Mitchell v. Wyrick
| Decision Date | 26 March 1982 |
| Docket Number | No. 81-1631C(B).,81-1631C(B). |
| Citation | 536 F. Supp. 395 |
| Parties | Nevail MITCHELL, Petitioner, v. Donald WYRICK, Warden, Missouri State Penitentiary, Respondent. |
| Court | U.S. District Court — Eastern District of Missouri |
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Nevail Mitchell, pro se.
John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
This action is before the Court upon the petition of Nevail Mitchell for a writ of habeas corpus under 28 U.S.C. § 2254 and the response of Donald Wyrick, Warden of the Missouri State Penitentiary.
Petitioner, a Missouri state prisoner, was convicted by a jury of murder first degree in 1977 in the Circuit Court of St. Charles County, Missouri. He was sentenced to life imprisonment. The conviction was affirmed on direct appeal. State of Missouri v. Mitchell, 622 S.W.2d 791 (Mo.App.1981).
In his petition for habeas relief Mitchell has alleged ten separate grounds for relief, which the Court has refined to seven: (1) The trial court erred because it failed to acquit the petitioner at the conclusion of the trial because the state failed to produce sufficient evidence to convict beyond a reasonable doubt. (2) The trial court erred in overruling petitioner's original and amended motions to suppress the identification evidence because it was tainted by suggestive and improper identification techniques employed by the St. Charles County Sheriff's Department. (3) The trial court overruled petitioner's objection to rebuttal testimony which included certain statements made by petitioner secured in violation of his Fifth and Fourteenth Amendment rights. (4) The trial court erred in overruling petitioner's objection to the state's attempt to conduct an allegedly improper cross-examination of defense witness Ronald Schmitz. (5) The trial court erred in not providing him with appropriate relief for three separate instances involving the state's alleged failure to comply with discovery requests. (6) Petitioner was denied a fair trial because the trial judge showed hostility toward petitioner's counsel, in the jury's presence, on two occasions during the course of the trial. (7) Petitioner has been denied due process of law because the trial transcript is incomplete. These grounds are precisely the same grounds that petitioner raised in his direct appeal, and consequently, the respondent, Warden of the Missouri State Penitentiary, concedes that available state court remedies have been exhausted. 28 U.S.C. § 2254(b) and (c).
Petitioner in ground (1) alleges that the evidence was insufficient to convict him beyond a reasonable doubt of first degree murder. A federal court must consider such a claim for habeas relief by reviewing the evidence in the light most favorable to the prosecution in determining whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).
Petitioner was convicted of murder in the shooting death of Mrs. Juanita Gregory, his life-long girlfriend. Evidence adduced by the state showed that the long-term relationship between the petitioner and the victim was punctuated by frequent arguments and physical altercations. (Resp.Exh. A-4, 454-58, 464-65.) During the course of an argument between petitioner and decedent five days prior to the murder petitioner stated to a neighbor that: "If I can't have her, no one else can." (A-4, 479-80.) A friend of the decedent telephoned her early in the morning of March 4, 1977, the day of the killing, and heard petitioner shouting in the background "You ain't got no problem, bitch," and then the telephone went dead. (Id., 407-09.) Petitioner was observed leaving the victim's home with her at approximately 8:45 or 9:00 a. m. the same morning. (Id., 396-401.) At approximately 2:00 p. m. the same day, two high school students, Duane Smith and Sue Ann Morris were seated in Smith's pickup truck near to and within sight of a barn near Weldon Springs Road in St. Charles County. (Resp.Exh. A-2, 236-40.) Smith saw a blue Cutlass Supreme exit the driveway to the barn some thirty yards behind them, and turn in their direction. (Id.) Smith testified that the car was weaving all over the road as it approached them. (Id.) Smith saw the occupant's face and Morris observed the back of his head as the car sped by them. (Resp.Exh. A-2, 239-40; Resp.Exh. A-3, 286.) Smith noted that the driver (and sole occupant) looked surprised as he passed them. (Resp.Exh. A-2, 240.) Both witnesses later identified the petitioner as the occupant of the car they observed and they also identified petitioner's automobile as being the blue Cutlass that they had observed earlier. (Resp. Exh. A-2, 239-44; Resp.Exh. A-3, 289-91.) Mrs. Gregory's body was discovered on March 5, 1977 near the aforementioned barn in rural St. Charles County, and the autopsy indicated that she died at approximately 2:00 p. m. on March 4. (Resp.Exh. A-1, 125-29; Resp.Exh. A-2, 231-33.) Shotgun shells and a shotgun seized from petitioner at the time of his arrest on March 8 matched the projectiles and weapon believed to have caused the victim's death. (Resp.Exh. A-3, 310-43.) Prints of the tires on petitioner's automobile matched a plaster cast of the tire tracks at the murder scene. (Resp.Exh. A-2, 183-85, 222-24.) Petitioner relied on an alibi defense, but his story was discredited by statements he made during a telephone call to a friend in St. Louis on the day following the murder. (Resp.Exh. A-7, 828-38.)
