call, arrested Petitioner after Petitioner told him that Victim "came into [Petitioner's] residence [and] assaulted [Petitioner], so [Petitioner] shot [Victim]"; and, inside the house, found Victim lying face up in a hallway and a revolver on top of a night stand in the second bedroom.. (Id. at 230-34.)
Cindy Mayer, an officer with the Wentzville Police Department, took custody of Petitioner at the scene; smelled alcohol and noticed that Petitioner had a bruised eye and asked if he wanted medical attention, which he declined by stating "No, but it sure was a good thing I had a gun" (id. at 243); read Petitioner his rights (id. at 240); and then transported him to the police department (id. at 240-41) during which time Petitioner saw the ambulance driving to the scene and " (id. at 241).
Joseph Wright, a Detective Sergeant with the Wentzville Police Department, testified that he videotaped Petitioner's statement (id. at 319, 322) and investigated the scene, finding a gouge in the plaster board of the living room wall (id. at 297), a spent projectile on top of a couch cushion (id.), an "exit hole coming from the bedroom outward," (id. at 299), pieces of Victim's belt buckle on the floor (id. at 302), blood on the "back side of the wall that had the gouge in it, in the hallway side" (id. at 303), a bullet hole with blood on the right side (id. at 304), two boxes of .357 ammunition in the bottom drawer of a night stand in Petitioner's bedroom (id. at 307), a bullet hole in the comforter on the bed in Petitioner's bedroom (id.), "damage[ in the mattress cover for the bed in Petitioner's bedroom] as a result of a weapon being fired from . . . someone in bed" (id.), bullet holes in Petitioner's bedroom (id. at 311), and a .357 revolver on a night stand in the second bedroom (id. at 315, 317).
Ricky Edward Leutkenhaus, who worked for the Forensic Services Unit of the St. Charles County Sheriff's Department, testified that he investigated the scene, where he saw damage on a bed, a bullet hole in the bedroom wall, a bullet hole in the living room wall, and a "glancing [bullet] hole" in the living room wall (id. at 348); and stated he recovered a bullet in the living room that had "traveled from the bed through the wall in the bedroom side, into and through the living room wall and glanced off of [the other living room] wall" (id. at 351).
Tiffany Fischer, a crime scene investigator for the St. Charles County Sheriff's Department, was unable to identify fingerprints on the revolver recovered from the scene of the shooting (id. at 352-56) and Cary Maloney, a DNA technical leader at the Missouri StateHighway Patrol Crime Laboratory, analyzed sheets from Petitioner's bed and found Victim's DNA on the fitted sheet (id. at 365-68).
Tim McGuire, a paramedic for the St. Charles County Ambulance District, who responded to the shooting, found Victim on his back on the floor between the hallway and bedroom. (Id. at 357-62.)
Jane Turner, the deputy medical examiner who performed an autopsy on Victim, noted "acute ethanol intoxication" on the death certificate, found bruising and a cut on Victim, and determined Victim died of a gunshot to the abdomen, as a result of two gunshot wounds to his abdomen, with the "first"3 one indicating the gun was at "close to medium" range and the "second" one indicating the gun was at "medium" range. (Id. at 372-86.)
Evan Todd Garrison, a criminal supervisor at the Missouri State Highway Patrol Crime Laboratory and a firearms and ballistics expert, testified that the hole in Victim's shirt from the "first" gunshot was "consistent with or indicative of a close or contact gunshot discharge" and the "second" hole indicated the end of the gun barrel was three to four feet away from Victim. (Id. at 386-410.)
Andrew Sutton, who was in custody at the same facility as Petitioner, testified that Petitioner had mentioned he had shot through his bedroom wall "hoping to hit or scare" Victim (id. at 332), that Victim "was berating [Petitioner], calling him [names], and [saying Petitioner] wouldn't pull the trigger [and t]hat's when [Petitioner] shot him[, then V]ictimgrabbed onto the gun and [Petitioner] shot him again" (id. at 333); and that Petitioner stated he was going to try to claim self-defense because Victim had grabbed the gun and the shooting occurred in Petitioner's home (id. at 333-34).
Petitioner first presented the testimony of Terry Joe Johnson, who was in custody where Petitioner and Sutton were in custody, testified that Sutton commented that he was going to try to get out, that he was going to use others' comments about their cases to his advantage. (Id. at 414-20. Petitioner then testified. Petitioner stated that the day of the shooting, he and Robinson had a barbecue at Petitioner's home, which Victim attended. (Id. at 422-23.) While Robinson cleaned the dishes, Petitioner and Victim "st[ood] around drinking beer," Victim said "he was going to whip [Petitioner's] butt," and they had a fistfight. (Id. at 424-25.) Petitioner's elbow was "bloodied" and he got a black eye as a result of the fight. (Id. at 425.) Victim and Petitioner then stopped fighting, "made up with each other," and continued drinking beer. (Id. at 426.) After awhile Petitioner went to his bedroom to go to sleep. (Id. at 428.) At some point, when his bedroom door was shut, Petitioner (Id. at 429.) He got out of bed, with the gun, to see if anyone was in the room, then his "bedroom door swung open and . . . [Victim] came in and . . . grabbed the [barrel of the] gun." (Id. at 431.) As they struggled with the gun, Petitioner told Victim to let go of the gun, then two shots went off, and Victim "went down." (Id. at 433, 436-37,442, 443.) Petitioner, who had been in bed naked (id. at 428), put pants on and walked out to his truck to call an ambulance. (Id. at 434.) After making the call, Petitioner placed the gun in the second bedroom because he "didn't want the guy to get up and hurt me - kill me with it." (Id. at 435.)
During the jury instruction conference, Petitioner's counsel objected to the giving of verdict-directing instructions on the lesser included offenses of voluntary and involuntary manslaughter, as the State had suggested. (Id. at 468-73.) The trial court overruled those objections. (Id. at 471, 472.) The trial court read the instructions to the jury, including verdict-directing instructions for second-degree murder, voluntary manslaughter, and involuntary manslaughter, as well as the related armed...
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