Mcintyre v. Mckune
| Decision Date | 18 February 2011 |
| Docket Number | CASE NO. 08-3089-SAC |
| Parties | TERRY D. McINTYRE, Petitioner, v. DAVID McKUNE, et al., Respondents. |
| Court | U.S. District Court — District of Kansas |
This petition for writ of habeas corpus, 28 U.S.C. § 2254, was filed by a state prisoner. Petitioner seeks to challenge his convictions in December 2000 in the District Court of Douglas County, Lawrence, Kansas.
0n July 2, 1999, "the Payless Shoe Store in Lawrence, Kansas, was robbed at closing time by an armed black man, " who also raped and sodomized one of the two store clerks. Mclntyre v. State, Case No. 02-C-489, (hereinafter 1507Rec) at 399-400 Memorandum Decision, at 2 (May 3, 2005)(hereinafter MemDsn). One clerk dialed 911 upon spotting a man at the back of the store, but hung up when he said he was leaving. A highway patrolman responding to the dispatch on the 911 hang-up arrived to see a man exit the store and drop a cap. A 1998 Honda Accord vehicle was found in the parking lot, unlocked and with the keys in the ignition. A search of this vehicle turned up the wallet and Kansas ID of Mr. Mclntyre and led to his being a suspect.1
The rape victim was taken to the hospital that night, where her panties and swabs of her vaginal cavity were preserved in a sealed rape kit. This evidence was eventually transported to the Kansas City Missouri Police Department Crime Lab (KCM Lab) and analyzed to determine the DNA profile of the unknown rapist.
On August 27, 1999, a federal complaint was filed charging McIntyre with the crimes of interference of commerce by threats of violence and brandishing a firearm during and in relation to a crime of violence. See McIntyre v. Smith, 2005 WL 1945043 (D.Kan. Aug. 12, 2005)(citing U.S. v. McIntyre, 99-CR-20069-GTV).2 A warrant issued out of Douglas County for Mclntyre's arrest on state charges arising from this incident. Surveillance on Mclntyre's girlfriend, Dana Jones, culminated in his arrest on September 1, 1999. He was apprehended following a high speed chase during which the vehicle he was driving went airborne and landed in a field, and he then jumped out and ran.3
On September 30, 1999, a search warrant to collect blood and hair samples from McIntyre was issued by U.S. Magistrate Rushfelt upon the affidavit of F.B.I. Special Agent Stephen Smith. The warrant was executed at the Leavenworth CCA Detention Center by Agent Smith and Lawrence Police Detective Zachary Thomas. Samples of blood were extracted from McIntyre by a phlebotomist in the presence of the two law enforcement officers. At trial, Thomas testified that he and Smith took the blood tubes which had stoppers, to the car where they sealed them in a baggie and applied evidence tape. State v. McIntyre, Case No. 99-CR-978 (REC), Trial Transcript (TT) 479. The officers then marked the tape in each other's presence. Thomas took custody of the samples and checked them into the evidence room at the Lawrence Police Department (LPD).
In February 2000, following the withdrawal of two other attorneys, Mr. Rumsey was appointed to represent Mr. McIntyre. Rumsey immediately filed very detailed and substantial requests for discovery regarding the State's DNA evidence, which if believed, strongly supported a guilty verdict. He also obtained indigent funds for the services of an experienced private investigator and a well-known expert on DNA evidence, Dr. Dean Stetler.
On September 21, 2000, Rumsey filed a motion to continue the trial to allow independent DNA testing, which was granted. The independent DNA test results confirmed the State's results, and thus were not presented by defendant at trial. Upon receiving this highly inculpatory information, defense counsel Rumsey consulted ethical rules and the State Disciplinary Administrator and advised Mr. McIntyre personally and by letter dated November 28, 2000, thathis representation would henceforth be limited. Specifically, he explained that he could not assist Mclntyre in committing what he believed would be "fraud upon the court, " that the "decision to testify will be yours and yours alone to make, " but "[i]f you do testify, my role is limited to... asking you a few background questions" and then "one general question" of "tell us what you believe happened on the 2nd of July, 1999." 1507Rec, Vol. 1, Affidavit, Exhibit F at 56. He further explained, "You will then be on your own in describing the situation to the court and jury." Id. He also wrote: [I]f you testify the way you told me.., I must, in an ex parte conference... inform the Court that you have testified falsely." Id. After receiving this advice, Mr. Mclntyre elected not to testify. Id., Vol. III at 405.4
At trial, the two victims, TW and CS, testified as to the circumstances of the crimes. The LPD officers that had first arrived at the scene testified as to statements made to them by TW and CS. Officer Harvey, called by the State, testified that rape victim CS had described the perpetrator as a black male wearing a red t-shirt, dark pants and big, dark sunglasses, and that he did not get height and weight information from CS at the store.
