Nooner v. Hobbs

• Decision Date: 24 August 2012
• Docket Number: No. 10–2434.,10–2434.
• Citation: 689 F.3d 921
• Parties: Terrick Terrell NOONER, Plaintiff–Appellant v. Ray HOBBS, Interim Director, Arkansas Department of Correction, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

689 F.3d 921

Terrick Terrell NOONER, Plaintiff–Appellant

v.Ray HOBBS, Interim Director, Arkansas Department of Correction, Defendant–Appellee.

No. 10–2434.

United States Court of Appeals,

Eighth Circuit.

Submitted: June 16, 2011.

Filed: Aug. 24, 2012.

Josh Lee, FPD, argued, Scott Braden, FPD, on the brief, Little Rock, AR, for appellant.

Kelly Hill, AG, argued, Little Rock, AR, for appellee.

Before BYE and MELLOY, Circuit Judges, and SMITH CAMP ¹, District Judge.

MELLOY, Circuit Judge.

An Arkansas jury convicted Terrick Terrell Nooner of capital felony murder committed in the course of a robbery. He received a sentence of death. In state court, he unsuccessfully appealed his conviction. See Nooner v. Arkansas, 322 Ark. 87, 907 S.W.2d 677 (1995) (opinion on direct appeal). He then unsuccessfully sought state and federal post-conviction relief. Nooner v. Arkansas, 339 Ark. 253, 4 S.W.3d 497 (1999); Nooner v. Norris, 402 F.3d 801 (8th Cir.2005). Finally, he received permission from our court to file a second petition for federal relief alleging new and previously unavailable evidence demonstrated that he was actually innocent and that the state had failed to disclose evidence favorable to the defense.

Nooner supported his second petition primarily with: (1) a recantation and statement from an important witness for the state, Antonia Kennedy, (2) a confession from a non-testifying co-defendant, Robert Rockett, and (3) expert testimony from a video-image expert. Antonia Kennedy and Rockett both assert that Rockett, rather than Nooner, committed the murder but that Nooner was present in a car outside the building where the murder took place. The expert, applying techniques developed after Nooner's trial for analyzing grainy and unclear video images (images that were admitted into evidence at the trial), opined that Nooner could not have been the purported murderer shown in the imagesbecause the height of the person in the image more closely matched Rockett's height than Nooner's.

The district court ² granted Nooner two evidentiary hearings as to limited issues, but ultimately denied relief. The court found that Nooner's evidence was neither new nor previously unavailable. In the alternative, the court found that Nooner failed to demonstrate the requisite diligence in presenting his claims. In the further alternative, the court found that Nooner failed to make an adequate showing of actual innocence because the recantations were unreliable, the expert's opinion was unconvincing, and together with the trial evidence, Nooner's showing was insufficient to create the requisite likelihood that a jury would have found him not guilty. Nooner appeals, raising several issues. We affirm.

I. Background

A. The Underlying Crime and the Trial

On March 16, 1993, at about 1:30 a.m., Scot Stobaugh entered a laundromat in Little Rock. Later that morning, he was found dead on the floor of the laundromat. He had been shot seven times.

The laundromat had three surveillance cameras. The three cameras recorded to one videotape with the feeds from the cameras recording only one view at any given moment. As a result, a video recording from the laundromat on the morning of March 16 does not contain a continuous depiction of events surrounding the murder. Rather, it shows bits and pieces of the events that unfolded after Stobaugh's arrival.

The tape shows a second man entering the laundromat shortly after Stobaugh. The second man appears to accost Stobaugh and walk Stobaugh towards the back of the laundromat. The tape shows the two men walking between two rows of machines and partially out of the camera's view. It then shows the second man possibly kicking at someone on the floor and out of view with the second man's left arm visible in the image and extended back but his right arm forward and out of the image. Stobaugh is out of the image, but based on the sequence of frames, Stobaugh would have been in front of the second man. The state argued that, given the second man's position, this frame could depict the moment of a shooting. The state also argued that the shooter was right handed and held the gun in the right hand not shown in the image.

All images are grainy and unclear, but certain aspects of the second man's clothing are visible as is the rough relative size of the second man compared to surrounding objects and compared to Stobaugh (subject to the limitation that both men are wearing baggy clothes and hats). The camera recording the most useful images was mounted above the men in the rear of the laundromat, and analysis of the men's height and size is made difficult due to the camera's downward-facing perspective and due to the additional fact that the images appear to show both men while moving, standing with legs apart, or standing slightly stooped.

