McGee v. Norman

• Decision Date: 24 December 2014
• Docket Number: No. 4:11CV2212SNLJ (NCC),4:11CV2212SNLJ (NCC)
• Court: U.S. District Court — Eastern District of Missouri
• Parties: THOMAS C. MCGEE, Petitioner, v. JEFF NORMAN, Respondent

THOMAS C. MCGEE, Petitioner, v. JEFF NORMAN, Respondent

No. 4:11CV2212SNLJ (NCC)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

December 24, 2014

REPORT AND RECOMMENDARION OF UNITED STATES MAGISTRATE JUDGE

This matter is before the court on Petitioner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). This matter has been referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Doc. 18). After reviewing the case, the court has determined that Petitioner is not entitled to relief. As a result, the court will recommend that the Petition be dismissed.

I.BACKGROUND

Petitioner was charged, by a nine-count information, for crimes against Marilyn Sharpe, J.B. Tidwell, and Alice Stith. In Count 1, Petitioner was charged with the class B felony of robbery in the second degree, in that, acting with another, he forcibly stole over $9,000 owned by Ms. Sharpe. In Count 2, Petitionerwas charged with the class B felony of kidnapping, in that, acting with another, Petitioner unlawfully held Ms. Sharpe without her consent, for the purpose of the felony robbing Ms. Sharpe of $14,500 cash or, in the alternative, for the purpose of terrorizing Ms. Sharpe. In Count 3, Petitioner was charged with the class A misdemeanor of false imprisonment, in that, acting with another, he falsely represented to Ms. Sharpe that he was a law enforcement officer, with the purpose of inducing Ms. Sharpe to submit to his pretended authority, and Petitioner commandeered Ms. Sharpe's vehicle and forced her to withdraw over $9,000, in that pretended capacity.

In Count 4, Petitioner was charged with the class C felony of attempted stealing over $25,000, in that, acting with another, Petitioner and his accomplice falsely represented themselves as police officers and appeared to obtain money from Mr. Tidwell, and such conduct was a substantial step toward the commission of the crime of stealing over $25,000 from Mr. Tidwell, and was done with the purpose of committing such stealing. In Count 5, Petitioner was charged with the class A misdemeanor of false impersonation, in that, acting with another, Petitioner falsely represented to Mr. Tidwell that he was a police detective, with the purpose of inducing Mr. Tidwell to rely upon his pretended official actions, and Mr. Tidwell went to the bank in accordance with Petitioner's instructions.

In Count 6, Petitioner was charged with the class B felony of stealing by deceit, in that, acting with another, Petitioner appropriated $6,193, owned by Ms. Stith, with the purpose of depriving her thereof by deceit, in that Petitioner represented to Ms. Stith that he and his accomplice were police officers investigating counterfeit United States currency, which representations were false and known by Petitioner to be false, and Ms. Stith relied on the representations and was thereby induced to part with such property. In Count 7, Petitioner was charged with the class A misdemeanor of false imprisonment, in that, acting with another, Petitioner falsely represented to Ms. Stith that he was a law enforcement officer, with the purpose of inducing Ms. Stith to submit to his pretended official authority, and Petitioner caused Ms. Stith to give him United States currency in reliance upon his pretended official authority.

In Count 8, Petitioner was charged with the class C felony of stealing by deceit, in that, acting with another, he appropriated $16,050, which was owned by Ms. Stith, and Petitioner appropriated such properly from Ms. Stith with the purpose of depriving her by deceit in that Petitioner represented to Ms. Stith that he and his accomplice were police officers investigating counterfeit United States currency, which representations were false and known by Petitioner to be false, and Ms. Stith relied on the representations and was thereby induced to part with such property.

In Count 9, Petitioner was charged with the class A misdemeanor of false imprisonment, in that, acting with another, Petitioner falsely represented to Ms. Stith that he was a law enforcement officer with the purpose to induce Ms. Stith to submit to his pretended official authority, and Petitioner caused Ms. Stith to give him United States currency in reliance upon his pretended official authority. Petitioner was charged as a persistent offender based on his previously being found guilty of two or more felonies. (Resp. Ex. A at 9-11).

All three victims were approximately eighty years old. The State charged Andrea Wilks as Petitioner's accomplice in committing the offenses against Ms. Sharpe and Mr. Tidwell. Missouri v. McGee, 284 S.W.3d 690, 695 (Mo. Ct. App. 2009).¹ Beginning on August 24, 2007, Petitioner and Mr. Wilks were tried together by jury. The evidence at Petitioner's trial was as follows:

A. Ms. Sharpe - Robbery, Kidnapping, & False Impersonation of a Police Officer

On October 8, 2003, as Ms. Sharpe was driving to the grocery store, two men approached and stopped her vehicle. The heavier man knocked on the driver's side window, displayed a badge, and indicated that he was an off-duty police officer. The heavier man then entered the vehicle on the front passenger side, and the other man entered the vehicle from the back seat. Ms. Sharpe later identified the heavier man as Defendant and the other man as co-defendant Wilks.