Detective Burket testified that he interviewed CS that night at the police station and she described the subject as a black male in his 30's between 5'6" and 5'8" tall, wearing a red t-shirt with logo, black nylon pants, and large dark sunglasses, of medium weight with medium length hair and no facial hair.
Officer Mann, called by the defense, testified that he had interviewed the two clerks in the shoe store on July 2, 1999, and that they described the perpetrator as 25 to 35 years of age, 6' tall, 180-200 pounds, short black hair, black jeans, a red t-shirt with white lettering, dark sunglasses, and smelling of alcohol. He had then taken TW to the front of the store while CS remained in the back office with Officer Harvey. Officer Mann transported TW to the station and conducted another interview, at which she repeated her earlier description, adding a light mustache. On cross-examination, Mann testified that TW had said she was guessing as to height and weight, which the defense elicited Mann had not mentioned either that night or at the preliminary hearing.
Physician Hunt testified that he examined CS at the hospital the night of the rape and took swabs and made slides of fluid found in her vaginal vault that appeared to be semen. He also testified about the chain of custody with regard to the evidence and the care taken to prevent contamination. Nurse Feltman testified that she utilized the KBI sexual assault evidence collection kit on that night and described how she had collected all clothing as it was removed from CS, including her underwear and any foreign material, onto a clean white sheet of paper. She thenplaced each item together with that paper into separate bags, and put all other items collected into bags, 5 which she sealed and gave to the law enforcement officer. Officer Harvey testified that he accompanied CS to the hospital, received the items of sealed evidence in the completed rape kit from Nurse Feltman, and took the items directly to the evidence locker at the station. TT at 222. He identified those items at trial. Detective Thomas testified that he transported the rape kit, which he received from the evidence officer at the LPD, to the KCM Lab, along with the sealed samples of McIntyre's blood.6
Officer McAtee testified that when he interviewed McIntyre on the day of his arrest, McIntyre stated his height as 5"6" and weight as 157 pounds. McAtee also testified that McIntyre's Kansas ID from November 1997, showed him with a "slight amount of hair, " while another exhibited photo showed him bald, and that his driver's license photo issued December 1997, showed him with a little more hair. Leona McIntyre, defendant's wife, testified thather husband has maintained a shaved head since September 1998. Laurie Scott testified that she worked with TW the night of the crimes to develop a computer generated composite, and that TW had described the perpetrator as black, tall, medium build, and with curly dark hair, but said nothing about a mustache. The State elicited that the hair in the composite was the shortest available in the program. The photos, the composite, and the data entered into the program were admitted into evidence.
Ms. Jackson testified that near the time the crimes occurred she was across the highway in her car with her daughter and son leaving the Walmart parking lot, when a black male knocked on the window and offered to pay for a ride without saying where. She refused, and saw him get into another car. Jackson described the man as black, dark, thin, 6'1" tall, and carrying a Walmart-like sack. Her son also testified and described the black male as maybe in his late 30s, not too tall or big, with a little mustache and hair, dressed in a red t-shirt and jeans, and carrying a bluish plastic bag. The daughter testified and described the black male as "real frantic" and wearing a red shirt. The mother testified that she later saw McIntyre's photograph in the newspaper, 7 and she and her children had recognized it as the male that had requesteda ride. She then called the police. The son testified that he was "positively certain" the photograph in the paper was of the man, and identified McIntyre in the courtroom. The daughter testified she had been "pretty sure" the man in the newspaper was the "same guy, " but did not know if she would recognize him at the time of trial and did not see him in the courtroom. The mother testified that she did not think she would recognize him at the time of trial.
Mr. Frakes testified that he drew blood from McIntyre around September 30, 1999, and at that time McIntyre had very closely cropped hair, a mustache, a little chin hair, and was fairly short at 5'8" or 5'9". Detective Thomas testified that when they executed the warrant for blood and hair samples, he was not able to pull...
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