About ten days after the shooting, detectives focused their attention on Nooner based in part on statements Antonia Kennedy and Rockett gave to investigators. Officers had arrested Rockett for a robbery and murder at a convenience store in another town (the “Stax murder”). Rockett told police that Nooner was responsible for the Stax murder and for Stobaugh's murder. Although Rockett did not testify at Nooner's trial, he told officers that he and Nooner had been together on the night of Stobaugh's murder. According to Rockett, Rockett was driving a car Nooner had stolen, and the two men were looking for someone to rob when Nooner saw Stobaugh enter the laundromat. Rockett claimed Nooner told him to pull into the laundromat and then exited the car, entered the laundromat, walked Stobaugh to the back of the building, forced him to the floor, shot him seven times, kicked him, and took his checkbook, social security card, and $100 cash. Rockett stated that Nooner used a 0.22–caliber Ruger pistol the two men had stolen. Eventually Rockett pleaded guilty to first degree murder for his participation in Stobaugh's murder and was sentenced to sixty-five years' imprisonment consecutive to other sentences, including a life sentence for the Stax murder.³

Police also questioned a group of people associated with Nooner and Rockett. These same people ultimately testified at Nooner's trial. These witnesses included three sisters: Antonia Kennedy, Terri Kennedy, and Jazmaar Kennedy. Terri Kennedy was Nooner's girlfriend at the time of Stobaugh's murder and the mother of Nooner's child. Other witnesses included Johnny Martin and Isaac Warren, two men who had been with Nooner shortly before Stobaugh's murder or who had been around an apartment shared by the Kennedy sisters.

By any account, Antonia Kennedy was an important witness for the state at Nooner's trial. She testified consistently with a statement she had given to police during their investigation. She stated that Nooner told her the morning following the murder that he had killed the man in the laundromat. Her testimony was detailed; she recounted Nooner describing the victim's body as jerking after being shot and Nooner claiming to have kicked the body. According to her testimony, Nooner bragged about the killing. She quoted Nooner as stating that he “had to kill me a mother-f* * *er, shoot me a mother-f* * *er,” and as stating, “Sister-in-law, when I shot him, his body was jerking, and I had to do it with him.” Antonia Kennedy also stated that she had seen Nooner with a Ruger 0.22–caliber pistol before the murder and after the murder. She stated that, in the car Nooner and Rockett were using, she saw a checkbook containing a check with Stobaugh's name on it. Finally, she described Nooner's reaction to seeing the surveillance images in the news and his reaction to a news report that the crime may have been a random, gang-initiation event. According to Antonia Kennedy, Nooner asked if the images looked like him and acted “happy because the police wasn't [sic] on to him.”

On cross examination, Antonia Kennedy admitted that she had given an inconsistent, video-recorded statement to a defense investigator after police initially interviewed her. Antonia Kennedy had told the defense investigator that her initial statement to police inculpating Nooner (the statement consistent with her subsequently provided trial testimony) was a lie she gave to police while in custody in Jonesboro, Arkansas, for a different matter. She claimed to the defense investigator that she lied to police because police said they would take care of charges against her in Jonesboro. At trial, however, she asserted that her trial testimony and statement to police were truthful and that her statement to the defense investigatorwas false. The jury also learned that, after Antonia Kennedy spoke to police, she did not subsequently face any charges in Jonesboro. Finally, the jury learned that Antonia Kennedy had known Nooner from when the two were minors and had been together in a juvenile detention facility. Antonia admitted that the two had been sexually involved in the past, Nooner was in a relationship with Antonia's sister Terri Kennedy at the time of the murder, and Nooner had fathered a child with Terri Kennedy. Finally, Antonia identified Nooner as the man in the video.

Johnny Martin, Antonia Kennedy's ex-boyfriend, described his familiarity with Nooner and testified that he recognized Nooner in the surveillance images based on his face, coat, and hat. Martin claimed that he had seen Nooner wearing the same clothes the evening before the murder.

Isaac Warren testified that he saw Nooner in an apartment shared by the Kennedy sisters and that he had talked to Nooner at the apartment about purchasing a 0.22–caliber Ruger pistol. Warren stated that he saw Nooner with the gun before the murder but not after. Warren also testified that, after Nooner saw images from the crime scene, Nooner stated “they can't prove it” and “they had to shoot seven times.”

Jazmaar Kennedy testified that she could identify Nooner in the surveillance video based on the coat and hat he...