Smith v. Groose

• Decision Date: 13 May 1999
• Docket Number: No. 97-2694,97-2694
• Citation: 205 F.3d 1045
• Parties: (8th Cir. 2000) JON KEITH SMITH, APPELLANT, v. MICHAEL GROOSE; MISSOURI ATTORNEY GENERAL, APPELLEES. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1045

205 F.3d 1045 (8th Cir. 2000)

JON KEITH SMITH, APPELLANT, v. MICHAEL GROOSE; MISSOURI ATTORNEY GENERAL, APPELLEES.

No. 97-2694

United States Court of Appeals for the Eighth Circuit

Submitted: May 13, 1999

Filed: March 7, 2000

Appeal from the United States District Court for the Western District of Missouri.

Before Wollman, Chief Judge, Floyd R. Gibson, and Beam, Circuit Judges.

Wollman, Chief Judge.

Jon Keith Smith was convicted of first-degree felony murder,¹ armed criminal action robbery, and burglary in Missouri state court and was sentenced to five terms of life imprisonment. He appeals from the district court's denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Although we do not lightly overturn this thirteen-year-old state conviction, we conclude that we are compelled to do so. We reverse and remand the case with directions to issue an appropriate writ because the State's use of inconsistent prosecutorial theories violated Smith's due process rights in a way that rendered his convictions fundamentally unfair.

I.

On the morning of November 27, 1983, Police Officer James Hughes discovered the dead bodies of Pauline and Earl Chambers in their home in Kansas City, Missouri. A butcher knife found on a bed near the bodies was determined to be the murder weapon.

During the evening of November 26, 1983, Smith, James Bowman, Anthony Lytle, and Donald Dixon, all then juveniles, set out to find a house to burglarize. Testifying for the State at Smith's trial, held in March 1987, Lytle stated that the group began to knock on the front doors of neighborhood homes. If someone answered, the group asked if there was a party inside. At those houses where no one responded, the teenagers unscrewed the porch light bulbs, intending to return later to complete a burglary. When the group approached the Chamberses' house they noticed that the storm door had been broken and saw a footprint on the front door, which was ajar. Although Smith believed that the house belonged to an elderly white couple who were rarely home, Lytle observed a black man through the window. The group concluded that someone else was in the process of burglarizing the house and decided to "rob the burglars."

Smith and Bowman departed to obtain Bowman's car, which they had left down the street at Smith's house, while Lytle and Dixon watched the house from the bushes. The car contained Bowman's shotgun, which the group intended to use to threaten the burglars. When an individual left the house carrying a television, Dixon recognized him as Michael Cunningham. Dixon spoke with Cunningham, who agreed to allow the Dixon-Lytle group to enter the house and steal what remained of the property. When Smith and Bowman returned in the car, Dixon explained that they now had "permission" to enter the house, and the four entered with Cunningham.

Lytle stood guard at the front door while Smith, Bowman, and Dixon searched the house for property worthy of theft. Smith ran to the kitchen, saying "oh, oh, a microwave!" and Bowman to an empty front bedroom. Shortly thereafter, Smith and Bowman left the house together, Smith carrying a microwave and Bowman carrying a television. From this point, Lytle's accounts of the incident vary.

According to Lytle's testimony at trial, after Smith and Bowman departed Lytle ran to the back of the house to find Dixon. On the way, Lytle saw a body lying in a doorway and asked Cunningham, "What did you do to this guy?" Cunningham responded, "Don't worry about it. We took care of it." Lytle then "started hollering about 'We got to go now because he did something to this guy,'" to Dixon, who grabbed a television and then fled the scene with Lytle, joining Smith and Bowman and driving away from the premises. This version of the events is consistent with a statement Lytle made to police on November 30, 1983.

On December 2, 1983, however, Lytle told police a different version of the events, one which he later recanted. Lytle stated that his group was inside the house before the Chamberses were murdered. He said that he heard the Chamberses talking to one of the burglars and that a scuffle ensued. He heard Mr. Chambers say "no, no, no" and then heard "sounds of pain." Lytle said that he went to see what was happening and observed Bowman, who had returned to the house, kneeling over Mr. Chambers and stabbing him with a pocket knife. He said that Bowman had blood "all over his jacket." Cunningham and another adult, identified as Rodney Cayson, were also in the back bedroom.

