Stallone v. Wallace

• Decision Date: 27 October 2016
• Docket Number: Case No. 4:15CV1889 JCH
• Parties: VIRGIL A. STALLONE, Petitioner, v. IAN WALLACE, Respondent.
• Court: U.S. District Court — Eastern District of Missouri

VIRGIL A. STALLONE, Petitioner, v. IAN WALLACE, Respondent.

Case No. 4:15CV1889 JCH

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

October 27, 2016

MEMORANDUM AND ORDER

This matter is before the Court on Missouri State prisoner Virgil A. Stallone's pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter is fully briefed and ready for disposition.

On June 9, 2011, a jury in the Circuit Court of St. Louis County, Missouri, found Petitioner guilty of two counts of first-degree statutory sodomy, two counts of first-degree child molestation, two counts of first-degree sexual misconduct, and one count of second-degree child molestation. On July 15, 2011, Petitioner was sentenced to two terms of twenty five years' imprisonment, two terms of fifteen years' imprisonment, and three terms of one year imprisonment, with all terms to run concurrently. The Missouri Court of Appeals affirmed the convictions and sentence. State v. Stallone, 376 S.W.3d 705 (Mo. App. 2012). Petitioner thereafter filed a motion for post-conviction relief pursuant to Missouri Supreme Court Rule 29.15, which was denied after an evidentiary hearing. The Missouri Court of Appeals affirmed the denial of post-conviction relief. Stallone v. State, 464 S.W.3d 279 (Mo. App. 2015).

Petitioner is currently incarcerated at the Southeast Correctional Center in Charleston, Missouri. As the Court construes the instant petition for writ of habeas corpus, Petitioner raises the following twenty-five claims for relief:

(1) That Petitioner received ineffective assistance of counsel, in that trial counsel failed to interview or present witnesses;

(2) That Petitioner received ineffective assistance of counsel, in that trial counsel failed to oppose the State's joinder of charges;

(3) That Petitioner received ineffective assistance of counsel, in that trial counsel failed to object to the use of the girls' testimony, signed statements and videos;

(4) That Petitioner received ineffective assistance of counsel, in that trial counsel failed to secure documents and material from Petitioner's prior counsel;

(5) That Petitioner received ineffective assistance of counsel, in that trial counsel failed to allow Petitioner input during jury selection;

(6) That Petitioner received ineffective assistance of counsel, in that trial counsel failed to impeach the State's witnesses with conflicting statements they made to the police, to the CAC representative, during the preliminary hearing, or during the trial itself;

(7) That Petitioner received ineffective assistance of counsel, in that trial counsel failed to object to the State's use of hearsay, leading questions, and perjured testimony;

(8) That Petitioner received ineffective assistance of counsel, in that trial counsel attempted to prohibit Petitioner from testifying at trial;

(9) That Petitioner received ineffective assistance of counsel, in that trial counsel failed to present college records demonstrating Petitioner did not meet his wife until 1996;

(10) That Petitioner received ineffective assistance of counsel, in that trial counsel operated under a conflict of interest and encouraged Petitioner to plead guilty;

(11) That Petitioner received ineffective assistance of counsel, in that trial counsel failed to investigate the propensity of the State's witnesses to lie;

(12) That Petitioner received ineffective assistance of counsel, in that trial counsel failed to talk to Petitioner's previous employers regarding hischaracter around children;

(13) That Petitioner received ineffective assistance of counsel, in that trial counsel failed to obtain the victims' school records, or have them evaluated by an "independent psychological agency", to show they never exhibited symptoms of sexual abuse;

(14) That Petitioner received ineffective assistance of counsel, in that trial counsel failed to obtain an interpreter to allow trial counsel to speak with Petitioner's witnesses;

(15) That Petitioner received ineffective assistance of counsel, in that trial counsel failed to aid Petitioner when he complained he could not hear everything that transpired during his trial due to a hearing impairment;

(16) That Petitioner received ineffective assistance of counsel, in that trial counsel failed to assert at trial that Petitioner was coerced into writing a statement for the police;

(17) That Petitioner received ineffective assistance of counsel, in that trial counsel failed to present to the jury evidence that there was over an hour missing from the taped interrogation;

(18) That Petitioner received ineffective assistance of counsel, in that appellate counsel failed to raise the joinder issue on direct appeal;

(19) That Petitioner received ineffective assistance of counsel, in that appellate counsel failed to raise on direct appeal the fact that victim N.B. testified Petitioner did nothing to her;

(20) That the trial court erred in allowing the joinder of charges;

(21) That the trial court erred in admitting the girls' testimony and statements;

(22) That the trial court erred in admitting Petitioner's taped and signed statements;

(23) That Petitioner was denied due process of law, as his jury did not represent a fair cross-section of the St. Louis County community;

(24) That Petitioner was denied due process of law, as he was denied his right to confront and cross-examine witnesses when the prosecutor introduced hearsay testimony; and

(25) That Petitioner was denied due process of law, as the indictment was insufficient.