This evidence considered in the light most favorable to the prosecution would be sufficient for a rational jury to have found the essential elements of the crime beyond a reasonable doubt. The necessary elements for first degree murder may be inferred from and established by circumstances surrounding a homicide. State of Missouri v. Davis, 400 S.W.2d 141 (Mo.), cert. denied, 385 U.S. 872, 87 S.Ct. 142, 17 L.Ed.2d 99 (1966).
Petitioner's second ground asserts that evidence of pretrial and in-court identifications should have been suppressed because the procedure employed was unnecessarily suggestive. The record before this court does not include a transcript of the suppression hearing. Nevertheless, the Missouri Court of Appeals reconstructed the pretrial identification evidence from the trial testimony. Their findings of fact were as follows:
Three days after seeing the car and the subject in question, both witnesses, Duane Smith and Sue Ann Morris were shown nine photographs of black males. Prior to the viewing, which was conducted in the presence of a high school guidance counselor and two police officers, Smith heard an officer state that the one they thought did it was in Louisiana. The officer, however, did not indicate which man it was or suggest to Smith whom he should identify. Smith then viewed the nine photographs and identified the appellant, as the man he saw driving the blue Cutlass. Morris was unable to make an identification because she had only seen the back of the subject's head. Two days later both witnesses separately viewed a six-man lineup at the St. Charles County Sheriff's Office. Smith positively identified the appellant again. Morris, after asking the lineup participants to face in the opposite direction so she could see the back of their heads, identified the appellant as the man driving the blue Cutlass. Again, there is no indication that the police suggested whom the witnesses should identify. We further conclude that there were no suggestive and improper procedures employed by the police, negating appellant's argument that there was a lack of independent basis for said identifications.
State of Missouri v. Mitchell, supra, 622 S.W.2d at 795. In addition, this Court has reviewed copies of the nine photographs used in the photo display, and a photographic reproduction of the lineup (Resp. Exh. B). This review, and the findings of the state appellate court, convince this Court that neither procedure was unnecessarily or impermissibly suggestive. Furthermore, petitioner has made no showing that the identifications were unreliable based upon the totality of the circumstances. Manson v. Braithwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977).
In petitioner's third ground he alleges that his conviction is constitutionally defective because the trial court allowed Officer Bowman of the St. Charles County Sheriff's Department to testify in rebuttal regarding certain statements petitioner made following his arrest (Resp.Exh. A-7, 818-23). The statements had been excluded from the state's case-in-chief pursuant to petitioner's motion to suppress because of a violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). (A-1, 118-19.) Nevertheless, statements taken in violation of Miranda may still be used to impeach the defendant if he testifies on his own behalf and does so inconsistently with the prior statements. Oregon v. Hass, 420 U.S. 714, 722, 95 S.Ct. 1215, 1220, 43 L.Ed.2d 570 (1975). The statements involved in this situation were clearly admissible for the purpose of impeaching petitioner's inconsistent testimony. Ground (3) is without merit.
Ground (4) concerns the cross-examination of defense witness Ronald Schmitz, an investigator for the public defender's office in St. Charles County. Schmitz was questioned regarding statements he allegedly made to a state's witness, Phyllis Nelson, a clerk at Grandpa Pigeon's store during his investigation of the case. The statements inferred that Schmitz had tried to influence Nelson to testify that petitioner had been in the store on the afternoon of the murder. (Resp. Exh. A-5, 611-15.) Petitioner's allegation that this was an "attempt to impeach Mr. Schmitz ... on a collateral matter, assuming facts not in evidence and was beyond the scope of direct examination ...", was rejected by the state appellate court...
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