Simmons v. Cassady
| Decision Date | 17 June 2015 |
| Docket Number | Case no. 4:12cv01138 TCM |
| Parties | RICHARD C. SIMMONS, Petitioner, v. JAY CASSADY, Warden of the Jefferson City Correctional Center, Respondent. |
| Court | U.S. District Court — Eastern District of Missouri |
This matter is before the Court for review and final disposition of a petition for writ of habeas corpus filed by Richard C. Simmons ("Petitioner") pursuant to 28 U.S.C. § 2254 to challenge a 2009 judgment entered following a trial in which the jury found Petitioner guilty of first-degree murder and armed criminal action in the January 2008 death of Pamela Pugh ("Victim").2 Respondent filed a response [Doc. 11] to the petition, including materials from the underlying state court proceedings [Doc. 12].3 Petitioner attached copies of several state court materials to his petition [Doc. 1-1] and filed a traverse [Doc. 26].
Petitioner presents four grounds for relief in his petition: that the pre-trial court4 erred in not allowing Petitioner's attorney to withdraw or in not granting a continuance shortly before the start of trial (ground one); that his trial attorney provided ineffective assistance of counsel by failing to call as a witness Estress Lindsay in apartment 33, as well as the unidentified tenants of apartments 30 and 31, and "the maintenance man for the apartments" in the building on Greenwood where Petitioner and Victim once lived ("Greenwood apartments") (ground two); that the trial court erred in allowing the jury to see Petitioner in the courtroom in handcuffs (ground three); and that Petitioner's trial attorney provided ineffective assistance of counsel in failing to elicit testimony from Petitioner that Victim had assaulted him in 2007 and that Petitioner was under the influence of several prescription medications and alcohol at the time of the January 2008 incident (ground four).
After careful consideration, the Court will deny the petition upon finding no merit in the part of ground four contending that Petitioner's trial attorney provided ineffective assistance of counsel in failing to elicit testimony from Petitioner about Victim's prior assaults on Petitioner, and concluding that the remaining claims are procedurally barred and may not be considered on their merits.
In mid-December 2008, Petitioner was charged, as a prior and persistent offender, with one count of first-degree murder in violation of Mo. Rev. Stat. § 565.020 and one count of armed criminal action in violation of Mo. Rev. Stat. § 571.015 for causing the death of Victimon January 17, 2008, by striking her with a dangerous instrument.5 (Indictment, Resp't Ex. 2, at 8-9.) Petitioner was arraigned on those charges on January 6, 2009. (Docket entry, dated Jan. 6, 2009, Legal File, Resp't Ex. 2, at 1.)
On January 13, 2009, over the objection of the State, Petitioner requested a continuance of the January 20, 2009, trial date because he had recently been arraigned on the first-degree murder charge and "need[ed] time to adjust trial strategy or negotiate plea agreement." (Order, filed Jan. 13, 2009, Legal File, Resp't Ex. 2, at 15.) By order, dated January 14, 2009, the pre-trial court rescheduled trial for February 9, 2009. (Order, filed Jan. 14, 2009, Legal File, Resp't Ex. 2, at 14.) On February 6, 2009, the pre-trial court denied Petitioner's trial attorney's motion to withdraw "to allow private counsel . . . to enter" his appearance for Petitioner. (Order, filed Feb. 6, 2009, Legal File, Resp't Ex. 2, at 26; see also colloquy between Petitioner and the trial court, outside the presence of the venire panel, discussing Petitioner's desire to have a private attorney represent him, Trial Tr., Resp't Ex. 1, at 150-56.) Petitioner reports that the new attorney requested a continuance of the trial date.
In addition to playing the recordings of the 911 telephone calls (Trial Tr., Resp't Ex. 1, at 205) and introducing numerous exhibits, the State presented fourteen witnesses during its case-in-chief and rebuttal at the three-day trial that began on February 9, 2009. (Trial Tr., Resp't Ex. 1.) Petitioner testified in defense of the charges. (Id. at 294-370.)
Victim's mother, Bernice Tolbert, testified, in relevant part, that Petitioner made threats to her through telephone calls Petitioner repeatedly made to her at night in late 2007 after Victim had stopped staying with Petitioner. (Id. at 168-72.) In those calls, Petitioner threatened to kill her or Victim. (Id. at 171.) In an effort to stop those telephone calls, Tolbert applied for a restraining order against Petitioner. (Id. at 172.) The telephone calls ended after Victim began staying with Petitioner again. (Id. at 178.)