At Smith's trial, the State used Lytle's December 2, 1983, statement to impeach his in-court testimony and as substantive evidence of Smith's guilt by relying upon section 491.074 of the Missouri Revised Statutes, which was enacted after the Chamberses had been killed and which authorizes the use of prior inconsistent statements as substantive evidence. See State v. Bowman, 741 S.W.2d 10, 12-13 (Mo. 1987) (en banc). The State accordingly argued that Bowman was the killer and that Smith was therefore guilty of felony murder, armed criminal action, and robbery because the murder occurred while he was in the house committing the burglary.² The jury agreed and convicted Smith of two counts of first-degree felony murder, two counts of armed criminal action, one count of first-degree robbery, and one count of second-degree burglary. The court sentenced Smith to five life sentences, four to run concurrently, one consecutively. The jury's recommendation of a seven-year sentence for the burglary offense was not imposed because the court found that it would constitute double jeopardy to sentence Smith on that conviction.

In April of 1987, after Smith's trial and conviction, the State indicted Cunningham for the murders. At Cunningham's trial, the State relied on testimony from Lytle, consistent with his November 30, 1983, statement and his testimony at Smith's trial, that the Chamberses were already dead when he and his companions arrived. The December 2, 1983, statement was mentioned but not admitted. The jury convicted Cunningham of two counts of first-degree murder, two counts of armed criminal action, one count of first-degree robbery, and one count of second-degree burglary. His convictions were affirmed in State v. Cunningham, 763 S.W.2d 186 (Mo. Ct. App. 1988).

Smith's appeal from his conviction included a claim challenging the sufficiency of the evidence based on Lytle's recanted statement. The Missouri Court of Appeals affirmed Smith's convictions and sentence in an unpublished opinion on May 3, 1988. An application to transfer to the Missouri Supreme Court was denied on September 13, 1988. Smith filed a federal habeas petition in June 1991, again including a claim about the insufficiency of the evidence based on Lytle's statement. The federal district court denied both the petition and Smith's application for a certificate of probable cause. It denied the sufficiency of the evidence claim on the merits. On January 29, 1993, we remanded the case for further proceedings based on a claim of newly discovered evidence. On August 4, 1995, the district court again denied the petition, and on November 16, 1998, we granted Smith a certificate of appealability on his claim of insufficient evidence regarding the following question: "Does the fact that the State secured Appellant's murder conviction on the basis of testimony from Anthony Lytle that was inconsistent with, if not diametrically opposed to, the testimony that Lytle subsequently gave at Michael Cunningham's trial . . . render Appellant's murder conviction void for want of due process?"

We answer the question in the affirmative.

II.

Because Smith's petition for habeas corpus was filed before the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (April 24, 1996) (AEDPA), we apply the pre-AEDPA standard of review to his claim. See Lindh v. Murphy, 521 U.S. 320, 336-37 (1997); Pruett v. Norris, 153 F.3d 579, 584 n.6 (8th Cir. 1998). Federal habeas review of an alleged due process violation stemming from a state court conviction is narrow. See Darden v. Wainwright, 477 U.S. 168, 181-83 (1986); Anderson v. Goeke, 44 F.3d 675, 679 (8th Cir. 1995). To obtain habeas relief on a due process claim, the petitioner must show that the impropriety was so egregious that it "fatally infected the proceedings and rendered [the] entire trial fundamentally unfair." Young v. Bowersox, 161 F.3d 1159, 1161 (8th Cir. 1998) (quoting Moore v. Wyrick, 760 F.2d 884, 886 (8th Cir.1985)). Under this standard, the petitioner must demonstrate a "reasonable probability that the error complained of affected the outcome of the trial," meaning that the verdict probably would have been different absent the alleged impropriety. Hamilton v. Nix, 809 F.2d 463, 470 (8th Cir. 1987) (en banc).

III.

A.

The question before us is whether the Due Process Clause forbids a state from using inconsistent, irreconcilable theories to secure convictions against two or more defendants in prosecutions for the same offenses arising out of the same event.

We begin with the government's fundamental interest in criminal prosecution: "not that it shall win a case, but that justice shall be done." Berger v. United States, 295 U.S. 78, 88 (1935); see United States v. Agurs, 427 U.S. 97, 111 (1976). Although the prosecutor must prosecute with earnestness and vigor and "may strike hard blows, he is not at liberty to strike foul ones." See id. The government's role therefore is unique in the justice system, and with it come certain mandates as well as privileges. Consistent with this "quasi-judicial" role, see, e.g., State v. Ross, 829 S.W.2d 948, 951 (Mo. 1992) (en banc), the Due Process Clause requires conduct of a prosecutor that it does not require of other participants in the criminal justice system, such as the duty to "disclose evidence favorable to the accused that,...