The Court will address the claims in turn.

DISCUSSION

I. Claims Addressed on the Merits

A. Ground 21

As stated above, in Ground 21 of his petition Petitioner asserts that the trial court erred in admitting the girls' testimony and statements. Petitioner raised this claim on direct appeal of his conviction. The Missouri Court of Appeals first described the factual and procedural background of Petitioner's case as follows:

M.B. is Defendant's¹ stepdaughter. J.B. and N.B. are M.B.'s children and Defendant's granddaughters, who were eight and seven at the time of trial. V.R. is Defendant's sister-in-law. The sexual offenses at issue occurred between 1995-1998, 2000-2001, and 2008-2009.

On March 1, 2009, V.R. was going to a birthday party for Defendant's grandson. Defendant came alone to pick up V.R. from her house. While in her house, Defendant touched V.R.'s breasts and told her that he loved her. V.R. put Defendant's hands down at his side, pushed him back, and said, "You are my sister's husband." The following day, March 2, 2009, V.R. told her sister what had happened. V.R. called the police and reported Defendant. Shortly thereafter, Defendant was charged with sexual misconduct, read his Mirandarights, and transported to the police station.

At the police station, Defendant signed a waiver of his Miranda rights and admitted to touching V.R.'s breasts. He also admitted that he had fondled M.B. a few years earlier. Defendant wrote a statement admitting that he had touched V.R.'s breasts. Police attempted unsuccessfully to contact M.B. to investigate the incident. In August 2009, M.B. finally spoke with police and revealed that she was sexually abused when she was growing up. M.B. was uncertain whether she wanted to prosecute.

On November 5, 2009, M.B. called police and reported that J.B. and N.B. had stated that Defendant had touched them inappropriately. M.B. came to the station the next day and told police what the victims had reported. On November 18, 2008 (sic), Beverly Tucker (Tucker) from the Child Advocacy Center (CAC) interviewed J.B. and N.B. On November 19, 2009, police interviewed Defendantconcerning the reported incidents.

On September 3, 2010, Defendant was charged by information in lieu of indictment with three counts of first-degree statutory sodomy (Counts I-III), two counts of first-degree sexual molestation (Counts IV-V), three counts of first-degree sexual misconduct (Counts VI-VIII), and one count of second-degree child molestation (Count IX) against four separate victims: M.B., V.R., J.B., and N.B. The trial court entered an order of nolle prosequi as to Count II and ordered that the remaining counts be renumbered accordingly. Following the close of all evidence, instructions, and argument by counsel, the jury found Defendant guilty on all counts, except Count VII. Defendant was sentenced to a total of twenty-five years' imprisonment.

(Resp. Exh. E, PP. 2-3). The Missouri Court of Appeals went on to deny Petitioner's claim as follows:

In his first point, Defendant argues the trial court erred in admitting J.B.'s and N.B.'s out-of-court statements into evidence because the statements did not provide sufficient indicia of reliability with respect to the time, content, and circumstances of the statements and were therefore inadmissible as substantive evidence under Section 491.075. Specifically, Defendant challenges the admission of the testimony of M.B., Defendant's stepdaughter, and Tucker, an interviewer with the CAC, as to the victims' statements concerning the alleged offenses as well as the admission of State's Exhibit 4, the videotape of J.B.'s forensic interview. We disagree.

Review of the trial court's decision to admit a child's statements under Section 491.075 is for an abuse of discretion. State v. Sanders, 126 S.W.3d 5, 13 (Mo. App. W.D. 2003). Pursuant to Section 491.075:

1. A statement made by a child under the age of fourteen relating to an offense under chapter 565, 566 or 568, RSMo, performed with or on a child by another, not otherwise admissible by statute or court rule, is admissible in evidence in criminal proceedings in the courts of this state as substantive evidence to prove the truth of the matter asserted if:

(1) The court finds, in a hearing conducted outside the presence of the jury that the time, content and circumstances of the statement provide sufficient indicia of reliability; and

(2) (a) The child testifies at the proceedings;

Section 491.075.1. Missouri

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