Oscar Davis stated that, before her death, Victim came to his home five days a week to take care of him for three hours in the late afternoon each day. (Id. at 269-70.) Davis noted that Petitioner called Victim on Davis' home telephone every day she was there. (Id. at 270-71.) On January 16, 2008, Petitioner called and told Davis that he was going to "knock" the "bitch," which Davis took as a threat to "tak[e Victim's] life." (Id. at 272-74.)
During January 2008 Queena Johnson lived on the second floor of the Page Avenue apartment building where Petitioner and Victim lived on the third floor. (Id. at 188-89.) She saw Petitioner and Victim as they left the building to walk to a store and when they returned, with chips, between 4:00 p.m. and 5:00 p.m. on January 16, 2008. (Id. at 190-93; 197-98.) She did not notice that Victim had any injuries on those occasions. (Id. at 191-93.) That evening she stayed in her apartment. (Id. at 194.) After awhile she heard what sounded like furniture being moved, voices, and then Victim saying "Don't put your hands on me no more." (Id. at 194-96.) The sound woke her up at about 2:00 a.m. on January 17th. (Id. at 196.)
Petitioner's sister, Sherrion Zinn, testified that Petitioner called her early the morning of January 17, 2008, telling her that Victim was lying on the bathroom floor; and she called 911, after that call and after a subsequent call from Petitioner, to report that Victim was on the bathroom floor and to assist the responders in locating the correct apartment. (Id. at 179-88.)
Zachary Welker, an officer with the St. Louis Metropolitan Police Department ("City Police Department"), testified that at approximately 9:15 a.m. on January 17, 2008, he received a call to investigate a "sudden death" in the 5300 block of Page Avenue. (Id. at 201-02.) The call to respond resulted from two 911 calls that had been received earlier. (Id. at 202-03.) He was originally directed to 5354 Page Avenue, learned that address did not exist, and reported that 5356 Page matched the description that had been provided and would be the location he checked. (Id.) He knocked on the door of apartment 303 at 5356 Page Avenue and Petitioner answered. (Id. at 206-07.) Petitioner let Officer Welker in the apartment, which did not appear to be in disarray, and motioned toward the bathroom, where Officer Welker noticed a naked black female lying on the floor, blood smeared on the bathtub and floor, and the presence of "chip or snack bags" as well as cleaning supplies. (Id. at 208-09.) Officer Welker handcuffed Petitioner, who did not appear to have any injuries and had a tear in the t-shirt he was wearing. (Id. at 210, 213.)
Tom Carroll, a homicide detective with the City Police Department, responded to the scene at apartment 303 of 5356 Page Avenue on January 17, 2008, noticed some blood in the bedroom and found the bathroom "covered in blood." (Id. at 277-78.) Additionally, he saw Victim, with a chip bag and a knife by her body, and several cleaning items, in the bathroom. (Id. at 282-83.) Petitioner was at the scene in handcuffs, and appeared to have no injuries but several holes in the t-shirt he was wearing. (Id. at 286-88.)
Dawn Albers, a police officer with the City Police Department who works in that Department's crime lab, testified that she arrived at the crime scene and noticed blood splatter on the floor, walls, and television in the bedroom and in numerous places in the bathroom, and took pictures of the scene. (Id. at 233-36). She swabbed the blood splatter and seized a caneshe found in the bedroom, as well as various items, including a knife, she found in the bathroom. (Id. at 237-45.)
Erin Duke, a forensic biologist with the City Police Department crime lab, found possible biologic fluids on the cane, swabs, and other items seized from the bathroom and bedroom, and stored them for later DNA analysis. (Id. at 248-59.)
Karen Preiter, a DNA analyst for the City Police Department, tested swabs from the cane and other items seized from the bathroom, swabs of splatter at the scene, Petitioner's clothing samples, and items from Victim, against known samples from Victim and Petitioner. (Id. at 261-268.) Her analysis revealed that Victim was the major contributor of the DNA on the cane, blood spatter samples, and on cuttings from the jeans and t-shirt worn by Petitioner. (Id.)
Dr. Ariel Goldschmidt, a forensic pathologist who worked at the City of St. Louis medical examiner's office, performed an autopsy on Victim. (Id.) Dr. Goldschmidt described Victim's injuries as including several lacerations and contusions on her head, specifically, on her scalp, face, ears, and tongue; bleeding under her scalp and on her brain; and injuries all over her body, including two fractured ribs in the back as well as contusions and abrasions on her chest, arms, back, and front. (Id. at 216-224.) She testified that the injuries to Victim's face could have been caused by a fist or a cane, and opined Victim died from "blunt trauma of [or strong force on] the head and back." (Id. at 227-28.)
After the State rested, Petitioner unsuccessfully presented a motion for judgment of acquittal at the close of the State's evidence, and waived an opening statement. (See id. at 293, 294.) Petitioner then testified. (Id. at 295.)
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