Morrow v. Wyrick, 80-1300

• Decision Date: 10 April 1981
• Docket Number: No. 80-1300,80-1300
• Citation: 646 F.2d 1229
• Parties: 8 Fed. R. Evid. Serv. 278 James Lee MORROW, Appellant, v. Donald W. WYRICK, Warden; John D. Ashcroft, Attorney General, State of Missouri, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1229

646 F.2d 1229

8 Fed. R. Evid. Serv. 278

James Lee MORROW, Appellant, v. Donald W. WYRICK, Warden; John D. Ashcroft, Attorney

General, State of Missouri, Appellees.

No. 80-1300.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 14, 1980.

Decided April 10, 1981.

John Ashcroft, Atty. Gen., Michael Elbein, Asst. Atty. Gen., Jefferson City, Mo., for appellees.

James Lee Morrow, Jefferson City, Mo., in pro. per.

Timothy K. Kellett, St. Louis, Mo., for appellant James Lee Morrow.

Before HENLEY, Circuit Judge, BENNETT, ^* Court of Claims Judge, and McMILLIAN, Circuit Judge.

McMILLIAN, Circuit Judge.

Petitioner James Lee Morrow appeals from a judgment entered in the District Court for the Eastern District of Missouri ¹ denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted of robbery in the first degree with a dangerous and deadly weapon in the Circuit Court for the City of St. Louis and sentenced to thirty-five years imprisonment. His conviction was affirmed on direct appeal to the Missouri Court of Appeals. State v. Morrow, 541 S.W.2d 738 (Mo.Ct.App.1976). Subsequent motions for transfer to the Missouri Supreme Court were denied.

In this appeal petitioner argues that the district court erred in (1) finding no violation of the confrontation clause, (2) finding petitioner's other claims did not constitute constitutional error, and (3) not addressing petitioner's claim that he was denied effective assistance of counsel in the Missouri Court of Appeals. In response the state argues generally that petitioner failed to exhaust available state remedies and, alternatively, that petitioner's allegations are without merit.

For the reasons discussed below, we affirm the judgment of the district court.

The relevant facts are as follows:

On September 30, 1973, Paul Pittman, attendant at a St. Louis automobile service station, was robbed at gunpoint of his wallet and cash-on-hand at the station. Curiously, he received an envelope in the mail, sans return address, containing his stolen wallet, in turn containing receipts bearing (petitioner's) name and address. These were delivered to the police resulting in (petitioner's) prompt arrest and later identification by Pittman at a lineup. On March 19, 1974, Pittman again identified (petitioner) at a preliminary hearing, attended by two unofficial stenographers, Roseann Montefelice and JoAnn Stowers. *

Pittman, the only identifying witness, died in August 1974 prior to trial; however, his preliminary hearing testimony was substantively admitted at trial when witnesses Montefelice and Stowers were permitted to read from their transcribed notes of the preliminary hearing.

Id. at 740 & n.1. The official court reporter testified at the trial that he had taken stenographic notes at the preliminary hearing but had lost those notes.

In his petition for a writ of habeas corpus petitioner alleged that the trial court erred in (1) allowing Ms. Montefelice and Ms. Stowers to testify because their testimony constituted inadmissible hearsay and was prejudicial, irrelevant, and immaterial (allegations $ 1-4), (2) allowing Mr. Darville Jefferson and police officer Ronald Kleinsorge to testify that Mr. Pittman had identified petitioner as the robber at the preliminary hearing because their testimony was conclusory, (3) allowing the state to establish the death, and therefore the unavailability as a witness, of Mr. Pittman by using a coroner's report, and (4) refusing to grant a mistrial after a prosecution witness improperly mentioned an out-of-court identification. The district court viewed petitioner's challenges to the admissibility of the testimony of witnesses Montefelice, Stowers, Jefferson, and Kleinsorge as implicitly alleging a violation of the confrontation clause of the sixth amendment. ² The district court found no constitutional violation. The district court reviewed petitioner's remaining allegations and found that the allegations constituted at most evidentiary or trial errors which did not give rise to constitutional errors cognizable in a petition for a writ of habeas corpus. Morrow v. Wyrick, No. 79-1319 C (2) (E.D.Mo. Apr. 2, 1980). ³

I. Confrontation Clause

Petitioner first argues that the district court erred in finding no violation of the confrontation clause. Petitioner argues that the introduction at trial of Mr. Pittman's identification of petitioner at the preliminary hearing through the testimony of Ms. Montefelice and Ms. Stowers violated his constitutional right of confrontation. Petitioner emphasizes that there was no official judicial record of the preliminary hearing, that there is no affirmative showing in the record that Mr. Pittman was under oath when he testified at the preliminary hearing, that petitioner was represented by different counsel at the preliminary hearing and at trial, and that the testimony of Ms. Montefelice and Ms. Stowers was "crucial" to the state's case and "devastating" to petitioner.