After assuming control of the car, the men told Ms. Sharpe to drive to the Bank of America on Lindell to withdraw money from her bank account. Upon arriving at the Bank of America, Mr. Wilks placed a "pen" on Ms. Sharpe's shirt and explained that it would monitor her conversation while inside bank. Then, Ms. Sharpe and Defendant exited the vehicle and walked towards the bank. Defendant instructed Ms. Sharpe to withdraw $9,000 and not to converse with the tellers. Defendant waited while Ms. Sharpe went in the bank and obtained a cashier's check for $9,000. Surveillance footage from the Bank of America at Lindell showed Ms. Sharpe inside the bank, making a transaction, and wearing the "pen" that had been placed on her to monitor her conversations.

When Defendant and Ms. Sharpe returned to the vehicle, Defendant took over driving and drove to a number of other banks. Surveillance footage from the Bank of America located in downtown St. Louis showed Ms. Sharpe inside the bank. Defendant was also seen inside the bank as he stood by the front doors while Ms. Sharpe cashed the $9,000 cashier's check she received at the first bank. Later that day, surveillance footage showed Ms. Sharpe at the Bank of America on Brentwood where she withdrew $500 cash. Finally,surveillance footage showed Ms. Sharpe making a transaction at the Bank of America in Warson Woods where she withdrew $5,000. Ms. Sharpe gave the money she withdrew from the several banks to Defendant.

At some point, Ms. Sharpe noticed that Mr. Wilks was no longer in the vehicle with her and Defendant. Later she observed Mr. Wilks driving behind them in a different car. While Mr. Wilks was following them, Ms. Sharpe saw that Defendant maintained contact with Mr. Wilks using a "radio or telephone" device. During Defendant and Mr. Wilks' conversation, Ms. Sharpe overheard Defendant mention the name "Callahan."

Throughout the encounter, Defendant did not explicitly threaten Ms. Sharpe and Ms. Sharpe never actually saw a weapon. However, while traveling to the several banks, Defendant drove with his right hand and kept his left hand in his pocket which led Ms. Sharpe to believe that he possessed a weapon. Additionally, when warning Ms. Sharpe not to make any conversation with the tellers at the bank, Defendant indicated that she needed to "keep quiet because something would happen ... to [her] family or whatever."

At various times throughout the day, Ms. Sharpe told Defendant that she was hungry, but Defendant did not give her anything to eat. Ms. Sharpe also told Defendant on three or four occasions that she wanted to go home, to which Defendant replied that they "would go home later."

Finally, after Ms. Sharpe made her last transaction at the Warson Woods Bank of America, Defendant drove Ms. Sharpe to a location in downtown St. Louis where Defendant exited the vehicle and ran to the car that had previously been following them. Subsequently, Ms. Sharpe used a passerby's cellular phone to call the police. Soon thereafter, Detective Michael Regan arrived and interviewed Ms. Sharpe. Ms. Sharpe described the events of the day to Detective Regan, and based upon that information, Detective Regan began his investigation. Detective Regan seized the "microphone pen" that had been placed on Ms. Sharpe, and he reviewed the surveillance footage and business records from the banks Ms. Sharpe had visited. Because part of the robbery occurred outside of hisjurisdiction, Detective Regan contacted Detective James Simpson from the Brentwood Police Department who later interviewed Ms. Sharpe and assisted in the investigation.

B. Mr. Tidwell - Attempted Stealing Over $25,000

About one and a half years later, on April 5, 2005, Mr. Tidwell reported to the police that two men posing as police officers were attempting to steal money from him. Detective Thomas Neske responded and Mr. Tidwell informed him that two men had visited his house that morning, displayed badges, and identified themselves as "Callahan" and "Stone." Mr. Tidwell said that the men asked him "[t]o obtain money from his personal checking account and hand it over to them." Mr. Tidwell also indicated that the men were going to contact him by phone that evening, and, subsequently, Detective Neske arranged to have a recording device placed on Mr. Tidwell's telephone. That night, a man identifying himself as "Sergeant Stone" called and instructed Mr. Tidwell to go to his bank in the morning, withdraw $9,000 in cash, and obtain two cashier's checks for $9,000 apiece.

The next day, Detective Neske staked out Mr. Tidwell's bank and arrested Defendant and Mr. Wilks

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