Moore v. Wyrick, 84-1984
Decision Date | 29 April 1985 |
Docket Number | No. 84-1984,84-1984 |
Citation | 760 F.2d 884 |
Parties | Moses MOORE, Appellant, v. Donald WYRICK, Appellee. |
Court | U.S. Court of Appeals — Eighth Circuit |
Gregory K. Johnson, Springfield, Mo., for appellant.
Rosalynn Van Heest, Jefferson City, Mo., for appellee.
Before BRIGHT, ARNOLD and BOWMAN, Circuit Judges.
Moses Moore appeals from the district court's 1 denial of his petition for a writ of habeas corpus. For reversal, Moore asserts that the prosecutor violated his right to due process by improperly suggesting during closing arguments that the jury could draw an adverse inference from Moore's failure to call corroborative defense witnesses. We affirm the denial of the writ.
Moses Moore, Charles Johnson, and Darrell Smith were each charged with raping and sodomizing a woman on April 4, 1978. A jury convicted Smith and he received a twenty-year sentence. A jury also convicted Johnson, but the Missouri Court of Appeals reversed his conviction. State v. Johnson, 595 S.W.2d 774 (Mo.Ct.App.1980). Johnson then pled guilty to one count of rape and one count of sodomy, and received a seven-year sentence.
Moore's first trial in February 1979, ended in a mistrial when the jury was unable to reach a unanimous verdict. At his second trial in March 1979, the jury convicted Moore, and he received a twenty-five year sentence.
During his second trial, Moore testified that the victim was one of ten or twelve guests who attended a party he held on the evening of April 4, 1978. Moore remembered the names of six of the other guests: Darrell Smith, Charles Johnson, Joseph Gregory, Billy Kidd, Cynthia Smith, and a neighbor named Faye. According to Moore, the victim drank, smoked marijuana, and danced during the evening. Moore admitted that he had intercourse with the victim, but claimed that she consented.
The victim testified that Moore approached her outside a lounge on the evening of April 4, 1978, and asked her for a ride to his home. When they arrived at Moore's house, the victim discovered she had a flat tire. She claimed that when she attempted to borrow cabfare, Johnson forced her into Moore's house where Johnson, Moore, and Smith repeatedly raped her.
At Moore's first trial, Billy Kidd appeared as a defense witness. Kidd corroborated Moore's testimony that a party took place at Moore's house on April 4, 1978. At Moore's second trial, however, neither Kidd nor any of the other guests named by Moore as having attended his party testified.
During closing arguments of Moore's second trial, the prosecutor made the following statements:
"We had a party." "It was a big party." But where are the guests?
Who came in here and verified the party?
* * *
* * *
Why didn't they bring in somebody to tell us about this party, and what happened? Why didn't they bring in Billy, the kid?
State v. Moore, 620 S.W.2d 370, 371-72 (Mo.1981) (en banc).
On direct appeal, the Missouri Supreme Court affirmed Moore's conviction. Id. The court noted that the persons Moore failed to call were "peculiarly available" to him--that is, they were friends who could be expected to testify favorably for the defense. Moore's failure to call one or more of them as witnesses therefore gave rise to a permissible inference that their testimony would actually have been unfavorable to him. Id. at 374. The court held that, under Missouri law, the trial court did not abuse its discretion in permitting the prosecutor's adverse inference argument in the circumstances of this case. Id.
Thereafter, Moore filed the present petition for habeas relief, alleging that the prosecutor's improper remarks during closing argument deprived him of due process. The district court concluded that no error of constitutional dimension had occurred at Moore's trial, and denied the petition. Moore v. Wyrick, 589 F.Supp. 608 (W.D.Mo.1984). This appeal followed.
The scope of review by federal courts of habeas corpus petitions alleging violations of due process is narrow. See Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974); Batten v. Scurr, 649 F.2d 564, 569 (8th Cir.1981). Moore must show that the prosecutor's remarks were so egregious that they fatally infected the proceedings and rendered his entire trial fundamentally unfair. See Donnelly v. DeChristoforo, 416 U.S. at 642, 94 S.Ct. at 1871; Ellis v. Black, 732 F.2d 650, 657-58 (8th Cir.1984) (quoting Maggitt v. Wyrick, 533 F.2d 383, 385 (8th Cir.), cert. denied, 429 U.S. 898, 97 S.Ct. 264, 50 L.Ed.2d 183 (1976)); Cook v. Bordenkircher, 602 F.2d 117, 119 (6th Cir.), cert. denied, 444 U.S. 936, 100 S.Ct. 286, 62 L.Ed.2d 196 (1979). See also United States v. Young, --- U.S. ----, ----, 105...
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