In response the state argues that petitioner has not exhausted available state remedies. The state appellate court did not reach the question of the admissibility of the preliminary hearing testimony because petitioner's brief on appeal failed to comply with applicable state appellate court rules ⁴ and therefore preserved nothing for appellate review. State v. Morrow, supra, 541 F.2d at 740-41 & nn. 1-4. The state argues that failure of counsel to properly raise an issue on appeal can be remedied by filing a motion to recall mandate. See, e. g., Hemphill v. State, 566 S.W.2d 200 (Mo.1978) (banc). On the merits the state argues that the challenged testimony did not violate the confrontation clause because such testimony falls within what may be called the "unavailable hearsay declarant" exception to the confrontation requirement. Phillips v. Wyrick, 558 F.2d 489, 493 (8th Cir. 1977), cert. denied, 434 U.S. 1088, 98 S.Ct. 1283, 55 L.Ed.2d 793 (1978); see Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); Mancusi v. Stubbs, 404 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972); California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895).

As noted by the state, petitioner failed to properly raise the confrontation clause issue on appeal in state court. Nevertheless,

(w)e do no disrespect to that court's power over practice before it when we find that (petitioner) had exhausted his state remedies notwithstanding presentation of his claims in a form unacceptable under (Missouri) law. While a state court undeniably has the power, within constitutional limits, to prescribe the form of briefs presented to it, it does not necessarily follow, however, that perfect compliance with such rules of briefing is always a prerequisite to the exercise of federal habeas corpus jurisdiction.

(T)he question is not one of federal power, but one of equitable discretion (F)ederal habeas corpus relief will not be withheld for failure to exhaust state remedies where state courts have had a full opportunity to determine the federal constitutional issues before resort is made to the federal forum, even if the state court does not reach the merits of the petitioner's claim In order to determine whether a claim has been fairly presented to the state courts, a federal court is not to assume that any claim not mentioned in the opinion of the state court was not presented (I)t is necessary to examine the petitioner's brief in the state court.

Houston v. Estelle, 569 F.2d 372, 375 (5th Cir. 1978) (Texas law) (citations omitted); see Girard v. Goins, 575 F.2d 160, 163 (8th Cir. 1978); Losieau v. Sigler, 421 F.2d 825, 828 (8th Cir. 1970).

We find that the district court properly reached the merits of petitioner's confrontation clause claim. We have examined petitioner's state appellate brief and the state's appellate brief. Although we do not quarrel with the state appellate court's characterization of petitioner's points of error as abstract and conclusory, we find that the confrontation clause issue was fairly presented to the state appellate court. Petitioner's brief in the state appellate court is admittedly not a model of legal drafting; however, petitioner's basic argument that the introduction of the challenged testimony deprived him of the right to confront and cross-examine witnesses is discernible. ⁵ Petitioner cited in support of the confrontation argument several state cases which specifically discuss the question of the admissibility of preliminary hearing testimony of unavailable witnesses. Brief of Appellant at 40-49, citing State v. Phillips, 511 S.W.2d 841 (Mo.1974); State v. Alexander, 499 S.W.2d 439 (Mo.1973); State v. Granberry, 491 S.W.2d 528 (Mo.1973) (banc). Moreover, the state was able to identify the substance of petitioner's points of error and to address the merits, citing two of the landmark Supreme Court cases on the confrontation clause. Brief of Respondent at 8, 12, citing Mattox v. United States, supra, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409, and Pointer v. Texas, supra, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923.

We further find that the introduction of the preliminary hearing testimony of the unavailable witness was constitutionally permissible. Ohio v. Roberts, supra, 448 U.S. at 66, 100 S.Ct. at 2539; Phillips v. Wyrick, supra, 558 F.2d at 494. As summarized by Justice Blackmun in Ohio v. Roberts,

when a hearsay declarant is not present for cross-examination at trial, the confrontation clause normally requires a showing that (the declarant) is unavailable. Even then, (the declarant's) statement is admissible only if it bears adequate "indicia of reliability." Reliability can be inferred without more in a case where the evidence...